M SIDDIQ (D) THR LRSversusV. MAHANT SURESH DAS & ORS

                         [2019] 18 S.C.R. 1                               1


                       M SIDDIQ (D) THR LRS                               A
                                    V.
                  MAHANT SURESH DAS & ORS
                (Civil Appeal Nos. 10866-10867 of 2010)
                         NOVEMBER 09, 2019
                                                                          B
              [RANJAN GOGOI, CJI, S. A. BOBDE,
             DR. DHANANJAYA Y CHANDRACHUD,
       ASHOK BHUSHAN AND S. ABDUL NAZEER, JJ.]
       Religion / Religious Structure – Ayodhya Matter – Ram
Janmabhumi – Babri Masjid dispute – Five suits instituted between
1950 and 1989, centering around dispute of ownership between              C
Hindu community and Muslim community over piece of land
admeasuring 1500 square yards in the town of Ayodhya – Hindu
community claimed the disputed site to be the birth-place of Lord
Ram, referring it as Ram Janmabhumi or Ram Janmasthan and
asserting that there existed at the disputed site an ancient temple       D
dedicated to Lord Ram, which was demolished by Mughal Emperor
Babur – Muslim community however claimed it as the site of the
Babri Masjid (mosque) built by or at the behest of Babur on vacant
land – Suit 1 was filed by a worshipper for enforcement of his right
to worship Lord Ram at the Janmabhumi – Suit 2 seeking reliefs
similar to those in Suit 1 was however subsequently withdrawn –           E
Suit 3 filed by Nirmohi Akhara (representing a religious sect amongst
Hindus) was for handing over the management and charge of the
Janmabhumi temple to it – Suit 4 filed by Sunni Central Waqf Board
was for a declaration that the entirety of the disputed site, including
Babri Masjid and the surrounding graveyard, is a public mosque            F
and for a decree for possession – Suit 5 was filed by the deity of
Lord Ram and the Janmasthan (both of whom were asserted to be
juridical persons) through a next friend impleaded as a third plaintiff
for a declaration that the entire premises constitute Ram Janmabhumi
and for an injunction against interference in construction of new
temple after demolition of the existing building – All the suits were     G
transferred by the High Court to itself – In a split 2:1 verdict, the
High Court held that the Hindu and Muslim parties were joint holders
of the disputed premises – Each of them was held entitled to one
third of the disputed property – Nirmohi Akhara was granted the
remaining one third – A preliminary decree to that effect was passed      H
                                    1
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A   in the suit brought by the idol and the birth-place of Lord Ram
    through the next friend – On appeal, held: Disputed site was one
    composite whole – On balance of probabilities, clear evidence to
    indicate that worship by Hindus in the outer courtyard of the premises
    continued unimpeded in spite of the setting up of a grill-brick wall
    in 1857 by British colonial administration – Hindus established a
B
    clear case of a possessory title to the outside courtyard by virtue of
    long, continued and unimpeded worship at the Ramchabutra and
    other objects of religious significance – As regards the inner
    courtyard, evidence on preponderance of probabilities to establish
    worship by the Hindus prior to annexation of Oudh by the British
C   in 1857 – Muslims offered no evidence to indicate that they were in
    exclusive possession of the inner structure prior to 1857 – Sunni
    Central Waqf Board did not establish its case of dedication by user
    or alternate plea of adverse possession – Existence of the structure
    of a mosque until 6 December 1992 however does not admit any
    contestation – Submission that the mosque did not accord with
D
    Islamic tenets, also not tenable – Muslims have been wrongly
    deprived of a mosque which had been constructed well over 450
    years ago – While a decree must ensue in Suit 5, Suit 4 (instituted
    by Sunni Central Waqf Board) must also be partly decreed by
    allotment of alternate land to the Muslims for construction of a
E   mosque and associated activities – Allotment of land to the Muslims
    is necessary because though on a balance of probabilities, evidence
    in respect of possessory claim of the Hindus to the composite whole
    of the disputed property stands on a better footing than the evidence
    adduced by the Muslims, the Muslims were dispossessed upon the
    desecration of the mosque in December 1949 which was ultimately
F
    destroyed on 6 December 1992 – Justice would not prevail if the
    Court were to overlook the entitlement of the Muslims – Direction
    issued that land admeasuring 5 acres be allotted to Sunni Central
    Waqf Board either by the Central Government out of the acquired
    land or by Government of Uttar Pradesh within the city of Ayodhya
G   – This exercise, and the consequent handing over of the land to the
    Sunni Central Waqf Board, to be conducted simultaneously with
    the handing over of the disputed site comprising of the inner and
    outer courtyards as a consequence of the decree in Suit 5 – Suit 4
    shall stand decreed in the above terms – Central Government to
    frame scheme in exercise of powers conferred upon it by ss.6 and 7
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           3


(of the Acquisition of Certain Area at Ayodhya Act 1993) to set up a        A
trust or any other appropriate mechanism to whom the land would
be handed over in terms of the decree in Suit 5 – Suit 3 filed by
Nirmohi Akhara barred by limitation and Nirmohi Akhara’s claim
to be a shebait stands rejected – However, having regard to the
historical presence of Nirmohi Akhara at the disputed site and their
                                                                            B
role, direction issued that in framing the scheme, an appropriate
role in the management would be assigned to the Nirmohi Akhara –
Right of the plaintiff in Suit 1 to worship at the disputed property
affirmed subject to restrictions by relevant authorities with respect
to maintenance of peace and order and performance of orderly
worship – Acquisition of Certain Area at Ayodhya Act 1993 – ss.6            C
and 7 – Constitution of India, 1950 – Art. 142.
       Partition – Ayodhya Matter – Ram Janmabhumi – Babri Masjid
dispute – High Court held that the Hindu and Muslim parties were
joint holders of the disputed premises – Each of them was held
entitled to one third of the disputed property – Nirmohi Akhara was         D
granted the remaining one third – A preliminary decree to that effect
was passed in the suit brought by the idol and the birth-place of
Lord Ram through the next friend – Decree for partition by High
Court – Legality – Held: Three-way bifurcation by the High Court
was legally unsustainable – High Court was not seized of a suit for
partition – High Court adopted a path which was not open to it and          E
granted reliefs which were not the subject matter of the prayers in
the suits – In the process of doing so, it proceeded to assume the
jurisdiction of a civil court in a suit for partition, which the suits
before it were not – Order VII Rule 7 of CPC does not entitle the
court in a civil trial to embark upon the exercise of recasting virtually   F
the frame of a suit, which was undertaken by the High Court –
There was no basis in the pleadings before the High Court and
certainly no warrant in the reliefs which were claimed to direct a
division of the land in the manner that a court would do in a suit for
partition – High Court completely erred in granting relief which lay
outside the ambit of the pleadings and the cases set up by the              G
plaintiffs in Suit 3 (filed by Nirmohi Akhara), Suit 4 (filed by Sunni
Central Waqf Board) and Suit 5 (brought by the idol and the birth-
place of Lord Ram through the next friend) – Further, having come
to the conclusion that Suit 3 and Suit 4 were barred by limitation,
the High Court proceeded to grant relief in Suit 5 to the plaintiffs in     H
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A   Suits 3 and 4 – This defies logic and is contrary to settled principles
    of law – Moreover, the claim by Nirmohi Akhara was as a shebait
    who claimed a decree for management and charge – On its own
    case, Nirmohi Akhara could not have been granted an independent
    share of the land – Even as a matter of maintaining public peace
    and tranquillity, the solution which commended itself to the High
B
    Court is not feasible – The disputed site admeasures all of 1500
    square yards – Dividing the land will not subserve the interest of
    either of the parties or secure a lasting sense of peace and tranquillity
    – CPC – Or.VII, r.7.
          Places of Worship (Special Provisions) Act 1991 – Object
C   and Purpose – Held: The Act prohibits the conversion of place of
    worship and imposes a positive obligation to maintain the religious
    character of every place of worship as it existed on 15 August 1947
    – The Places of Worship Act was enacted to secure the fundamental
    values of the Constitution – Tolerance, respect and acceptance of
D   the equality of all religious faiths is a precept of fraternity –
    Parliament determined that independence from colonial rule
    furnishes a constitutional basis for healing the injustices of the
    past.
            Limitation – Ayodhya Matter – Ram Janmabhumi - Babri
E   Masjid dispute – Suit filed by Nirmohi Akhara (representing a
    religious sect amongst Hindus) for handing over the management
    and charge of the Janmabhumi temple to it – Maintainability of the
    suit – Held: The City Magistrate had attached the disputed property
    by order dated 29th December, 1949 u/s.145 CrPC, 1898 – The suit
    was filed for restoration of management and charge so as to enable
F   the Nirmohi Akhara to have the benefit of the usufruct in discharge
    of its obligations towards the deity – It was not a suit for possession
    – Hence, neither Art.142 nor Art.144 of Limitation Act, 1908 has
    any application – The suit was governed by provisions of the
    residuary article, Art.120 – Period of limitation u/Art.120 is six years
G   – Nirmohi Akhara claimed that the cause of action arose on 5 th
    January, 1950 when the receiver appointed by the Magistrate took
    charge of the property and they were denied charge and management
    of the temple – Since the suit was instituted on 17th December, 1959
    (i.e. after more than nine years) it was outside the prescribed period
    of limitation and was thus barred – Alternate submission on behalf
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  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         5


of Nirmohi Akhara by virtue of s.23 of the Limitation Act, 1908 that      A
denial or obstruction of its’ shebait rights of management and charge
was a continuing wrong, also not tenable – Limitation Act, 1908 –
Art. 120 – CrPC,1898 – s.145.
       Limitation – Ayodhya Matter – Ram Janmabhumi – Babri
Masjid dispute – Maintainability of suit – Suit filed by Sunni Central    B
Waqf Board for declaration that entirety of the disputed site,
including Babri Masjid and the surrounding graveyard, is a public
mosque and for a decree for possession – Whether suit barred by
limitation – Held: The grievance of the plaintiffs was that they were
in possession and had offered prayers till 23rd December, 1949 on
which date it was alleged that the mosque was desecrated – By             C
pleading specifically that the plaintiffs were in possession and had
offered prayers until a particular date, the sequitur is that after
that date, the plaintiffs ceased to be in possession – The suit in the
circumstances was a suit for possession of immoveable property
falling in the description provided by the first column of Art.142 of     D
the Limitation Act, 1908; and having been instituted on 18 th
December, 1949, i.e. within a period of twelve years of the date of
alleged dispossession on 23 rd December, 1949, it was within
limitation – Even if the plaintiffs were not in exclusive or settled
possession of the inner courtyard of the disputed site, the suit would
fall within the residuary Art. 144 in which event also, the suit would    E
be within limitation – Limitation Act, 1908 – Arts. 142 and 144.
       Limitation – Ayodhya Matter – Ram Janmabhumi – Babri
Masjid dispute – Maintainability of the suit – Suit filed by deity of
Lord Ram and Janmasthan (both of whom were asserted to be
juridical persons) through a next friend impleaded as a third plaintiff   F
for declaration that the entire premises constitute Ram Janmabhumi
and for injunction against interference in construction of new temple
after demolition of the existing building – Whether suit barred by
limitation – Held: In three earlier suits centering around the dispute,
neither of the plaintiffs in the instant suit were impleaded – Case of    G
plaintiffs that institution of the instant suit was necessitated as a
result of the deity not being a party to the earlier suits, and on the
apprehension that in those suits, personal interests of the leading
parties were being pursued without protecting the independent needs
and concerns of the deity of Lord Ram, is well and truly borne out
                                                                          H
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A   by the proceedings – Cause of action in the instant suit cannot be
    considered to be barred by limitation on proper construction of the
    basis of cause of action for institution of the suit – Suit at the behest
    of the first plaintiff (deity of Lord Ram) who is a juristic person, is
    within limitation and maintainable – The third plaintiff (next friend)
    is entitled to represent the first plaintiff.
B
          Limitation Act, 1908 – Art. 142 – Requirements to bring a suit
    within purview of Art.142 – The suit must be for possession of
    immoveable property; the plaintiff must establish having been in
    possession of the property; and the plaintiff should have been
    dispossessed or must have discontinued possession while in
C   possession of the property – For Art.142 to apply, these requirements
    must cumulatively be established.
           Ayodhya Matter – Ram Janmabhumi – Babri Masjid dispute
    – Suit filed by a worshipper for enforcement of his right to worship
    Lord Ram at the Janmabhumi – Maintainability of the suit, on death
D   of the original plaintiff – Held: The pleadings indicate that the right
    asserted was not a private right, but a right in common with and for
    the benefit of other Hindu devotees to pray at the disputed property
    – The right claimed was that of the “Hindu public” to worship at
    the disputed property without undue interference – The right asserted
E   on behalf of the larger “Hindu public” does not stand extinguished
    upon the death of the original plaintiff and can be pursued by his
    son who is also a worshipper.
          Doctrines / Principles – Doctrine of res judicata – Estoppel –
    Ayodhya Matter – Ram Janmabhumi – Babri Masjid dispute – An
F   earlier suit filed in 1885 by one Mahant Raghubhar Das for
    permission to construct a temple on the Chabutra, had been dismissed
    – Whether the decision operated as res judicata and brought about
    a bar on filing of subsequent suits centering on the dispute, which
    gave rise to the appeals in question – Held: No merit in the
    contention – The parties were distinct – Claim in the earlier suit
G   was distinct – Basis of the claim was not which formed the subject
    matter of subsequent suits – Similarly, no merit in submission based
    on doctrine of issue estoppel or estoppel by record.
         Religion / Religious structure – Ayodhya Matter – Ram
    Janmabhumi – Babri Masjid dispute – Idol of Lord Ram – Deity –
H   Shebaitship – Claim of Nirmohi Akhara as shebaits – Tenability –
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         7


Held: A claim of rights as a de facto shebait must be substantiated       A
with proof that person is in exclusive possession of the trust property
and exercises complete control over the right of management of the
properties without any let or hindrance from any quarters
whatsoever – Though it cannot and has not been denied in the
present proceedings that Nirmohi Akhara existed at the disputed
                                                                          B
site, the claim of Nirmohi Akhara, taken at the highest is that of an
intermittent exercise of certain management rights – Their rights
were peripheral, usually involving the assistance of pilgrims, and
were constantly contested – A stray or intermittent exercise of
management rights does not confer upon a claimant the position in
law of a de facto shebait – It cannot be said that the acts of Nirmohi    C
Akhara satisfy the legal standard of management and charge that
is exclusive, uninterrupted and continuous over a sufficient period
of time – Despite their undisputed presence at the disputed site,
Nirmohi Akhara is not a shebait for the idols of Lord Ram at the
disputed site.
                                                                          D
      Religion / Religious structure – Ayodhya Matter – Ram
Janmabhumi – Babri Masjid dispute – Idol of Lord Ram – Deity –
Shebait – Absence of lawfully recognised shebait – Effect – Held:
In such a case, it is open for an interested worshipper to sue on
behalf of the deity.
                                                                          E
      Religion / Religious structure – Hindu temple – Idol – Deity –
Shebait – Distinction between shebait and pujari – Held: A shebait
is vested with the authority to manage the properties of the deity
and ensure the fulfilment of the purpose for which the property was
dedicated – As a necessary adjunct of this managerial role, a shebait
may hire pujaris for the performance of worship – This does not           F
confer upon the appointed pujaris the status of a shebait – As
appointees of the shebait, they are liable to be removed from office
and cannot claim a right to continue in office.
      Religion / Religious structure – Hindu temple – Debutter
property – Shebait – de facto shebait and de jure shebait – Held:         G
Where a person claims to be a shebait despite lack of a legal title,
relevant enquiry before the Court is whether the person was in actual
possession of the debutter property and was exercising all rights of
a shebait – Paramount interest in protection of the debutter property
underlines the recognition of a de facto shebait.                         H
8            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A          Religion / Religious structure – Hindu temple – Debutter
    property to Idol – Title – Independent claim of shebait – If tenable
    – Held: Though the shebait may have an interest in the usufruct of
    the debutter property, the de facto shebait is not vested with an
    independent right of title over the debutter property – Where a de
    facto shebait raises an independent claim to the debutter property
B
    to the idol, it assumes the position of a trespasser and no action at
    its behest is maintainable.
           Religion / Religious structure – Hindu temple – Idol – Deity –
    Shebait acting adverse to interests of the deity – Suit by worshipper
    – Held: Where a shebait acts adverse to the interests of the deity, a
C   worshipper can, as next friend of the deity, sue on behalf of the
    deity itself, provided that if the next friend’s bona fides are contested,
    the court must scrutinise the intentions and capabilities of the next
    friend to adequately represent the deity – The court may do so of its
    own accord, ex debito justitae.
D          Religion / Religious structure – Deity – Juristic personality –
    Ayodhya matter – Ram Janmabhumi – Babri Masjid dispute – Hindu
    idol – Juristic personality of the deity of Lord Ram (“Bhagwan Shri
    Ram Virajman”) – Held: For devotees of Lord Ram, the deity is
    embodiment of Lord Ram and constitutes the resident deity of Ram
E   Janmabhumi – Oral and documentary evidence shows that Hindu
    devotees of Lord Ram hold a genuine, long standing and profound
    belief in the religious merit attained by offering prayer to Lord Ram
    at the site they believe to be his birth-place – Travel logs in the
    eighteenth century and early nineteenth century record prevalence
    of Hindu worship at the disputed site – Factum of Hindu belief in
F   the sanctity of the disputed site established by evidence – The deity
    has been the object of worship for several hundred years and the
    underlying purpose of continued worship is apparent even absent
    any express dedication or trust – Existence of the idol is merely a
    question of form, or corpus, and legal personality of the deity
G   “Bhagwan Sri Ram Virajman” is not dependent on the continued
    existence of the idol – Jurisprudence – Juristic Personality.
           Religion / Religious structure – Birth-place of deity – Juristic
    personality – Ayodhya matter – Ram Janmabhumi – Babri Masjid
    dispute – Birth-place of Lord Ram ‘Asthan Sri Ram Janam Bhumi’ –
H   Juristic personality – Held: Recognition of ‘Asthan Sri Ram Janam
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         9


Bhumi’ as a juristic person would result in the extinguishment of all     A
competing proprietary claims to the land in question – This conferral
of ‘absolute title’ (resulting from the conferral of legal personality
on land) would in truth render the very concept of title meaningless
– Moreover, the extinguishing of competing claims would arise not
by virtue of settled legal principles, but purely on the basis of the
                                                                          B
faith and belief of the devotees – This cannot be countenanced in
law – Jurisprudence – Juristic Personality.
      Evidence – Title to land – Ayodhya matter – Ram Janmabhumi
– Babri Masjid dispute – Report of Archaeological Survey of India
(ASI) – Evidentiary value – Held: Title to the land must be decided
on settled legal principles and applying evidentiary standards which      C
govern a civil trial – A finding of title cannot be based in law on the
archaeological findings arrived at by ASI – On facts, conclusion in
the ASI report about remains of an underlying structure of Hindu
religious origin, symbolic of temple architecture of the twelfth
century A.D., must be read contextually with caveats.                     D
       Evidence – Historical records – Travelogues – Gazetteers –
Ayodhya matter – Ram Janmabhumi – Babri Masjid dispute – Rival
claims to possessory title – Historical records of travellers –
Relevance of – Held: Accounts of the travellers must be read with
circumspection – Their personal observations must carefully be            E
sifted from hearsay – matters of legend and lore – Consulting their
accounts on matters of public history is distinct from evidence on a
matter of title – Contents of gazetteers can at best provide
corroborative material to evidence which emerges from the record
– The court must be circumspect in drawing negative inferences
from what a traveller may not have seen or observed – Title cannot        F
be established on the basis of faith and belief.
       Religion / Religious structure – Ayodhya Matter – Ram
Janmabhumi - Babri Masjid dispute – Birth-place of Lord Ram –
Faith and belief of Hindu devotees – Whether the disputed structure
is birth-place of Lord Ram according to the faith and belief of the       G
Hindu devotees – Held (per addenda): Faith and belief of Hindus
since prior to construction of Mosque and subsequent thereto has
always been that Janmasthan of Lord Ram is the place where Babri
Mosque has been constructed which faith and belief is proved by
documentary and oral evidence.                                            H
10            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          Acts of State – Change in sovereignty – Effect – Held:
     Municipal courts of the new sovereign will not enforce the legal
     rights of parties existing under the former sovereign absent an
     express or implied recognition by the new sovereign of such legal
     rights – Municipal courts of the new sovereign can embark upon
     an inquiry as to whether the new sovereign has expressly or impliedly
B
     recognised the rights and liabilities existing under a former regime
     – However, burden to establish the existence and recognition of
     such rights and liabilities remains on the party claiming them.
            Law and Justice – Historical rights and wrongs – Role of
     Court – Held: Courts of today cannot take cognisance of historical
C    rights and wrongs unless it is shown that their legal consequences
     are enforceable in the present – The law cannot be used as a device
     to reach back in time and provide a legal remedy to every person
     who disagrees with the course which history has taken.
           Evidence – Civil Trial – Proof – Preponderance of
D    probabilities – Held: Court in civil trials apply standard of proof
     governed by preponderance of probabilities – Proof of a fact
     depends upon probability of its existence – Findings of the court
     must be based on: (i) test of a prudent person, who acts under the
     supposition that a fact exists; and (ii) in the context and circumstances
E    of a particular case.
            Religion / Religious structure – Place of worship – Title or
     ownership of composite place of worship – Held: In absence of
     historical records with respect to ownership or title, the court has to
     determine the nature and use of the disputed premises as a whole
F    by either of the parties – In determining the nature of use, the court
     has to factor in the length and extent of use.
            Religion / Religious structure – Mosque – Characteristics of
     mosque in Islamic law – Judicial review – Held: It would be
     inappropriate for Supreme Court to enter upon an area of theology
G    and to assume the role of an interpreter of the “Hadees” – True test
     is whether those who believe and worship have faith in religious
     efficacy of the place where they pray – Courts must steer clear from
     choosing one among the possible interpretations of theological
     doctrine and must accept the faith and belief of the worshipper –
     Any attempt to lead the court to interpret religious doctrine in an
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  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        11


absolute and extreme form and question the faith of worshippers          A
must be firmly rejected – Nothing would be as destructive of the
values underlying Art.25 of the Constitution – Constitution of India,
1950 – Art.25.
      Jurisprudence – Juristic personality – Conferral of – Effect
– Held: It does not automatically grant an ensemble of legal rights      B
– The contours of juristic personality i.e. the rights and liabilities
that attach upon the object conferred with juristic personality, must
be determined keeping in mind the specific reasons for which such
legal personality was conferred.
       Jurisprudence – Juristic Personality – Idols – Hindu idol and     C
divinity – Contours of legal personality ascribed to a Hindu idol –
Held: Conferral of legal personality on a Hindu idol is not conferral
of legal personality on divinity itself, which in Hinduism is often
understood as the ‘Supreme Being’ – The Supreme Being has no
physical presence for it is understood to be omnipresent – the very
ground of being itself.                                                  D

       Jurisprudence – Juristic Personality – Idols – Legal
characteristics of Hindu idols and the properties associated with
them – Held: To provide courts with a conceptual framework within
which they could analyse and practically adjudicate upon disputes
involving competing claims over endowed properties, courts               E
recognised the legal personality of the Hindu idol – It was a legal
innovation necessitated by historical circumstances, the gap in the
existing law and by considerations of convenience – It had the added
advantage of conferring legal personality on an object that within
Hinduism had long been subject to personification – Legal                F
personality of the idol, and the rights of the idol over the property
endowed and the offerings of devotees, are guarded by the law to
protect the endowment against maladministration by the human
agencies entrusted with the day to day management of the idol.
      Constitution of India, 1950 – Art. 142 – Scope under – Held:       G
Supreme Court in exercise of its powers u/Art.142 must ensure that
a wrong committed must be remedied – This power is not limitless –
Power u/Art.142 authorises the court to pass orders to secure
complete justice in the case before it – Art.142 embodies both the
notion of justice, equity and good conscience as well as a
supplementary power to the court to effect complete justice.             H
12            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A          Constitution of India, 1950 – Art. 372 – Change of legal
     regime between British sovereign and the Republic of India – Line
     of continuity – Art. 372 embodies the legal continuity between the
     British sovereign and independent India.
           Constitution of India, 1950 – Equality – Rule of law – Held:
B    Under the Constitution, citizens of all faiths, beliefs and creeds
     seeking divine provenance are both subject to the law and equal
     before the law – The Constitution does not make a distinction
     between the faith and belief of one religion and another – All forms
     of belief, worship and prayer are equal.
C          Constitution of India, 1950 – Equality and Secularism – Held:
     The Constitution postulates the equality of all faiths – Tolerance
     and mutual co-existence nourish the secular commitment of our
     nation and its people.
            CrPC, 1898 – s.145 – Nature and scope of proceedings
D    u/s.145 – Held: s.145 proceedings do not purport to decide a party’s
     title or right to possession of the land – Property held in attachment
     in proceedings u/s.145 is ‘custodia legis’ – Provisions of s.145 can
     be invoked only when there is danger of breach of peace –
     Jurisdiction of Magistrate does not extend to adjudicate into
     disputed questions of title – Determination of the Magistrate is
E    confined to which party was in actual possession on the date of the
     order – The real purpose is to decide who has actual physical
     possession and not legal possession supported by title over the land
     – To initiate proceedings u/s.145, the Magistrate has to be satisfied
     of the existence of a dispute which is likely to cause a breach of
F    peace – Enquiry by the Magistrate is of a summary nature, the object
     being to ensure tranquillity in the locality when the dispute is likely
     to result in a breach of peace.
           Property Law – Immovable property – Dispute – Title – Held:
     Court does not decide title on basis of faith or belief but on basis of
G    evidence of ownership and possession.
          Doctrines / Principles – Doctrine of Justice, Equity and Good
     Conscience – Applicability – Held: With the development of statutory
     law and judicial precedent, including progressive codification of
     customs, the need to place reliance on justice, equity and good
     conscience gradually reduced – However, where the existing
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  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        13


statutory framework is inadequate for courts to adjudicate upon          A
the dispute before them, or no settled judicial doctrine or custom
can be availed of, or when parties are not governed by a particular
personal law, or when the source of law requires to be supplemented,
courts may legitimately take recourse to the principles of justice,
equity and good conscience to effectively and fairly dispose of the
                                                                         B
case.
       Doctrines / Principles – Doctrine of lost grant – Applicability
– Held: The doctrine supplies a rule of evidence and is applicable
in the absence of evidence, due to lapse of time, to prove the
existence of a valid grant issued in antiquity – However, the court
is not bound to raise the presumption where there is sufficient and      C
convincing evidence to prove possession or when there are no
defined grantees – There must be long, uninterrupted and peaceful
enjoyment of an incorporeal right – The doctrine of lost grant is
different from assertion of rights due to a prolonged custom –
Alternate plea of adverse possession is destructive of a valid legal     D
basis to apply the doctrine of lost grant as a rule of evidence –
Evidence.
      Doctrines / Principles – Doctrine of lost grant – Effect of
alternate plea of adverse possession – Held: Adverse possession
postulates the vesting of title in one person and the existence of a     E
long continued and uninterrupted possession of another, to the
knowledge of and in a manner hostile to, the true title holder – Plea
of adverse possession would lead to an inference against the
application of the doctrine of lost grant as a plea of adverse
possession is premised in title vesting in someone other than the
alleged grantee – A person who sets up a plea of adverse possession      F
must establish both possession which is peaceful, open and
continuous – possession which meets the requirement of being ‘nec
vi nec claim and nec precario’ – To substantiate a plea of adverse
possession, the character of the possession must be adequate in
continuity and in the public because the possession has to be to the     G
knowledge of the true owner in order for it to be adverse – These
requirements have to be duly established first by adequate pleadings
and second by leading sufficient evidence – Possession – Adverse
Possession – Evidence.

                                                                         H
14            SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A           Evidence Act, 1872 – s.110 – Applicability – Held: s.110 is
     based on the principle that possession in itself may raise a
     presumption of title – But this applies when the facts disclose no
     title in either of the disputants, in which case, possession alone
     decides – Presumption cannot arise when the facts are known –
     Possession.
B
            Waqf – Waqf by user – Principles – Express declaration of
     Waqf, if necessary – Held: Muslim law does not require an express
     declaration of a Waqf in every case – Dedication resulting in a
     waqf may also be reasonably inferred from the facts and
     circumstances of a case or from conduct of the wakif – Doctrine of
C    waqf by user is a doctrine of necessity – The law recognises that
     where, since time immemorial, worship has been offered at a land
     with a mosque, the land is presumed to have been dedicated for a
     religious purpose and even absent a dedication, is waqf by user –
     However, this may not be extended to the extinguishment of competing
D    and established religious rights of another community in the same
     property particular in the face of the evidence – Waqf Act, 1995 –
     s.3(r) – Doctrines / Principles – Doctrine of “waqf by user” – Muslim
     Law.
           Evidence – Pleadings – Effect of inadequate pleadings – Held:
E    Evidence can only be adduced with reference to matters which are
     pleaded in a civil suit and in the absence of an adequate pleadings,
     evidence by itself cannot supply the deficiency of a pleaded case.
            Words and Phrases – “legal person” – Meaning – Held: To
     be a legal person is to possess certain rights and duties under the
F    law and to be capable of engaging in legally enforceable
     relationships with other legal persons – Who or what is a legal
     person is a function of the legal system – Jurisprudence.
           The instant appeals arose out of five regular suits instituted
     between 1950 and 1989, centering around a dispute of ownership
     over a piece of land admeasuring 1500 square yards in the town
G    of Ayodhya. The Hindu community claims it as the birth-place of
     Lord Ram, an incarnation of Lord Vishnu. The Hindus refer to
     the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e.
     birth-place of Lord Ram) and assert that there existed at the
     disputed site an ancient temple dedicated to Lord Ram, which
     was demolished upon the conquest of the Indian sub-continent
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       15


by Mughal Emperor Babur. The Muslim community claims it as              A
the site of the historic Babri Masjid built by the Mughal Emperor,
Babur. The Muslims contended that the mosque was built by or
at the behest of Babur on vacant land.
       In 1856-57, riots had broken out between Hindus and
Muslims in the vicinity of the structure. The British colonial
government attempted to raise a buffer between the two                  B
communities to maintain law and order by setting up a grill-brick
wall which would divide the premises into two parts: the inner
portion to be used by the Muslim community and the outer portion
or courtyard, to be used by the Hindu community. In January
1885, a person claiming to be the Mahant of Ram Janmasthan
                                                                        C
instituted a suit seeking the relief of permission to build a temple
on the Ramchabutra situated in the outer courtyard. The trial
judge dismissed the suit noting that there was a possibility of
riots breaking out between the two communities due to proposed
construction of a temple. The controversy entered a new phase
on the night intervening 22 and 23 December 1949, when the              D
mosque was desecrated by a group of about fifty or sixty people
who broke open its locks and placed idols of Lord Ram under
the central dome. On 29 December 1949, the City Magistrate
issued a preliminary order in respect of the property under Section
145 of the Code of Criminal Procedure 1898.
       On 16th January, 1950, a suit (Suit 1) was filed before the      E
civil Judge by one Gopal Singh Visharad which was essentially a
suit by a worshipper for enforcement of his right to worship Lord
Ram at the Janmabhumi. On 5th December, 1950, another suit
(Suit 2) was instituted by one Paramhans Ramchandra Das seeking
reliefs similar to those in Suit 1; however it was subsequently
withdrawn. Nirmohi Akhara (which represents a religious sect            F
amongst the Hindus, known as the Ramanandi Bairagis) filed a
suit (Suit 3) before the civil Judge on 17th December, 1959 for
handing over the management and charge of the Janmabhumi
temple to it. On 18th December 1961, the Sunni Central Waqf
Board filed a suit (Suit 4) before the civil Judge for declaration
                                                                        G
that the entirety of the disputed site, including Babri Masjid and
the surrounding graveyard, is a public mosque and for a decree
for possession. The plaint in Suit 4 contained a recital of a Suit of
1885 and it was contended that the plaintiff therein (Mahant) sued
on behalf of himself, the Janmasthan and all persons interested
in it, and the decision operates as res judicata as the matter          H
16            SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A    directly and substantially in issue was the existence of the Babri
     Masjid, and the rights of the Hindus to construct a temple on the
     land adjoining the mosque. On 1 July 1989, a suit (Suit 5) was
     brought before the civil Judge by the deity of Lord Ram
     (“Bhagwan Shri Ram Virajman”) and the Janmasthan (“Asthan
     Shri Ram Janam Bhumi, Ayodhya”), both of whom were asserted
B
     to be juridical persons) through a next friend impleaded as a third
     plaintiff for a declaration that the entire premises constitute Ram
     Janmabhumi and for an injunction against interference in the
     construction of a new temple after the demolition of the existing
     building.
C           On 10th July, 1989, all the said suits were transferred by
     the Allahabad High Court to itself for trial from the civil court.
     Meanwhile, on 6th December 1992, the structure of the mosque
     was brought down and the mosque was destroyed. In 2010, the
     High Court held that the suits filed by the Sunni Central Waqf
     Board and by Nirmohi Akhara were barred by limitation.
D    Thereafter, in a split 2:1 verdict, the High Court held that the
     Hindu and Muslim parties were joint holders of the disputed
     premises. Each of them was held entitled to one third of the
     disputed property. The Nirmohi Akhara was granted the remaining
     one third. A preliminary decree to that effect was passed in the
     suit brought by the idol and the birth-place of Lord Ram through
E
     the next friend. The judgment of the High Court was challenged
     in the present appeals where the following points arose for
     determination:
            (i) Whether Suits 3, 4 and 5 or any of them are barred by
     limitation;
F           (ii) Whether the decision in Suit of 1885 will operate as res
     judicata in Suits 1, 3 and 5;
            (iii) (a) Whether a Hindu temple existed at the disputed
     site; (b) Whether the temple was demolished by Babur or at his
     behest by his commander Mir Baqi in 1528 for the construction
G    of the Babri Masjid; (c) Whether the mosque was constructed on
     the remains of and by using the materials of the temple; and (d)
     What, if any are the legal consequences arising out of the
     determination on (a) (b) and (c) above;
            (iv) Whether the suit property is according to the faith and
     belief of the Hindus since time immemorial the birth-place of
H    Lord Ram;
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        17


       (v) (a) Whether the first and the second plaintiffs in Suit 5     A
are juristic persons; and (b) Whether the third plaintiff was
entitled to represent the first and second plaintiffs as next friend;
       (vi) (a) Whether Nirmohi Akhara has established its claim
of being a shebait of the deity of Lord Ram in the disputed
premises; (b) If (a) is in the affirmative, whether the objection of
Nirmohi Akhara to the maintainability of Suit 5 is valid;                B
       (vii) Whether during the intervening night of 22/23
December 1949, Hindu idols were installed under the Central
dome of Babri Masjid as pleaded in the plaint in Suit 4;
       (viii) (a) Whether it is open to the Court to determine if
the three domed structure which existed at the disputed site prior       C
to 6 December 1992 was a mosque in accordance with Islamic
tenets; (b) If the answer to (a) is in the affirmative, whether the
three domed structure at the disputed site was constructed in
accordance with Islamic tenets;
       (ix) (a) Whether there was a dedication of the three domed
structure as a waqf at the time of its construction; (b)        I n      D
the alternative to (a) above, whether there is a waqf by public
user as claimed by the plaintiffs in Suit 4;
       (x) Whether the plaintiffs in Suit 4 have established in the
alternative their case of adverse possession;
       (xi) Whether the Muslims and or the Hindus have                   E
established the claim of worship and a possessory title over the
disputed property;
       (xii) Whether the plaintiffs in Suit 4 have established their
title to the disputed property;
       (xiii) Whether the plaintiff in Suit 5 have established their     F
title to the disputed property;
       (xiv) Whether the High Court was justified in passing a
preliminary decree for a three way division of the disputed
property in equal shares between the Nirmohi Akhara, the
plaintiffs of Suit 4 and the plaintiffs of Suit 5;
       (xv) Whether the plaintiff in Suit 1 is entitled to the reliefs   G
as claimed in the suit; and
       (xvi) What, if any, relief ought to be granted in Suits 1, 3, 4
and 5

                                                                         H
18           SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          Disposing of the appeals, the Court
           HELD:
           1. Evidence on claim of title in Suit 4 and Suit 5.
           1.1. The report of the Archaeological Survey of India (ASI)
     indicates the following position:
B          (i)   Archaeological finds in the area of excavation reveal
                 significant traces of successive civilisations,
                 commencing with the age of the North Black Polished
                 Ware traceable to the second century B.C.;
           (ii) The excavation by the ASI has revealed the existence
C                of a pre-existing underlying structure dating back to
                 the twelfth century. The structure has large
                 dimensions, evident from the fact that there were 85
                 pillar bases comprised in 17 rows each of five pillar
                 bases;
           (iii) On a preponderance of probabilities, the
D                archaeological findings on the nature of the underlying
                 structure indicate it to be of Hindu religious origin,
                 dating to twelfth century A.D.;
           (iv) The mosque in dispute was constructed upon the
                 foundation of the pre-existing structure. The
E                construction of the mosque has taken place in such a
                 manner as to obviate an independent foundation by
                 utilising the walls of the pre-existing structure; and
           (v) The layered excavation at the site of excavation has
                 also revealed the existence of a circular shrine
                 together with a makara pranala indicative of Hindu
F
                 worship dating back to the eighth to tenth century.
           A reasonable inference can be drawn on the basis of the
     standard of proof which governs civil trials that:
           (i)   The foundation of the mosque is based on the walls of
                 a large pre-existing structure;
G
           (ii) The pre-existing structure dates back to the twelfth
                 century; and
           (iii) The underlying structure which provided the
                 foundations of the mosque together with its
                 architectural features and recoveries are suggestive
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                      19


             of a Hindu religious origin comparable to temple          A
             excavations in the region and pertaining to the era.
                                 [Para 788 (I)][786-E-H; 787-A-E]
      1.2. The conclusion in the ASI report about the remains of
an underlying structure of a Hindu religious origin symbolic of
temple architecture of the twelfth century A.D. must however be        B
read contextually with the following caveats:
      (i)    While the ASI report has found the existence of ruins
             of a pre-existing structure, the report does not
             provide:
                (a) The reason for the destruction of the pre-
                existing structure; and                                C
                (b) Whether the earlier structure was demolished
                for the purpose of the construction of the mosque.
      (ii) Since the ASI report dates the underlying structure
             to the twelfth century, there is a time gap of about
             four centuries between the date of the underlying         D
             structure and the construction of the mosque. No
             evidence is available to explain what transpired in the
             course of the intervening period of nearly four
             centuries;
      (iii) The ASI report does not conclude that the remnants
             of the pre- existing structure were used for the          E
             purpose of constructing the mosque (apart, that is,
             from the construction of the mosque on the foundation
             of the erstwhile structure); and
      (iv) The pillars that were used in the construction of the
             mosque were black Kasauti stone pillars. ASI has          F
             found no evidence to show that these Kasauti pillars
             are relatable to the underlying pillar bases found
             during the course of excavation in the structure below
             the mosque. [Para 788 (II)][787-F-H; 788-A-C]
      1.3. A finding of title cannot be based in law on the
archaeological findings which have been arrived at by ASI.             G
Between the twelfth century to which the underlying structure is
dated and the construction of the mosque in the sixteenth century,
there is an intervening period of four centuries. No evidence has
been placed on the record in relation to the course of human
history between the twelfth and sixteen centuries. No evidence         H
20               SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A    is available in a case of this antiquity on (i) the cause of destruction
     of the underlying structure; and (ii) whether the pre-existing
     structure was demolished for the construction of the mosque.
     Title to the land must be decided on settled legal principles and
     applying evidentiary standards which govern a civil trial. [Para
     788 (III)][788-D-E]
B
           1.4. Historical records of travellers (chiefly Tieffenthaler
     and the account of Montgomery Martin in the eighteenth century)
     indicate:
           (i)     The existence of the faith and belief of the Hindus
C                  that the disputed site was the birth-place of Lord Ram;
           (ii)    Identifiable places of offering worship by the Hindus
                   including Sita Rasoi, Swargdwar and the Bedi (cradle)
                   symbolising the birth of Lord Ram in and around the
                   disputed site;
D          (iii)   Prevalence of the practice of worship by pilgrims at
                   the disputed site including by parikrama
                   (circumambulation) and the presence of large
                   congregations of devotees on the occasion of religious
                   festivals; and
E          (iv)    The historical presence of worshippers and the
                   existence of worship at the disputed site even prior
                   to the annexation of Oudh by the British and the
                   construction of a brick-grill wall in 1857.
           Beyond the above observations, the accounts of the
F    travellers must be read with circumspection. Their personal
     observations must carefully be sifted from hearsay – matters of
     legend and lore. Consulting their accounts on matters of public
     history is distinct from evidence on a matter of title. An
     adjudication of title has to be deduced on the basis of evidence
     sustainable in a court of law, which has withstood the searching
G
     scrutiny of cross-examination. Similarly, the contents of gazetteers
     can at best provide corroborative material to evidence which
     emerges from the record. The court must be circumspect in
     drawing negative inferences from what a traveller may not have
     seen or observed. Title cannot be established on the basis of
H    faith and belief above. Faith and belief are indicators towards
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       21


patterns of worship at the site on the basis of which claims of         A
possession are asserted. The court has evaluated the rival claims
to possessory title in a situation in which the state has expressly
stated in its written statement that it claims no interest in the
land. [Para 788 (IV)][788-F-H; 789-A-D]
       1.5. The evidence indicates that despite the existence of a      B
mosque at the site, Hindu worship at the place believed to be the
birth-place of Lord Ram was not restricted. The existence of an
Islamic structure at a place considered sacrosanct by the Hindus
did not stop them from continuing their worship at the disputed
site and within the precincts of the structure prior to the incidents
of 1856-7. The physical structure of an Islamic mosque did not          C
shake the faith and belief of Hindus that Lord Ram was born at
the disputed site. On the other hand, the evidence relied on by
the Sunni Central Waqf Board to establish the offering of namaz
by the Muslim residents commences from around 1856-7. [Para
788 (V)][789-E-F]                                                       D
      1.6. The setting up of a railing in 1857 by the British around
the disputed structure of the mosque took place in the backdrop
of a contestation and disputes over the claim of the Hindus to
worship inside the precincts of the mosque. This furnished the
context for the riots which took place between Hindus and               E
Muslims in 1856-7. The construction of a grick-brick wall by the
colonial administration was intended to ensure peace between
the two communities with respect to a contested place of worship.
The grill-brick wall did not constitute either a sub-division of the
disputed site which was one composite property, nor did it amount
to a determination of title by the colonial administration. [Para       F
788 (VI)][789-G-H; 790-A]
      1.7. Proximate in time after the setting up of the railing,
the Ramchabutra was set up in or about 1857. Ramchabutra was
set up in close physical proximity to the railing. Essentially, the
setting up of Ramchabutra within a hundred feet or thereabouts          G
of the inner dome must be seen in the historical context as an
expression or assertion of the Hindu right to worship at the birth-
place of Lord Ram. Even after the construction of the dividing
wall by the British, the Hindus continued to assert their right to
                                                                        H
22            SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A    pray below the central dome. This emerges from the evidentiary
     record indicating acts of individuals in trying to set up idols and
     perform puja both within and outside the precincts of the inner
     courtyard. Even after the setting up of the Ramchabutra, pilgrims
     used to pay obeisance and make offerings to what they believed
     to be the ‘GarbhGrih’ located inside the three domed structure
B
     while standing at the iron railing which divided the inner and outer
     courtyards. There is no evidence to the contrary by the Muslims
     to indicate that their possession of the disputed structure of the
     mosque was exclusive and that the offering of namaz was
     exclusionary of the Hindus. [Para 788 (VII)][790-B-D]
C
           1.8. Hindu worship at Ramchabutra, Sita Rasoi and at other
     religious places including the setting up of a Bhandar clearly
     indicated their open, exclusive and unimpeded possession of the
     outer courtyard. The Muslims have not been in possession of
     the outer courtyard. Despite the construction of the wall in 1858
D    by the British and the setting up of the Ramchabutra in close-
     proximity of the inner dome, Hindus continued to assert their
     right to pray inside the three-domed structure. [Para 788
     (VIII)][790-E-F]
            1.9. In or about 1877, at the behest of the Hindus, another
E    door to the outer courtyard was allowed to be opened by the
     administration on the northern side (Sing Dwar), in addition to
     the existing door on the east (HanumatDwar). The Deputy
     Commissioner declined to entertain a complaint against the
     opening made in the wall. The Commissioner while dismissing
     the appeal held that the opening up of the door was in public
F
     interest. The opening of an additional door with the permission
     of the British administration indicates recognition of the presence
     of a large congregation of Hindu devotees necessitating additional
     access to the site in the interest of public peace and safety. [Para
     788 (IX)][790-F-H]
G
           1.10. Testimonies of both Hindu and Muslim witnesses
     indicate that on religious occasions and festivals such as Ram
     Navami, Sawan Jhoola, Kartik Poornima, Parikrama Mela and
     Ram Vivah, large congregations of Hindu devotees visited the
     disputed premises for darshan. The oral testimony of the Hindu
H    devotees establishes the pattern of worship and prayer at Sita
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        23


Rasoi, Ramchabutra and towards the ‘Garb Grih’, while standing           A
at the railing of the structure of the brick wall. [Para 788 (X)][791-
A-B]

      1.11. Hindu witnesses have indicated that Hindus used to
offer prayer to the Kasauti stone pillars placed inside the mosque.
Muslim witnesses have acknowledged the presence of symbols               B
of Hindu religious significance both inside and outside the
mosque. Among them, is the depiction of Varah, Jai-Vijay and
Garud outside the three domed structure. They are suggestive
not merely of the existence of the faith and belief but of actual
worship down the centuries. [Para 788 (XI)][791-C]                       C
      1.12. There can no denying the existence of the structure
of the mosque since its construction in the sixteenth century with
the inscription of ‘Allah’ on the structure. The genesis of the
communal incident of 1856-7 lies in the contestation between
the two communities over worship. The setting up of the railing          D
in 1856-7 was an attempt by the administration to provide a
measure of bifurcation to observe religious worship – namaz by
the Muslims inside the railing within the domed structure of the
mosque and worship by the Hindus outside the railing. Attempts
by the Sikhs or faqirs to enter into the mosque and set up religious
                                                                         E
symbols for puja were resisted by the Muslims, resulting in the
administration evicting the occupier. [Para 788 (XII)][791-D-E]

      1.13. After the construction of the grill-brick wall in 1857,
there is evidence on record to show the exclusive and unimpeded
possession of the Hindus and the offering of worship in the outer        F
courtyard. Entry into the three domed structure was possible
only by seeking access through either of the two doors on the
eastern and northern sides of the outer courtyard which were
under the control of the Hindu devotees. [Para 788 (XIII)][791-
F-G]
                                                                         G
      1.14. On a preponderance of probabilities, there is no
evidence to establish that the Muslims abandoned the mosque
or ceased to perform namaz in spite of the contestation over their

                                                                         H
24           SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A    possession of the inner courtyard after 1858. Oral evidence
     indicates the continuation of namaz. [Para 788 (XIV)][791-G-H]
           1.15. The contestation over the possession of the inner
     courtyard became the centre of the communal conflict of 1934
     during the course of which the domes of the mosque sustained
B    damage as did the structure. The repair and renovation of the
     mosque following the riots of 1934 at the expense of the British
     administration through the agency of a Muslim contractor is
     indicative of the fact the despite the disputes between the two
     communities, the structure of the mosque continued to exist as
C    did the assertion of the Muslims of their right to pray. Namaz
     appears to have been offered within the mosque after 1934
     though, by the time of incident of 22/23 December 1949, only
     Friday namaz was being offered. The reports of the Waqf Inspector
     of December 1949 indicate that the Sadhus and Bairagis who
     worshipped and resided in the outer courtyard obstructed
D    Muslims from passing through the courtyard, which was under
     their control, for namaz within the mosque. Hence the Waqf
     Inspector noted that worship within the mosque was possible on
     Fridays with the assistance of the police. [Para 788 (XV)][792-A-
     D]
E           1.16. The events preceding 22/23 December 1949 indicate
     the build-up of a large presence of Bairagis in the outer courtyard
     and the expression of his apprehension by the Superintendent of
     Police that the Hindus would seek forcible entry into the precincts
     of the mosque to install idols. In spite of written intimations to
     him, the Deputy Commissioner and District Magistrate (K K
F
     Nayyar) paid no heed and rejected the apprehension of the
     Superintendent of Police to the safety of the mosque as baseless.
     The apprehension was borne out by the incident which took place
     on the night between 22/23 December 1949, when a group of
     fifty to sixty persons installed idols on the pulpit of the mosque
G    below the central dome. This led to the desecration of the mosque
     and the ouster of the Muslims otherwise than by the due process
     of law. The inner courtyard was thereafter attached in
     proceedings under Section 145 CrPC 1898 on 29 December 1949
     and the receiver took possession. [Para 788 (XVI)][792-D-F]
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                    25


       1.17. On 6 December 1992, the structure of the mosque         A
was brought down and the mosque was destroyed. The destruction
of the mosque took place in breach of the order of status quo and
an assurance given to this Court. The destruction of the mosque
and the obliteration of the Islamic structure was an egregious
violation of the rule of law. [Para 788 (XVII)][792-G-H]
                                                                     B
     1.18. The net result, as it emerges from the evidentiary
record is thus:
     (i)     The disputed site is one composite whole. The railing
             set up in 1856-7 did not either bring about a sub-
             division of the land or any determination of title;     C
     (ii)    The Sunni Central Waqf Board has not established
             its case of a dedication by user;
     (iii)   The alternate plea of adverse possession has not been
             established by the Sunni Central Waqf Board as it
             failed to meet the requirements of adverse              D
             possession;
     (iv)    The Hindus have been in exclusive and unimpeded
             possession of the outer courtyard where they have
             continued worship;
                                                                     E
     (v)     The inner courtyard has been a contested site with
             conflicting claims of the Hindus and Muslims;
     (vi)    The existence of the structure of the mosque until 6
             December 1992 does not admit any contestation. The
             submission that the mosque did not accord with
                                                                     F
             Islamic tenets stands rejected. The evidence
             indicates that there was no abandonment of the
             mosque by Muslims. Namaz was observed on Fridays
             towards December 1949, the last namaz being on 16
             December 1949;
     (vii) The damage to the mosque in 1934, its desecration         G
           in 1949 leading to the ouster of the Muslims and the
           eventual destruction on 6 December 1992 constituted
           a serious violation of the rule of law; and

                                                                     H
26            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          (viii) Consistent with the principles of justice, equity and
                  good conscience, both Suits 4 and 5 will have to be
                  decreed and the relief moulded in a manner which
                  preserves the constitutional values of justice,
                  fraternity, human dignity and the equality of religious
                  belief.           [Para 788 (XVII)][792-H; 793-A-F]
B
           1.19. The Hindus have established a clear case of a
     possessory title to the outside courtyard by virtue of long,
     continued and unimpeded worship at the Ramchabutra and other
     objects of religious signficance. The Hindus and the Muslims
     have contested claims to the offering worship within the three
C    domed structure in the inner courtyard. The assertion by the
     Hindus of their entitlement to offer worship inside has been
     contested by the Muslims.          [Para 788 (XVIII)][793-G-H]
           2. Legality of the decree for partition by the High Court
D         2.1. The High Court on a finding that Hindus and Muslims
     were in joint possession directed a three-way bifurcation of the
     disputed site, one third each being assigned to the Muslims,
     Hindus and Nirmohi Akhara.                  [Para 789][794-A-B]
             2.2. In assessing the correctness of the decree of the High
E    Court, it must be noted at the outset that the High Court was not
     seized of a suit for partition. In a suit for partition, it is trite law
     that every party is both a plaintiff and defendant. The High Court
     was hearing: (i) a suit by a worshipper seeking the enforcement
     of the right to pray (Suit 1); (ii) a suit by Nirmohi Akhara asserting
     shebaiti rights to the management and charge of the temple (Suit
F    3); (iii) a declaratory suit on title by the Sunni Central Waqf Board
     and Muslims (Suit 4); and (iv) a suit for a declaration on behalf of
     the Hindu deities in which an injunction has also been sought
     restraining any obstruction with the construction of a temple (Suit
     5). The High Court was called upon to decide the question of
G    title particularly in the declaratory suits, Suits 4 and 5.
                                             [Para 791][794-F-H; 795-A]
            2.3. The High Court has adopted a path which was not open
     to it. It granted reliefs which were not the subject matter of the
     prayers in the suits. In the process of doing so, it proceeded to
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         27


assume the jurisdiction of a civil court in a suit for partition, which   A
the suits before it were not. Order VII Rule 7 of the CPC requires
a plaintiff to specifically claim either simply or in the alternative
the relief, which is sought. However, it clarifies that it is not
necessary to ask for general and other reliefs which may always
be given in the discretion of the court. This provision does not
                                                                          B
entitle the court in a civil trial to embark upon the exercise of
recasting virtually the frame of a suit, which was undertaken by
the High Court. There was no basis in the pleadings before the
High Court and certainly no warrant in the reliefs which were
claimed to direct a division of the land in the manner that a court
would do in a suit for partition. [Para 792][795-E-F; 796-A-B]            C
      2.4. The High Court has completely erred in granting relief
which lay outside the ambit of the pleadings and the cases set up
by the plaintiffs in Suits 3, 4 and 5. [Para 793][796-E-F]
       2.5. There is another serious flaw in the entire approach of       D
the High Court in granting relief of a three-way bifurcation of the
disputed site. Having come to the conclusion that Suit 3 (filed by
Nirmohi Akhara) and Suit 4 (filed by Sunni Central Waqf Board)
were barred by limitation, the High Court proceeded to grant
relief in Suit 5 to the plaintiffs in Suits 3 and 4. This defies logic
and is contrary to settled principles of law. Moreover, the claim         E
by the Nirmohi Akhara was as a shebait who claimed a decree for
management and charge. On its own case, Nirmohi Akhara could
not have been granted an independent share of the land. [Para
794][796-F-G; 797-A]
      3. Conclusion on title                                              F

      3.1. The facts, evidence and oral arguments of the present
case have traversed the realms of history, archaeology, religion
and the law. The law must stand apart from political contestations
over history, ideology and religion. For a case replete with
references to archaeological foundations, it must be remembered           G
that it is the law which provides the edifice upon which our
multicultural society rests. The law forms the ground upon which,
multiple strands of history, ideology and religion can compete.
By determining their limits, this Court as the final arbiter must
                                                                          H
28            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A    preserve the sense of balance that the beliefs of one citizen do
     not interfere with or dominate the freedoms and beliefs of another.
     On 15 August 1947, India as a nation realised the vision of self-
     determination. On 26 January 1950 we gave ourselves the
     Constitution of India, as an unwavering commitment to the values
     which define our society. At the heart of the Constitution is a
B
     commitment to equality upheld and enforced by the rule of law.
     Under our Constitution, citizens of all faiths, beliefs and creeds
     seeking divine provenance are both subject to the law and equal
     before the law. Every judge of this Court is not merely tasked
     with but sworn to uphold the Constitution and its values. The
C    Constitution does not make a distinction between the faith and
     belief of one religion and another. All forms of belief, worship and
     prayer are equal. Those whose duty it is to interpret the
     Constitution, enforce it and engage with it can ignore this only to
     the peril of our society and nation. The Constitution speaks to
     the judges who interpret it, to those who govern who must enforce
D
     it, but above all, to the citizens who engage with it as an inseparable
     feature of their lives. [Para 795][797-B-F]
            3.2. In the present case, this Court is tasked with an
     adjudicatory task of unique dimension. The dispute is over
     immovable property. The court does not decide title on the basis
E
     of faith or belief but on the basis of evidence. The law provides
     parameters as clear but as profound as ownership and possession.
     In deciding title to the disputed property, the court applies settled
     principles of evidence to adjudicate upon which party has
     established a claim to the immovable property. [Para 796]
F    [797-G-H]
           3.3. On the balance of probabilities, there is clear evidence
     to indicate that the worship by the Hindus in the outer courtyard
     continued unimpeded in spite of the setting up of a grill-brick
     wall in 1857. Their possession of the outer courtyard stands
G    established together with the incidents attaching to their control
     over it. [Para 797][798-A-B]
           3.4. As regards the inner courtyard, there is evidence on a
     preponderance of probabilities to establish worship by the Hindus
     prior to the annexation of Oudh by the British in 1857. The
H    Muslims have offered no evidence to indicate that they were in
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          29


exclusive possession of the inner structure prior to 1857 since            A
the date of the construction in the sixteenth century. After the
setting up of the grill-brick wall, the structure of the mosque
continued to exist and there is evidence to indicate that namaz
was offered within its precincts. The report of the Waqf Inspector
of December 1949 indicates that Muslims were being obstructed
                                                                           B
in free and unimpeded access to mosque for the purposes of
offering namaz. However, there is evidence to show that namaz
was offered in the structure of the mosque and the last Friday
namaz was on 16 December 1949. The exclusion of the Muslims
from worship and possession took place on the intervening night
between 22/23 December 1949 when the mosque was desecrated                 C
by the installation of Hindu idols. The ouster of the Muslims on
that occasion was not through any lawful authority but through an
act which was calculated to deprive them of their place of worship.
After the proceedings under Section 145 of CrPC 1898 were
initiated and a receiver was appointed following the attachment
                                                                           D
of the inner courtyard, worship of the Hindu idols was permitted.
During the pendency of the suits, the entire structure of the
mosque was brought down in a calculated act of destroying a place
of public worship. The Muslims have been wrongly deprived of a
mosque which had been constructed well over 450 years ago.
[Para 798][798-B-F]                                                        E
      3.5. The three-way bifurcation by the High Court was legally
unsustainable. Even as a matter of maintaining public peace and
tranquillity, the solution which commended itself to the High
Court is not feasible. The disputed site admeasures all of 1500
square yards. Dividing the land will not subserve the interest of          F
either of the parties or secure a lasting sense of peace and
tranquillity. [Para 799][798-G]
       3.6. Suit 5 has been held to be maintainable at the behest
of the first plaintiff (the deity of Lord Ram) who is a juristic person.
The third plaintiff (next friend) has been held to be entitled to          G
represent the the first plaintiff. On the one hand a decree must
ensue in Suit 5, Suit 4 must also be partly decreed by directing
the allotment of alternate land to the Muslims for the construction
of a mosque and associated activities. The allotment of land to
the Muslims is necessary because though on a balance of
                                                                           H
30            SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A    probabilities, the evidence in respect of the possessory claim of
     the Hindus to the composite whole of the disputed property stands
     on a better footing than the evidence adduced by the Muslims,
     the Muslims were dispossessed upon the desecration of the
     mosque on 22/23 December 1949 which was ultimately destroyed
     on 6 December 1992. There was no abandonment of the mosque
B
     by the Muslims. This Court in the exercise of its powers under
     Article 142 of the Constitution must ensure that a wrong
     committed must be remedied. Justice would not prevail if the
     Court were to overlook the entitlement of the Muslims who have
     been deprived of the structure of the mosque through means
C    which should not have been employed in a secular nation
     committed to the rule of law. The Constitution postulates the
     equality of all faiths. Tolerance and mutual co-existnce nourish
     the secular commitment of our nation and its people. [Para
     800][798-G; 799-A-D]
D           3.7. The area of the composite site admeasures about 1500
     square yards. While determining the area of land to be allotted, it
     is necessary to provide restitution to the Muslim community for
     the unlawful destruction of their place of worship. Having weighed
     the nature of the relief which should be granted to the Muslims,
     it is directed that land admeasuring 5 acres be allotted to the
E    Sunni Central Waqf Board either by the Central Government out
     of the acquired land or by the Government of Uttar Pradesh within
     the city of Ayodhya. This exercise, and the consequent handing
     over of the land to the Sunni Central Waqf Board, shall be
     conducted simultaneously with the handing over of the disputed
F    site comprising of the inner and outer courtyards as a
     consequence of the decree in Suit 5. Suit 4 shall stand decreed in
     the above terms. [Para 801][799-E-G]
            3.8. Section 6 of the Acquisition of Certain Area at Ayodhya
     Act 1993 empowers the Central Government to direct that the
G    right, title and interest in relation to the area or any part thereof,
     instead of continuing to vest in the Central Government shall
     vest in the authority or body or trustees of any trust which is
     willing to comply with the terms and conditions as government
     may impose. Section 7(1) provides that the property vested in
     the Central Government under Section 3, shall be maintained by
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        31


the government or by any person or trustees of any trust,                A
authorities in this behalf. It would be necessary to direct the
Central Government to frame a scheme in exercise of the powers
conferred upon it by Sections 6 and 7 to set up a trust or any
other appropriate mechanism to whom the land would be handed
over in terms of the decree in Suit 5. The scheme shall incorporate
                                                                         B
all provisions necessary to vest power and authority in relation
to the management of the trust or the body chosen for the vesting
of the land. [Paras 802 and 803][799-G-H; 800-A-C]
      3.9. Suit 3 filed by Nirmohi Akhara has been held to be
barred by limitation. This Court has also rejected the objection
of Nirmohi Akhara and of the Sunni Central Waqf Board to the             C
maintainability of Suit 5 which was based on their plea that Nirmohi
Akhara is a shebait. Nirmohi Akhara’s claim to be a shebait stands
rejected. However, having regard to the historical presence of
Nirmohi Akhara at the disputed site and their role, it is necessary
for this Court to take recourse to its powers under Article 142 to       D
do complete justice. Hence, it is directed that in framing the
scheme, an appropriate role in the management would be
assigned to the Nirmohi Akhara. [Para 804][800-C-D; 801-A-B]
      4. Reliefs and directions
      4.1. It is accordingly ordered and directed as follows:            E

      (i) Suit 3 instituted by Nirmohi Akhara is held to be barred
      by limitation and shall accordingly stand dismissed;
      (ii) Suit 4 instituted by the Sunni Central Waqf Board and
      other plaintiffs is held to be within limitation. The judgment     F
      of the High Court holding Suit 4 to be barred by limitation
      is reversed; and
      (iii) Suit 5 is held to be within limitation.
                                            [Para 805 (1)][801-B-D]
       4.2. Suit 5 is held to be maintainable at the behest of the       G
first plaintiff who is represented by the third plaintiff. There shall
be a decree in terms of prayer clauses (A) and (B) of the suit,
subject to the following directions:

                                                                         H
32           SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A          (i) The Central Government shall, within a period of three
           months from the date of this judgment, formulate a scheme
           pursuant to the powers vested in it under Sections 6 and 7
           of the Acquisition of Certain Area at Ayodhya Act 1993.
           The scheme shall envisage the setting up of a trust with a
           Board of Trustees or any other appropriate body under
B
           Section 6. The scheme to be framed by the Central
           Government shall make necessary provisions in regard to
           the functioning of the trust or body including on matters
           relating to the management of the trust, the powers of the
           trustees including the construction of a temple and all
C          necessary, incidental and supplemental matters;
           (ii) Possession of the inner and outer courtyards shall be
           handed over to the Board of Trustees of the Trust or to the
           body so constituted. The Central Government will be at
           liberty to make suitable provisions in respect of the rest of
D          the acquired land by handing it over to the Trust or body
           for management and development in terms of the scheme
           framed in accordance with the above directions; and
           (iii) Possession of the disputed property shall continue to
           vest in the statutory receiver under the Central
E          Government, untill in exercise of its jurisdiction under
           Section 6 of the Ayodhya Act of 1993, a notification is issued
           vesting the property in the trust or other body.
                                    [Para 805 (2)][801-D-G; 802-A-C]
           4.3 (i) Simultaneously, with the handing over of the disputed
F    property to the Trust or body, a suitable plot of land admeasuring
     5 acres shall be handed over to the Sunni Central Waqf Board,
     the plaintiff in Suit 4.
           (ii) The land shall be allotted either by:
           (a) The Central Government out of the land acquired under
G
               the Ayodhya Act 1993; or
           (b) The State Government at a suitable prominent place in
               Ayodhya;


H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                     33


      The Central Government and the State Government shall           A
act in consultation with each other to effectuate the above
allotment in the period stipulated.
      (iii) The Sunni Central Waqf Board would be at liberty, on
the allotment of the land to take all necessary steps for the
construction of a mosque on the land so allotted together with        B
other associated facilities;
     (iv) Suit 4 shall stand decreed to this extent in terms of the
above directions; and
     (v) The directions for the allotment of land to the Sunni
Central Waqf Board in Suit 4 are issued in pursuance of the           C
powers vested in this Court under Article 142 of the Constitution.
                                         [Para 805 (3)][802-D-H]
      4.4. In exercise of the powers vested in this Court under
Article 142 of the Constitution, it is directed that in the scheme    D
to be framed by the Central Government, appropriate
representation may be given in the Trust or body, to the Nirmohi
Akhara in such manner as the Central Government deems fit.
[Para 805 (4)][803-A]
      4.5. The right of the plaintiff in Suit 1 to worship at the
                                                                      E
disputed property is affirmed subject to any restrictions imposed
by the relevant authorities with respect to the maintenance of
peace and order and the performance of orderly worship. [Para
805 (5)][803-B]
      Union Carbide Corporation v. Union of India, (1991)
      4 SCC 584 : [1991] 1 Suppl. SCR 251; Supdt and                  F
      Remembrancer of Legal Affairs West Bengal v. Anil
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      195; Karnataka Board of Wakf v. Government of India
      (2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255; Annakili
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      11 SCR 517; Ravinder Kaur Grewal v. Manjit Kaur
      (2019) 8 SCC 729; Raja Braja Sundar Deb v. Moni
                                                                      H
34     SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A    Behara AIR 1951 SC 247 : [1951] SCR 431; Buddu
     Satyanarayana v. Konduru Venkatapayya AIR 1953
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B
     Government of A P (2002) 3 SCC 258 : [2002] 1 SCR
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D
     (2013) 9 SCC 319 : [2013] 4 SCR 394; Srinivas Ram
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F
     Mazumdar (1971) 3 SCC 265 : [1971] Suppl. SCR 244;
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     Bhattjee v. Charity Commissioner, Gujarat State (1995)
     1 Suppl. SCC 485 : [1994] 2 Suppl. SCR 687;
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS           35


  Aliyathammuda Beethathebiyyappura Pookoya v.            A
  Pattakal Cheriyakoya (2019) SCC OnLine 953; Prem
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                                                          B
  Krishan Sharma (1973) 4 SCC 46 : [1973] 2 SCR 702;
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  5 SCR 335; Chennadi Jalapathi Reddy v. Baddam
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                                                          D
  Hindu Religious Endowments v. Sri Lakshmindra Thirtha
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  Bishwanath v. Sri Thakur Radha Ballabhji [1967] 2       E
  SCR 618; Vikrama Das Mahant v. Daulat Ram Asthana
  AIR 1956 SC 382; Bhinka v. Charan Singh, [1959] 2
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                                                          F
  Surinder Pal Kaur v. Satpal (2015) 13 SCC 25 : [2015]
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  SCR 584; Amresh Tiwari v. Lalta Prasad Dubey (2000)
  4 SCC 440; Ram Sumer Puri Mahant v. State of UP         G
  (1985) 1 SCC 427; Shyam Sunder Prasad v. Raj Pal
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  Ramiah v. N Narayana Reddy (2004) 7 SCC 541 :
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  Nenshi, (1972) 2 SCC 890 : [1973] 3 SCR 1004;
  Commissioner of Wealth Tax, Amritsar v. Suresh Seth     H
36     SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A    (1981) 2 SCC 790 : [1981] 3 SCR 419; Narayana
     Prabhu Venketeswara Prabhu v. Narayana Prabhu
     Krishna Prabhu (1977) 2 SCC 181 : [1977] 2 SCR 636;
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B
     of India v. Tarsem Singh (2008) 8 SCC 648 : [2008] 12
     SCR 104; Pundlik Jalam Patil v. Executive Engineer,
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     Jaffar Mohamed Hussein AIR 1954 SC 5; Balakrishna
C    Savalram Pujari Waghmare v. Shree Dhyaneshwar
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     SC 713; Namdeo Lokman Lodhi v. Narmadabai [1953]
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D    Dr M Ismail Faruqui v. Union of India (1994) 6 SCC
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E
     Rao v. Sub Collector, Ongole [1969] 1 SCR 624;
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     Deoji Maharaj, Jaipur v. Board of Revenue, Rajasthan
     [1965] 1 SCR 96; Profulla Chorone Requitte v. Satya
F    Chorone Requitte (1979) 3 SCC 409 : [1979] 3 SCR
     431; Mahant Ram Saroop Dasji v. SP Sahi, Special
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     Bahadur Prajapati (2004) 10 SCC 65 : [ 2003] 6 Suppl.
G    SCR 42; Rajasthan Housing Board v. New Pink City
     Nirman Sahkari Samiti Limited (2015) 7 SCC 601 :
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     2 Suppl. SCR 619; Saraswathi Ammal v. Rajagopal
     Ammal [1954] SCR 277; Sri Adi Visheshwara of Kashi
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS            37


  Vishwanath Temple v. State of UP (1997) 4 SCC 606        A
  : [1997] 2 SCR 1086; Nar Hari Shastri v. Shri
  Badrinath Temple Committee [1952] SCR 849;
  Angurbala Mullick v. Debabrata Mullick [1951] SCR
  1125; Chandi Prasad v. Jagdish Prasad (2004) 8 SCC
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  Madhya Pradesh (1989) 4 SCC 582 : [1989] 1 Suppl.
  SCR 43; Deshmukh v. Walchand Ramchand Kothari
  [1950] SCR 852; Late Nawab Sir Mir Osman Ali Khan
  v. Commissioner of Wealth Tax, Hyderabad [1986]
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  Amir Ahmad Khan v. Municipal Board of Sitapur AIR        C
  1965 SC 1923; Union of India v. West Coast Paper
  Mills Ltd., (2004) 2 SCC 747 : [2004] 2 SCR 145;
  Shanti v. T D Vishwanathan, (2018) SCC OnLine SC
  2196; Badri Nath v. Punna, AIR 1979 SC 1314 : [1979]
  3 SCR 209; Rai Sahib Dr Gurdittamal Kapur v. Mahant      D
  Amar Das Chela Mahant Ram Saran, AIR 1965 SC 1966
  : [1965] 3 SCR 433; Sarangadeva Periya Matam v.
  Ramaswami Goundar (Dead) by Legal Representatives
  AIR 1966 SC 1603 : [1966] 1 SCR 908; K Ethirajan v
  Lakshmi (2003) 10 SCC 578 : [2003] 4 Suppl. SCR
                                                           E
  33; Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
  Vinayak Gosavi [1960] 1 SCR 773; Durgesh Sharma
  v. Jayshree (2008) 9 SCC 648 : [2008] 13
  SCR 1056; Garikapati Veeraya v. N Subbiah Choudhry
  [1957] SCR 488; Ghulam Rasul Khan v. Secretary of
  State for India in Council (1925) SCC OnLine PC 12;      F
  C Natrajan v. Ashim Bai (2007) 14 SCC 183 : [2007]
  11 SCR 33; Murarilal v. Dev Karan (1964) 8 SCR 239;
  Mohd Afzal Ali and Mohd Asghar v. Government AIR
  1965 SC 516 : [1964] 8 SCR 347; Ram Jankijee Deities
  v. State of Bihar (1999) 5 SCC 50 : [1999] 3 SCR 442     G
  and Yogendra Nath Naskar v. Commissioner of Income
  Tax, Calcutta (1969) 1 SCC 555 : [1969] 3 SCR 742
  and The Poohari Fakhir Sadavarthy of Bondipiputram
  v. The Commissioner, Hindu Religious and Charitable
  Endowments [1962] 2 Suppl. SCR 276 – referred to.
                                                           H
38     SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A    Gauri Shankar v. Ambika Dutt AIR 1954 Pat 196;
     Ganesh Chunder Dhur v. Lal Behary Dhur (1935-36)
     63 IA 448; Bhabatarini Debi v. Ashalata Debi (1942-
     43) 70 IA 57; Maharaja Jagadindra Nath Roy Bahadur
     v. Rani Hemanta Kumari Debi (1903-04) 31 IA 203;
     Tarit Bhushan Rai v. Sri SriIswar Sridhar Salagram Shila
B
     Thakur AIR 1942 Cal 99; Rajah Kishendatt Ram v.
     Rajah Mumtaz Ali Khan (1878-79) 6 IA 145; Mahant
     Ram Charan Das v. Naurangi Lal AIR 1933 PC 75;
     Mahadeo Prasad Singh v. Karia Bharti AIR 1935 PC
     44; Panchkari Roy v. Amode Lal Burman (1937) 41
C    CWN 1349; Subramania Gurukkal v. Abhinava
     Poornapriya A Srinivasa Rao Sahib AIR 1940 Mad
     617; SankarnarayananIyer v. Sri Poovananathaswami
     Temple AIR 1948 PC 25; Sapna Koteshwar Godat Goa
     Endowment (Trust) v. Ramchandra Vasudeo Kittur AIR
     1956 Bom 615; Palaniappa Goundan v. Nallappa
D
     Goundan AIR 1951 Mad 817; Mohideen Khan v.
     Ganikhan AIR 1956 AP 19; Vankamamidi
     Balakrishnamurthi v. Gogineni Sambayya AIR 1959 AP
     186; The Commissioner for Hindu Religious and
     Charitable Endowments, Madras v. PR Jagnnatha Rao
E    (1974) 87 LW 675; D Ganesamuthuriar v. The Idol Of
     Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji
     Dharamsey v. Bhagwandas Ranchghoddas 1981 Mah
     LJ 573; Shri Parshvanath Jain Temple v. L.R.s of Prem
     Dass (2009) 1 RLW (Rev) 523; Palaniandi Gramani
     Manickammal v. V Murugappa Gramani AIR 1935 Mad
F
     483; Ashim Kumar v. Narendra Nath 76 CWN 1016;
     Mahant Damodar Das v. Adhikari Lakhan Das (1909-
     10) 37 IA 147; Chttar Mal v. Panchu Lal AIR 1926 All
     392; Rama Reddy v. Rangadasan AIR 1926 Mad 769;
     Surendrakrishna Roy v. Shree Shree Ishwar
G    Bhubaneshwari Thakurani AIR 1933 Cal 295; Sri Sri
     Iswari Bhubaneshwari Thakurani v. Brojonath Dey
     (1936-37) 64 IA 203; In The Mosque, Masjid Shahid
     Ganj v. Shiromani Gurdwara Parbandhak Committee,
     Amritsar AIR 1940 PC 116; Radhakrishna Das v.
     Radharamana Swami AIR 1949 Orissa 1; Kumaravelu
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS            39


  Chettiar v. T P Ramaswami Ayyar, AIR 1933 PC 183;        A
  Maharaja Jagatjit Singh v. Raja Partab Bahadur Singh
  (1942) 2 Mad LJ 384; Posunno Kumari Debya v. Golab
  Chand Baboo (1875) 14 L Beng LR 450; Vidya Varuthi
  Thirtha v. Balusami Ayyar AIR 1922 PC 123;
  Manohar Mukherji v. Bhupendranath Mukherji ILR
                                                           B
  (1933) 60 Cal 452; Maharani Rajroop Koer v. Syed
  Abul Hossein (1879-80) 7 IA 240; Ellappa Naicken v.
  K Lakshmana Naicken AIR 1949 Madras 71; Sir Seth
  Hukum Chand v. Maharaj Bahadur Singh (1933) 38
  LW 306 (PC); Sri Sabhanayagar Temple, Chidambaram
  v. State of Tamil Nadu (2009) 4 CTC 801; Pichal alias    C
  Chockalingam Pillai v. The Commissioner for Hindu
  Religions and Charitable Endowments (Administrations
  Department) Madras AIR 1971 Mad 405; Sapneswar
  Pujapanda v. Ratkanar Mahapatra AIR 1916 Pat 146;
  Manohar Ganesh Tambekar v. Lakhmiram Govindram
                                                           D
  ILR (1888) 12 Bom 247; Vidyapurna Tirtha Swami v.
  Vidyanidhi Tirtha Swami ILR (1904) 27 Mad 435;
  Bhupati Nath Smrititirtha v. Ram Lal Maitra ILR (1909-
  1910) 37 Cal 128; Mohatap Bahadur v. Kali Pada
  Chatterjee AIR 1914 Cal 200; Rampat v. Durga Bharthi
  AIR 1920 Oudh 258; Ram Brahma v. Kedar Nath (1922)       E
  36 CLJ 478; Madura, Tirupparankundram v. Alikhan
  Sahib (1931) 61 Mad. LJ 285; The Board of
  Commissioners for Hindu Religious Endowments,
  Madras v. Pidugu Narasimhan 1939 1 MLJ 134; TRK
  Ramaswami Servai v. The Board of Commissioners for
                                                           F
  the Hindu Religious Endowments, Madras ILR 1950
  Mad 799; Venkataramana Murthi v. Sri Rama
  Mandhiram (1964) 2 ANWR 457; Nath Mullick v.
  Pradyumna Kumar Mullick (1924-25) 52 IA 245;
  Rambrahma Chatterjee v. Kedar Nath Banerjee (1922)
  36 CLJ 478; TRK Ramaswami Servai v. The Board of         G
  Commissioners for the Hindu Religious Endowments,
  Madras ILR 1950 Mad 799; Venkataramana Murthi
  v. Sri Rama Mandhiram (1964) 2 ANWR 457;
  Gurushiddappa        Gurubasappa       Bhusanur     v.
  Gurushiddappa Chenavirappa Chetni AIR 1937
                                                           H
40     SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A    Bombay 238; Chandan Mull Indra Kumar v. Chiman
     Lal Girdhar Das Parekh AIR 1940 PC 3; New Multan
     Timber Store v. Rattan Chand Sood (1997) 43 DRJ 270;
     Farzand Ali v. Zafar Ali (1918) 46 IC 119; Rajah Muttu
     Ramalinga Setupati v. Perianayagum Pillai (1873-74)
     1 IA 209; Sir Seth Hukum Chand v. Maharaj Bahadur
B
     Singh (1933) 38 LW 306 (PC); Raja Rajgan Maharaja
     Jagatjit Singh v. Raja Partab Bahadur Singh AIR 1942
     PC 47; Secretary of State Council in India v. Kamachee
     Boye Sahaba (1857-60) 7 Moo IA (476); Secretary of
     State of India in Council v. Bai Rajbai ILR (1915) 39
C    Bom 625; Degunbaree Dabee v. Eshan Chunder Sein
     (1868) 9 W.R. 230, 232; Gatha Ram Mistree v. Moohita
     Kochin Atteah Domoonee (1875) 23 W.R. 179; Radha
     Kishen v. Raj Kaur (1891) 13 All 573; The Court of
     Wards for the property of Makhdum Hassan Bakhsh v.
     Ilahi Bakhsh ILR (1913) 40 Cal 297; Abdul Ghafoor
D
     v. Rahmat Ali AIR 1930 Oudh 245; Miru v. Ram Gopal
     AIR 1935 All 891; Chockalingam Pillai v. Mayandi
     Chettiar ILR 19 Madras 485; Asrabulla v. Kiamatulla
     Haji Chaudhury AIR 1937 Cal 245; N
     Sankaranarayana Pillayan v. Board Of Commissioners
E    For The Hindu Religious Endowments, Madras AIR
     1948 PC 25 and Lakshmidhar Misra v. Rangalal AIR
     1950 PC 56 – referred to.
     The City of Mecca (1881) 5 P.D. 106; Bumper
     Development Corporation Ltd v. Commissioner of Police
F    of the Metropolis [1991] 1 WLR 1362 (2); Thomas and
     James Cook v Sir James Sprigg (1899) AC 572; and
     Miller v. Minister of Pensions (1947) 2 ALL ER 372;
     Harris and Earl of Chesterfield [1911] A.C. 623 –
     referred to.
G    Führer, Alois Anton, Edmund W. Smith, and James
     Burgess, The Sharqi architecture of Jaunpur: with notes
     on Zafarabad, Sahet-Mahet and other places in the
     North-Western provinces and Oudh (1994); William
     Erskine, John Leyden, and Annette Susannah
     Beveridge, the Babur-nama in English (Memoirs of
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS            41


  Babur), London: Luzac & Co. (Reprint in 2006 by Low      A
  Price Publications, Delhi); Epigraphia Indica, Arabic
  and Persian Supplement (in continuation of Epigraphia
  Indo-Moslemica) (Z A Desai Eds), Archaeology Survey
  of India (1987); Rashid Akhtar Nadvi, Tuzk e Babri,
  Lahore: Sang e Mil (1995); Manucci, NiccoloÌ, and
                                                           B
  William Irvine, Storia do Mogor; or, Mogul India,
  1653-1708, J. Murray: London (1907); Abual-Faz$l
  ibn Mubarak and H. Blochmann; The Ain i Akbari,
  1873, Calcutta: Rouse (Reprint of 1989 published by
  Low Price Publications, Delhi); Lok Sabha Debates,
  Volume V, nos 41-49, page 443-444, 448; Rajya Sabha      C
  Debates, Volume CLX, nos 13-18, pages 519-520 and
  522; Roscoe Pound, Jurisprudence, Part IV, 1959
  Edition; J W Salmond, Jurisprudence, Steven and
  Haynes (1913); Phillip Blumberg, The Multinational
  Challenge to Corporation Law : The Search for New
                                                           D
  Corporate Personality, Oxford University Press
  (1993), at pages 3, 22 and 207; D R Thomas, Maritime
  Liens in British Shipping Laws: Volume 14 (Steven
  & Sons London 1980); Douglas Lind, Pragmatism and
  Anthropomorphism: Reconceiving the Doctrine of the
  Personality of the Ship, 22 U.S.F. Mar. L.J. 39 (2009)   E
  at page 91; Bryant Smith, Legal Personality, 37 Yale
  L.J. (1928) at pages 287, 295 and 296; B.K.
  Mukherjea, The Hindu Law of Religious and Charitable
  Trust, 5th Edition, Eastern Law House, (1983) at pages
  9, 28 and 36; Gautam Patel, Idols in Law, Vol. 45,
                                                           F
  No.50, Economic and Political Weekly (11-17
  December 2010); Commentary on the Criminal
  Procedure Code by Ratanlal and Dhirajlal, 20th edition
  (2016) at pp. 427 and 451; Black’s Law Dictionary
  Tenth Edition at p. 572; P Ramanatha Aiyar’s Advanced
  Law Lexicon Fifth Edition at pgs. 1537 and 1563;         G
  Mortimer Wheeler, Archaeology from the earth,
  Oxford: Clarendon Press (1954); Karl R. Popper, The
  Logic of Scientific Discovery, Hutchinson & Co (1959);
  Adam Hardy, Indian temple architecture: form and
  transformation: the Karnòatòa Dravidòa tradition, 7th
                                                           H
42            SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          to 13th centuries: Indira Gandhi National Centre for
           the Arts (1995); Jose K. John, The Mapping of
           Hindustan: A Forgotten Geographer of India, Joseph
           Tieffenthaler (1710-1785); Proceedings of the Indian
           History Congress, Vol. 58 (1997) at pages 400-410;
           Edward Thornton, 1799-1875: A Gazetteer of the
B
           Territories Under the Government of the East-India
           Company, and of the Native States on the Continent of
           India, London: W. H. Allen (1854); Alexander
           Cunningham, Four Reports Made During the Years
           1862-63-64-65, Archaeological Survey of India,
C          Volume 1, Simla: Government Central Press, 1871;
           U.P. District Gazetteer Faizabad by Smt. Isha Basant
           Joshi (1960 Edition); Introduction by Richard J Evans
           in E.H. Carr, What is History?, Penguin (2018 reprint)
           at page 12; and Marc Bloch, The Historian’s Craft,
           Penguin (2019 reprint), at page 4; Sastri’s “Hindu Law,
D
           Chapter XIV, 5th edition at page 726; Phipson on
           Evidence, 16 th Edn. at pgs 154-155; Robert
           Montgomery Martin (Biographical details) – British
           Museum; F. H. H. King, Survey our empire! Robert
           Montgomery Martin (1801–1868), a bio-bibliography
E          (1979); William Foster, “Early Travels in India (1583-
           1619)”, London (1921) at pg 176 – referred to.
           HELD (per addenda):
           1. The oral evidence of the witnesses examined on behalf
F    of plaintiffs of Suit No.5, plaintiffs of Suit No. 3 and even witness
     examined on behalf of plaintiffs of Suit No.4 clearly proves faith
     and belief of Hindus that Janmasthan of Lord Ram is the place
     where Babri Mosque has been constructed. Three-dome
     structure was treated as Birthplace of Lord Ram. People worship
     of the three-dome structure, parikrama of the entire premises
G    by the devotees have been amply proved by oral evidences led
     in the Suit. [Para 166][866-D]
           2. The statements noted in all Gazetteers published under
     authority of government categorically and unanimously state that
     at Janmasthan of Lord Ram, Babri Mosque was constructed in
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                     43


1528 by Babar. It is true that statements recorded in Gazette is      A
not conclusive evidence but presumption of correctness of
statements recorded have to be raised subject to being disproved
by leading appropriate evidences. All Gazettes published by the
Government authority repeat the same statement that Babri
Mosque was constructed at the Janmasthan of Lord Ram. There
                                                                      B
is no evidence worth name led of the plaintiffs of Suit No.4 to
disprove the above statement and further, oral evidence clearly
supports the faith and belief of Hindus that Lord Ram was born
at the place where Babri Mosque has been constructed. The
conclusion that place of birth of Lord Ram is the three-dome
structure can, therefore, be reached. [Para 167][866-E-G]             C
      3. The sequence of the events clearly indicate that faith
and belief of Hindus was that birth place of Lord Ram was in the
three-dome structure Mosque which was constructed at the
janamasthan. It was only during the British period that grilled
wall was constructed dividing the walled premises of the Mosque       D
into inner courtyard and outer courtyard. Grilled iron wall was
constructed to keep Hindus outside the grilled iron wall in the
outer courtyard. In view of the construction of the iron wall, the
worship and puja started in Ram Chabutra in the outer courtyard.
Suit of 1885 was filed seeking permission to construct temple on
                                                                      E
the said Chabutra where worship was permitted by the British
Authority. Faith and belief of the Hindus as depicted by the
evidence on record clearly establish the Hindus belief that at the
birth place of Lord Ram, the Mosque was constructed and three-
dome structure is the birth place of Lord Ram. The fact that
Hindus were by constructing iron wall, dividing Mosque                F
premises, kept outside the three-dome structure cannot be said
to alter their faith and belief regarding the birthplace of Lord
Ram. The worship on the Ram Chabutra in the outer courtyard
was symbolic worship of Lord Ram who was believed to be born
in the premises. [Para 169][867-B-E]
                                                                      G
      4. It is thus concluded that faith and belief of Hindus since
prior to construction of Mosque and subsequent thereto has
always been that Janmaasthan of Lord Ram is the place where

                                                                      H
44          SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A    Babri Mosque has been constructed which faith and belief is
     proved by documentary and oral evidence. [Para 170][867-F]
          Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR
          1951 SC 288 : [1951] SCR 534; Gopal Krishnaji
          Ketkar v. Mahomed Jaffar Mahomed Hussein, AIR
B         1954 SC 5; Mahant Shri Srinivas Ramanuj Das v.
          Surjanarayan Das and Another, AIR 1967 SC 256:
          [1966] SCR 436; and Bala Shankar Maha Shanker
          Bhattjee and Others v. Charity Commissioner, Gujarat
          State, (1995) 1 Suppl. SCC 485 : [1994] 2 Suppl. SCR
          687 – relied on.
C
          Shastri Yagnapurushadji and others v. Muldas
          Sbhudardas Vaishya and another AIR 1966 SC 1119 :
          [1966] 3 SCR 242; The Commissioner, Hindu Religious
          Endowments, Madras v. Sri Lakshmindra Thirtha
          Swamiar of Sri Shirur Mutt, AIR 1954 SC 282:[1954]
D
           SCR 1005 – referred to.
                            Case Law Reference
                        In the judgment per curiam
     [1994] 5 Suppl. SCR 1           referred to        Para 25
E    [1994] 2 SCR 644                referred to        Para 83
     [2000] 2 SCR 705                relied on          Para 40
     [1992] 1 SCR 1003               relied on          Para 96
     [1999] 3 SCR 442                referred to        Para 102
F    [1969] 3 SCR 742                referred to        Para 104
     [1956] SCR 756                  relied on          Para 117

     [1962] Supp 2 SCR 276           referred to        Para 130
G    [1966] 3 SCR 242                referred to        Para 130
     [1969] 1 SCR 624                referred to        Para 149
     [2004] 6 Suppl. SCR 734         referred to        Para 132
     [1965] 1 SCR 96                 referred to        Para 131
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS   45


[1979] 3 SCR 431          referred to    Para 131   A
[1959] Supp 2 SCR 583     referred to    Para 132
[2003] 6 Suppl. SCR 42    referred to    Para 132
[2015] 5 SCR 365          referred to    Para 132
[2003] 2 Suppl. SCR 619   referred to    Para 176   B
[1954] SCR 277            referred to    Para 176
[1997] 2 SCR 1086         referred to    Para 176
[1952] SCR 849            referred to    Para 212
                                                    C
[1966] 3 SCR 242          referred to    Para 212
[1994] 2 Suppl. SCR 687   relied on      Para 212
[1951] SCR 1125           referred to    Para 228
[1954] SCR 1005           relied on      Para 228
                                                    D
[2004] 4 Suppl. SCR 942   referred to    Para 228
[1989] 1 Suppl. SCR 43    referred to    Para 228
[1959] 2 Suppl. SCR 798   relied on      Para 229
[1988] 2 Suppl. SCR 584   relied on      Para 235
                                                    E
[1965] 3 SCR 655          relied on      Para 229
[1950] SCR 852            referred to    Para 229
[1986] SCR 1072           referred to    Para 230
[1969] 1 SCR 80           relied on      Para 234   F
[2003] 5 Suppl. SCR 98    relied on      Para 234
[2015] 1 SCR 430          relied on      Para 234
(2000) 4 SCC 440          relied on      Para 236
(1985) 1 SCC 427          relied on      Para 236   G
[1980] 1 SCR 323          relied on      Para 243
[1994] 6 Suppl. SCR 193   relied on      Para 244
AIR 1965 SC 1923          referred to    Para 249
[2004] 3 Suppl. SCR 425   relied on      Para 254   H
46          SUPREME COURT REPORTS            [2019] 18 S.C.R.


A    [1973] 3 SCR 1004         relied on        Para 264
     [1981] 3 SCR 419          relied on        Para 261
     [1985] 3 Suppl. SCR 827   relied on        Para 263
     [2008] 12 SCR 104         relied on        Para 263
B    [1959] 2 Suppl. SCR 476   relied on        Para 264
     [2004] 4 Suppl. SCR 942   referred to      Para 269
     [2004] 2 SCR 145          referred to      Para 269
     [1979] 3 SCR 209          referred to      Para 332
C
     AIR 1962 SC 1329          relied on        Para 333
     [1966] Suppl. SCR 270     relied on        Para 340
     [1967] 2 SCR 618          relied on        Para 343
     AIR 1956 SC 382           relied on        Para 374
D
     AIR 1954 SC 5             relied on        Para 379
     [2008] 15 SCR 135         relied on        Para 410
     [1965] 3 SCR 433          referred to      Para 422
     [1966] 1 SCR 908          referred to      Para 423
E
     [2003] 4 Suppl. SCR 33    referred to      Para 437
     [1960] 1 SCR 773          referred to      Para 438
     [2008] 13 SCR 1056        referred to      Para 441

F    [1957] SCR 488            referred to      Para 441
     [1977] 2 SCR 636          relied on        Para 442
     [2003] 6 Suppl. SCR 927   relied on        Para 444
     [2016] 1 SCR 34           referred to      Para 488
G    [1973] 2 SCR 702          relied on        Para 493
     [1980] 2 SCR 249          relied on        Para 493
     (1992) 3 SCC 700          relied on        Para 493
     AIR 1964 SC 529           referred to      Para 493
H    [2016] 5 SCR 335          relied on        Para 493
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS   47


[1954] SCR 919            relied on      Para 493   A
[1975] 3 SCR 967          relied on      Para 506
[1988] 2 Suppl. SCR 391   relied on      Para 506
(2004) 1 Suppl. SCC 255   relied on      Para 585
[1951] SCR 534            relied on      Para 589   B
[1966] Supp. SCR 436      relied on      Para 591
[1989] 2 Suppl. SCR 759   relied on      Para 591
[1965] 3 SCR 655          referred to    Para 616
                                                    C
[2007] 11 SCR 33          referred to    Para 627
[1962] 1 Suppl. SCR 405   relied on      Para 643
[1964] 6 SCR 461          relied on      Para 645
[1966] 1 SCR 357          relied on      Para 645
                                                    D
[1971] Suppl. SCR 244     relied on      Para 645
[1953] SCR 1009           referred to    Para 671
[1964] 8 SCR 239          referred to    Para 671
[1991] 1 Suppl. SCR 251   relied on      Para 675
                                                    E
(1998) 4 SCC 409          relied on      Para 675
[1964] 8 SCR 347          relied on      Para 681
AIR 1956 SC 713           relied on      Para 738
[1980] 1 SCR 323          referred to    Para 752   F
[1957] SCR 195            relied on      Para 752
[2007] 11 SCR 517         relied on      Para 752
AIR 1940 PC 116           referred to    Para 753
(2019) 8 SCC 729          relied on      Para 754   G
[1951] SCR 431            relied on      Para 762
AIR 1953 SC 195           relied on      Para 763
[1955] 1 SCR 1168         relied on      Para 764
                                                    H
48            SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A    [2002] 1 SCR 651                  relied on           Para 765
     [2000] 2 Suppl. SCR 5             relied on           Para 766
     (1993) 4 SCC 403                  relied on           Para 774
     [2007] 5 SCR 155                  relied on           Para 774
B    [1968] 3 SCR 163                  relied on            Para 785
     [1988] 1 SCR 722                  relied on            Para 785
     (2003) 3 SCC 472                  relied on           Para 785
     [2013] 4 SCR 394                  relied on           Para 785
C
     [1951] SCR 277                    relied on           Para 792
     [1958] SCR 895                    relied on           Para 792
     [2007] 10 SCR 17                  relied on           Para 793
     [2004] 3 Suppl. SCR 653           relied on            Para 793
D
     (1991) 1 SCC 441                  relied on           Para 793
                              In the addenda
     [1966] SCR 242                    referred to         Para 29
     [1954] SCR 1005                   referred to         Para 38
E
     [1951] SCR 534                    relied on           Para 77
     AIR 1954 SC 5                     relied on           Para 78
     [1966] SCR 436                    relied on           Para 79

F    [1994] 2 Suppl. SCR 687           relied on            Para 80
          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10866-
     10867 of 2010.
           From the Judgment and Order dated 30.09.2010 of the High
     Court of Judicature at Allahabad, Lucknow Bench, Lucknow in O.O.S.
G    No. 4/1989 (Regular Suit No. 12 of 1961) and O.O.S. No. 5/1989
     (Regular Suit No. 236 of 1989)
           With
           C.A Nos. 4768-4771/2011, 2636/2011, 821/2011, 4739/2011, 4905-
     4908/2011, 2215/2011, 4740/2011, 2894/2011, 6965/2011, 4192/2011,
H    5498/2011, 7226/2011, 8096/2011
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                      49


       Tushar Mehta, SG, Raghvendra Singh, Sr. Adv./Adv. Gen., Vinod   A
Diwakar, Madan Mohan Pandey, Ajay Kumar Mishra, AAGs,
Dr. Rajeev Dhavan, Zafaryab Jilani, Ms. Meenakshi Arora,
K. Parasaran, C.S. Vaidyanathan, Sushil Kumar Jain, Ranjit Kumar,
Shekhar Naphade, Vikas Singh, Ms. Aishwarya Bhati, P.S. Narasimha,
V. Shekhar, R.N. Venjrani, S.P. Singh, Aman Sinha, Jaideep Gupta,
                                                                       B
Dr. P.N. Mishra, Sr. Advs., Ejaz Maqbool, Shahid Nadeem, Ms. Akriti
Chaubey, Ms. Qurratulain, Gautam Prabhakar, Wasif Rahman Khan,
Kunwar Aditya Singh, Ms. Siddhi Padia, Shakil Ahmed Syed, Mohd.
Parvez Dabas, Uzmi Jameel Husain, Daanish Ahmad Syed, Mohammad
Sulaiman Khan, Zia Ul Qayuim, Mushtaq Ahmad Siddique, Shail Kumar
Dwivedi, Mohd. Nizamuddin Pasha, M.R. Shamshad, Nizampasha, Zaki       C
Ahmad Khan, Aditya Samaddar, Ms. Sarah Haque, Ms. Bhabna Das,
Ms. Rashmi Singh, Ms. Chitra Vats, Bhupender Yadav, P.V. Yogeswaran,
Gobind Kumar, P.K. Singh, Ms. Aditi, Anirudh Sharma, Amit Sharma,
Sandeep Singh, Pranav Kumar, Ashish Kumar Upadhyay, Babul Kumar,
Y. Lokesh, Akshay Nagarajan, P. Abinesh Karthik, Priya Ranjan Roi,
                                                                       D
Anil Hooda, Ajay Sharma, Puneet Jain, R.L. Verma, Arun Sharma, Ms.
Christi Jain, Tarunjeet Verma, Varun Sharma, Harshit Khanduja, Harsh
Jain, Abhinav Deshwal, Abhinav Gupta, Shailendra Sharma,
Ms. Pratibha Jain, M.K. Tiwari, D. Bharat Kumar, Yash Mishra, Ankit
Raj, Indira Bhakar, Rajesh Singh, Vineet Pandey, Ms. Nidhi Jaiswal,
Santosh Kumar, T. Bhaskar Gowtham, Ashwin Kumar, Kumar Mihir,          E
Ms. Shristi Mishra, Dwijendra Prasad Gupta, Deepak Kumar, Ms. Ruchi
Kohli, Irshad Ahmad, Abhikalp Pratap Singh, Ms. Lakshmi S. Iyer,
Ms. Aishwarya Dash, M. Taiyyab Khan, Mujibuddin, Tasbrik Ahmad,
Ravi Shankar Kumar, Vivek Sharma, Pallav Mongia, Rajesh Raina,
Abhinav Goyal, Dawneesh Shaktivats, Narendra Kumar, Utkarsh
                                                                       F
Kashyap, Saayan Kunal, Jamshed Bey, Ms. Priyambica M. Jha,
Ms. Deepika Kaliya, Mritunjaya Singh, Sanjay Kumar Mishra, Satwik
Misra, Smarhar Singh, Dr. Prabhat Kumar, Dr. S.K. Verma,
Ms. Aakancha Verma Chandhiok, Janmay Verma, Binay Kumar Das,
Ms. Priyanka Das, Ms. Joyoti Kundu Goyal, Ms. Vimla Sinha, Baldev
Atreya, Dr. Alok Kumar Sharma, Ms. Dhriti Singh, M.C. Dhingra,         G
Piyush Kant Roy, Gaurav Dhingra, Mrs. Abha Roy, Vikrant Yadav,
Ms. Indira Kandra, Ms. Arna Das, Ms. Kamakshi S. Mehlwal, Mohit
Yadav, Ms. Deepti J. Raj, Ms. Rubina Jawed, Md. Izhar Alam, Ramjee
Pandey, Anoop Bose, Girjesh Pandey, Antariksh Singh, Rakesh Kumar,
Sanjeev Kumar, Rajesh Kumar, Akash Kumar Singh, Ms. Divyani Singh,
                                                                       H
50            SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A    Ms. Vrinda Jhingan, Uday Prakash Yadav, Ms. Nabhanya Sharma,
     Hement Sharma, Aushothosh Sharma, Niraj Srivastava, Sujit Jha, Alok
     Singh, Narayan R. Panicker, Abhishek Singh, K.K. Khurana, M.K.
     Pandey, Amit Kumar Singh, Shiv Nand Mishra, Rajkumar Parashar,
     Hari Shankar Jain, Ms. Yashmi Sehgal, Ms. Kanika Rai, Ms. Pooja Rai,
     Ms. Bandana Mishra, Vishnu Shankar Jain, Ms. Vaishnavi Ranjana,
B
     Pankaj Kumar Verma, Bhavanishankar V. Gadnis, Vishwanath B.
     Gadnis, Radni V. Gadnis, Varinder Kumar Sharma, Manoj K. Mishra,
     Umesh Dubey, Jyoti Mishra, Mahendra Singh, D.K. Mishra, Vijay Pal,
     Shyamal Kumar, Sunil Kumar Tomar, Sujeet Kumar, Bitu Kumar Singh,
     Balraj Singh Malik, Shyam Sunder Gupta, R.S. Rond, R.P. Singh,
C    Ashutosh Sharma, Shantanu Sharma, Ms. Ranjana Agnihotri,
     Ms. Sangeeta Mandal, Ms. Swati Singh, Ms. Taruna A. Prasad,
     Ms. Sukanya Basu, Ms. Shimantika Mandal, Rajeshwar Nath Mishra,
     Ms. Swati Singh for M/s. Fox Mandal & Co., Syed Shahid Hussain
     Rizvi, Zeeshan Rizvi, Anas Zaidi, Imtiaz Ahmad, S. Mansoor Ali, Rashid
     Saeed, Aftab Ali Khan, M. Tayyab Khan, Mujeebuddin Khan, Ali Safeer
D
     Farooqi, Syed Imtiyaz Ali, Mumtaz Alam Siddiqui, Sheik Maulali Basha,
     Piyush Beriwal, Ms. Swati Ghildiyal, Surender Kumar Gupta, B.V.
     Balram Das, B. Krishna Prasad, Ravindra Raizada, Sanjay Kumar
     Tyagi, S.K. Dwivedi, Rajeev Kumar Dubey, D.N. Dubey, Shashank
     Shekhar Singh, Pankaj Sharma, Sudhakar Kulwant, Ajay Jain, Ashutosh
E    Kumar Sharma, Saurav Singh Chauhan, Ashish Tiwari, Siddharth
     Krishan Dwivedi, Ms. Nidhi Dwivedi, B.N. Dubey, Aviral Saxena,
     Ashiwan Mishra, Ms. Manvi Dixit Sharma, B.P. Singh Dhakray, Shakit
     Singh Dhakray, Kamlendra Mishra, Manish Shukla, sAmit Kumar,
     Pankaj Pandey, Bhakti Vardhan Singh, Vikas Singh Jangra, Sarthak
     Nayak, Shridhar Pottaraju, Ms. Ankita Sharma, Prakash Gautam, Amit
F
     Kumar Pathak, V.C. Shukla, Rahul G. Tanwani, Rishi Raj Sharma,
     Tushar Thareja, Sayooj Mohandas, Praneet Pranav, Ms. Shivani Tushir,
     Sindoora VNL, Ms. Aditi Tripathi, Ms. Kanti, Prashant Singh, Rajesh
     Kumar, Gaichangpou Gangmei, Arjun D. Singh, Abhishek R. Shukla,
     Mukunda Rao Angara, Siddhartha Talukdar, Ms. Shiwani Tushir,
G    Ms. Shweta Parihar, Ms. Gavarraju Ushasri, Yashvir Kumar, Vishnu
     Thulasi Menon, D. Bharat Kumar, Mrs. Swarupama Chaturvedi, Rishi
     Raj Sharma, Anish Kumar Gupta, B.N. Dubey, Ms. Devika Gulati,
     Kumar Gaurav, Robin Khokhar, Ms. Aparna Trivedi, Amit Kumar, Ms.
     Babita Yadav, Mukesh Kumar, Ashutosh Mohan, Niaz Ahmad Farooqui,
     Tanveer Ahmad Khan, Milan Laskar, Zaki Ullah Khan, Mohd. Shakim,
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       51


Mohammad Noorullah, Mohd. Umar Iqbal Khan, Vaibhav Tandon, Pulkit       A
Chandna, Mohd. Shahib, Mohd. Aamir Dabas, Fuzail Ahmad Ayyubi,
Abdul Qadir, Ibad Mushtaq, Ms. Aditi Gupta, Lakshmi Raman Singh,
Chandra Prakash, Vivek Singh, Ms. Udita Singh, C.P. Rajwar, Srikaanth
S., Abhishek Sharma, Shashank Shekhar, Rituraj, Ms. Sheetal Rajput,
Satwik Misra, Ms. Ritika Rani, Ravishankar Kumar, Anupam Mishra,
                                                                        B
V. Harikumar, Pankaj Sharma, Hitesh Kumar Sharma, S.K. Rajora,
Ms. Anika Nissar Syyed, Prerit Shukla, Sudhakar Dwivedi, A. Deb
Kumar, Ms. A. Deepa, Shashank Singh, Ambuj Ojha, Abhishek Atrey,
Dr. Ashwini Bhardwaj, Neeraj Sharma, Umesh Babu Chaurasia,
Ms. Vidyottama, Ajay Kumar Pandey, Sai Deepak, Ravindra Lokhande,
Mukul Singh, Satya Ranjan Swain, Deepak Goel, Rajesh Kumar Singh,       C
Ms. Kavitha K.T., Dr. Ashwani Bhardwaj, Neeraj Sharma, Umesh
Babu Chaurasia, Ms. Priyanka Swami, Navneet Kumar, Vaibhav
Chadha, Siddhartha Sinha, Samar Vijay Singh, Govind Kumar, Harshit
Kaushik, Manoj Kumar, Ms. Shweta Bharti, Shantanu Malik, Anil Tiwari,
Ms. Ananya Baweja, Vishal Srivastava, Virendra Chaubey, Awadhesh
                                                                        D
Chaubey, Karunesh Kumar Shukla, Anil Kumar, Amit Pawan, R.S.
Mishra, Ms. Ayuseya, Dr. P.N. Mishra, Ms. Ranjana Agnihotri,
Ms. Sangeeta Mandal, Barun Kumar Sinha, Mrs. Pratibha Sinha, Ms.
Baby Devi Bonia, Birendra Kumar Choudhary, Arun Kumar, Abhishek,
Anil Kumar, Jitendra Kumar Tripathi, Mrs. Anubha Bhardwaj, Dinesh
Bhati, Yadvendra Dutt Dwivedi, B.K. Satija, Aditya Sharma,              E
Mrs. Minakshi Vij, C.R. Jaya Sukin, Ms. Abhilasha Tungathurthy, Ajay
Bansal, Mrs. Veena Bansal, Gaurav Yadava, B.K. Satija, Mohd. Ainul
Ansari, Ms. Garima Shukla, Sujeet Kumar, Pardeep Jatav, Sunil
Khatwani, Abdul Karim Ansari, Mukesh Verma, Vivek Vishnoi, R.S.
Tripathi, Raj Singh Rana, Pawan Kumar Shukla, Kamal Kumar Pandey,
                                                                        F
Pankaj Kumar Singh, Dr. Gunratan Sadavarte, Dr. Jayshri Laxmanrao
Patil, Vipin Kumar Saxena, T.N. Saxena, G.P. Mahto, Sanjeet Paliwal,
Vishal Tewari, Yash Pal Dhingra, Nachiketa Joshi, Ms. Sucheta Joshi,
Bharat Sood, Ayush Anand, V.V.V.M.B.N. Pattaviram, Shubhendu
Anand, Neeraj, Ankit Raj, R.K. Rajvanshi, Harshvardhan Singh Rathore,
Baij Nath Patel, Ms. Baby Devi Bonia, Sunil Kumar Tomar, Gopal Jha,     G
Yasharth Kant, Udayaditya Banerjee, Sudipto Sircar, Bhav Ratan,
Ms. Ankita Chaudhary, Aditya Singh, Mukul Singh, Ms. Archana Pathak
Dave, Md. Irshad Hanif, Rizwan Ahmad, Aarif Ali Khan, Mujahid
Ahmad, Manoj V. George, Syed Faizan, Sheik Moulali Basha, Towseef
Ahmad Dar, Syed Mehdi Imam, Ms. Shamama Anis, Atif Suhrawardy,
                                                                        H
52           SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A    Tabrez Ahmad, Omar Siddiqui, Nauras Suhrawardy, Md. Noorullah,
     Javaid Muzaffar, Tashriq Ahmed, Ghufran Imtiaz, Mohd. Parvez Dabas,
     Sharad Chauhan, Arup Banerjee, Prakash Sharma, Pankaj Sharma,
     Prashant Sharma, Anuj Saxena, Ms. Prakrati Raj, Achyut Saxena,
     Mohd. Naved, Md. Shahid Anwar, Advs. for the appearing parties.
B          The following Judgment of the Court was delivered:
                                         INDEX
           A.    Introduction
           B.    An overview of the suits
C          C.    Evidence: a bird’s eye view
           D.    The aftermath of 1856-7
                  D.1 Response to the wall
                  D.2 Period between 1934-1949
D           E.   Proceedings under Section 145
            F.   Points for determination
            G.   The three inscriptions
           H.    Judicial review and characteristics of a mosque in Islamic
E                law
            I.   Places of Worship Act
            J.   Juristic personality
                   J.1 Development of the law
F                  J.2 Idols and juristic personality
                   J.3 Juristic personality of the first plaintiff
                   J.4 Juristic personality of the second plaintiff
           K.    Analysis of the suits
G
            L.   Suit 1: Gopal Singh Visharad
                  L.1 Pleadings
                  L.2 Issues and findings of the High Court
                  L.3 Analysis
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                   53


   M.   Suit 3: Nirmohi Akhara                                    A
         M.1 Pleadings
         M.2 Conflict between Suit 3 and Suit 5
         M.3 Issues and findings of the High Court
         M.4 Limitation in Suit 3                                 B
         M.5 Oral testimony of the Nirmohi witnesses
         M.6 Nirmohi Akhara’s claim to possession of the inner
             courtyard Documentary evidence in regard to the
             mosque (1934-1949)
                                                                  C
   N.   Suit 5: The deities
         N.1 Array of parties
         N.2 No contest by the State of Uttar Pradesh
         N.3 Pleadings                                            D
         N.4 Written statements
         N.5 Issues and findings of the High Court
         N.6 Shebaits: an exclusive right to sue?
        A suit by a worshipper or a person interested Nirmohi     E
        Akhara and shebaiti rights
  N.7   Limitation in Suit 5
        The argument of perpetual minority
  N.8   The Suit of 1885 and Res Judicata                         F
  N.9   Archaeological report
 N.10   Nature and use of the disputed structure: oral evidence
 N.11   Photographs of the disputed structure
 N.12   Vishnu Hari inscriptions                                  G
 N.13   The polestar of faith and belief
        Travelogues, gazetteers and books
        Evidentiary value of travelogues, gazetteers and books
 N.14   Historian’s report                                        H
54           SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          O.    Suit 4: Sunni Central Waqf Board
                  O.1 Analysis of the plaint
                  O.2 Written statements
                  O.3 Issues and findings of the High Court
B                 O.4 Limitation in Suit 4
                  O.5 Applicable legal regime and Justice, Equity and
                      Good Conscience
                  O.6 Grants and recognition
C                 O.7 Disputes and cases affirming possession
                        Impact of Suit of 1885
                        Incidents between 1934 and 1950
                  O.8 Proof of namaz
D                 O.9 Placing of idols in 1949
                 O.10 Nazul land
                 O.11 Waqf by user
                 O.12 Possession and adverse possession
E
                 O.13 Doctrine of the lost grant
                 O.14 The smokescreen of the disputed premises – the
                      wall of 1858
                 O.15 Analysis of evidence in Suit 4
F                O.16 The Muslim claim to possessory title
            P.   Analysis on title
                   P.1 Marshalling the evidence in Suit 4 and Suit 5
                   P.2 Conclusion on title
G
           Q.    Reliefs and directions
     A. Introduction
            1. These first appeals centre around a dispute between two
     religious communities both of whom claim ownership over a piece of
H    land admeasuring 1500 square yards in the town of Ayodhya. The
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                55


disputed property is of immense significance to Hindus and Muslims.              A
The Hindu community claims it as the birth-place of Lord Ram, an
incarnation of Lord Vishnu. The Muslim community claims it as the
site of the historic Babri Masjid built by the first Mughal Emperor, Babur.
The lands of our country have witnessed invasions and dissensions. Yet
they have assimilated into the idea of India everyone who sought their
                                                                                 B
providence, whether they came as merchants, travellers or as
conquerors. The history and culture of this country have been home to
quests for truth, through the material, the political, and the spiritual. This
Court is called upon to fulfil its adjudicatory function where it is claimed
that two quests for the truth impinge on the freedoms of the other or
violate the rule of law.                                                         C
        2. This Court is tasked with the resolution of a dispute whose
origins are as old as the idea of India itself. The events associated with
the dispute have spanned the Mughal empire, colonial rule and the
present constitutional regime. Constitutional values form the cornerstone
of this nation and have facilitated the lawful resolution of the present         D
title dispute through forty-one days of hearings before this Court. The
dispute in these appeals arises out of four regular suits which were
instituted between 1950 and 1989. Before the Allahabad High Court,
voluminous evidence, both oral and documentary was led, resulting in
three judgements running the course of 4304 pages. This judgement is
placed in challenge in the appeals.                                              E

       3. The disputed land forms part of the village of Kot Rama
Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana
Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old
structure of a mosque existed at the site until 6 December 1992. The
site has religious significance for the devotees of Lord Ram, who believe        F
that Lord Ram was born at the disputed site. For this reason, the Hindus
refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e.
birth-place of Lord Ram). The Hindus assert that there existed at the
disputed site an ancient temple dedicated to Lord Ram, which was
demolished upon the conquest of the Indian sub-continent by Mughal               G
Emperor Babur. On the other hand, the Muslims contended that the
mosque was built by or at the behest of Babur on vacant land. Though
the significance of the site for the Hindus is not denied, it is the case
of the Muslims that there exists no proprietary claim of the Hindus over
the disputed property.
                                                                                 H
56             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A          4. A suit was instituted in 1950 before the Civil Judge at Faizabad
     by a Hindu worshipper, Gopal Singh Visharad seeking a declaration that
     according to his religion and custom, he is entitled to offer prayers at
     the main Janmabhumi temple near the idols.
            5. The Nirmohi Akhara represents a religious sect amongst the
B    Hindus, known as the Ramanandi Bairagis. The Nirmohis claim that
     they were, at all material times, in charge and management of the
     structure at the disputed site which according to them was a ‘temple’
     until 29 December 1949, on which date an attachment was ordered
     under Section 145 of the Code of Criminal Procedure 1898. In effect,
     they claim as shebaits in service of the deity, managing its affairs and
C    receiving offerings from devotees. Theirs is a Suit of 1959 for the
     management and charge of ‘the temple’.
             6. The Uttar Pradesh Sunni Central Board of Waqf (“Sunni
     Central Waqf Board”) and other Muslim residents of Ayodhya
     instituted a suit in 1961 for a declaration of their title to the disputed
D    site. According to them, the old structure was a mosque which was
     built on the instructions of Emperor Babur by Mir Baqi who was the
     Commander of his forces, following the conquest of the sub-continent
     by the Mughal Emperor in the third decade of the sixteenth century.
     The Muslims deny that the mosque was constructed on the site of a
E    destroyed temple. According to them, prayers were uninterruptedly
     offered in the mosque until 23 December 1949 when a group of Hindus
     desecrated it by placing idols within the precincts of its three-domed
     structure with the intent to destroy, damage and defile the Islamic
     religious structure. The Sunni Central Waqf Board claims a declaration
     of title and, if found necessary, a decree for possession.
F
            7. A suit was instituted in 1989 by a next friend on behalf of the
     deity (“Bhagwan Shri Ram Virajman”) and the birth-place of Lord
     Ram (“Asthan Shri Ram Janmabhumi”). The suit is founded on the
     claim that the law recognises both the idol and the birth-place as juridical
     entities. The claim is that the place of birth is sanctified as an object of
G    worship, personifying the divine spirit of Lord Ram. Hence, like the idol
     (which the law recognises as a juridical entity), the place of birth of
     the deity is claimed to be a legal person, or as it is described in legal
     parlance, to possess a juridical status. A declaration of title to the
     disputed site coupled with injunctive relief has been sought.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            57


       8. These suits, together with a separate suit by Hindu worshippers    A
were transferred by the Allahabad High Court to itself for trial from
the civil court at Faizabad. The High Court rendered a judgment in
original proceedings arising out of the four suits and these appeals arise
out of the decision of a Full Bench dated 30 September 2010. The High
Court held that the suits filed by the Sunni Central Waqf Board and by
Nirmohi Akhara were barred by limitation. Despite having held that           B
those two suits were barred by time, the High Court held in a split 2:1
verdict that the Hindu and Muslim parties were joint holders of the
disputed premises. Each of them was held entitled to one third of the
disputed property. The Nirmohi Akhara was granted the remaining one
third. A preliminary decree to that effect was passed in the suit brought
                                                                             C
by the idol and the birth-place of Lord Ram through the next friend.
        9. Before deciding the appeals, it is necessary to set out the
significant events which have taken place in the chequered history of
this litigation, which spans nearly seven decades.
       10. The disputed site has been a flash point of continued             D
conflagration over decades. In 1856-57, riots broke out between Hindus
and Muslims in the vicinity of the structure. The colonial government
attempted to raise a buffer between the two communities to maintain
law and order by set ting up a grill-brick wall having a height of six or
seven feet. This would divide the premises into two parts: the inner
portion which would be used by the Muslim community and the outer            E
portion or courtyard, which would be used by the Hindu community.
The outer courtyard has several structures of religious significance for
the Hindus, such as the Sita Rasoi and a platform called the
Ramchabutra. In 1877, another door was opened on the northern side
of the outer courtyard by the colonial government, which was given to
the Hindus to control and manage. The bifurcation, as the record shows,      F
did not resolve the conflict and there were numerous attempts by one
or other of the parties to exclude the other.
        11. In January 1885, Mahant Raghubar Das, claiming to be the
Mahant of Ram Janmasthan instituted a suit1 (“Suit of 1885”) before
the Sub-Judge, Faizabad. The relief which he sought was permission           G
to build a temple on the Ramchabutra situated in the outer courtyard,
measuring seventeen feet by twenty-one feet. A sketch map was filed
with the plaint. On 24 December 1885, the trial judge dismissed the
suit, `noting that there was a possibility of riots breaking out between
the two communities due to the proposed construction of a temple. The
                                                                             H
58              SUPREME COURT REPORTS                                 [2019] 18 S.C.R.


A    trial judge, however, observed that there could be no question or doubt
     regarding the possession and ownership of the Hindus over the
     Chabutra. On 18 March 1886, the District Judge dismissed the appeal
     against the judgment of the Trial Court2 but struck off the observations
     relating to the ownership of Hindus of the Chabutra contained in the
     judgment of the Trial Court. On 1 November 1886, the Judicial
B    Commissioner of Oudh dismissed the second appeal3, noting that the
     Mahant had failed to present evidence of title to establish ownership
     of the Chabutra. In 1934, there was yet another conflagration between
     the two communities. The domed structure of the mosque was damaged
     during the incident and was subsequently repaired at the cost of the
C    colonial government.
            12. The controversy entered a new phase on the night intervening
     22 and 23 December 1949, when the mosque was desecrated by a group
     of about fifty or sixty people who broke open its locks and placed idols
     of Lord Ram under the central dome. A First Information Report
     (“FIR”) was registered in relation to the incident. On 29 December
D
     1949, the Additional City Magistrate, Faizabad-cum-Ayodhya issued a
     preliminary order under Section 145 of the Code of Criminal Procedure
     18984 (“CrPC 1898”), treating the situation to be of an emergent
     nature. Simultaneously, an attachment order was issued and Priya Datt
     Ram, the Chairman of the Municipal Board of Faizabad was appointed
E    as the receiver of the inner courtyard. On 5 January 1950, the receiver
     took charge of the inner courtyard and prepared an inventory of the
     attached properties. The Magistrate passed a preliminary order upon
     recording a satisfaction that the dispute between the two communities
     over their claims to worship and proprietorship over the structure would
     likely lead to a breach of peace. The stakeholders were allowed to file
F    their written statements. Under the Magistrate’s order, only two or three
     pujaris were permitted to go inside the place where the idols were kept,
     to perform religious ceremonies like bhog and puja. Members of the


     1
       (OS No. 61/280 of 1885)
G    2
       Civil Appeal No. 27/1885
     3
       No 27 of 1886
     4
       "Section 145. Procedure where dispute concerning land, etc, is likely to cause breach
     of peace
     (1) Whenever a District Magistrate, or an Executive Magistrate specially empowered
     by the Government in this behalf is satisfied from a police-report or other information
H    that a dispute likely to cause a breach of the peace exists concerning any land or
   M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                       59


general public were restricted from entering and were only allowed                       A
darshan from beyond the grill-brick wall.
       The institution of the suits
       13. On 16 January 1950, a suit was instituted by a Hindu devotee,
Gopal Singh Visharad5, (“Suit 1”) before the Civil Judge at Faizabad,
alleging that he was being prevented by officials of the government from                 B
entering the inner courtyard of the disputed site to offer worship. A
declaration was sought to allow the plaintiff to offer prayers in
accordance with the rites and tenets of his religion (“Sanatan Dharm”)
at the “main Janmabhumi”, near the idols, within the inner courtyard,
without hindrance. On the same date, an ad-interim injunction was                        C
issued in the suit. On 19 January 1950, the injunction was modified to
prevent the idols from being removed from the disputed site and from
causing interference in the performance of puja. On 3 March 1951,
the Trial Court confirmed the ad-interim order, as modified. On 26 May
1955, the appeal6 against the interim order was dismissed by the High
Court of Allahabad.                                                                      D
      14. On 5 December 1950, another suit was instituted by
Paramhans Ramchandra Das7 (“Suit 2”) before the Civil Judge,
Faizabad seeking reliefs similar to those in Suit 1. Suit 2 was
subsequently withdrawn on 18 September 1990.
                                                                                         E
       15. On 1 April 1950, a Court Commissioner was appointed in
Suit 1 to prepare a map of the disputed premises. On 25 June 1950,
the Commissioner submitted a report, together with two site plans of
the disputed premises which were numbered as Plan nos 1 and 2 to
the Trial Court. Both the report and maps indicate the position at the
site and are reproduced below:                                                           F


water of 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        G
their respective claims as respects the fact of actual possession of the subject of
dispute…”
5
  Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS)
No 1 of 1989.
6
  FAFO No 154 of 1951
7
  Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS)
No 2 of 1989)                                                                            H
60      SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                 Report of the Commissioner
                             “REPORT
     Sir,
            I was appointed a commissioner in the above case to
B    prepare a site plan of the locality and building in suit on scale.
     Accordingly, in compliance with the order of the court, I visited
     the locality on 16.4.50 and again on 30.4.50 after giving due notice
     to the counsel of the parties, and made necessary measurements
     on the spot. On the first day of my visit none of the parties were
     present, but on the second day defendant no. 1 was present with
C    Shri Azimullah Khan and Shri Habib Ahmad Khan counsel. At
     about noon defendant no. 1 presented an application, attached
     herewith, when the measurement work had already finished.
           Plan No. I represents the building in suit shown by the
     figure ABCDEF on a larger scale than Plan no.II, which
D    represents the building with its locality.
            A perusal of Plan No.I would show that the building has
     got two gates, one on the east and the other on the north, known
     as “Hanumatdwar” and “Singhdwar” respectively. The
     “Hanumatdwar” is the main entrance gate to the building. At this
E    gate there is a stone slab fixed to the ground containing the
     inscription “1-Shri Janma Bhumi nitya yatra,” and a big coloured
     picture of Shri Hanumanji is placed at the top of the gate. The
     arch of this entrance gate, 10’ in height, rests on two black
     kasauti stone pillars, each 4’ high, marked a and b, containing
F    images of “Jai and Vijai” respectively engraved thereon. To the
     south of this gate on the outer wall there is engraved a stone
     image, 5’ long, known as “Varah Bhagwan.”
     The northern gate, known as “Singhdwar,” 19’6" in height, has
     got at its top images of Garura in the middle and two lions one
     on each side.
G
     On entering the main gate there is pucca floor on the eastern
     and northern side of the inner building, marked by letters GHJKL
     DGB on the north of the eastern floor there is a neem tree, and
     to the south of it there is the bhandara (kitchen). Further south
     there is a raised pucca platform, 17’ x 21’ and 4’ high, known as
H    “Ram Chabutra,” on which stands a small temple having idols
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          61


  of Ram and Janki installed therein. At the south-eastern corner        A
  E there is a joint neem-pipal tree, surrounded by a semi-circular
  pucca platform, on which are installed marble idols of Panchmukhi
  Mahadev, Parbati, Ganesh and Nandi.
  On the northern floor there is a pucca platform, 8’ x 9’, called
  “Sita Rasoi.” On this platform there is a pucca chulha with            B
  chauka and belna, made of marble, affixed by its side. To the
  east of the chulha there are four pairs of marble foot prints of
  Ram, Lakshman, Bharat & Shatrunghna.
  The pucca courtyard in front of the inner (main) building is
  enclosed by walls NHJK intercepted by iron bars with two iron
  bar gates at O and P as shown in the Plan no.I. At the southern        C
  end of this Courtyard there are 14 stairs leading to the roof of
  the building, and to the south of the stairs there is a raised pucca
  platform 2’ high, having a urinal marked U at its south-west
  corner. There are three arched gates, X,Y and Z leading to the
  main building, which is divided into three portions, having arches     D
  at Q and R. There is a chhajja (projected roof) above the arch
  Y. 31.
  The three arches, Y, Q and R are supported on 12 black kasauti
  stone pillars, each 6’ high, marked with letters c to n in Plan no.
  I. The pillars e to m have carvings of kamal flowers thereon.          E
  The pillar contains the image of Shankar Bhagwan in Tandava
  nritya form and another disfigured image engraved thereon. The
  pillar J contained the carved image of Hanumanji. The pillar N
  has got the image of Lord Krishna engraved thereon other pillars
  have also got carvings of images which are effaced.
  In the central portion of the building at the north-western corner,    F
  there is a pucca platform with two stairs, on which is installed
  the idol of Bal Ram (infant Ram).
  At the top of the three portions of the building there are three
  round domes, as shown separately in Plan no.I, each on an
  octagonal base. There are no towers, nor is there any ghusalkhana      G
  or well in the building.
  Around the building there is a pucca path known as parikrama,
  as shown in yellow in Plan Nos.I & II. On the west of the
  parikrama, the land is about 20’ low, while the pucca road on
  the northern side is about 18’ low.                                    H
62      SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A    Other structures found on the locality have been shown in Plan
     no.II at their proper places.
     The land shown by letters S and T is covered by huts and dhunis
     of sadhus. Adjacent to and south of the land shown by letter T,
     there is a raised platform, bounded by walls, 4’ 6" high, with a
B    passage towards west, known as “shankar chabutra.”
     The pucca well, known as “Sita koop” has got a tin shed over it,
     and a stone slab is fixed close to it with the inscription “3-Sita
     koop”. To the south - west of this well there is another stone
     slab fixed into the ground with the inscription “4-Sumitra
C    Bhawan”. On the raised platform of Sumitra Bhawan there is a
     stone slab fixed to the ground, marked, carved with the image
     of Shesh nag.
     The names of the various samadhis and other structures as noted
     in Plan No. II were given by sadhus and others present on the
D    spot.
     Plans nos.I and II, which form part of this report, two notices
     given to parties counsel and the application presented by
     defendant no.1 are attached herewith.
                                              I have the honour to be,
E                                                                   Sir,
                                          Your most obedient servant,
                                                   Shiva Shankar Lal,
     Faizabad.
     Pleader
F
     25.5.50                                           Commissioner.”




G




H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS   63


                   Site map (Plan I)              A




                                                  B




                                                  C




                                                  D




                                                  E




                                                  F




                                                  G




                                                  H
64               SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A                                  Site map (Plan II)




B




C




D




E




F




            16. On 17 December 1959, Nirmohi Akhara instituted a suit8
G
     through its Mahant (“Suit 3”) before the Civil Judge at Faizabad
     claiming that its “absolute right” of managing the affairs of the
     Janmasthan and the temple had been impacted by the Magistrate’s order
     of attachment and by the appointment of a receiver under Section 145.
     8
H        Regular Suit No 26 of 1959 (subsequently renumbered as OOS No. 3 of 1989)
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             65


A decree was sought to hand over the management and charge of the                A
temple to the plaintiff in Suit 3.
       17. On 18 December 1961, the Sunni Central Waqf Board and
nine Muslim residents of Ayodhya filed a suit9 (“Suit 4”) before the
Civil Judge at Faizabad seeking a declaration that the entire disputed
site of the Babri Masjid was a public mosque and for the delivery of             B
possession upon removal of the idols.
      18. On 6 January 1964, the trial of Suits 1, 3 and 4 was
consolidated and Suit 4 was made the leading case.
       19. On 25 January 1986, an application was filed by one Umesh
Chandra before the Trial Court for breaking open the locks placed on             C
the grill-brick wall and for allowing the public to perform darshan within
the inner courtyard. On 1 February 1986, the District Judge issued
directions to open the locks and to provide access to devotees for
darshan inside the structure. In a Writ Petition10 filed before the High
Court challenging the above order, an interim order was passed on 3              D
February 1986 directing that until further orders, the nature of the
property as it existed shall not be altered.
       20. On 1 July 1989, a Suit11 (“Suit 5”) was brought before the
Civil Judge, Faizabad by the deity (“Bhagwan Shri Ram Virajman”)
and the birth-place (“Asthan Shri Ram Janam Bhumi, Ayodhya”),                    E
through a next friend for a declaration of title to the disputed premises
and to restrain the defendants from interfering with or raising any
objection to the construction of a temple. Suit 5 was tried with the other
suits.
       21. On 10 July 1989, all suits were transferred to the High Court         F
of Judicature at Allahabad. On 21 July 1989, a three judge Bench was
constituted by the Chief Justice of the High Court for the trial of the
suits. On an application by the State of Uttar Pradesh, the High Court
passed an interim order on 14 August 1989, directing the parties to
maintain status quo with respect to the property in dispute.
                                                                                 G
      22. During the pendency of the proceedings, the State of Uttar
Pradesh acquired an area of 2.77 acres comprising of the disputed
premises and certain adjoining areas. This was effected by notifications
9
   Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)
10
   Civil Misc. Writ No. 746 of 1986
11
   Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)   H
66               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A    dated 7 October 1991 and 10 October 1991 under Sections 4(1), 6 and
     17(4) of the Land Acquisition Act 1894 (“Land Acquisition Act”).
     The acquisition was for ‘development and providing amenities to pilgrims
     in Ayodhya’. A Writ Petition was filed before the High Court challenging
     the acquisition. By a judgment and order dated 11 December 1992, the
     acquisition was set aside.
B
            23. A substantial change took place in the position at the site on
     6 December 1992. A large crowd destroyed the mosque, boundary wall,
     and Ramchabutra. A makeshift structure of a temple was constructed
     at the place under the erstwhile central dome. The idols were placed
     there.
C
              Acquisition by the Central Government and Ismail Faruqui’s
     case
           24. The Central Government acquired an area of about 68 acres,
     including the premises in dispute, by a legislation called the Acquisition
     of Certain Area at Ayodhya Act 1993 (“Ayodhya Acquisition Act
D    1993”). Sections 3 and 4 envisaged the abatement of all suits which
     were pending before the High Court. Simultaneously, the President of
     India made a reference to this Court under Article 143 of the
     Constitution. The reference was on “(w)hether a Hindu temple or any
     Hindu religious structure existed prior to the construction of the
E    Ram Janam Bhoomi and Babari Masjid (including the premises of
     the inner and outer courtyards on such structure) in the area on
     which the structure stands…”.
            25. Writ petitions were filed before the High Court of Allahabad
     and this Court challenging the validity of the Act of 1993. All the petitions
     and the reference by the President were heard together and decided
F    by a judgment dated 24 October 1994. The decision of a Constitution
     Bench of this Court, titled Dr M Ismail Faruqui v Union of India12
     held Section 4(3), which provided for the abatement of all pending suits
     as unconstitutional. The rest of the Act of 1993 was held to be valid.
     The Constitution Bench declined to answer the Presidential reference
G    and, as a result, all pending suits and proceedings in relation to the
     disputed premises stood revived. The Central Government was
     appointed as a statutory receiver for the maintenance of status quo
     and to hand over the disputed area in terms of the adjudication to be
     made in the suits. The conclusions arrived at by the Constitution Bench
     are extracted below:
H    12
          (1994) 6 SCC 360
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         67


  “96. ... (1)(a) Sub-section (3) of Section 4 of the Act abates all    A
  pending suits and legal proceedings without providing for an
  alternative dispute resolution mechanism for resolution of the
  disputes between the parties thereto. This is an extinction of the
  judicial remedy for resolution of the dispute amounting to negation
  of rule of law. Sub-section (3) of Section 4 of the Act is,
                                                                        B
  therefore, unconstitutional and invalid.
  (1)(b) The remaining provisions of the Act do not suffer from
  any invalidity on the construction made thereof by us. Sub-section
  (3) of Section 4 of the Act is severable from the remaining Act.
  Accordingly, the challenge to the constitutional validity of the
  remaining Act, except for sub-section (3) of Sec. 4, is rejected.     C
  (2) Irrespective of the status of a mosque under the Muslim law
  applicable in the Islamic countries, the status of a mosque under
  the Mahomedan Law applicable in secular India is the same and
  equal to that of any other place of worship of any religion; and
  it does not enjoy any greater immunity from acquisition in exercise   D
  of the sovereign or prerogative power of the State, than that of
  the places of worship of the other religions.
  (3) The pending suits and other proceedings relating to the
  disputed area within which the structure (including the premises
  of the inner and outer courtyards of such structure), commonly        E
  known as the Ram Janma Bhumi - Babri Masjid, stood, stand
  revived for adjudication of the dispute therein, together with the
  interim orders made, except to the extent the interim orders stand
  modified by the provisions of Section 7 of the Act.
  (4) The vesting of the said disputed area in the Central
  Government by virtue of Section 3 of the Act is limited, as a         F
  statutory receiver with the duty for its management and
  administration according to Section 7 requiring maintenance of
  status quo therein under sub-section (2) of Section 7 of the Act.
  The duty of the Central Government as the statutory receiver is
  to handover the disputed area in accordance with Section 6 of         G
  the Act, in terms of the adjudication made in the suits for
  implementation of the final decision therein. This is the purpose
  for which the disputed area has been so acquired.
  (5) The power of the courts in making further interim orders in
  the suits is limited to, and circumscribed by, the area outside the
  ambit of Section 7 of the Act.                                        H
68      SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A    (6) The vesting of the adjacent area, other than the disputed area,
     acquired by the Act in the Central Government by virtue of
     Section 3 of the Act is absolute with the power of management
     and administration thereof in accordance with sub-section (1) of
     Section 7 of the Act, till its further vesting in any authority or
     other body or trustees of any trust in accordance with Section 6
B
     of the Act. The further vesting of the adjacent area, other than
     the disputed area, in accordance with Sec. 6 of the Act has to
     be made at the time and in the manner indicated, in view of the
     purpose of its acquisition.
     (7) The meaning of the word “vest” in Section 3 and Section 6
C    of the Act has to be so understood in the different contexts.
     (8) Section 8 of the Act is meant for payment of compensation
     to owners of the property vesting absolutely in the Central
     Government, the title to which is not in dispute being in excess
     of the disputed area which alone is the subject matter of the
D    revived suits. It does not apply to the disputed area, title to which
     has to be adjudicated in the suits and in respect of which the
     Central Government is merely the statutory receiver as indicated,
     with the duty to restore it to the owner in terms of the adjudication
     made in the suits.
E    (9) The challenge to acquisition of any part of the adjacent area
     on the ground that it is unnecessary for achieving the professed
     objective of settling the long standing dispute cannot be examined
     at this stage. However, the area found to be superfluous on the
     exact area needed for the purpose being determined on
F    adjudication of the dispute, must be restored to the undisputed
     owners.
     (10) Rejection of the challenge by the undisputed owners to
     acquisition of some religious properties in the vicinity of the
     disputed area, at this stage is with the liberty granted to them to
G    renew their challenge, if necessary at a later appropriate stage,
     in cases of continued retention by Central Government of their
     property in excess of the exact area determined to be needed
     on adjudication of the dispute.
     (11) Consequently, the Special Reference No. 1 of 1993 made
     by the President of India under Art. 143(1) of the Constitution
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              69


      of India is superfluous and unnecessary and does not require to          A
      be answered. For this reason, we very respectfully decline to
      answer it and return the same.
      (12) The questions relating to the constitutional validity of the said
      Act and maintainability of the Special Reference are decided in
      these terms.”                                                            B
      The proceedings before the High Court
        26. The recording of oral evidence before the High Court
commenced on 24 July 1996. During the course of the hearings, the
High Court issued directions on 23 October 2002 to the Archaeological
Survey of India (“ASI”) to carry out a scientific investigation and have       C
the disputed site surveyed by Ground Penetrating Technology or Geo-
Radiology (“GPR”). The GPR report dated 17 February 2003 indicated
a variety of “anomalies” which could be associated with “ancient and
contemporaneous structures” such as pillars, foundations, wall slabs and
flooring extending over a large portion of the disputed site. In order to      D
facilitate a further analysis, the High Court directed the ASI on 5 March
2003 to undertake the excavation of the disputed site. A fourteen-
member team was constituted, and a site plan was prepared indicating
the number of trenches to be laid out and excavated. On 22 August
2003, the ASI submitted its final report. The High Court heard objections
to the report.                                                                 E

       27. Evidence, both oral and documentary, was recorded before
the High Court. As one of the judges, Justice Sudhir Agarwal noted,
the High Court had before it 533 exhibits and depositions of 87 witnesses
traversing 13,990 pages. Besides this, counsel relied on over a thousand
reference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French and         F
English, ranging from subjects as diverse as history, culture, archaeology
and religion. The High Court ensured that the innumerable
archaeological artefacts were kept in the record room. It received
dozens of CDs and other records which the three judges of the High
Court have marshalled.                                                         G
      The decision of the High Court
      28. On 30 September 2010, the Full Bench of the High Court
comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D
V Sharma delivered the judgment, which is in appeal. Justice S U Khan
and Justice Sudhir Agarwal held “all the three sets of parties” – Muslims,     H
70            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A    Hindus and Nirmohi Akhara - as joint holders of the disputed premises
     and allotted a one third share to each of them in a preliminary decree.
     Justice S U Khan held thus:
            “Accordingly, all the three sets of parties, i.e. Muslims, Hindus
            and Nirmohi Akhara are declared joint title holders of the property/
B           premises in dispute as described by letters A B C D E F in the
            map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/
            Commissioner appointed by Court in Suit No.1 to the extent of
            one third share each for using and managing the same for
            worshipping. A preliminary decree to this effect is passed.
            However, it is further declared that the portion below the central
C           dome where at present the idol is kept in makeshift temple will
            be allotted to Hindus in final decree.
            It is further directed that Nirmohi Akhara will be allotted share
            including that part which is shown by the words Ram Chabutra
            and Sita Rasoi in the said map.
D           It is further clarified that even though all the three parties are
            declared to have one third share each, however if while allotting
            exact portions some minor adjustment in the share is to be made
            then the same will be made and the adversely affected party may
            be compensated by allotting some portion of the adjoining land
E           which has been acquired by the Central Government.
            The parties are at liberty to file their suggestions for actual
            partition by metes and bounds within three months.
            List immediately after filing of any suggestion/ application for
            preparation of final decree after obtaining necessary instructions
F           from Hon’ble the Chief Justice.
            Status quo as prevailing till date pursuant to Supreme Court
            judgment of Ismail Farooqui (1994(6) Sec 360) in all its minutest
            details shall be maintained for a period of three months unless
            this order is modified or vacated earlier.”
G           Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and
     4 were dismissed as being barred by limitation. The learned judge
     concluded with the following directions:
            “4566…
            (i) It is declared that the area covered by the central dome of
            the three domed structure, i.e., the disputed structure being the
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          71


  deity of Bhagwan Ram Janamsthan and place of birth of Lord             A
  Rama as per faith and belief of the Hindus, belong to plaintiffs
  (Suit-5) and shall not be obstructed or interfered in any manner
  by the defendants. This area is shown by letters AA BB CC DD
  in Appendix 7 to this judgment.
  (ii) The area within the inner courtyard denoted by letters B C        B
  D L K J H G in Appendix 7 (excluding (i) above) belong to
  members of both the communities, i.e., Hindus (here plaintiffs,
  Suit-5) and Muslims since it was being used by both since
  decades and centuries. It is, however, made clear that for the
  purpose of share of plaintiffs, Suit-5 under this direction the area
  which is covered by (i) above shall also be included.                  C

  (iii) The area covered by the structures, namely, Ram Chabutra,
  (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN OO PP in
  Appendix 7) and Bhandar (II JJ KK LL in Appendix 7) in the
  outer courtyard is declared in the share of Nirmohi Akhara
  (defendant no. 3) and they shall be entitled to possession thereof     D
  in the absence of any person with better title.
  (iv) The open area within the outer courtyard (A G H J K L E
  F in Appendix 7) (except that covered by (iii) above) shall be
  shared by Nirmohi Akhara (defendant no. 3) and plaintiffs (Suit-
  5) since it has been generally used by the Hindu people for            E
  worship at both places.
  (iv-a) It is however made clear that the share of muslim parties
  shall not be less than one third (1/3) of the total area of the
  premises and if necessary it may be given some area of outer
  courtyard. It is also made clear that while making partition by        F
  metes and bounds, if some minor adjustments are to be made
  with respect to the share of different parties, the affected party
  may be compensated by allotting the requisite land from the area
  which is under acquisition of the Government of India.
  (v) The land which is available with the Government of India           G
  acquired under Ayodhya Act 1993 for providing it to the parties
  who are successful in the suit for better enjoyment of the property
  shall be made available to the above concerned parties in such
  manner so that all the three parties may utilise the area to which
  they are entitled to, by having separate entry for egress and
                                                                         H
72            SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A          ingress of the people without disturbing each others rights. For
           this purpose the concerned parties may approach the Government
           of India who shall act in accordance with the above directions
           and also as contained in the judgement of Apex Court in Dr. Ismail
           Farooqi (Supra).
B          (vi) A decree, partly preliminary and partly final, to the effect as
           said above (i to v) is passed. Suit-5 is decreed in part to the above
           extent. The parties are at liberty to file their suggestions for actual
           partition of the property in dispute in the manner as directed above
           by metes and bounds by submitting an application to this effect
           to the Officer on Special Duty, Ayodhya Bench at Lucknow or
C          the Registrar, Lucknow Bench, Lucknow, as the case may be.
           (vii) For a period of three months or unless directed otherwise,
           whichever is earlier, the parties shall maintain status quo as on
           today in respect of property in dispute.”
D          Justice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4
     were dismissed as being barred by limitation. Justice D V Sharma
     concluded:
           “Plaintiff’s suit is decreed but with easy costs. It is hereby
           declared that the entire premises of Sri Ram Janm Bhumi at
E          Ayodhya as described and delineated in annexure Nos. 1 and 2
           of the plaint belong to the plaintiff Nos. 1 and 2, the deities. The
           defendants are permanently restrained from interfering with, or
           raising any objection to, or placing any obstruction in the
           construction of the temple at Ram Janm Bhumi Ayodhya at the
           site, referred to in the plaint.”
F
            The parties preferred multiple Civil Appeals and Special Leave
     Petitions before this Court against the judgment of the High Court.
           Proceedings before this Court
            29. On 9 May 2011, a two judge Bench of this Court admitted
G    several appeals and stayed the operation of the judgment and decree
     of the Allahabad High Court. During the pendency of the appeals, parties
     were directed to maintain status quo with respect to the disputed
     premises in accordance with the directions issued in Ismail Faruqui.
     The Registry of this Court was directed to provide parties electronic
     copies of the digitised records.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             73


       30. On 10 September 2013, 24 February 2014, 31 October 2015            A
and 11 August 2017, this Court issued directions for summoning the
digital record of the evidence and pleadings from the Allahabad High
Court and for furnishing translated copies to the parties. On 10 August
2015, a three judge Bench of this Court allowed the Commissioner,
Faizabad Division to replace the old and worn out tarpaulin sheets over
                                                                              B
the makeshift structure under which the idols were placed with new
sheets of the same size and quality.
        31. On 5 December 2017, a three judge Bench of this Court
rejected the plea that the appeals against the impugned judgement be
referred to a larger Bench in view of certain observations of the
Constitution Bench in Ismail Faruqui. On 14 March 2018, a three judge         C
Bench heard arguments on whether the judgment in Ismail Faruqui
required reconsideration. On 27 September 2018, the three judge Bench
of this Court by a majority of 2:1 declined to refer the judgment in Ismail
Faruqui for reconsideration and listed the appeals against the impugned
judgement for hearing.                                                        D
       32. By an administrative order dated 8 January 2019 made
pursuant to the provisions of Order VI Rule 1 of the Supreme Court
Rules, 2013, the Chief Justice of India constituted a five judge Bench
to hear the appeals. On 10 January 2019, the Registry was directed to
inspect the records and if required, engage official translators. On 26       E
February 2019, this Court referred the parties to a Court appointed and
monitored mediation to explore the possibility of bringing about a
permanent solution to the issues raised in the appeals. On 8 March 2019,
a panel of mediators comprising of (i) Justice Fakkir Mohamed Ibrahim
Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and
(iii) Mr Sriram Panchu, Senior Advocate was constituted. Time granted         F
to the mediators to complete the mediation proceedings was extended
on 10 May 2019. Since no settlement had been reached, on 2 August
2019, the hearing of the appeals was directed to commence from 6
August 2019. During the course of hearing, a report was submitted by
the panel of mediators that some of the parties desired to settle the         G
dispute. This Court by its order dated 18 September 2019 observed that
while the hearings will proceed, if any parties desired to settle the
dispute, it was open for them to move the mediators and place a
settlement, if it was arrived at, before this Court. Final arguments were
concluded in the batch of appeals on 16 October 2019. On the same
                                                                              H
74             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A    day, the mediation panel submitted a report titled “Final Report of the
     Committee” stating that a settlement had been arrived at by some of
     the parties to the present dispute. The settlement wassigned by Mr Zufar
     Ahmad Faruqi, Chairman of the Sunni Central Waqf Board. Though
     under the settlement, the Sunni Central Waqf Board agreed to relinquish
     all its rights, interests and claims over the disputed land, this was subject
B
     to the fulfilment of certain conditions stipulated. The settlement
     agreement received by this Court from the mediation panel has not been
     agreed to or signed by all the parties to the present dispute. Moreover,
     it is only conditional on certain stipulations being fulfilled. Hence, the
     settlement cannot be treated to be a binding or concluded agreement
C    between the parties to the dispute. We, however, record our appreciation
     of the earnest efforts made by the members of the mediation panel in
     embarking on the task entrusted by this Court. In bringing together the
     disputants on a common platform for a free and frank dialogue, the
     mediators have performed a function which needs to be commended.
     We also express our appreciation of the parties who earnestly made
D
     an effort to pursue the mediation proceedings.
     B. An overview of the suits
                33. Before examining the various contentions of the parties
     before this Court, we first record the procedural history, substantive
     claims and reliefs prayed for in the pleadings of the three Suits before
E    this Court.
              Suit 1 - OOS No 1 of 1989 (Regular Suit 2 of 1950)
              34. The suit was instituted on 13 January 1950 by Gopal Singh
     Visharad, a resident of Ayodhya in his capacity as a “follower of
     Sanatan Dharm” seeking:
F
             (i) A declaration of his entitlement to worship and seek the
                  darshan of Lord Ram, “according to religion and custom” at
                  the Janmabhumi temple without hindrance; and
            (ii) A permanent and perpetual injunction restraining defendant
                  nos 1 to 10 from removing the idols of the deity and other
G                 idols from the place where they were installed; from closing
                  the way leading to the idols; or interfering in worship and
                  darshan.
              Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendant
     no 6 is the State of Uttar Pradesh; defendant no 7 is the Deputy
H    Commissioner of Faizabad; defendant no 8 is the Additional City
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               75


Magistrate, Faizabad; defendant no 9 is the Superintendent of Police,           A
Faizabad; defendant no 10 is the Sunni Central Waqf Board and
defendant no 11 is the Nirmohi Akhara.
       The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya,
he was worshipping the idol of Lord Ram and Charan Paduka (foot
impressions) “in that place of Janambhumi”. The boundaries of the               B
‘disputed place’ as described in the plaint are as follows:
       “Disputed place:
             East: Store and Chabutra of Ram Janam Bhumi
             West: Parti
             North: Sita Rasoi                                                  C
             South: Parti.”
       The cause of action for Suit 1 is stated to have arisen on 14
January 1950, when the employees of the government are alleged to
have unlawfully prevented the plaintiff “from going inside the place”
and exercising his right of worship. It was alleged that the “State”            D
adopted this action at the behest of the Muslim residents represented
by defendant nos 1 to 5, as a result of which the Hindus were stated
to been deprived of their “legitimate right of worship”. The plaintiff
apprehended that the idols, including the idol of Lord Ram, would be
removed. These actions were alleged to constitute a “direct attack on
                                                                                E
the right and title of the plaintiff” and were stated to be an “oppressive
act”, contrary to law.
       35. Denying the allegations contained in the plaint, defendant nos
1 to 5 stated in their written statements that:
       (i)   The property in respect of which the case has been
             instituted is not Janmabhumi but a mosque constructed by           F
             Emperor Babur. The mosque was built in 1528 on the
             instructions of Emperor Babur by Mir Baqi, who was the
             Commander of Babur’s forces, following the conquest of
             the sub-continent by the Mughal emperor;
       (ii) The mosque was dedicated as a waqf for Muslims, who                 G
             have a right to worship there. Emperor Babur laid out
             annual grants for the maintenance and expenditure of the
             mosque, which were continued and enhanced by the
             Nawab of Awadh and the British Government;
                                                                                H
76                SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          (iii)    The Suit of 1885 was a suit for declaration of ownership
                    by Mahant Raghubar Das only in respect of the
                    Ramchabutra and hence the claim that the entire building
                    represented the Janmasthan was baseless. As a
                    consequence of the dismissal of the Suit on 24 December
                    1885, “the case respecting the Chabutra was not
B
                    entertained”;
           (iv)     The Chief Commissioner Waqf appointed under the U.P.
                    Muslim Waqf Act 1936 had held the mosque to be a Sunni
                    Waqf;
C          (v)      Muslims have always been in possession of the mosque.
                    This position began in 1528 and continued thereafter, and
                    consequently, “Muslims are in possession of that property
                    … by way of an adverse possession”;
           (vi)     Namaz had been offered at Babri Masjid until 16
D                   December 1949 at which point there were no idols under
                    the central dome. If any person had placed any idol inside
                    the mosque with a mala fide intent, “the degradation of
                    the mosque is evident and the accused persons are liable
                    to be prosecuted”;

E          (vii)    Any attempt of the plaintiff or any other person to enter
                    the mosque to offer worship or for darshan would violate
                    the law. Proceedings under Section 145 of the CrPC 1898
                    had been initiated; and
           (viii) The present suit claiming Babri Masjid as the place of the
F                 Janmasthan is without basis as there exists, for quite long,
                  another temple with idols of Lord Ram and others, which
                  is the actual place of the Janmasthan of Lord Ram.
           A written statement was filed by the defendant no 6, the State,
     submitting that:
G          (i)      The property in suit known as Babri Masjid has been used
                    as a mosque for the purpose of worship by Muslims for a
                    long period and has not been used as a temple of Lord
                    Ram;
           (ii)     On the night of 22 December 1949, the idols of Lord Ram
H                   were surreptitiously placed inside the mosque imperilling
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           77


              public peace and tranquillity. On 23 December 1949, the       A
              City Magistrate passed an order under Section 144 of
              CrPC 1898 which was followed by an order of the same
              date passed by the Additional City Magistrate under Section
              145 attaching the disputed property. These orders were
              passed to maintain public peace; and
                                                                            B
      (iii)   The City Magistrate appointed Shri Priya Datt Ram,
              Chairman, Municipal Board, Faizabad-cum-Ayodhya as a
              receiver of the property.
      Similar written statements were filed by defendant no 8, the
Additional City Magistrate and defendant no 9, the Superintendent of        C
Police.
      Defendant no 10, the Sunni Central Waqf Board filed its written
statement stating:
      (i)     The building in dispute is not the Janmasthan of Lord Ram
              and no idols were ever installed in it;                       D
      (ii)    The property in the suit was a mosque known as the Babri
              mosque constructed during the regime of Emperor Babur
              who had laid out annual grants for its maintenance and
              expenditure and they were continued and enhanced by the
              Nawab of Awadh and the British Government;                    E
      (iii)   On the night of 22-23 December 1949, the idols were
              surreptitiously brought into the mosque;
      (iv)    The Muslims alone had remained in possession of the
              mosque from 1528 up to the date of the attachment of the
                                                                            F
              mosque under Section 145 on 29 December 1949. They
              had regularly offered prayers up to 21 December 1949 and
              Friday prayers up to 16 December 1949;
      (v)     The mosque had the character of a waqf and its ownership
              vested in God;
                                                                            G
      (vi)    The plaintiff was estopped from claiming the mosque as
              the Janmabhumi of Lord Ram as the claim in the Suit of
              1885 instituted by Mahant Raghubar Das (described to be
              the plaintiff’s predecessor) had been confined only to the
              Ramchabutra measuring seventeen by twenty-one feet
              outside the mosque; and                                       H
78                SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          (vii)    There already existed a Ram Janmasthan Mandir, a short
                    distance away from Babri Masjid.
           In the plaintiff’s replication to the written statement of defendant
     nos 1 to 5, it was averred that the disputed site has never been used
     as a mosque since 1934. It was further stated that it was “common
B    knowledge” that Hindus have been in continuous possession by virtue
     of which the claim of the defendants has ceased.
           Suit 3 - OOS no 3 of 1989 (Regular Suit no 26 of 1959)
            36. The suit was instituted on 17 December 1959 by Nirmohi
     Akhara through Mahant Jagat Das seeking a decree for the removal
C    of the receiver from the management and charge of the Janmabhumi
     temple and for delivering it to the plaintiff.
           Defendant no 1 in Suit 3 is the receiver; defendant no 2 is the
     State of Uttar Pradesh; defendant no 3 is the Deputy Commissioner,
     Faizabad; defendant no 4 is the City Magistrate, Faizabad; defendant
D    no 5 is the Superintendent of Police, Faizabad; defendant nos 6 to 8
     are Muslim residents of Ayodhya; defendant no 9 is the Sunni Central
     Waqf Board and defendant no 10 is Umesh Chandra Pandey.
           The cause of action is stated to have arisen on 5 January 1950
     when the management and charge of the Janmabhumi temple was taken
     away by the City Magistrate and entrusted to the receiver. Nirmohi
E    Akhara pleaded that:
           (i)      There exists in Ayodhya “since the days of yore” an
                    ancient Math or Akhara of Ramanandi Bairagis called the
                    Nirmohis. This is a religious establishment of a public
                    character;
F
           (ii)     The Janmasthan, commonly known as Janmabhumi, is the
                    birth-place of Lord Ram and belongs to and has always
                    been managed by Nirmohi Akhara;
           (iii)    The Janmasthan is of ancient antiquity lying within the
                    boundaries shown by the letters A B C D in the sketch
G                   map appended to the plaint within which stands the “temple
                    building” marked by the letters E F G K P N M L E. The
                    building denoted by the letters E F G H I J K L E is the
                    main Janmabhumi temple, where the idols of Lord Ram
                    with Lakshman, Hanuman and Saligram have been
                    installed. The temple building has been in the possession
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             79


              of Nirmohi Akhara and only Hindus have been allowed to          A
              enter the temple and make offerings such as money,
              sweets, flowers and fruits. Nirmohi Akhara has been
              receiving these offerings through its pujaris;
      (iv)    Nirmohi Akhara is a Panchayati Math of the Ramanandi
              sect of Bairagis which is a religious denomination. The         B
              customs of Nirmohi Akhara have been reduced to writing
              by a registered deed dated 19 March 1949;
      (v)     Nirmohi Akhara owns and manages several temples;
      (vi)    No Mohammedan has been allowed to enter the temple
              building since 1934; and                                        C
      (vii)   Acting under the provisions of Section 145 of the CrPC
              1898, the City Magistrate placed the main temple and all
              the articles in it under the charge of the first defendant as
              receiver on 5 January 1950. As a consequence, the
              plaintiffs have been wrongfully deprived of the                 D
              management and charge of the temple.
       37. In the written statement filed on behalf of defendant nos 6
to 8, Muslim residents of Ayodhya, it was stated that Babri Masjid was
constructed by Emperor Babur in 1528 and has been constituted as a
waqf, entitling Muslims to offer prayers. Moreover, it was submitted
                                                                              E
that:
      (i)     The Suit of 1885 by Raghubar Mahant Das was confined
              to Ramchabutra and has been dismissed by the Sub-Judge,
              Faizabad;
      (ii)    The property of the mosque was constituted as a waqf            F
              under the U.P. Muslim Waqf Act 1936;
      (iii)   Muslims have been in continuous possession of the
              mosque since 1528 as a consequence of which all the
              rights of the plaintiffs have been extinguished;
      (iv)    On the eastern and northern sides of the mosque, there          G
              are Muslim graves;
      (v)     Namaz was continuously offered in the property until 16
              December 1949 and the character of the mosque will not
              stand altered if an idol has been installed surreptitiously;
              and                                                             H
80                SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          (vi)     There is another temple at Ayodhya which is known as
                    the Janmasthan temple of Lord Ram which has been in
                    existence for a long time.
          The plaint was amended to incorporate the averment that on 6
     December 1992 “the main temple was demolished by some miscreants
B    who had no religion, caste or creed”.
           In the replication filed by Nirmohi Akhara to the joint written
     statement of defendant nos 6 to 8, the existence of a separate
     Janmasthan temple was denied. It was stated that the Janmasthan
     temple is situated to the North of the Janmabhumi temple.
C          A written statement was filed in the suit by Defendant no 9, the
     Sunni Central Waqf Board denying the allegations.
          In the written statement filed by defendant no 10, Umesh Chandra
     Pandey, it was submitted:

D          (i)      The Janmasthan is a “holy place of worship” and belongs
                    to the deity of Shri Ram Lalla Virajman for a long period
                    of time. The temple is possessed and owned by the deity.
                    Lord Ram is the principal deity of Ram Janmabhumi;
           (ii)     Nirmohi Akhara has never managed the Janmasthan;
E          (iii)    In 1857, the British Government attempted to divide the
                    building by creating an inner enclosure and describing the
                    boundary within it as a mosque but no “true Muslim” could
                    have offered prayers there;
           (iv)     The presence of Kasauti pillars and the carvings of Gods
F                   and Goddess on the pillars indicated that the place could
                    not be used by a “true Muslim” for offering prayers;
           (v)      The place was virtually landlocked by a Hindu temple in
                    which worship of the deity took place;
           (vi)     The Suit of the Nirmohi Akhara was barred by limitation
G                   having been instituted in 1959, though the cause of action
                    arose on 5 January 1950; and
           .(vii) Nirmohi Akhara did not join the proceedings under Section
                  145 nor did they file a revision against the order passed
                  by the Additional City Magistrate.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             81


       In the replication filed by Nirmohi Akhara to the written              A
statement of defendant no 10, there was a detailed account of the
founding of the denomination. Following the tradition of Shankaracharya
since the seventh century CE, the practice of setting up Maths was
followed by Ramanujacharya and later, by Ramanand. Ramanand
founded a sect of Vaishnavs known as ‘Ramats’, who worship Lord
                                                                              B
Ram. The spiritual preceptors of the Ramanandi sect of Bairagis
established three ‘annis’ namely, the (i) Nirmohi; (ii) Digamber; and (iii)
Nirwani Akharas. These Akharas are Panchayati Maths. Nirmohi
Akhara owns the Ram Janmasthan temple which is associated with
the birth-place of Lord Ram. The outer enclosure was owned and
managed by Nirmohi Akhara until the proceedings under Section 145             C
were instituted.
      Suit 4 - OOS 4 of 1989 (Regular Suit no 12 of 1961)
      38. Suit 4 was instituted on 18 December 1961 by the Sunni
Central Waqf Board and nine Muslim residents of Ayodhya. It has been
averred that the suit has been instituted on behalf of the entire Muslim      D
community together with an application under Order I Rule 8 of the
CPC. As amended, the following reliefs have been sought in the plaint:
      “(a) A declaration to the effect that the property indicated by
      letters A B C D in the sketch map attached to the plaint is public
      mosque commonly known as ‘Babari Masjid’ and that the land              E
      adjoining the mosque shown in the sketch map by letters E F G
      H is a public Muslim graveyard as specified in para 2 of the plaint
      may be decreed.
      (b) That in case in the opinion of the Court delivery of possession
      is deemed to be the proper remedy, a decree for delivery of             F
      possession of the mosque and graveyard in suit by removal of
      the idols and other articles which the Hindus may have placed
      in the mosque as objects of their worship be passed in plaintiff’s
      favour, against the defendants.
      (bb) That the statutory Receiver be commanded to hand over              G
      the property in dispute described in Schedule ‘A’ of the Plaint
      by removing the unauthorized structures erected thereon.”
      [Note : Prayer (bb) was inserted by an amendment to the plaint
pursuant to the order of the High Court dated 25 May 1995].
                                                                              H
82            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           Defendant no 1 in Suit 4 is Gopal Singh Visharad; defendant no
     2 is Ram Chander Dass Param Hans; defendant no 3 is Nirmohi Akhara;
     defendant no 4 is Mahant Raghunath Das; defendant no 5 is the State
     of U.P.; defendant no 6 is the Collector, Faizabad; defendant no 7 is
     the City Magistrate, Faizabad; defendant no 8 is the Superintendent of
     Police of Faizabad; defendant no 9 is Priyadutt Ram; defendant no 10
B
     is the President, Akhil Bharat Hindu Mahasabha; defendant no 13 is
     Dharam Das; defendant no 17 is Ramesh Chandra Tripathi; and
     defendant no 20 is Madan Mohan Gupta.
            The suit is based on the averment that in Ayodhya, there is an
     ancient historic mosque known commonly as Babri Masjid which was
C    constructed by Babur more than 433 years ago following his conquest
     of India and the occupation of its territories. It has been averred that
     the mosque was built for the use of the Muslims in general as a place
     of worship and for the performance of religious ceremonies. The main
     construction of the mosque is depicted by the letters A B C D on the
D    plan annexed to the plaint. Adjoining the land is a graveyard. According
     to the plaintiffs, both the mosque and the graveyard vest in the Almighty
     and since the construction of the mosque, it has been used by the Muslims
     for offering prayers while the graveyard has been used for burial. The
     plaint alleged that outside the main building of the mosque, Hindu
     worship was being conducted at a Chabutra admeasuring 17x21 feet
E    on which there was a small wooden structure in the form of a tent.
            The plaint contains a recital of the Suit of 1885 by Mahant
     Raghubhar Das for permission to construct a temple on the Chabutra
     which was dismissed. The plaintiffs in Suit 4 contend that the Mahant
     sued on behalf of himself, the Janmasthan and all persons interested in
F    it, and the decision operates as res judicata as the matter directly and
     substantially in issue was the existence of the Babri Masjid, and the
     rights of the Hindus to construct a temple on the land adjoining the
     mosque.
            According to the plaintiffs, assuming without admitting that there
G    existed a Hindu temple as alleged by the defendants on the site of which
     the mosque was built 433 years ago by Emperor Babur, the Muslims
     by virtue of their long exclusive and continuous possession commencing
     from the construction of the mosque and ensuing until its desecration
     perfected their title by adverse possession. The plaint then proceeds to
H    make a reference to the proceedings under Section 145 of CrPC 1898.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            83


As a result of the order of injunction in Suit 2 of 1950, Hindus have        A
been permitted to perform puja of the idols placed within the mosque
but Muslims have been prevented from entering.
      According to the plaintiffs, the cause of action for the suit arose
on 23 December 1949 when the Hindus are alleged to have wrongfully
entered the mosque and desecrated it by placing idols inside the mosque.     B
The injuries are claimed to be continuing in nature. As against the state,
the cause of action is alleged to have arisen on 29 December 1949
when the property was attached by the City Magistrate who handed
over possession to the receiver. The receiver assumed charge on 5
January 1950.
                                                                             C
      The reliefs which have been claimed in the suit are based on
the above averments. Essentially, the case of the plaintiffs proceeds
on the plea that
      (i)    The mosque was constructed by Babur 433 years prior to
             the suit as a place of public worship and has been              D
             continuously used by Muslims for offering prayers; and
      (ii)   Even assuming that there was an underlying temple which
             was demolished to give way for the construction of the
             mosque, the Muslims have perfected their title by adverse
             possession. On this foundation, the plaintiffs claim a          E
             declaration of title and, in the event that such a prayer is
             required, a decree for possession.
        39. In the written statement filed by Gopal Singh Visharad, the
first defendant (who is also the plaintiff in Suit 1), it has been stated
that if the Muslims were in possession of the mosque, it ceased in 1934.
                                                                             F
The Hindus claim to be in possession after 1934 and their possession
is stated to have ripened into adverse possession. According to the
written statement, no prayers were offered in the mosque since 1934.
Moreover, no individual Hindu or Mahant can be said to represent the
entire Hindu community. Hindu puja is stated to be continuing inside
the structure, which is described as a temple since 1934 and admittedly      G
since January 1950, following the order of the City Magistrate. In an
additional written statement, a plea has been taken that the UP Muslim
Waqf Act 1936 is ultra vires. It has been averred that any determination
under the Act cannot operate to decide a question of title against non-
Muslims. In a subsequent written statement, it has been stated that
                                                                             H
84             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A    Hindus have worshipped the site of the Janmabhumi since time
     immemorial; the Muslims were never in possession of the Janmabhumi
     temple and, if they were in possession, it ceased in 1934. The suit is
     alleged to be barred by limitation.
             As regards the Suit of 1885, it has been submitted that the plaintiff
B    was not suing in a representative capacity and was only pursuing his
     personal interest.
             The written statement of Nirmohi Akhara denies the existence
     of a mosque. Nirmohi Akhara states that it was unaware of any suit
     filed by Mahant Raghubar Das. According to it, a mosque never existed
     at the site and hence there was no occasion for the Muslim community
C    to offer prayers till 23 December 1949. It is urged that what the property
     described as Babri mosque is and has always been a temple of
     Janmabhumi with idols of Hindu Gods installed within. According to the
     written statement, the temple on Ramchabutra had been judicially
     recognised in the Suit of 1885. It was urged that the Janmabhumi temple
D    was always in the possession of Nirmohi Akhara and none else but
     the Hindus were allowed to enter and offer worship. The offerings are
     stated to have been received by the representative of Nirmohi Akhara.
     After the attachment, only the pujaris of Nirmohi Akhara are claimed
     to have been offering puja to the idols in the temple. The written
     statement contains a denial of Muslim worship in the structure at least
E    since 1934 and it is urged that Suit 4 is barred by limitation. In the
     additional written statement, Nirmohi Akhara has denied that the findings
     in the Suit of 1885 operate as res judicata. There is a denial of the
     allegation that the Muslims have perfected their title by adverse
     possession.
F            The State of Uttar Pradesh filed its written statement to the
     effect that the government is not interested in the property in dispute
     and does not propose to contest the suit.
             In the written statement filed on behalf of the tenth defendant,
     Akhil Bhartiya Hindu Mahasabha, it has been averred that upon India
G    regaining independence, there is a revival of the original Hindu law as
     a result of which the plaintiffs cannot claim any legal or constitutional
     right. In an additional written statement, the tenth defendant denies the
     incident of 22 December 1949 and claims that the idols were in existence
     at the place in question from time immemorial. According to the written
     statement, the site is the birth-place of Lord Ram and no mosque could
H    have been constructed at the birth-place.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           85


       The written statement by Abhiram Das and by Dharam Das, who          A
claims to be his chela, questions the validity of the construction of a
mosque at the site of Ram Janmabhumi. According to the written
statement, the site is landlocked and surrounded by places of Hindu
worship and hence such a building cannot be a valid mosque in Muslim
law. The written statement contains a denial of a valid waqf on the
                                                                            B
ground that a waqf cannot be based on adverse possession. According
to the written statement, at Ram Janmabhumi there was an ancient
temple tracing back to the rule of Vikramaditya which was demolished
by Mir Baqi. It has been averred that Ram Janmabhumi is indestructible
as the deity is divine and immortal. In spite of the construction of the
mosque, it has been submitted, the area has continued to be in the          C
possession of the deities and no one could enter the three domed
structure except after passing through Hindu places of worship. The
written statements filed by the other Hindu defendants broadly follow
similar lines. Replications were filed to the written statements of the
Hindu parties.
                                                                            D
      Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of 1989)
        40. The suit was instituted on 1 July 1989 claiming the following
reliefs:
      “(A) A declaration that the entire premises of Sri Rama Janma
      Bhumi at Ayodhya, as described and delineated in Annexure I,          E
      II and III belongs to the plaintiff Deities.
      (B) A perpetual injunction against the Defendants prohibiting them
      from interfering with, or raising any objection to, or placing any
      obstruction in the construction of the new Temple building at Sri
      Rama Janma Bhumi, Ayodhya, after demolishing and removing             F
      the existing buildings and structures etc., situate thereat, in so
      far as it may be necessary or expedient to do so for the said
      purpose.”
       This suit has been instituted in the name of “Bhagwan Sri Ram
Virajman at Sri Ram Janmabhumi, Ayodhya also called Bhagwan Sri             G
Ram Lalla Virajman”. The deity so described is the first plaintiff. The
second plaintiff is described as “Asthan Sri Rama Janambhumi,
Ayodhya”. Both the plaintiffs were represented by Sri Deoki Nandan
Agrawala, a former judge of the Allahabad High Court as next friend.
The next friend of the first and second plaintiffs is impleaded as the
                                                                            H
third plaintiff.
86           SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A         The defendants to the suit include:
           (i)    Nirmohi Akhara which is the Plaintiff in Suit 3;
           (ii) Sunni Central Waqf Board, the Plaintiff in Suit 4;
           (iii) Hindu and Muslim residents of Ayodhya; and
B          (iv) The State of Uttar Pradesh, the Collector and Senior
                Superintendent of Police.
           Several other Hindu entities including the All India Hindu
     Mahasabha and a Trust described as the Sri Ram Janmabhumi Trust,
     are parties to the Suit as is the Shia Central Board of Waqfs.
C
          The principal averments in Suit 5 are that:
                  (i) The first and second plaintiffs are juridical persons: Lord
                      Ram is the presiding deity of the place and the place is
                      itself a symbol of worship;
D                (ii) The identification of Ram Janmabhumi, for the purpose
                      of the plaint is based on the site plans of the building,
                      premises and adjacent area prepared by Sri Shiv
                      Shankar Lal, who was appointed as Commissioner by
                      the Civil Judge at Faizabad in Suit 1 of 1950;
E                (iii) The plaint contains a reference to the earlier suits
                       instituted before the Civil Court and that the religious
                       ceremonies for attending to the deities have been looked
                       after by the receiver appointed in the proceedings under
                       Section 145. Although seva and puja of the deity have
                       been conducted, darshan for the devotees is allowed only
F                      from behind a barrier;
                 (iv) Alleging that offerings to the deity have been
                      misappropriated, it has been stated that the devotees
                      desired to have a new temple constructed “after
                      removing the old structure at Sri Ram Janmabhumi at
G                     Ayodhya”. A Deed of Trust was constituted on 18
                      December 1985 for the purpose of managing the estate
                      and affairs of the Janmabhumi;
                 (v) Though both the presiding deity of Lord Ram and Ram
                     Janmabhumi are claimed to be juridical persons with a
H                    distinct personality, neither of them was impleaded as a
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          87


          party to the earlier suits. As a consequence, the decrees      A
          passed in those suits will not bind the deities;
      (vi) Public records establish that Lord Ram was born and
           manifested himself in human form as an incarnation of
           Vishnu at the premises in dispute;
     (vii) The place itself – Ram Janmasthan - is an object of           B
           worship since it personifies the divine spirit worshipped
           in the form of Lord Ram. Both the deity and the place
           of birth thus possess a juridical character. Hindus worship
           the spirit of the divine and not its material form in the
           shape of an idol. This spirit which is worshipped is          C
           indestructible. Representing this spirit, Ram Janmabhumi
           as a place is worshipped as a deity and is hence a
           juridical person;
     (viii) The actual and continuous performance of puja of “an
            immovable deity” by its devotees is not essential for its    D
            existence since the deity represented by the land is
            indestructible;
      (ix) There was an ancient temple during the reign of
           Vikramaditya at Ram Janmabhumi. The temple was
           partly destroyed and an attempt was made to raise a           E
           mosque by Mir Baqi, a Commander of Emperor Babur.
           Most of the material utilised to construct the mosque
           was obtained from the temple including its Kasauti pillars
           with Hindu Gods and Goddesses carved on them;
      (x) The 1928 edition of the Faizabad Gazetteer records that        F
          during the course of his conquest in 1528, Babur
          destroyed the ancient temple and on its site a mosque
          was built. In 1855, there was a dispute between Hindus
          and Muslims. The gazetteer records that after the
          dispute, an outer enclosure was placed in front of the
          mosque as a consequence of which access to the inner           G
          courtyard was prohibited to the Hindus. As a result, they
          made their offerings on a platform in the outer
          courtyard;
      (xi) The place belongs to the deities and no valid waqf was
           ever created or could have been created;                      H
88            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A              (xii) The structure which was raised upon the destruction of
                     the ancient temple, utilising the material of the temple
                     does not constitute a mosque. Despite the construction
                     of the mosque, Ram Janmabhumi did not cease to be in
                     possession of the deity which has continued to be
                     worshipped by devotees through various symbols;
B
               (xiii) The building of the mosque could be accessed only by
                      passing through the adjoining places of Hindu worship.
                      Hence, at Ram Janmabhumi, the worship of the deities
                      has continued through the ages;
C              (xiv) No prayers have been offered in the mosque after 1934.
                     During the night intervening 22-23 December 1949, idols
                     of Lord Ram were installed with due ceremony under
                     the central dome. At that stage, acting on an FIR,
                     proceedings were initiated by the Additional City
                     Magistrate under Section 145 of the CrPC and a
D                    preliminary order was passed on 29 December 1949. A
                     receiver was appointed, in spite of which the possession
                     of the plaintiff deities was not disturbed;
               (xv) The plaintiffs, were not a party to any prior litigation and
                    are hence not bound by the outcome of the previous
E                   proceedings; and
               (xvi) The Ram Janmabhumi at Ayodhya which contains,
                     besides the presiding deity, other idols and deities along
                     with its appertaining properties constitutes one integral
                     complex with a single identity. The claim of the Muslims
F                    is confined to the area enclosed within the inner
                     boundary wall, erected after the annexation of Oudh by
                     the British.
            The plaint contains a description of the demolition of the structure
     of the mosque on 6 December 1992 and the developments which have
G    taken place thereafter including the promulgation of an Ordinance and
     subsequently, a law enacted by the Parliament for acquisition of the
     land.
            41. In the written statement filed by Nirmohi Akhara, it has been
     stated that:
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           89


           (i) The idol of Lord Ram has been installed not at Ram           A
               Janmabhumi but in the Ram Janmabhumi temple.
               Nirmohi Akhara has instituted a suit seeking charge and
               management of Ram Janmabhumi temple;
          (ii) While the birth-place of Lord Ram is not in dispute, it
               is the Ram Janmabhumi temple which is in dispute. The        B
               Muslims claim it to be a mosque while Nirmohi Akhara
               claims it to be a temple under its charge and
               management. Ram Janmabhumi temple is situated at
               “Asthan Ram Janmabhumi” (the birth-place of Lord
               Ram), Mohalla Ram Kot at Ayodhya;
                                                                            C
          (iii) Nirmohi Akhara is the Shebait of the idol of Lord Ram
                installed in the temple in dispute and has the exclusive
                right to repair and reconstruct the temple, if necessary;
                and
          (iv) “Ram Janmabhumi Asthan” is not a juridical person. The       D
               plaintiffs of suit 5 have no real title to sue. The entire
               premises belong to Nirmohi Akhara, the answering
               defendant. Hence, according to the written statement
               the plaintiffs have no right to seek a declaration.
      According to the written statement of the Sunni Central Waqf          E
Board:
           (i) Neither the first nor the second plaintiffs are juridical
               persons;
          (ii) There is no presiding deity of Lord Ram at the place in
               dispute;                                                     F
          (iii) The idols were surreptitiously placed inside the mosque
                on the night of 22-23 December 1949. There is neither
                any presiding deity nor a Janmasthan;
          (iv) The Suit of 1885 was instituted by Mahant Raghubar
               Das in his capacity as Mahant of the Janmasthan of           G
               Ayodhya seeking permission to establish a temple over
               a platform or Chabutra. The mosque was depicted in
               the site plan on the western side of the Chabutra. The
               suit was instituted on behalf of other Mahants and
               Hindus of Ayodhya and Faizabad. The suit was                 H
90   SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A         dismissed. The first and second appeals were also
          rejected. Since the claim in the earlier suit was confined
          only to the Chabutra admeasuring seventeen by twenty-
          one feet outside the mosque, the claim in the present
          suit is barred;
B     (v) There exists another temple known as the Janmasthan
          temple situated at a distance of less than one hundred
          yards from Babri Masjid;
     (vi) The mosque was not constructed on the site of an
          existing temple or upon its destruction;
C    (vii) During the regime of Emperor Babur the land belonged
           to the State and the mosque was constructed on vacant
           land which did not belong to any person;
     (viii) The structure has always been used as a mosque ever
            since its construction during the regime of Emperor
D           Babur, who was a Sunni Muslim;
     (ix) The possession of Muslims was uninterrupted and
          continuous since the construction of the mosque, until
          22 December 1949. Therefore, any alleged right to the
          contrary is deemed to have been extinguished by adverse
E         possession;
      (x) Prayers were offered in the mosque five times every
          day, regularly until 22 December 1949 and Friday
          prayers were offered until 16 December 1949;
     (xi) On 22-23 December 1949, some Bairagis forcibly
F
          entered into the mosque and placed an idol below the
          central dome. This came to the knowledge of Muslims
          who attended the mosque for prayers on 23 December
          1949 after which proceedings were initiated under
          Section 145 of the CrPC 1898. The possession of the
G         building has remained with the receiver from 5 January
          1950;
     (xii) The third plaintiff in Suit 5 could have got himself
           impleaded as a party to the suit instituted by the Sunni
           Central Waqf Board. Having failed to do so the third
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           91


               plaintiff cannot maintain Suit 5 as the next friend of the   A
               deities;
         (xiii) The third plaintiff has never been associated with the
                management and puja of the idols and cannot claim
                himself to be the next friend of Lord Ram;
         (xiv) There is no presiding deity as represented by the first      B
               plaintiff and it is incorrect to say that the footsteps
               (“charan”) and other structures constitute one integral
               complex with a single identity;
         (xv) The concept of a mosque envisages that the entire area
              below as well as above the land remains dedicated to          C
              God. Hence, it is not merely the structure of the mosque
              alone but also the land on which it stands which is
              dedicated to the Almighty, Allah;
         (xvi) The site in question has no connection with the place
               of birth of Lord Ram and has no significance to the          D
               alleged “Asthan” of Ram Janmabhumi;
        (xvii) The cause of action for the suit is deemed to have
               accrued in December 1949 when the property was
               attached and when the Muslims categorically denied the
               claim of the Hindus to perform puja in the mosque.           E
               Hence, the suit is barred by limitation;
        (xviii) The subject matter of the suit is property registered as
                a waqf which is maintained by the Sunni Central Waqf
                Board under Section 30 of the U P Muslim Waqf Act
                1960, shown as such in the revenue records; and             F
         (xix) Archaeological experts seem to indicate that there
               appears to be no sign of human habitation predating to
               700 B.C. nor is there any evidence that a fort, palace
               or old temple existed at the site of Babri Masjid.
      In the written statement filed on behalf of defendant no 5 who        G
is a Muslim resident of Ayodhya, it has been submitted that:
           (i) The premises have always been a mosque since the
               construction in the sixteenth century and have been used
               only for the purposes of offering namaz;
                                                                            H
92            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A               (ii) The existence of Kasauti pillars is denied. No one else
                     except the Muslims worshipped in Babri Masjid. Namaz
                     was offered in the mosque since its construction until
                     22 December 1949;
                (iii) Babri Masjid was not constructed on the site of a temple
B                     which was demolished at the behest of Emperor Babur;
                (iii) The Ram Janmasthan Mandir which exists in Ayodhya
                      is distinct and separate from the premises in question;
                      and
                (iv) The findings in the Suit of 1885 operate as res judicata.
C
            An additional written statement was filed on behalf of defendant
     nos 4 and 5 in order to deal with the amendments to the plaint consequent
     upon the demolition of the Babri Masjid on 6 December 1992.
           The written statement of defendant no 6, a Muslim resident of
D    Ayodhya, adopts the written statement of defendant no 5. The written
     statement of defendant no 11, the President of the All India Hindu
     Mahasabha, has submitted to a decree in terms as sought in the plaint.
     The written statements filed by the Hindu and Muslim defendants follow
     broadly the same respective lines.
          42. A written statement has been filed by defendant no 24, Prince
E
     Anjum Qader stating thus:
           “(a) The spot being presently claimed by the plaintiff is being
           made known as Ram Janam Bhoomi only since 22.12.1949.
           (b) The Ram Chabutra, in the court-yard outside the Babri Masjid
F          structure, is being known as Ram Janam Bhoomi only since 1885.
           (c) The Janamsthan site Rasoi Mandir, facing the Babri Masjid
           across the street, is traditionally known as Ramjanambhumi since
           time immemorial.”
           According to defendant no 24:
G
                 (i) In 1855, a spot outside the structure of Babri Masjid in
                     a corner of the courtyard was claimed as the
                     Janmasthan. At that stage, an area admeasuring
                     seventeen by twenty-one feet was partitioned by naming
                     it as Ramchabutra;
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       93


      (ii) On 22 December 1949, the Janmasthan claim was              A
           shifted from Ramchabutra to a place inside the mosque
           beneath the main dome of the Babri Masjid;
      (iii) Prior to 1855, “the undisputed Ram Janmasthan was the
            old Janmasthan Sita Rasoi Mandir across the street on
            a mound facing the Babri Masjid”;                         B
     (iv) According to defendant no 24, the following three sites
          are now believed to be probable places of the birth of
          Lord Ram, namely:
          (a) Inside the Babri Masjid beneath the main dome since
              1949;                                                   C
          (b) At Ramchabutra in the courtyard of the Babri
              Masjid since 1855; and
          (c) At the old Ram Janmasthan Mandir where Sita
              Rasoi is also situated.
                                                                      D
      (v) While the 1928 edition of the Faizabad Gazetteer
          published by the British Government contains a narration
          of Emperor Babur halting at Ayodhya for a week,
          destroying the ancient temple and building the Babri
          Masjid with the materials of the destroyed temple, it is
          a fact of history that Babur never came to Ayodhya.         E
          The Babur-Nama, a memoir of Emperor Babur has
          made no mention of visiting Ayodhya, destroying the
          temple or of building a mosque. Defendant no 24 states
          that:
              “However, after all said and done, it is most           F
              respectfully submitted that if only this claim is
              proved that a Mandir was demolished and Babri
              Masjid was built on the Mandir land, this defendant
              and all other Muslims will gladly demolish and shift
              the mosque, and return the land for building of the
              Mandir thereon.”                                        G

     (vi) Babri Masjid was built by Mir Baqi on vacant land and
          not on the ruins of a pre-existing temple. Since Mir Baqi
          was a Shia Muslim, the ‘mutawalliship’ devolved upon
          his descendants since inception in 1528 without a break.
                                                                      H
94            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                   However, both Shias and Sunnis offered namaz in Babri
                    Masjid. The Sunni Muslims were permitted by the Shia
                    mutawalli to perform their own daily Jamaat in the
                    Masjid since 1925, when the Shia population in Ayodhya
                    dwindled. The Sunni Imam of Babri Masjid led the last
                    namaz on 22 December 1949.
B
           The written statement of defendant no 25 states that:
                (i) Babri Masjid has always been in use as a mosque in
                    which the namaz was offered since its construction, until
                    22 December 1949; and
C               (ii) On the night between 22-23 December 1949, some
                     persons illegally trespassed into the mosque as a result
                     of which an FIR was lodged and proceedings under
                     Section 145 were initiated. A receiver was appointed
                     and the status quo was directed to be continued during
                     the pendency of the civil suits before the Civil Court.
D
           Heads of issues in the Suits
            43. Justice Sudhir Agarwal observed that the issues in the four
     suits can be broadly classified under the following heads :
              “(A) Notice under Section 80 C.P.C.
E              (B) Religious denomination
               (C) Res judicata, waiver and estoppel
               (D) Waqf Act 13 of 1936 etc.
               (E) Miscellaneous issues like representative nature of suit,
F                  Trust, Section 91 C.P.C., non joinder of parties,
                   valuation/ insufficient Court fee/under valuation and
                   special costs.
               (F) Person and period- who and when constructed the
                   disputed building
G              (G) Deities, their status, rights etc.
               (H) Limitation
                (I) Possession/adverse possession
                (J) Site as birthplace, existence of temple and demolition if
                    any.
H
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             95


               (K) Character of Mosque                                           A
                (L) Identity of the property
               (M) Bar of Specific Relief Act
               (N) Others, if any.”
                                                                                 B
C. Evidence: a bird’s eye view
      44. A wealth of material emerged before the court during the
course of the trial. The judgment of Justice Sudhir Agarwal in the High
Court copiously tabulates the documentary evidence 13 . The
documentary exhibits of the parties during the course of trial comprised         C
of 533 exhibits of which a brief categorisation is:
     1. Plaintiffs (Suit-1)   – Exhibits No. 1 to 34               (Total 34)
     2. Plaintiffs (Suit-3)   – Exhibits No. 1 to 21               (Total 21)
     3. Plaintiffs (Suit-4)   – Exhibits No. 1 to 128              (Total 128)
                                                                                 D
     4. Plaintiffs (Suit-5)   – Exhibits No. 1 to 132              (Total 132)
     5. Defendants (Suit-1) – Exhibits No. A1 to A72               (Total 73)
     6. Defendants (Suit-4) – (i) Exhibits No. A1 to A16           (Total 16)
                                 (ii) Exhibits No. M1 to M7        (Total 7)
                                                                                 E
                                 (iii) Exhibits No. B1 to B16      (Total 16)
                                 (iv) Exhibits No. J1 to J31       (Total 32)
                                 (v) Exhibits No. T1-T6            (Total 6)
                                 (vi) Exhibit No. V1               (Total 1)
                                                                                 F
                                 (vii) Exhibits No. Q1 to Q6       (Total 6)
     7. Defendants (Suit-5) – (i) Exhibits No. C1 to C11           (Total 11)
                                 (ii) Exhibits No. D1 to D38       (Total 38)
                                 (iii) Exhibits No. E1 to E8       (Total 12)
                                                                                 G
                                                       Grand Total - 533
          These exhibits broadly comprise of :
                 (i) Religious texts;

13
     2010 (ADJ), Vol. I, pages 624-662                                           H
96            SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A               (ii) Travelogues;
                (iii) Gazetteers;
               (iv) Translations of inscriptions on pillars;
                (v) Reports of Archaeological excavation;
B              (vi) Photographs prior to demolition; and
               (vii) Details of artefacts found at the disputed site.
           The judgment of Justice Sudhir Agarwal in the High Court
     tabulates the oral evidence in the four suits under the following heads:
           “274. (1) Oral Depositions : Parties to these suits produced
C          88 witnesses, who deposed on one or the other subject. Broadly,
           these witnesses are categorized as under:
           275. (a) Witnesses produced in Suit-4 by Plaintiff :
                    (I) Witness of facts :
D                1. P.W 1 Sri Mohd. Hashim
                 2. PW 2 Hazi Mahboob Ahmed
                 3. PW 3 Farooq Ahmad
                 4. PW 4 Mohd. Yasin
E                5. PW 5 Sri Abdul Rehman
                 6. PW 6 Mohd. Yunus Siddiqui
                 7. PW 7 Sri Hashmat Ullah Ansari
                 8. PW 8 Sri Abdul Aziz
                 9. PW 9 Syeed Akhlak Ahmad
F
                10. PW 10 Mohd. Idris
                11. PW11 Mohd. Burhanuddin
                12. PW 12 Ram Shanker Upadhyay
                13. PW 13 Suresh Chandra Mishra
G
                14. PW 14 Jalil Ahmad
                15. PW 21 Dr. M. Hashim Qidwai
                16. PW 23 Mohd Qasim Ansari
                17. PW 25 Mohd. Sibte Naqvi
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS          97


          (II) Expert Witnesses (Historians)             A
      18. PW 15 Sushil Srivastava
      19. PW 18 Prof. Suvira Jaiswal
      20. PW 20 Prof. Shirin Musavi
          (III) Expert Witnesses (Archaeologists)        B
      21. PW 16 Prof. Suraj Bhan
      22. PW 24 Prof. D. Mandal
      23. PW 27 Dr. Shereen F. Ratnagar
      24. PW 28 Dr. Sita Ram Roy                         C
      25. PW 29 Dr. Jaya Menon
      26. PW 30 Dr. R. C. Thakran
      27. PW 31 Dr. Ashok Datta
      28. PW 32 Dr. Supriya Verma                        D
          (IV) Private Commissioner
      29. PW 17 Zafar Ali Siddiqui
          (V) Expert Witnesses (Religious matters)
      30. PW 19 Maulana Atiq Ahmad                       E
      31. PW 22 Mohd. Khalid Naqui
      32. PW 26 Kalbe Jawed
  276. (b) Witnesses produced in Suit-5 by Plaintiff :
          (I) Witness of facts :                         F
       1. OPW 1 Mahant Paramhans Ram Chandra Das
       2. OPW 2 Sri D.N. Agarwal
       3. OPW 4 Harihar Prasad Tewari
       4. OPW 5 Ram Nath Mishra alias Banarsi Panda      G

       5. OPW 6 Hausila Prasad Tripathit
       6. OPW 7 Sri Ram Surat Tewari
       7. OPW 8 Ashok Chandra Chatterjee
                                                         H
98     SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A         8. OPW 12 Kaushal Kishor Misra
          9. OPW 13 Narad Saran
             (II) Expert Witnesses (Archaeologists)
         10. OPW 3 Dr. S.P. Gupta
B        11. OPW 14 Dr. Rakesh Tewari
         12. OPW 17 Dr. R. Nagaswami
         13. OPW 18 Sri Arun Kumar Sharma
         14. OPW 19 Sri Rakesh Dutta Trivedi
C
             (III) Expert Witness (Epigraphist and Historian)
         15. OPW 9 Dr. T.P. Verma
             (IV) Expert Witnesses (Epigraphist)
         16. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh
D
         17. OPW 15 Dr. M.N. Katti
             (V) Expert Witnesses (Historians)
         18. OPW 11 Dr. Satish Chandra Mittal
             (VI) Expert Witnesses (Religious matters)
E
         19. OPW 16 Jagadguru Ramanandacharya Swami Ram
             Bhadracharya
     277. (c) Witnesses produced in Suit-1 by Plaintiff :
             (I) Witness of facts :
F
          1. DW 1/1 Sri Rajendra Singh
          2. DW 1/2 Sri Krishna Chandra Singh
          3. DW 1/3 Sri Sahdeo Prasad Dubey
     278. (d) Witnesses produced in Suit-3 of 1989 by Plaintiff:
G
             (I) Witness of facts :
          1. DW 3/1 Mahant Bhaskar Das
          2. DW 3/2 Sri Raja Ram Pandey
          3. DW 3/3 Sri Satya Narain Tripathi
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS               99


       4. DW 3/4 Mahant Shiv Saran Das                        A
       5. DW 3/5 Sri Raghunath Prasad Pandey
       6. DW 3/6 Sri Sita Ram Yadav
       7. DW 3/7 Mahant Ramji Das
       8. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj      B
       9. DW 3/9 Sri Ram Ashrey Yadav
      10. DW 3/11 Sri Bhanu Pratap Singh
      11. DW 3/12 Sri Ram Akshaibar Pandey
      12. DW 3/13 Mahant Ram Subhag Shashtri                  C
      13. DW 3/15 Narendra Bahadur Singh
      14. DW 3/16 Sri Shiv Bhikh Singh
      15. DW 3/17 Sri Mata Badal Tewari
      16. DW 3/18 Sri Acharya Mahant Bansidhar Das @ Uriya    D
          Baba
      17. DW 3/19 Sri Ram Milan Singh
      18. DW 3/20 Mahant Raja Ramchandr-acharya
         (II) Others :                                        E
      19. DW 3/10 Sri Pateshwari Dutt Pandey
      20. DW 3/14 Jagad Guru Ramanandacharya Swami
          Haryacharya
  279. (e) Witnesses produced by Defendant 2/1 in Suit-4 :    F
         (I) Witness of facts :
       1. DW 2/1-3 Mahant Ram Vilas Das Vedanti
         (II) Others :
       2. DW 2/1-1 Sri Rajendra.                              G
       3. DW 2/1-2 Sri Ram Saran Srivastava
  280. (f) Witnesses produced by Defendant 13/1 in Suit-4 :
         (I) Expert Witness (Historians) :
       1. DW 13/1-3 Dr. Bishan Bahadur                        H
100              SUPREME COURT REPORTS                                  [2019] 18 S.C.R.


A                        (II) Others :
                     2. DW 13/1-1 Mahant Dharam Das
                     3. DW 13/1-2 Mahant Awadh Bihari Das Pathak
              281. (g) Witnesses produced by Defendant 17 in Suit-4 :
B                        (I) Witness of facts :
                     1. DW 17/1 Sri Ramesh Chandra Tripathi
              282. (h) Witnesses produced by Defendant 20 in Suit-4 :
                         (I) Witness of facts :
C
                     1. DW 20/1 Sri Shashi Kant Rungta
                     2. DW 20/4 Sri M.M. Gupta
                         (II) Expert Witnesses (Religious matters)
                     3. DW 20/2 Swami Avimukteshwaran and Saraswati
D
                     4. DW 20/3 Bramchari Ram Rakshanand
                         (III) Expert Witness (Archaeologist)
                     5. DW 20/5 Sri Jayanti Prasad Srivastava
              283. (i) Witnesses produced by Defendant 6/1 in Suit-3 :
E
                         (I) Expert Witness (Archaeologist) :
                     1. DW 6/1-2 Sri Mohd. Abid
                         (II) Others :

F                    2. DW 6/1-1 Sri Haji Mahboob Ahmad.”
              Statements under Order X Rule 2 CPC
            45. During the course of the hearing of the suit, the Trial Court
      recorded the statements of parties and their pleaders under the provisions
      of Order X Rule 2 of the Code of Civil Procedure 190814 (“CPC”).
G
           On 8 August 1962, it was stated on behalf of the Sunni Central
      Waqf Board that:
      14
       2. Oral examination of party, or companion of party- (1) At the first hearing of the
      suit, the Court-
            (a) shall, with a view to elucidating matters in controversy in the suit, examine,
H     orally such of the parties to the suit appearing in person or present in Court, as it
      deems fit; and
   M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                         101


        “the property in suit is the property dedicated to Almighty God                    A
        and is a mosque for the use of the entire Muslim community at
        large…”
      On 28 August 1963, it was stated by the Sunni Central Waqf
Board that in the alternative even if the defendants had any right in
the property, it stood extinguished by a lapse of time and the plaintiff                   B
(Sunni Central Waqf Board) had acquired title by adverse possession.
      On 11 January 1996, the statement of Mr Zafaryab Jilani, learned
Senior Counsel appearing for the Sunni Central Waqf Board was
recorded to the effect that:
        “That the mosque was situate on a Nazul Plot No. 583 of the                        C
        Khasra of 1931 of Mohalla Kot Ramchandra known as Ramkot
        at Ayodhya.”
      On 22 April 2009, the following statement of Mr Zafaryab Jilani,
learned Senior Counsel was recorded under Order X Rule 2 of the
CPC:                                                                                       D
        “For the purpose of this case there is no dispute about the faith
        of Hindu devotees of Lord Rama regarding the birth of Lord
        Rama at Ayodhya as described in Balmiki Ramayana or as
        existing today. It is, however, disputed and denied that the site
        of Babri Masjid was the place of birth of Lord Rama. It is also                    E
        denied that there was any Ram Janam Bhoomi Temple at the
        site of Babri Masjid at any time whatsoever.
        The existence of Nirmohi Akhara from the second half of
        Nineteenth Century onwards is also not disputed. It is however,
        denied and disputed that Nirmohi Akhara was inexistence and                        F
        specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and it
        is also denied that any idols were there in the building of the Babri
        Masjid up to 22nd December, 1949.”

      (b) may orally examine any person, able to answer any material question relating     G
to the suit, by whom any party appearing in person or present in Court or his pleader
is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in
person or present in Court, or any person, able to answer any material question relating
to the suit, by whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule
questions suggested by either party.                                                       H
102                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            Similar statements were made on behalf of other counsel
      representing the Muslim parties. There is, in other words, no dispute
      before this Court in regard to the faith and belief of the Hindus that
      the birth of Lord Ram is ascribed to have taken place at Ayodhya, as
      described in Valmiki’s Ramayan. What is being disputed is whether the
      disputed site below the central dome of the Babri Masjid is the place
B
      of birth of Lord Ram. The Muslim parties have expressly denied the
      existence of a Ram Janmabhumi temple at the site of Babri Masjid.
      With this background, it becomes necessary to advert to the salient
      aspects of the documentary evidence which has emerged on the record.
                D. The aftermath of 1856-7
C
                D.1 Response to the wall
             46. In 1856-7, a communal riot took place. Historical accounts
      indicate that the conflagration had its focus at Hanumangarhi and the
      Babri mosque. Some of those accounts indicate that prior to the incident,
D     Muslims and Hindus alike had access to the area of the mosque for
      the purpose of worship. The incident was proximate in time with the
      transfer of power to the colonial government. The incident led to the
      setting up of a railing made of a grill-brick wall outside the mosque.
      The object of this would have been to maintain peace and due order at
      the site. The railing provided the genesis of the bifurcation of the inner
E     courtyard (in which the structure of the mosque was situated) and the
      outer courtyard comprising the remaining area. The setting up of the
      railing was not a determination of proprietary rights over the inner and
      outer courtyards, the measure having been adopted to maintain peace
      between the two communities. This section of the judgment traces the
F     documentary evidence on the aftermath of 1856-7 at the disputed site,
      the continuing skirmishes in the inner and outer courtyards, the
      proceedings between various disputants and the claim to worship by
      the Hindus in the inner courtyard. The evidence is as follows:
                        (i) On 28 November 1858 a report was submitted by
G                           Sheetal Dubey who was the Thanedar, Oudh 15. The
                            report spoke of an incident during which Hawan and
                            Puja was organised inside the mosque by a Nihang Sikh
                            who had erected a religious symbol. The report states:


      15
H          Exhibit 19
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               103


                         “Today Mr. Nihang Singh Faqir Khalsa resident of          A
                         Punjab, organized Hawan and Puja of Guru Gobind
                         Singh and erected a symbol of Sri Bhagwan, within
                         the premises of the Masjid. At the time of pitching
                         the symbol, 25 sikhs were posted there for security.
                         Deemed necessary so requested. May your regime
                                                                                   B
                         progress. Pleasure.”
                  (ii) An application was submitted by Syed Mohammad
                       Khateeb, Muazzim of the Masjid16. The subject of the
                       application was the report of the Thanedar Oudh. The
                       application stated that ‘Mahant Nihang Singh Faqir’ was
                       creating a riot on “Janam Sthan Masjid situated in          C
                       Oudh”. The application stated:
                         “Near Mehrab and Mimber, he has constructed,
                         inside the case, an earth Chabutra measuring about
                         four fingers by filling it with Kankars (concrete).
                         Lighting arrangement has been made…and after              D
                         raising the height of Chabutra about 11/4 yards a
                         picture of idol has been placed and after digging a
                         pit near it, the Munder wall has been made Pucca.
                         Fire has been lit there for light and Puja and Hom
                         is continuing there. In whole of this Masjid ‘Ram         E
                         Ram’ has been written with coal. Kindly, do justice.
                         It is an open tyranny and high handedness of the
                         Hindus on Muslims and not that of Hindus.
                         Previously the symbol of Janamsthan had been there
                         for hundreds of years and Hindus did Puja. Because
                         of conspiracy of Shiv Ghulam Thandedar Oudh               F
                         Government, the Bairagis constructed overnight a
                         Chabutra up to height of one ‘Balisht’ until the orders
                         of injunction were issued. At that time the Deputy
                         Commissioner suspended the Thanedar and fine
                         was imposed on Bairagis. Now the Chabootra has            G
                         been raised to about 11/4 yards. Thus sheer high-
                         handedness has been proved. Therefore, it is
                         requested that Murtaza Khan Kotwal City may be
                         ordered that he himself visit the spot and inspect the
16
     Exhibit 20                                                                    H
104              SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A                             new constructions and get them demolished (sic)
                              and oust the Hindus from there; the symbol and the
                              idol may be removed from there and writing on the
                              walls be washed.”
             The contents of the application indicate that by this time a platform
B     had been constructed inside the mosque in which an idol had been
      placed. A fire had been lit and arrangements were made for puja.
      Evidently, the railing did not prevent access to the inner courtyard or
      to the precincts of the mosque.
                      (iii) A report was submitted by the Thanedar on 1 December
C                           1858 “for summoning Nihang Singh Faqir who is residing
                            within the Masjid Janam Sthan17. The report stated that
                            he had taken a summons “to the said Faqir” and he was
                            admonished, in spite of which he continued to insist that
                            “every place belonged to Nirankar”;
D                     (iv) A report was submitted by the Thanedar on 6 December
                           1858 indicating service of the summons18;
                      (v) There was an application dated 9 April 1860 of
                          Mohammadi Shah, resident of Mohalla Ramkot seeking
                          a postponement of the grant of a lease in respect of
E                         village Ramkot until a decision was taken on whether
                          the land is Nazul land19;
                      (vi) On 5 November 1860, an application was made to the
                           Deputy Commissioner for the removal of the Chabutra
                           which had been constructed “within Babri Masjid
F                          Oudh”20. The grievance in the application and the relief
                           sought is indicated in this extract:
                              “Besides, when the Moazzin recites Azaan, the
                              opposite party begins to blow conch (Shankh/
                              Naqoos). This has never happened before. I would
                              pray that your honour is the Judge for both the
G
                              parties. The opposite party should be restrained from

      17
         Exhibit 21
      18
         Exhibit 22
      19
         Exhibit 23
      20
         Exhibit 31
H
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               105


                       his unlawful act and after proper inquiry the newly         A
                       constructed Chabootra which had never existed,
                       may kindly be demolished and a bond be got
                       executed from the opposite party to the effect that
                       he will not unlawfully and illegally interfere in the
                       Masjid property and will not blow conch (Shankh/
                                                                                   B
                       Naqoos) at the time of Azaan.”
              (vii) The application would indicate that the namaz was at
                    the stage being performed in the mosque. The Azaan
                    of the Moazzin was met with the blowing of conch shells
                    by the Hindus. A contentious situation was arising.
                    Eventually, the Nihang Sikh was evicted from the site          C
                    and a record was maintained;
             (viii) In or about 1877, another door to the outer courtyard
                    was allowed to be opened by the administration on the
                    northern site, in addition to the existing door on the east.
                    The Deputy Commissioner declined to entertain a                D
                    complaint against the opening made in the wall of the
                    Janmasthan21. The order of the Deputy Commissioner
                    records:
                       “A doorway has recently been opened in the wall
                       of the Janum-Asthan not at all in Baber’s mosque,           E
                       but in the wall which in front 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 opening only, so
                       the crush (sic rush) was very great and life was            F
                       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 2nd door in which               G
                       the Mohammedans can have no interest.”
                                                         (Emphasis supplied)


21
     Exhibit 15                                                                    H
106                SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A           This was accepted by the Commissioner while dismissing an
      appeal on 13 December 1877 holding:
                “As the door in question has opened by the Deputy Commissioner
                in the interests of the public safety, I decline to interfere. Appeal
                dismissed.”
B                       (ix) Justice Agarwal has alluded to the above documentary
                             evidence including in particular, the application of the
                             Moazzin dated 30 November 1858.22 The application
                             complained of the construction of a Chabutra near the
                             mihrab and mimbar on which a picture of an idol had
C                            been placed. The complaint refers to the worship which
                             was being conducted by lighting a fire and conducting
                             a puja. The letter notes that previously the symbol of
                             the Janmasthan was in existence for hundreds of years
                             and Hindus had performed puja. Justice Agarwal has
                             noted that the genuineness of this document has not been
D                            disputed by the plaintiff in the suit or of it having been
                             written by a person whose identity was not disputed.
                             The learned Judge held that the document contains
                             admissions which prove that Hindus had continuously
                             offered prayers inside the disputed building including the
E                            inner courtyard and at Ramchabutra and Sita Rasoi in
                             the outer courtyard. However, during the course of the
                             proceedings Mr Mohd. Nizamuddin Pasha, learned
                             counsel for the plaintiffs in Suit 4 has challenged the
                             translation of the exhibit;

F                       (x) Mohd Asghar instituted Suit 374/943 of 188223 against
                            Raghubar Das, Mahant, Nirmohi Akhara claiming rent
                            for use of the Chabutra and Takht near the door of Babri
                            Masjid and for organizing the Kartik Mela on the
                            occasion of Ram Navami in 1288 Fasli. The Sub-Judge,
                            Faizabad dismissed the suit on 18 June 1883;
G
                        (xi) The construction of a railing in 1856-7 to provide a
                             measure of separation between the inner and outer
                             courtyards led to the construction of a platform by the
      22
           Exhibit 20
      23
H          Exhibit 24
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              107


                     Hindus in close proximity to the railing, in the outer       A
                     courtyard. The platform, called Ramchabutra, became
                     a place of worship for the Hindus;
              (xii) On 29 January 1885, a suit was instituted in the court
                    of the Munsif, Faizabad by Mahant Raghubar Das,
                    describing himself as “Mahant Janmasthan at Ayodhya”.         B
                    The sole defendant was the Secretary of State for India
                    in Council24. The relief which was sought in the suit was
                    an injunction restraining the defendant from obstructing
                    the construction of a temple over the Chabutra
                    admeasuring 17x21 feet. The plaint stated that the
                    Janmasthan at Ayodhya is a place of religious                 C
                    importance and the plaintiff is a Mahant of the place.
                    Charan Paduka was affixed on the Chabutra and a
                    small temple built next to it was worshipped. The plaintiff
                    stated that in April 1883, the Deputy Commissioner,
                    Faizabad acting on the objection of the Muslims,              D
                    obstructed the construction of a temple. A map was
                    appended with the plaint showing the three domed
                    structure described as “Masjid” within a boundary
                    railing. The map appended to the plaint indicated two
                    entrances to the outer courtyard on the Northern and
                    Eastern sides. Mohd Asghar as Mutawalli of the mosque         E
                    was impleaded as second defendant to the suit. He filed
                    a written statement on 22 December 1885 stating that
                    Babur had created a waqf by constructing a Masjid and
                    above the door, the word ‘Allah’ was inscribed. Babur
                    was also stated to have declared a grant for its              F
                    maintenance. Mohd Asghar pleaded that no permission
                    had been granted for the use of the land in the compound
                    of the mosque. It was averred that there was no
                    Chabutra from the date of the construction of the
                    mosque until 1856 and it was only constructed in 1857.
                    The prayer for the construction of a temple was               G
                    opposed; and
                     The above suit was dismissed by the Sub-Judge on 24
                     December 1885. The Trial Court held that:
24
     The certified copy of the plaint is Exhibit A-22 in Suit 1                   H
108            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                    (a) The Chabutra was in possession of the plaintiff,
                         which had not been disputed by the second
                         defendant;
                     (b) The area was divided by a railing wall separating
                         the domed structure from the outer courtyard where
B                        the Chabutra existed to prevent any dispute between
                         Hindus and Muslims;
                     (c) The erection of a railing was necessitated due to the
                         riot in 1885 between Hindus and Muslims;
                     (d) The divide was made to so that Muslims could offer
C                        prayers inside and the Hindus outside;
                     (e) Since the area to visit the mosque and the temple
                         was the same but the place where the Hindus
                         offered worship was in their possession, there could
                         be no dispute about their ownership; and
D
                      (f) Though the person who was the owner and in
                          possession is entitled to make construction, grant of
                          permission to construct a temple in such close
                          proximity to a mosque may lead to a serious dispute
                          between Hindus and Muslims and create a law and
E                         order problem. The suit was dismissed on this
                          ground.
             Against the decree of the Trial Court, an appeal was filed by
      Mahant Raghubar Das while cross-objections were filed by Mohd
      Asghar. The District Judge by a judgment dated 18/26 March 1886
F     dismissed the appeal of the plaintiff. The District Judge held that it was
      “most unfortunate” that the Masjid should have been built on the land
      especially held sacred by the Hindus but since the construction had been
      made 358 years earlier, it was too late in the day to reverse the process.
      The suit was dismissed on the ground that there was no injury which
      could give a right of action to the plaintiff. On the cross-objections of
G
      Mohd Asghar, the District Judge held that the finding of the Trial Court
      that the plaintiff was the owner of the land in dispute was redundant
      and should be expunged.
            The second appeal was dismissed by the Judicial Commissioner
      of Oudh on 1 November 1886 on the ground that (i) there was nothing
H     on record to show that the plaintiff was the proprietor of the land in
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             109


question; and (ii) it was inappropriate to allow the parties to disturb the   A
status quo especially when a mosque had been in existence for nearly
350 years. The Judicial Commissioner held:
      “The matter is simply that the Hindus of Ajodhya want to create
      a new temple or marble baldacchino over the supposed holy spot
      in Ajodhya said to be the birthplace of Shri Ram Chandar. Now           B
      this spot is situated within the precinct of the grounds surrounding
      a mosque erected some 350 years ago owing to the bigotry and
      tyranny of the Emperor Babur, who purposely chose this holy
      spot according to Hindu legend as the site of his mosque.
      The Hindus seem to have got very limited rights of access to            C
      certain spots within the precincts adjoining the mosque and they
      have for a series of years been persistently trying to increase
      those rights and to erect buildings on two spots in the enclosure:
      (a) Sita ki Rasoi
      (b) Ram Chandar ki Janam Bhumi.                                         D
      The Executive authorities have persistently refused these
      encroachments and absolutely forbid any alteration of the ‘status
      quo’.
      I think this is a very wise and proper procedure on their part
                                                                              E
      and I am further of opinion that the Civil Courts have properly
      dismissed the Plaintiff’s claim.”
       The issue as to whether the findings in the suit will operate as
res judicata will be dealt with in a subsequent segment of the judgment.
      The conflagration which took place in 1855-56 resulted in a brick       F
wall and railing being put up outside the mosque. This divided the
courtyard into an inner portion which lay within the railing and the outer
portion beyond it. Situated in the outer portion were places worshipped
by the Hindus, among them being Ramchabutra and Sita Rasoi. Two
entrance gates (on the north and east) provided access to the outer
courtyard. Entry to the mosque was through the access points to the           G
outer courtyard.
      D.2 Period between 1934-1949
      47. In 1934, there was another communal incident in the course
of which damage was sustained to the mosque which was subsequently            H
110                 SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     restored. The documentary evidence which has been brought on record
      shows that :
                       (i) The colonial administration sanctioned the work of
                           repair and renovation of the damaged structure of the
                           mosque;
B                     (ii) A fine was imposed on the Hindus for the damage which
                           was caused to the mosque;
                     (iii) The work of restoration was entrusted to a Muslim
                           contractor with whom there was an exchange of
                           correspondence over the payment of unpaid bills and for
C                          verification of work done;
                     (iv) This was a claim by the Pesh Imam of the mosque over
                          the payment of the arrears of salary with the Mutawalli;
                          and

D                     (v) Upon the work of repair, the administration permitted
                          arrangements to be made for commencement of namaz.
            (In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied
      upon this documentary evidence as indicative of the status of the mosque
      and of the performance of namaz).
E           48. A series of incidents took place between March and
      December 1949. On 19 March 1949, a deed was executed by the
      Panches of Nirmohi Akhara purportedly to reduce into writing the
      customs of the Akhara. This document25 included the following provision
      in regard to “the temple of Janmabhoomi” of which the management
      was claimed to vest in the Akhara:
F
                “Temple of Janam Bhoomi is situate in Mohalla Ram Ghat of
                City, Ayodhya which is under the Baithak of this Akhara and its
                whole management is trust upon to this Akhara. It stands in name
                of Mahant of Akhara as Mahant and Manager. This is the best
                well reputed, moorty of worship temple of Ayodhya. Being the
G               birthplace of Lord Rama, it is the main temple of Ayodhya. The
                deity of Shri Ram Lalaji is installed there and there are other
                deities also.”


H     25
           Exhibit 1 in Suit 3
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          111


       49. During the course of his arguments, Dr Rajeev Dhavan,           A
learned Senior Counsel for the plaintiffs in Suit 4 urged that the
communications exchanged between the officials of the State of Uttar
Pradesh demonstrate that they had prior information about a carefully
planned course of action of placing idols inside the mosque which led
to the desecration of the mosque. Despite this, it has been submitted,
                                                                           B
the administration took no steps to prevent such an incident from taking
place. Hence, in this backdrop, it is necessary to set out the events
that led to the incident which took place on 22-23 December 1949:
            (i) On 12 November 1949, a police picket was posted in
                the area;
                                                                           C
           (ii) On 29 November 1949, Kripal Singh who was the
                Superintendent of Police at Faizabad addressed a letter
                to K K Nayar, the Deputy Commissioner and District
                Magistrate, Faizabad stating:
                   “I visited the premises of Babri mosque and the         D
                   Janm Asthan in Ajodhya this evening. I noticed that
                   several “Hawan Kunds” have been
                   constructed all around the mosque. Some of
                   them have been built on old constructions already
                   existing there.”
                                                                           E
                   …
                   I found bricks and lime also lying near the Janm
                   Asthan. They have a proposal to construct a
                   very big Havan Kund where Kirtan and Yagna
                   on Puranmashi will be performed on a very               F
                   large scale. Several thousand Hindus, Bairagis
                   and Sadhus from outside will also participate.
                   They also intend to continue the present Kirtan till
                   Puranmashi. The plan appears to be to surround
                   the mosque in such a way that entry for the
                   Muslims will be very difficult and ultimately           G
                   they might be forced to abandon the mosque.
                   There is a strong rumour, that on puranmashi
                   the Hindus will try to force entry into the
                   mosque with the object of installing a deity.”
                                                   (Emphasis supplied)     H
112   SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A     (iii) On 10 December 1949, Mohd Ibrahim who was the
            Waqf Inspector submitted a report to the secretary of
            the Masjid stating that Muslims were being prevented
            from offering namaz Isha (the namaz at night) at the
            mosque, due to the fear of Hindus and Sikhs and there
            was an apprehension of danger to the mosque:
B
              “On investigation in Faizabad city it was revealed
              that because of the fear of Hindus and Sikhs no
              one goes into the Masjid to pray Namaz Isha.
              If by chance any passenger stays in the Masjid
              he is being threatened and teased by the
C             Hindus ... (sic)..... There are number of
              Numberdars ... (sic)..... if any Muslim into the
              Masjid, he is harassed and abused. I made on the
              spot enquires which reveal that the said allegations
              are correct. Local people stated that the
D             Masjid is in great danger because of Hindus
              ... (sic)..... Before they try to damage the wall
              of the Masjid, it seems proper the Deputy
              Commissioner Faizabad may be accordingly
              informed , so that no Muslim, going into the
              Masjid may be teased. The Masjid is a Shahi
E             monument and it should be preserved.”
                                              (Emphasis supplied)
      (iv) On 16 December 1949, K K Nayyar addressed a
           communication to Govind Narayan who was Home
F          Secretary to the Government of Uttar Pradesh, stating
           that there was a “magnificent temple” at the site which
           had been constructed by Vikramaditya, which was
           demolished by Babur for the construction of a mosque,
           known as Babri Masjid. The letter stated that building
           material of the temple was used in the construction of
G          the mosque and that a long time had elapsed before
           Hindus were again restored to the possession of a site
           therein, at the corner of two walls. The letter recorded
           a reference to recent happenings and stated:
              “Some time this year probably in October or
H             November some grave-mounds were partially
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       113


              destroyed apparently by Bairagis who very keenly        A
              resent Muslim associations with this shrine. On
              12.11.49 a police picket was posted at this place.
              The picket still continues in augmented strength.
              There were since other attempts to destroy grave-
              mounds. Four persons were caught and cases are          B
              proceeding against them but for quite some time
              now there have been no attempts.
              Muslims, mostly of Faizabad have been exaggerating
              these happenings and giving currency to the report
              that graves are being demolished systematically on      C
              a large scale. This is an entirely false canard
              inspired apparently by a desire to prevent Hindus
              from securing in this area possession or rights of a
              larger character than have so far been enjoyed.
              Muslim anxiety on this score was heightened by the
              recent Navami Ramayan Path, a devotional reading        D
              of Ramayan by thousands of Hindus for nine days
              at a stretch. This period covered a Friday on which
              Muslims who went to say their prayers at the
              mosque were escorted to and from safely by the
              Police.
                                                                      E
              As far as I have been able to understand the
              situation the Muslims of Ayodhya proper are far
              from agitated over this issue with the exception of
              one Anisur Rahman who frequently sends frantic
              messages giving the impression that the Babri Masjid
              and graves are in imminent danger of demolition.”       F
          Nayyar saw no apprehension of danger to the mosque
          in spite of the letter of the Superintendent of Police
          which contained specific reference to the plans which
          were afoot to enter the mosque and install idols within
          its precincts;                                              G
      (v) On the night between 22-23 December 1949, Hindu
          idols were surreptitiously placed inside Babri Masjid by
          a group of 50-60 persons. An FIR was lodged,
          complaining of the installation of idols inside the inner
          courtyard of the disputed site. The FIR, complaining of     H
114   SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           offences under Sections 147, 295, 448 of the Indian
            Penal Code was lodged at 7:00 pm on 23 December
            1949 by Ram Deo Dubey, Sub-Inspector in charge. The
            FIR recorded that on information received from Mata
            Prasad, Constable No. 7, the complainant had arrived
            at the disputed site at 7:00 am and learned that a crowd
B
            of 50 or 60 persons had broken the locks placed on the
            compound of the mosque and had placed the idols inside,
            besides inscribing the names of Hindu deities on the
            walls. Thereafter, 5000 people had gathered to perform
            Kirtan. It was alleged that Abhay Ram Das, Ram
C           Shukul Das, Sheo Darshan Dass and about 50 or 60
            persons had committed an act of trespass by entering
            the mosque and installing idols, thereby desecrating the
            mosque.
            The judgment of Justice S U Khan contains a reference
D           to the report/diary of the District Magistrate stating that
            on 23 December 1949, the crowd was controlled by
            allowing two or three persons to offer bhog;
       (vi) K K Nayyar opposed the direction of the state
            government to remove the idols, fearing a loss of life.
            On 25 December 1949, K K Nayar recorded that puja
E           and bhog was offered as usual. In spite of the directions
            to remove the idols, K K Nayar declined to do so stating
            that “if Government still insisted that removal should be
            carried out in the face of these facts, I would request
            to replace me by another officer”;
F     (vii) K K Nayar addressed two letters on 26 and 27
            December 1949 to Bhagwan Sahai, Chief Secretary,
            Government of U.P. stating that the incident that took
            place on 23 December 1949 was “unpredictable and
            irreversible” on the basis of the above narration of
            incidents. On the basis of the above documentary
G
            material, Dr Dhavan, learned Senior Counsel submitted
            that:
            (a) There was a mosque at the disputed site;
            (b) The state authorities acknowledged the structure as
                 a mosque and consistently referred to it as a mosque
H                in their internal communications;
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            115


              (c) From the report of the Waqf commissioner dated 10          A
                   December 1949, the following points emerge:
                   “(a) The temple of the Hindus was outside the
                         courtyard
                         Namaz was being read in the Babri Mosque
                         as it refers to the Muslim worshippers being        B
                         harassed by the members of the Hindu
                         Community;”
              (d) The state authorities acknowledged the threat posed
                   by the members of the Hindu Community to the
                   mosque and to the people going to pray;                   C
              (e) The state authorities could foresee the potential
                   desecration / attack to the mosque and the
                   worshippers, but took no steps to avert such an
                   incident;
              (f) From the internal communication of the officials of
                                                                             D
                   the state, it is clear that the desecration of the
                   mosque was planned as the Superintendent of Police
                   had informed the Deputy Commissioner of
              (g) the plan of the Hindus to force entry into the mosque
                   with the intention of installing an idol;
                                                                             E
              (h) The desecration of December 22-23, 1949 was a
                   planned attack, the seeds for which were sown with
                   the ‘customs deed’ dated March 19, 1949 when the
                   temple of Ram Janmabhumi was for the first time
                   mentioned; and
               (i) Officials of the state refused to thereafter remove       F
                   the surreptitiously installed idols despite orders from
                   the State Government, further confirming their
                   alliance with the miscreants who desecrated the
                   mosque.
E. Proceedings under Section 145                                             G
      50. On 29 December 1949, a preliminary order was issued under
Section 145 of the CrPC 1898 by the Additional City Magistrate,
Faizabad cum Ayodhya. Simultaneously, treating the situation as involving
an emergency, an order of attachment was issued and the disputed site
was directed to be entrusted to Sri Priya Datt Ram who was the
                                                                             H
116             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     Chairman of the Municipal Board. The order dated 29 December 1949
      is extracted below:
             “Whereas I, Markendeya Singh, Magistrate First Class and
             Additional City Magistrate, Faizabad-cum-Ayodhya, am fully
             satisfied from information received from Police sources and from
B            other credible sources that a dispute between Hindus and
             Muslims in Ayodhya over the question of rights of proprietorship
             and worship in the building claimed variously as Babari Masjid
             and Janam Bhoomi Mandir, situate at Mohalla Ram Kot within
             the local limits of my jurisdiction, is likely to lead to a breach of
             the peace.
C            I hereby direct the parties described below namely:
                   (1) Muslims who are bona fide residents of Ayodhya or
                       who claim rights of proprietorship or worship in the
                       property in dispute;
                   (2) Hindus who are bona fide residents of Ahodhya or who
D                      claim rights of proprietorship or worship in the property
                       in dispute;
             to appear before me on 17th day of January at 11 A.M. at
             Ayodhya Police Station in person or by pleader and put in written
             statements of their respective claims with regard to the fact of
E            actual possession of the subject of dispute.
             And the case being one of the emergency I hereby attach the
             said buildings pending decision.
             The attachment shall be carried out immediately by Station
             Officer, Ayodhya Police Station, who shall then put the attached
F            properties in the charge of Sri Priya Datt Ram, Chairman
             Municipal Board, Faizabad-cum-Ayodhya who shall thereafter be
             the receiver thereof and shall arrange for the care of the property
             in dispute.
             The receiver shall submit for approval a scheme for management
G            of the property in dispute during attachment, and the cost of
             management shall be defrayed by the parties to this dispute in
             such proportions as may be fixed from time to time.
             This order shall, in the absence of information regarding the
             actual names and addresses of the parties to dispute to be served
             by publication in:
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        117


           1. The English Daily, “The Leader” Allahabad,                 A
           2. The Urdu Weekly “Akhtar” Faizabad
           3. The Hindi Weekly “Virakta” Ayodhya.
      Copies of this order shall also be affixed to the walls of the
      buildings in dispute and to the notice board at Ayodhya Police
                                                                         B
      Station.
      Given under my hand and the seal of the court on this the twenty
      ninth day of December, 1949 at Ayodhya.”
      51. The receiver took charge on 5 January 1950 and made an
inventory of the properties which had been attached. The last namaz      C
which was offered in the mosque was on 16 December 1949. The
receiver made an inventory of the following articles:
      “1. Idols of Thakur Ji
        1- (a) Two idols of Sri Ram Lala Ji, one big and another
               small.                                                    D
            (b) Six idols of Sri Shaligram Ji.
        2. A two feet high silver throne.
        3. One idol of Hanuman Ji.
        4. (a) One glass of German Silver.                               E
            (b) One small glass of silver.
            (c) One big glass of silver
        5. One Garun bell.
        6. One incensory.                                                F
        7. One Arti vessel.
        8. One lamp stand
        9. “Husra” and one sandal.
       10. Two big photographs of Ram Janki.                             G
       11. Four flower pots.
       12. One (small) photograph of Badrinath Ji.
       13. One small photograph of Ramchandra Ji.
       14. Ornaments of Deity                                            H
118            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                    Two caps of Ramlala and one cap of Hanuman Ji.
                     And eight robes of Deity.
               15. Building- Three domed building with Courtyard and
                     boundary wall, which is bounded as under.
                     North-Premises comprising Chhathi Courtyard and Nirmohi
B                    Akhara.
                     South-Vacant land and “Parikrama” (circumambulation
                     path)
                     East-‘Chabutara’ (platform) of Ram temple under
                     possession of Nirmohi Akhara, and Courtyard of temple
C                    premises.
                     West-Parikrama’ (circumambulation path)
               16. Small brass glass
               17. One bowl of “Phool” (an alloy) for sandal.
               18. “Panch Pas” and one brass plate.
D
               19. One small brass plate.
               20. One small wooden board.”
             In the course of the proceedings of the civil suit before the Trial
      Court at Faizabad, the pleader, Shiv Shankar Lal, was appointed as a
      Commissioner to prepare a site plan of the locality and building. The
E
      Commissioner submitted a report on 25 May 1950, annexing two site
      plans which were numbered as Plan nos 1 and 2 which have been
      referred above in the earlier part of the judgment.
             52. The salient features noticed in the Commissioner’s report are:
                    (i) The existence of two entry gates to the disputed site,
F                       described as Hanumat Dwar and Singh Dwar;
                   (ii) The presence of two black Kasauti stone pillars at the
                        entry point of Hanumat Dwar containing engraved
                        images of ‘Jai’ and ‘Vijai’;
                  (iii) The images of a ‘Garud’ flanked by lions on either side
G                       above Singh Dwar;
                  (iv) An engraved stone image of a boar (‘varah’) on the
                        outer wall, to the south of Hanumat Dwar;
                   (v) Ramchabutra admeasuring 17 X 21 feet containing a
                        small temple with idols of Lord Ram and Janki;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           119


           (vi) On the south-eastern corner, a semi-circular platform       A
                 attached to the neem-pipal tree containing idols of
                 Panchmukhi Mahadev, Parvati, Ganesh and Nandi;
          (vii) The platform called Sita Rasoi containing the foot prints
                 of Lord Ram, Lakshman, Bharat and Shatrughan;
         (viii) The railing separating the inner and outer courtyards;      B
           (ix) The presence of twelve black Kasauti stone pillars
                 supporting the three arches of the mosque which
                 contained carvings of:
                 (a) Lotus flowers;
                 (b) Tandava nritya;                                        C
                 (c) Lord Hanuman; and
                 (d) Lord Krishna.
                 (Carvings on the other pillars had been obliterated);
            (x) The idol of infant Lord Ram placed on a platform with
                 two steps in the central portion of the domed structure;   D
           (xi) A parikrama around the disputed structure; and
          (xii) The existence of structures surrounding the disputed site
                 including huts of sadhus/bairagis and the wall called
                 ‘sita-koop’.
                                                                            E
F. Points for determination
      The following points for determination arise in these appeals:
             (i) Whether Suits 3, 4 and 5 or any of them are barred by
                 limitation
            (ii) Whether the decision in Suit 81/280 of 1885 will operate   F
                 as res judicata in Suits 1, 3 and 5;
          (iii) (a) Whether a Hindu temple existed at the disputed
                      site;
                  (b) Whether the temple was demolished by Babur or
                      at his behest by his commander Mir Baqi in 1528
                                                                            G
                      for the construction of the Babri Masjid;
                (c) Whether the mosque was constructed on the
                    remains of and by using the materials of the temple;
                    and
                (d) What, if any are the legal consequences arising out     H
120   SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                  of the determination on (a)(b) and (c) above;
        (iv) Whether the suit property is according to the faith and
             belief of the Hindus since time immemorial the birth-
             place of Lord Ram;
         (v) (a) Whether the first and the second plaintiffs in Suit
B                  5 are juristic persons;
             (b) Whether the third plaintiff was entitled to represent
                   the first and second plaintiffs as next friend;
        (vi) (a) Whether Nirmohi Akhara has established its claim
                   of being a shebait of the deity of Lord Ram in the
C                  disputed premises;
             (b) If (a) is in the affirmative, whether the objection
                   of Nirmohi Akhara to the maintainability of Suit 5
                   is valid;
       (vii) Whether during the intervening night of 22/23 December
D            1949, Hindu idols were installed under the Central dome
             of Babri Masjid as pleaded in the plaint in Suit 4;
      (viii) (a) Whether it is open to the Court to determine if the
                   three domed structure which existed at the disputed
                   site prior to 6 December 1992 was a mosque in
                   accordance with Islamic tenets;
E
             (b) If the answer to (a) is in the affirmative, whether
                   the three domed structure at the disputed site was
                   constructed in accordance with Islamic tenets;
        (ix) (a) Whether there was a dedication of the three domed
                   structure as a waqf at the time of its construction;
F
             (b) In the alternative to (a) above, whether there is a
                   waqf by public user as claimed by the plaintiffs in
                   Suit 4;
         (x) Whether the plaintiffs in Suit 4 have established in the
             alternative their case of adverse possession;
G
        (xi) Whether the Muslims and or the Hindus have
             established the claim of worship and a possessory title
             over the disputed property;
       (xii) Whether the plaintiffs in Suit 4 have established their
             title to the disputed property;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                121


           (xiii) Whether the plaintiff in Suit 5 have established their title   A
                   to the disputed property;
           (xiv) Whether the High Court was justified in passing a
                   preliminary decree for a three way division of the
                   disputed property in equal shares between the Nirmohi
                   Akhara, the plaintiffs of Suit 4 and the plaintiffs of        B
                   Suit 5;
            (xv) Whether the plaintiff in Suit 1 is entitled to the reliefs
                   as claimed in the suit; and
           (xvi) What, if any, relief ought to be granted in Suits 1, 3, 4
                   and 5                                                         C
       These points will be analysed and dealt with in the course of this
judgment. Before analysing the issues in the individual suits, it would
be appropriate to discuss certain matters in dispute at the forefront,
since they traverse the gamutof the entire case.
G. The three inscriptions
                                                                                 D
       53. The case of the Sunni Central Waqf Board and other plaintiffs
in Suit 4 is that in the town of Ayodhya “there exists an ancient historic
mosque commonly known as Babri Masjid built by Emperor Babur more
than 433 years ago, after his conquest of India and his occupation of
the territories including the town of Ayodhya”. The mosque, it has been
pleaded, was for the use of Muslims in general as a place of worship             E
and for the performance of religious ceremonies. The mosque and the
adjoining graveyard are stated to vest “in the Almighty” and the mosque
since the time of its inscription is stated to have been used by Muslims
for offering prayers. Thus, the plaintiffs have come forth with a positive
case in regard to the:                                                           F
               (i) Existence of a mosque;
              (ii) Construction of the mosque by Babur 433 years prior
                   to the institution of the Suit in 1961;
             (iii) Construction of the mosque as a place of worship and
                   for religious ceremonies; and                                 G
           (iv) Use of the mosque since its construction for the purpose
                of offering prayers.
      54. Justice Sudhir Agarwal recorded in his judgment that it is
accepted by the counsel appearing on behalf of the Sunni Central Waqf
                                                                                 H
122             SUPREME COURT REPORTS                               [2019] 18 S.C.R.


A     Board that the sole basis for determining the date of the construction
      of the mosque and correlating it to Babur consists of the inscriptions
      stated to have been installed on the mosque as referred to in the
      gazetteers and other documents. In paragraph 1435, the learned Judge
      observed:
B            “Broadly, we find and in fact it is even admitted by Sri Jilani that
             the sole basis for determining the period of construction of the
             disputed building and to co-relate it with Emperor Babar is/are
             the inscription(s) said to be installed in the disputed building
             referred to in certain Gazetteers etc.”
C            Now both before the High Court and during the course of the
      present proceedings, there has been a debate on whether the texts of
      the alleged inscriptions on the mosque have been proved. Mr P N Mishra,
      learned Counsel appearing on behalf of the Akhil Bharatiya Shri Ram
      Janmabhumi Punrudhar Samiti has questioned the authenticity of the
      inscriptions. He sought to cast doubt on whether the mosque was
D     constructed in 1528 A.D. by or at the behest of Babur.
             55. The first document relied on is the text by Fuhrer titled “The
      Sharqi Architecture of Jaunpur with notes on Zafarabad, Sahet-
      Mahet and other places in the Northern-Western Provinces and
      Oudh26. The original edition of the book was printed in 1889 and there
E     is a reprint in 1994 by the ASI. In Chapter X, there is a reference to
      three inscriptions bearing nos XL, XLI, and XLII. It is from these three
      inscriptions that Fuhrer formed an opinion that the Babri mosque was
      constructed at Ayodhya in 1523 A.D or A.H. 930. Inscription XL in
      Arabic is over the central mihrab and furnishes the Kalimah twice in
F     the following words:
             “There is no god but Allah, Muhammad is His Prophet.”
            Inscription XLI was found on the mimbar and was written in
      Persian. The inscription as translated in English reads thus:
             “1. By order of Babar, the king of the world,
G
               2. This firmament-like, lofty,
               3. Strong building was erected.
      26
         Führer, Alois Anton, Edmund W. Smith, and James Burgess, The Sharqi architecture
      of Jaunpur: with notes on Zafarabad, Sahet-Mahet and other places in the North-
H     Western provinces and Oudh (1994)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          123


       4. By the auspicious noble Mir Khan.                                A
       5. May ever remain such a foundation,
       6. And such a king of the world.”
      Inscription XLII was found above the entrance door. Also, in
Persian, the inscription has been translated thus:                         B
      “1. In the name of God, the merciful, the element.
       2. In the name of him who …...; may God perpetually keep
          him in the world.
       3. …........
                                                                           C
       4. Such a sovereign who is famous in the world, and in person
          of delight for the world.
       5. In his presence one of the grandees who is another king of
          Turkey and China.
       6. Laid this religious foundation in the auspicious Hijra 930.      D
       7. O God ! May always remain the crown, throne and life with
          the king.
       8. May Babar always pour the flowers of happiness; may
          remain successful.
                                                                           E
       9. His counsellor and minister who is the founder of this fort
          masjid.
      10. This poetry, giving the date and eulogy, was written by the
          lazy writer and poor servant Fath-allah-Ghorl, composer.”
      After adverting to the inscriptions, Fuhrer notes:                   F
      “The old temple of Ramachandra at Janamasthanam must have
      been a very fine one, for many of its columns have been used
      by the Musalmans in the construction of Babar’s masjid. These
      are of strong, close-grained, dark-coloured or black stone, called
      by the natives kasauti, “touch-stone slate,” and carved with         G
      different devices. They are from seven to eight feet long, square
      at the base, centre and capital, and round or octagonal
      intermediately.”
      56. The second piece of documentary evidence in which these
inscriptions are purportedly translated the “Babur-Nama”. The              H
124             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A     translation by A S Beveridge was first published in 192127. Apart from
      the book, extracts of some of its pages were exhibited by the parties
      to the proceedings.
            Appendix (U) refers to two inscriptions; one inside and another
      outside the mosque. Photocopies of the pages of appendix (U) were
B     marked as appendix T3 in Suit 4.
           57. Beveridge obtained the text of the inscription through the
      Deputy Commissioner of Faizabad on a request made by her spouse.
      Beveridge notes that while reproducing the text she had made a few
      changes. The text of the inscription inside the mosque, as quoted by
C     Beveridge is as follows:
            “(1) By the command of the Emperor Babur whose justice is
                 an edifice reaching up to the very height of the heavens.
             (2) The good-hearted Mir Baqi built this alighting place of
                 angels.
D
             (3) It will remain an everlasting bounty, and (hence) the date
                 of its erection became manifest from my words: It will
                 remain an everlasting bounty.”
             The text of the inscription outside the mosque is thus:
E            “1. In the name of One who is Great (and) Wise (and) who is
                 Creator of the whole world and is free from the bondage
                 of space.
              2. After His praise, peace and blessings be on Prophet
                 Muhammad, who is the head of all the Prophets in both the
F                worlds.
              3. In the world, it is widely talked about Qalandar Babur that
                 he is a successful emperor.”
            Beveridge stated that the second inscription outside the mosque
      was incomplete.
G
            58. The third set of texts in support of the inscriptions is published
      in “Epigraphia Indica-Arabic-Persian Supplement (In continuation

      27
        William Erskine, John Leyden, and Annette Susannah Beveridge, the B bur-nama
      in English (Memoirs of B bur), London: Luzac & Co. (Reprint in 2006 by Low
H     Price Publications, Delhi)
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                125


of Epigraphia Indo-Moslemica) 1964 and 1965”28 (reprinted in                        A
1987). This has been published by the Director General, ASI and
contains a reference to the inscriptions of Babur. The text is attributed
to Maulvi M Ashraf Husain and is edited by Z A Desai. The
introductory note to the edition states:
       “A rough draft of this article by the author, who was my                     B
       predecessor, was found among sundry papers in my office. At
       the time of his retirement in 1953, he had left a note saying that
       it might be published after revision by his successor. Consequently,
       the same is published here after incorporation of fresh material
       and references and also, extensive revision and editing. The
       readings have been also checked, corrected and supplemented                  C
       with the help of my colleague, Mr. S.A.Rahim, Epigraphical
       Assistant,-Editor.”
      The text contains the following description in regard to the
construction of Babri Masjid:
                                                                                    D
       “The Baburi-Masjid, which commands a picturesque view from
       the riverside, was constructed according to A. Fuhrer in A.H.
       930 (1523-24 A.D.) but his chronology, based upon incorrect
       readings of inscriptions supplied to him, is erroneous. Babur
       defeated Ibrahim Lodi only in A.H. 933 (1526 A.D.), and
       moreover, the year of construction, recorded in two of the three             E
       inscriptions studied below, is clearly A.H. 935 (1528-29 A.D.).
       Again, it was not built by Mir Khan as stated by him. The order
       for building the mosque seems to have been issued during
       Babur’s stay at Ajodhya in A.H. 934 (1527-28 A.D.), but no
       mention of its completion is made in the Babur Nama. However,                F
       it may be remembered that his diary for the year A.H. 934 (1527-
       28 A.D.) breaks off abruptly, and throws the reader into the dark
       in regard to the account of Oudh.”
      The text also provides an account of the manner in which the
author obtained an inked rubbing of one of the inscriptions from Sayyid             G
Badru’l Hasan of Faizabad:
       “The mosque contains a number of inscriptions. On the eastern
       facade is a chhajja, below which appears a Quranic text and
28
  Epigraphia Indica, Arabic and Persian Supplement (in continuation of Epigraphia
Indo-Moslemica) (Z A Desai Eds), Archaeology Survey of India (1987)                 H
126            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           above, an inscription in Persian verse. On the central mihrab are
            carved religious texts such as the Kalima (First Creed), etc. On
            the southern face of the pulpit was previously fixed a stone slab
            bearing a Persian inscription in verse. There was also another
            inscription in Persian verse built up into the right hand side wall
            of the pulpit. Of these, the last-mentioned two epigraphs have
B
            disappeared. They were reportedly destroyed in the communal
            vandalism in 1934 A.D., but luckily, I managed to secure an inked
            rubbing of one of them from Sayyid Badru’l Hasan of Fyzabad.
            The present inscription, restored by the Muslim community, is not
            only in inlaid Nasta’liq characters, but is also slightly different
C           from the original, owing perhaps to the incompetence of the
            restorers in deciphering it properly.
            The readings and translations of the historical epigraphs
            mentioned above, except in the case of one, were published by
            Fuhrer and Mrs. Beveridge, but their readings are so incomplete,
D           inaccurate and different from the text that their inclusion in this
            article is not only desirable but also imperative.
            The epigraph studied below was inscribed on a slab of stone
            measuring about 68 by 48 cm., which was built up into the
            southern side of the pulpit of the mosque, but is now lost, as stated
E           above. It is edited here from the estampage obtained from Sayyid
            Badru’l Hasan of Fyzabad. Its three-line text consists of six
            verses in Persian, inscribed in ordinary Naskh characters within
            floral borders. It records the construction of the mosque by Mir
            Baqi under orders from emperor Babur and gives the year A.H.
            935 (1528-29 A.D.) in a chronogram.”
F
            The author states that on the southern side of the pulpit of the
      mosque was an inscription fixed on a slab of stone measuring 68 X 48
      cm but the original was lost. What is quoted is the version obtained
      from the inked rubbing noted above. The text of the first inscription
      was thus:
G
           “(1) By the order of king Babur whose justice is an edifice,
                meeting the palace of the sky (i.e. as high as the sky).
            (2) This descending place of the angels was built by the
                fortunate noble Mir Baqi.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            127


      (3) It will remain an everlasting bounty, and (hence) the date         A
          of its erection became manifest from my words: It will
          remain an everlasting bounty.”
     As regards the second inscription, the judgment of Justice Sudhir
Agarwal notes:
      “1449. Fuhrer’s inscription no. XLI which he mentions that the         B
      same was found inside the mosque on the mimbar (right hand
      side of the disputed building) has been termed as second
      inscription by Maulvi F. Ashraf Hussain. It consists of three
      couplets arranged in six lines. He (Hussain) clearly admits non
      existence of the said inscription by observing “the epigraphical       C
      Tablet” which was built up into right hand side wall of the pulpit,
      does not exist now, and, therefore, the text of the inscription is
      quoted here from Furher’s work, for the same reason, its
      illustration could not be given.” Husain/Desai however, did not
      agree to the reading of the inscription by Fuhrer and observed
      that Furher’s reading does not appear free from mistakes.”             D

      The text of the third inscription is as follows:
     “(1) In the name of Allah, the Beneficent, the Merciful. And in
          Him is my trust.
      (2) In the name of One who is Wise, Great (and) Creator of             E
          all the universe (and) is spaceless.
           After His praise, blessings be upon the Chosen one (i.e. the
           Prophet), who is the head of prophets and best in the world.
           The Qalandar-like (i.e. truthful) Babur has become
           celebrated (lit. a story) in the world, since (in his time) the   F
           world has achieved prosperity.
      (3) (He is) such (an emperor) as has embraced (i.e. conquered)
          all the seven climes of the world in the manner of the sky.
           In his court, there was a magnificent noble, named Mir Baqi
           the second Asaf, councillor of his Government and                 G
           administrator of his kingdom, who is the founder of this
           mosque and fort-wall.
      (4) O God, may he live for ever in this world, with fortune and
          life and crown and throne. The time of the building is this
                                                                             H
128            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                 auspicious date, of which the indication is nine hundred (and)
                  thirty five (A.H. 935=1528-29 A.D.).
                  Completed was this praise of God, of Prophet and of king.
                  May Allah illumine his proof. Written by the weak writer
                  and humble creature, Eathu’llah Muhammad Ghori.”
B            As regards the inscriptions noted by Fuhrer, certain significant
      aspects need to be noted. While the second inscription contains a
      reference to the order of Babur for the construction of the mosque,
      construction is attributed to Mir Khan (not Mir Baqi). The third
      inscription refers to the foundation of the construction of the mosque
C     being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to
      the invasion by Babur and the battle at Panipat which resulted in the
      defeat of Ibrahim Lodhi. As regards the work of Beveridge, it is
      evident that she had neither seen the original text nor had she translated
      the text of the inscriptions herself. Beveridge obtained a purported
      text of the inscriptions through her spouse from the Deputy
D     Commissioner, Faizabad. Beveridge claimed that she received a copy
      of the text through correspondence initiated by her spouse who was
      an ICS officer in the colonial government. She had neither read the
      original nor is there anything to indicate that she was in a position to
      translate it. Beveridge states that she made “a few slight changes in
E     the term of expression”. What changes were made by Beveridge has
      not been explained. According to her, the text of the two inscriptions
      was incomplete and was not legible. The text provided by Fuhrer shows
      that the construction of the mosque was not in 1528 A.D. Inscription
      XLI mentions the name of Mir Khan while inscription XLII refers to
      the construction of the mosque as Hijri 930.
F
             59. Justice Sudhir Agarwal while adverting to the work of Ashraf
      Husain and Z A Desai took serious note of the “fallacy and complete
      misrepresentation” of the author in publishing a text under the authority
      of the ASI without regard for its accuracy, correctness and genuineness:

G           “1463. We are extremely perturbed by the manner in which
            Ashraf Husain/Desai have tried to give an impeccable authority
            to the texts of the alleged inscriptions which they claim to have
            existed on the disputed building though repeatedly said that the
            original text has disappeared. The fallacy and complete
            misrepresentation on the part of author in trying to give colour
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             129


      of truth to this text is writ large from a bare reading of the write    A
      up. We are really at pains to find that such blatant fallacious kind
      of material has been allowed to be published in a book published
      under the authority of ASI, Government of India, without caring
      about its accuracy, correctness and genuineness of the subject.
      …Both these inscriptions i.e., the one claimed to be on the             B
      southern face of the pulpit and the other on the right hand side
      wall of the pulpit are said to be non-available by observing “of
      these the last mentioned two epigraphs have disappeared”. The
      time of disappearance according to Maulvi Ashraf Husain was
      1934 A.D. when a communal riot took place at Ayodhya.
      However, he claimed to have got an inked rubbing on one of the          C
      two inscriptions from Syed Badrul Hasan of Faizabad. The
      whereabouts of Syed Badrul Hasan, who he was, what was his
      status, in what way and manner he could get that ink rubbing of
      the said inscription and what is the authenticity to believe it to
      be correct when original text of the inscription are not known.         D
      There is nothing to co-relate the text he got as the correct text
      of the inscription found in the disputed building claimed to have
      lost in 1934.”
       The High Court observed that two inscriptions, those on the
southern face of the pulpit and on the wall on the right of the pulpit        E
were not available. According to Ashraf Husain, the epigraphs
disappeared in 1934 at the time of the communal riot. However, reliance
was sought to be placed on an alleged “inked rubbing” without explaining
the identity or whereabouts of the person from whom it was obtained.
The criticism of the High Court is not without basis. The identity of
the individual from whom the inked rubbings were obtained was not             F
explained. Nor was there any explanation about the manner in which
he had in turn obtained it. There was indeed nothing to co-relate the
text which that individual had obtained with the translation in the text
compiled by Ashraf Husain and Z A Desai. The High Court observed:
      “1464…When the original was already lost and there was nothing          G
      to verify the text of restored inscription with the original, neither
      the restored one can be relied upon nor is it understandable as
      to how he could have any occasion to compare the restored one
      with the alleged… original…”

                                                                              H
130                SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A               In this background, the High Court observed:
                “1466…The text, description and whatever had been set up by
                Ashraf Husain in respect of the above inscription is unbelievable
                and lacks trustworthiness. We are constrained to observe at this
                stage that in the matter of historical events and that too, when it
B               bears a religious importance and the matter has also seen serious
                disputes between two communities, the persons who are
                connected with history… must behave responsibly and before
                making any write up, should check up, cross check and verify
                very carefully what they are writing since the consequences of
                their write up may be dangerous and irreparable.”
C
             60. A fourth version of the inscriptions emerged pursuant to a
      direction of the Civil Judge dated 26 March 1946 in Shia Central Waqf
      Board v Sunni Central Board of Waqf 29. In pursuance of those
      directions, a person by the name of Sr. A Akhtar Abbas is stated to
      have read an inscription and prepared his inspection note. The High
D     Court, however, noted that the text as reproduced in the judgment dated
      30 March 1946 states that in the first inscription, the words are “by
      the order of Shah Babar, Amir Mir Baki built the resting place of angels
      in 923 A.H. i.e. 1516-17 A.D”. In respect of the second inscription,
      there is a reference to “Mir Baki of Isphahan in 935 A.H. i.e. 1528-29
      AD”. The High Court observed that it was not apprised of whether in
E
      the entire Babur-Nama, there was a reference to any Mir Baki
      Isphahani though, there was a reference to Baki Tashkendi. Besides
      one of the two tablets was new and had been replaced for the original
      tablet which had been demolished during the communal riots of 1934.
      On the above state of the evidence, the High Court doubted the
F     genuineness and authenticity of the transcripts of the inscriptions which
      were relied upon before it.
             61. At this stage, it is necessary to make a reference to the
      “Tuzuk-i-Babri”30. The Babur-Nama contains the daily diary of Babur
      commencing from 899 Hijri (1494 AD). Out of the life span of Babur,
G     a description of eighteen years is available over different periods. Babur
      came to India in 1526 A.D. The description available until his death is
      for the following periods, (noted by Justice Sudhir Agarwal):

      29
           Regular Suit No 29 of 1945
      30
H          Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             131


      “1487…                                                                  A
            1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12
               Rajab 934 Hijri (2nd April 1528 AD)
            2. From 3 Muharram 934 Hijri (18th September 1528 AD)
               till 3 Moharram 936 Hijri (7th September 1529 AD).”
                                                                              B
      The records for the period from 2 April 1528 till 17 September
1528 are missing. Out of this period, the period from 2 April 1528 to
15 September 1528 was of 934 Hijri while the period from 15
September 1528 to 17 September 1528 was of 935 Hijri. Justice Sudhir
Agarwal noted in the High Court that the crucial year was 935 Hijri
and the missing record was only of three days.                                C
      Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On
28 March 1528, Babur reached the junction of the rivers Ghaghara and
Saryu. After a reference to the date 2 April 1528, there is a break until
15 September 1528.
      62. Beveridge’s translation of Babur-Nama refers to the                 D
employment of artisans in the construction of buildings at several places
including at Agra and Gwalior:
      “1533… Another good thing in Hindustan is that it has
      unnumbered and endless workmen of every kind. There is a fixed
      caste (jam’i) for every sort of work and for everything, which          E
      has done that work or that thing from father to son till now. Mulla
      Sharaf, writing in the Zafar-nama about the building of Timur
      Beg’s Stone Mosque, lays stress on the fact that on it 200 stone-
      cutters worked, from Azarbaijan, Fars, Hindustan and other
      countries. But 680 men worked daily on my buildings in Agra
      and of Agra stone-cutters only; while 1491 stone-cutters worked         F
      daily on my buildings in Agra, Sikri, Biana, Dulpur, Gualiar and
      Kuil. In the same way there are numberless artisans and
      workmen of every sort in Hindustan.”
      In this context, Justice Agarwal observed:
      “1534. There is mention of buildings in Babur-Nama at different         G
      places including temple of Gwalior, mosque at Delhi, Agra,
      Gwalior and other several places but it is true that neither there
      is mention of demolition of any religious place by Babar in Awadh
      area nor there is anything to show that he either entered Ayodhya
      or had occasion to issue any direction for construction of a building
      and in particular a Mosque at Ayodhya.”                                 H
132             SUPREME COURT REPORTS                             [2019] 18 S.C.R.


A            The High Court recorded the submission made before it by
      Mr Jilani, counsel for the Sunni Central Waqf Board, in paragraph 1577
      of the judgment that since Babur did not enter Ayodhya himself, there
      was no question of a demolition of a temple by him and a construction
      of a mosque. The absence in Babur-Nama of a reference to the
      construction of a mosque has been relied upon as a factor to discredit
B     the inscriptions which have been analysed earlier. This line of enquiry
      must be read with the caution which must be exercised while drawing
      negative inferences from a historical text.
             63. Mr P N Mishra, learned Counsel adverted to the work of
      Niccolao Manucci titled “Indian Texts Series-Storia Do Mogor or
C     Mogul India 1653-1708”31, translated in English by William Irvine.
      Manucci identifies “the chief temples destroyed” by Aurangzeb, among
      them being:
                     (i) Maisa (Mayapur);
                    (ii) Matura (Mathura);
D                  (iii) Caxis (Kashi); and
                  (iv) Hajudia (Ajudhya).
             Manucci was a traveller who had visited India during the reign
      of Aurangzeb.
             Besides, the work of Manucci, there is the “Ain-e-Akbari”32
E     written by Abul Fazal Allami. Ain-e-Akbari deals with the province of
      Oudh and refers to Ayodhya and its association with Lord Ram. The
      text refers to “two considerable tombs of six and seven yards in length”
      near the city. The text identified several sacred places of pilgrimage.
      It specifically speaks of Ayodhya where during the month of Chaitra,
      a religious festival is held. Mr Mishra urged that there is no reference
F     in the Ain-e-akbari to the construction of a mosque at Ayodhya. The
      text refers to certain cities as being dedicated to the divinities, among
      them being Kashi and Ayodhya. By its order dated 18 March 2010,
      the High Court permitted the above text to be relied on under the
      provisions of Section 57(13) of the Evidence Act 1872.
G            64. Rebutting the above submissions principally urged by
      Mr P N Mishra and Mr Mohd Nizamuddin Pasha, learned Counsel
      31
         Manucci, Niccolò, and William Irvine, Storia do Mogor; or, Mogul India, 1653-
      1708, J. Murray: London (1907).
      32
         Ab al-Fa l ibn Mub rak and H. Blochmann, The Ain i Akbari, 1873, Calcutta:
H     Rouse (Reprint of 1989 published by Low Price Publications, Delhi)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           133


appeaing on behalf of the plaintiffs in Suit 4 urged that an unnecessary    A
confusion was sought to be created over the identity of Mir Baqi. He
submitted that in the Babur-Nama, he is known by the following titles
/ suffixes:
              (j) Baqi Sharghwal – “high official of Central Asian
                  sovereigns, who is supreme over all qazis and mullah”.    B
                  (See “Baburnama”, translated by A.S. Beveridge,
                  1921, p. 463);
             (ii) Baqi Mingbashi – Commander of a thousand men (See
                  “Baburnama”, translated by A.S. Beveridge, 1921,
                  p. 590); and
                                                                            C
            (iii) Baqi Tashkinti – Hailing of Tashkent (See
                  “Baburnama”, translated by A.S. Beveridge, 1921,
                  p. 601, 684).
       Mr Pasha urged that the inscriptions above the door of Babri
Masjid read as Mir Baqi Asif Sani, which the District Judge, Faizabad
misread as ‘Isfahani’ in his order of 1946 in the suit between the Shia     D
Waqf Board and Sunni Waqf Board.
       65. Having set out the material which was presented before the
High Court in support of the plea that the mosque was constructed in
1528 by Mir Baki, on the instructions of Emperor Babur following the
conquest of the sub-continent, it becomes necessary to analyse the          E
conclusions which have been arrived at by the three judges of the High
Court :
        (i) Justice S U Khan
             Justice S U Khan held:
       “Muslims have not been able to prove that the land belonged to       F
       Babur under whose orders the mosque was constructed”
       Moreover, the learned judge held that the inscriptions on the
mosque as translated by Fuhrer, Beveridge and Z A Desai were not
authentic and hence, on the basis of these inscriptions alone, it could
not be held either that the disputed building was constructed by or under   G
the orders of Babur or that it was constructed in 1528. Justice S U
Khan specifically observed that:
       “In this regard detailed reasons have been given by my learned
       brother S. Agarwal, J. with which I fully agree”.
                                                                            H
134               SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           However, in the course of his conclusions titled as “Gist of the
      Findings” Justice Khan held:
             “1. The disputed structure was constructed as mosque by or
                 under orders of Babar.
              2. It is not proved by direct evidence that premises in dispute
B                including constructed portion belonged to Babar or the
                 person who constructed the mosque or under whose orders
                 it was constructed.”
             The conclusion in point 1 in the above extract of the conclusions
      is contrary to the earlier finding that it could not be held either that the
C     mosque was constructed by or under the orders of Babur or that it was
      constructed in 1528. The finding on point 1 is also contrary to the
      specific observation that Justice S U Khan was in agreement with the
      decision of Justice Sudhir Agarwal in regard to the lack of authenticity
      of the inscriptions.
D            (ii) Justice Sudhir Agarwal
                   Justice Sudhir Agarwal held:
            “1679... 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
E
            conclusion. On the contrary the preponderance of probability
            shows that the building in dispute was constructed at some later
            point of time and the inscriptions thereon were fixed further later
            but exact period of the two is difficult to ascertain…
            ...
F
            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
G           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.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               135


        While answering the issues framed in the suits, Justice Agarwal         A
held:
        “1682... (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… Emperor Babar in
        1528 AD. Accordingly, the question as to whether Babar                  B
        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        C
        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 pleading nor any evidence has been led nor any
        material 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           D
        constructed, probably, between 1659 to 1707 AD i.e. during the
        regime of Aurangzeb.”
        In the last part of the above findings, the Judge has recorded
that it was not possible to enter a finding of fact with any certainty as
to when the structure was constructed in the absence of pleading or             E
evidence. The “informed guess” at the end of the above observation
that the structure was probably constructed by Aurangzeb between
1659-1707 cannot be placed on the pedestal of a finding of fact.
        (iii) Justice D V Sharma
                                                                                F
       Justice DV Sharma in the course of his decision arrived at the
finding that:
        “Thus, on the basis of the opinion of the experts, evidence on
        record, circumstantial evidence and historical accounts…, it
        transpires that the temple was demolished and the mosque was
                                                                                G
        constructed at the site of the old Hindu temple by Mir Baqi at
        the command of Babur. Issue Nos. 1 and 1(a) are decided in
        favour of the defendants and against the plaintiffs.”
      66. The High Court entered into the controversy surrounding the
authenticity of the inscriptions on the basis of the hypothesis that the
                                                                                H
136            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     inscriptions were the sole basis for asserting that the mosque had been
      constructed by Babur. Justice Agarwal came to the conclusion that the
      inscriptions were not authentic and hence a finding that the mosque
      was constructed by or at the behest of Babur in 1528 A.D. could not
      be arrived at. Justice S U Khan’s reasoning in the text of the judgment
      was in accord with the view of Justice Agarwal but then, as we have
B
      noted, his ultimate conclusion that the disputed structure was constructed
      as a mosque by or under the orders of Babur is not consistent with the
      earlier part of the reasons. Justice Sharma held that the mosque was
      constructed by Mir Baqi at the command of Babur.
             67. The basic issue, however, is whether it was necessary for
C     the High Court to enter into this thicket on the basis of the pleadings
      of the parties. In the suit instituted by the Sunni Central Waqf Board
      (Suit 4), the case is that the mosque was constructed by Babur after
      his conquest and occupation of the territories, including the town of
      Ayodhya. Significantly, Suit 5 which has been instituted on behalf of
D     Lord Ram and Ram Janmabhumi through a next friend also proceeds
      on the basis that the mosque was constructed by Mir Baqi who was
      the commander of Babur’s forces. The pleading in the plaint in Suit 5
      reads thus:
            “23. That the books of history and public records of
E           unimpeachable authenticity, establish indisputably that there was
            an ancient Temple of Maharaja Vikramaditya’s time at Sri Rama
            Janma Bhumi, Ayodhya. That Temple was destroyed partly
            and an attempt was made to raise a mosque thereat, by
            the force of arms, by Mir Baqi, a commander of Babar’s
            hordes. The material used was almost all of it taken from the
F           Temple including its pillars which were wrought out of Kasauti
            or touch-stone, with figures of Hindu gods and goddesses carved
            on them. There was great resistance by the Hindus and many
            battles were fought from time to time by them to prevent the
            completion of the mosque. To this day it has no minarets, and
G           no place for storage ov f water for Vazoo. Many lives were lost
            in these battles. The last such battle occurred in 1855. Sri Rama
            Janma Bhumi, including the building raised during the
            Babar’s time by Mir Baqi, was in the possession and control
            of Hindus at that time.”

H                                                         (Emphasis supplied)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            137


      Immediately following the text of the pleading in the above            A
extract, is a reference to the 1928 edition of the Faizabad Gazetteer.
The text of the gazetteer is incorporated in the plaint and reads thus:
      “23…In 1528 Babar came to Ayodhya and halted here for a
      week. He destroyed the ancient temple and on its site built a
      mosque, still known as Babar’s mosque. The materials of the            B
      old structure were largely employed, and many of the columns
      are in good preservation, they are of close-grained black stone,
      called by the natives kasauti and carved with various device.”
       68. The pleading in Suit 5 demonstrates that even according to
the plaintiffs, the mosque was built by Mir Baqi, a commander of             C
Babur’s forces, during the time of Babur. Hence, both in the pleading
in Suit 4 and in Suit 5, there was essentially no dispute about the fact
that the mosque was raised in 1528 A.D. by or at the behest of Babur.
The case in Suit 5 is that the Hindus retained possession and control
over the mosque. This is a separate matter altogether which has to be
adjudicated upon. But, from the pleadings both in Suit 4 and in Suit 5,      D
there appears to be no dispute about the origin or the date of
construction of the mosque. Nirmohi Akhara in Suit 3 did not accept
that the structure is a mosque at all for, according to it, the structure
has always been a Hindu temple which has been managed by the
Nirmohis at all material times. The Nirmohis’ disputed the very existence    E
of a mosque, claiming it to be a temple. The case of the Nirmohis will
be considered separately while assessing the pleadings, evidence and
issues which arise in Suit 3. But, on the basis of the pleadings in Suit 4
and Suit 5, the controversy in regard to the authenticity of the
inscriptions will not have any practical relevance.
                                                                             F
       There is another reason for adopting this line of approach. In
the ultimate analysis, whether the mosque was built in 1528 (as both
sets of plaintiffs in suit 4 and suit 5 have pleaded) or thereafter would
essentially make no difference to the submissions of the rival sides. The
plaintiffs in Suit 4 have stated before this Court that the records on
which they place reliance in regard to their claim of worship, use and       G
possession commence around 1860. This being the position, the precise
date of the construction of the mosque is a matter which has no practical
relevance to the outcome of the controversy having regard to the
pleadings in Suits 4 and 5 and the positions adopted by the contesting
Hindu and Muslim parties before this Court.                                  H
138               SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     H. Judicial review and characteristics of a mosque in Islamic law
            69. Mr P N Mishra, learned Counsel appearing on behalf of
      defendant no 20 in Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi
      Punrudhar Samiti) has made an earnest effort to demonstrate that the
      Babri Masjid lacked the essential features of a valid mosque under
B     Islamic jurisprudence. The submissions, essentially deal with two facets:
                (i) Features bearing on the location, construction and design
                    of a mosque; and
                (ii) The requirements for a valid dedication.

C            In this segment, the first limb of the submissions is addressed.
      Whether there was a valid dedication will be addressed in a separate
      segment in Suit 4. Mr Mishra urged that Babri Masjid cannot be treated
      to be a valid mosque since it lacked essential features in relation to
      location, design and construction.

D               70. Before the High Court, the following issues were framed in
      Suit 4:
            Issue no 1 in Suit 4 - Whether the building in question described
      as a mosque in the sketch map attached to the plaint was a mosque as
      claimed by the plaintiffs; If the answer is in the affirmative:
E               (a) When was it built and by whom-whether by Babur as
                    alleged by the plaintiffs or by Mir Baqi as alleged by
                    defendant no. 13; and
                (b) Whether the building had been constructed on the site of
                    an alleged Hindu temple after demolishing the same as
F                   alleged by defendant no. 13. If so, its effect.
            Issue No 19(d) – Whether the building in question could not
      be a mosque under Islamic Law in view of the admitted position that it
      did not have minarets.
             Issue No 19(e) – Whether the building in question could not
G     legally be a mosque as on plaintiffs’ own showing it was surrounded
      by a graveyard on three sides.
             Issue No 19(f) – Whether the pillars inside and outside the
      building in question contain images of Hindu Gods and Goddesses. If
      the finding is in the affirmative, whether on that account the building in
H     question cannot have the character of mosque under the tenets of Islam.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             139


       71. The written statement of defendant no 20 provides the basis        A
for the assertion that Babri Masjid did not fulfil or abide by the features
required for a mosque in Islamic jurisprudence:
   “…(1) The tomb of this disputed Masjid if it is to be looked from
         behind would show that it is not in the style developed by
         Turkis during fifteenth century, nor the Mehrab of the Masjid        B
         in that style is to be found. Thus there is no tomb in the
         disputed Masjid as is to be found in other mosques generally.
       (2) On the north door in the front facing each other there are
           two tigers. They are in the style of taking leaps and their
           tails are just in the same style when a tiger takes the leap.      C
           Between these two tigers there is a peacock. This is not a
           characteristic of a mosque.
       (3) The various Hindu idols are painted or their scriptions are
           to be found in the disputed mosque.
       (4) In the disputed mosque there is no provision for reciting          D
           Namaz. To this day it has no minerettes, no place for storage
           of water for Vazoo.
       (5) The Muslim Faith as adumbrated in Holy Koran does not
           permit the construction of a mosque on the site of temple
           after demolishing the temple.                                      E
       (6) Babur never dedicated the property of disputed mosque to
           ALLAH. Even supposing without admitting that Babur
           constructed the disputed mosque, yet as it has been done
           by committing trespass, demolishing the Temple, the abode
           of God, either by Babur or at his instance by Mir Baqi, the        F
           Governor of Oudh, the dedication is wholly invalid and void.
           The material of the old temple was largely employed in
           building the mosque and a few of the original columns are
           still in good preservation. They are of closed grained black
           stone (Kasauti) bearing various Hindi Bas-reliefs. The outer
                                                                              G
           beam of the main structure being of sandal wood, the height
           of the columns is 7 to 8 ft., the shape of the base, the middle
           Section and the capital is square, the rest being round or
           octagonal . . . . . Subsequently, Aurangjeb also desecrated
           the shrines of Ayodhya which led to prolonged bitterness
           between Hindus and Musalmans. Latter also occupied                 H
140            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                  Janmasthan by force and also made an assault on
                   Hanumangarhi. Attacks and counter attacks continued under
                   the leadership of Maulvi Amir Ali (See page 352 of Faizabad
                   Gazetteer 1960).
             (7) A mosque must be built in a place of peace and quiet and
B                  near a place where there is a sizeable and large number of
                   Muslim population. According to the Tenets of Islam, a
                   mosque cannot be built at place which is surrounded on all
                   sides by temples where the sound of music, of Conch shells
                   or Ghanta Ghariyalis must always disturb the peace and
                   quiet of the place.
C            (8) A mosque must have minerette for calling the Ajan.
                   According to Baille “When an assembly of worshippers
                   pray in Masjid with permission, i.e. delivery. But it is a
                   condition that prayers be with Ajan or the regular call and
                   be public and not private, for though there should be an
D                  assembly yet if it is without Izah and the prayers are private
                   instead of public, the place is no Masjid according to the
                   true disciples.” Indeed there has been no mosque without
                   a minerette after the first half century fight. (See P.R.
                   Ganapati Iyer’s law relating to Hindu and Muhammadan
                   Endowments 2nd Edition 1918 Chapter XVII, page 388).
E
             (9) According to the claim laid by the Muslims in the present
                   suit, the building is surrounded on sides by a graveyard
                   known as Ganj Shahidan. There is a mention in the Faizabad
                   Gazetteer also of the burial of seventy-five Muslims at the
                   gate of Janmasthan and the place being known as Ganj
F                  Shahidan after the battle of 1855. Although there are no
                   graves anywhere near the building at Sri Rama Janma
                   Bhumi or in its precincts or the area appurtenant thereto
                   for the last more than 50 years and if the building was
                   surrounded by a graveyard during the British times soon
                   after the annexation of Audh by them the building could not
G
                   be mosque and could not be used as a mosque for offering
                   of prayers except the funeral prayers.”
             72. The above challenge is sought to be buttressed by placing
      reliance on the evidence of some of the Muslim witnesses. Relevant
      parts of the depositions of these witnesses have been adverted to during
H     the course of the hearing and are reproduced below:
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              141


       (i) Mohammad Idris (PW-10)                                              A
           According to the witness:
      “A building built on somebody’s land by force will not be a
      mosque. So, there is no question of its being legitimate or
      illegitimate. Demolishing any place of worship is forbidden in
      Islam. So, there is no question of breaking the same and building        B
      a mosque instead. If the debris of any fallen temple is sold by
      its owner, then there is no prohibition on building a mosque by
      purchasing such materials. It is another thing that they cannot
      build a mosque by forcibly grabbing this debris.”
       On the depiction of the images of human beings, animals, birds          C
or idols, the witness stated:
      “If an Imam has the knowledge that pictures of animals and birds,
      or idols, or statues of human beings, or straight or crooked images
      or representations of any women are engraved in any structure,
      he will try to remove such engraving before the recital of namaz.        D
      But if he does not do so even then the namaz will get offered. I
      have already spoken about the status and efficacy of such
      namaz. It will be Makrooh in some circumstances and it will not
      be so in some circumstances. If the Imam does not try to remove
      this types of pictures and shapes, it will be a crime on his part.       E
      Similarly it is mentioned in the ‘Shariyat’ that if picture or idol of
      any living being exists over the walls or pillars of mosque, then
      the namaz offered there would be ‘Makruh’ (undesirable) under
      certain situations. It is so mentioned in the ‘Hidaya’ of ‘Fiqh’.”
      (ii) Mohd Burhanuddin (PW-11)                                            F
      “It is true that there is a restriction on forcefully building a
      mosque over someone else’s land. If the ownership of someone
      is proved over a land, then a mosque would not be built over
      there in absence of the consent of owner. . . .If any property
      belongs to a non-Muslim or even a Muslim, then a mosque cannot           G
      be forcibly built over there under any circumstance by
      demolishing the same. If it is so proved, then the mosque would
      not be considered legal/proper.”
      The witness spoke of arrangements for Vazoo or ablution:
                                                                               H
142            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           “Namaz can be offered even by performing ‘Taimum’ (substitute
            for Vazoo), if ‘Vazoo’ has not been performed and there is no
            arrangement in the mosque for performing ‘Vazoo’ and water is
            not ‘Dastyab’ (available) even at distant places . . . I have also
            seen such mosques, where there was no arrangement for
            performing ‘Vazoo’.”
B
            On human and other images, the witness stated:
            “When any Muslim would build a mosque afresh, then he would
            not get the picture of any living being be it animal-bird or male-
            female or God-Goddess, depicted inside it and if he does so, he
C           would be an offender. However, it would still be called a mosque
            if other ‘Sharayat’ are observed.”
             On whether a mosque can be constructed on the demolition of
      a building, the witness stated:
            “It is true that according to ‘Ehkam’ (sanction) of the prophet, if
D           any building is demolished and mosque is built from its debris,
            then the same is ‘Makruh’ (not desirable).”
            (iii) Mohd Khalid Nadvi (PW-22)
            The witness stated:
E           “It is true that a mosque will not be constructed by forcibly
            demolishing a place of worship belonging to any religion. Similarly
            it cannot be constructed by forcibly capturing a place of worship
            belonging to any other religion.”
             According to the witness, if a place of worship belonging to a
F     particular religion is demolished, it would remain a place of worship for
      that faith and if it was proved that a temple on a disputed site was
      forcibly demolished for the construction of a mosque, the temple would
      continue to be treated as a temple:
            “It is correct to say that if a place of worship belonging to a
G           particular faith is demolished, it will remain to be a place of
            worship belonging to that very faith. It is correct to say that a
            temple will not lose its character and will remain to be a temple
            even if it is demolished to build a mosque. If any mosque is
            demolished and a temple is constructed in its place, the mosque
            will remain to be a mosque. If it is proved that there was a temple
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            143


      on the disputed site forcibly demolishing which a mosque was           A
      constructed, then such a temple will continue to be treated as a
      temple.”
     (iv) Sibte Mohd. Naqvi of the Shia sect (PW-25)
      According to the witness:
                                                                             B
     “vii. At one place, two separate buildings of worship or two
           religions cannot exist.
      xv. Images, portraits, pictures, idols etc. as also designed
          garments having pictures are prohibited in a mosque.
     xvii. Musical instrument i.e. bell etc. is not permissible in the       C
           mosque or in the vicinity thereof.
     xviii. Where bells are ringing or conch shells are blown, prayer
            would not be offered.”
      73. Mr Mishra, while placing reliance on the texts of the Hadees
                                                                             D
sought to urge that there was a breach of the following cardinal
principles of Islamic law:
           (i) Azaan must be called at least twice a day;
           (ii) A mosque must have a Vazoo or place for ablution;
          (iii) A mosque should not contain visual images of idols, floral   E
                designs or the human form;
          (iv) No ringing of bells is permissible within the precincts
               of or in the area surrounding the mosque;
           (v) On one plot of land, two religious places are                 F
               impermissible;
          (vi) No preparation of food in a kitchen is permissible in or
               in close-proximity to a mosque;
          (vii) Land should not be usurped for the construction of a
                mosque; and                                                  G
         (viii) No graves should be situated in close-proximity to a
                mosque.
     These submissions have been controverted by Mr Mohd
Nizamuddin Pasha, learned Counsel appearing on behalf of plaintiffs
                                                                             H
144            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     in Suit 4, both in the course of his oral arguments and in written
      submissions. Mr Pasha urged:
                   (i) On whether Vazoo is necessary in a mosque:
                       (a) Babri Masjid had a specific place ear-marked for
                           ablution;
B                      (b) In any event according to the Hadees, it is
                           preferable to perform ablution at home before
                           coming to the mosque;
                       (c) The Hadees which have been cited state that bathing
                           on Friday is a must or indicate how Vazoo is to be
C                          performed;
                  (ii) On whether pictures or depictions detract from the
                       character of a mosque:
                       (a) The purpose of the prohibition is to ensure that a
                           worshipper is not detracted from prayer;
D                      (b) While a Muslim may claim that a picture is
                           interfering with prayer, an outsider cannot claim that
                           a prayer is makruh because of the presence of
                           images in the mosque; and
                       (c) Pictures of lifeless things are not specifically
E                          disapproved.
                 (iii) As regards minarets:
                       (a) The first mosque of Islam neither had domes nor
                           minarets; and
                       (b) A large number of mosques including of the same
F                          period, do not have minarets.
                 (iv) On the presence of pillars /columns, there is no absolute
                       injunction;
                  (v) There cannot be two qiblas in one land. This is a
                       misinterpretation of a Hadees which means that a state
G                      cannot have two religions;
                 (vi) On the claim that there should not be any bells nearby:
                       (a) In practical terms in a populated city, such an
                           injunction is incapable of being observed;
                      (b) Mosques in the vicinity of temples and ringing of
H                         bells was not unusual in India; and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               145


                (c) The Sufi idea of Islam is more accommodative of             A
                    other faiths.
           (vii) As regards the presence of graves, the map annexed
                 to the plaint of 1885 shows that there are no graves in
                 front of the western face of the mosque. The Hadees
                 indicates that one should not offer namaz facing a grave;      B
                 and
          (viii) In any case what is or is not permissible in relation to
                 graves is heavily disputed with sufis and wahabis being
                 on extreme ends of the spectrum.
      Finally, Mr Pasha argued that the concept of ‘Makruh’ means               C
something which is undesirable but not prohibited; this is a purely spiritual
idea about what makes worship dearer to Almighty Allah.
      Mr Pasha, while controverting the interpretation placed by Mr
Mishra has indicated that Mr Mishra has selectively relied upon certain
aspects of the Hadees without reading the religious texts in their context      D
and as a whole.
      74. Justice Sudhir Agarwal observed that Babur, as the Emperor,
had absolute power as an independent sovereign:
       “3389…The position of Babar, in our view, was that of
                                                                                E
       independent sovereign, Sole Monarch, having paramount power.
       It was supreme, uncontrollable and absolute, not answerable to
       anyone. Whether invader or anything else, the fact remains that
       he had been the supreme authority in the territory which he
       conquered. Nobody could have questioned him.”
       The judge observed that “Whether the building in dispute is a            F
mosque, treated to be a mosque, believed to be a mosque and practiced
as a mosque” have to be decided not in terms of the tenets of the
Shariat but according to how people believed and conducted themselves
over a length of time. The High Court held that whether Muslims had
used the mosque for offering worship immediately after its construction         G
had not been proved either way but there was evidence to indicate that
Muslims had visited the mosque in order to offer namaz after the
partition wall was set up in 1856-57. Whether namaz was offered was
not proved but it had been established that since 1857 until the last namaz
was offered in the inner courtyard on 16 December 1949, Muslims had
                                                                                H
146            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     visited the mosque for worship. Hence, whether the building could be
      a mosque in accordance with the tenets of the Shariat was of no
      significance since the conduct of those who believed and worshipped
      would be the determinative factor for determining the nature and use
      of the property in question. The authority of Babur or Aurangzeb
      (whoever constructed the mosque) was absolute and the court could
B
      not examine whether the mosque had been constructed in accordance
      with or contrary to the tenets of the Shariat:
               “3404…Whether Babar or Aurangzeb or anybody else, they
               were supreme authority. Whether their action was consistent
               with the tenets of Islam or not, in our view, is unchallengeable
C              after so many centuries particularly when those supreme
               authorities were not subordinate to any system of justice. Even
               otherwise, we cannot examine as to whether they rightly or
               wrongly constructed a place terming it as mosque particularly
               when at least the local people believe from the representation,
D              whatever it is, that the construction which has been made, is
               that of a mosque.”
            In the view of Justice Sudhir Agarwal:
               “3405. Something which took place more than 200 and odd
               years, we are clearly of the view, cannot be a subject matter
E              of judicial scrutiny of this Court which is the creation of statute
               that came into force in a system which itself was born after
               more than hundred and odd years when the building in dispute
               might have been constructed. All the expert religious witnesses
               have admitted that if a mosque is constructed, the picture or
               images of living beings like human images or animal images
F              shall not be allowed to remain thereat. The creator of the
               building in dispute thought otherwise, yet the followers of Islam
               did not hesitate in using the premises for the purpose of
               Namaz. Whether the belief of such persons, who visited the
               premises for such worship, is superior or inferior, whether such
G              offering of Namaz was regular or frequent or occasional and
               intermittent would be of no consequence. Suffice, if there had
               been Namaz by the Muslim. The offering of worship by
               Hindus knowing the building in dispute that it is a mosque is
               something else but on that basis the manner in which the
               building in dispute has been known for the last more than 250
H              years and odd cannot be changed.”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              147


      The offering of prayer by Muslims though intermittently from             A
1860 uptill 16 December 1949 was in the view of the High Court a
matter of significance.
       75. Assailing the above view, it has been urged by Mr Mishra
that the observations of the High Court are per incuriam and that in
terms of Section 3 of the Oudh Laws Act 1876, decisions on matters             B
of religious use or institutions have to be decided according to Islamic
law or, as the case may be, according to Hindu law.
      76. Essentially, the submissions which have been urged before
this Court require it to embark upon a journey into theological doctrine
and to apply the doctrine to deduce whether every one of the features          C
prescribed by the Hadees for the location or construction of a mosque
have been fulfilled.
       77. During the course of the submissions, it has emerged that
the extreme and even absolute view of Islam sought to be portrayed
by Mr P N Mishra does not emerge as the only available interpretation          D
of Islamic law on a matter of theology. Hence, in the given set of facts
and circumstances, it is inappropriate for this Court to enter upon an
area of theology and to assume the role of an interpreter of the Hadees.
The true test is whether those who believe and worship have faith in
the religious efficacy of the place where they pray. The belief and faith
of the worshipper in offering namaz at a place which is for the                E
worshipper a mosque cannot be challenged. It would be preposterous
for this Court to question it on the ground that a true Muslim would not
offer prayer in a place which does not meet an extreme interpretation
of doctrine selectively advanced by Mr Mishra. This Court, as a secular
institution, set up under a constitutional regime must steer clear from
                                                                               F
choosing one among many possible interpretations of theological doctrine
and must defer to the safer course of accepting the faith and belief of
the worshipper.
       Above all, the practice of religion, Islam being no exception, varies
according to the culture and social context. That indeed is the strength
of our plural society. Cultural assimilation is a significant factor which     G
shapes the manner in which religion is practiced. In the plural diversity
of religious beliefs as they are practiced in India, cultural assimilation
cannot be construed as a feature destructive of religious doctrine. On
the contrary, this process strengthens and reinforces the true character
of a country which has been able to preserve its unity by                      H
148                SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A     accommodating, tolerating and respecting a diversity of religious faiths
      and ideas. There can be no hesitation in rejecting the submission made
      by Mr Mishra. Our Court is founded on and owes its existence to a
      constitutional order. We must firmly reject any attempt to lead the court
      to interpret religious doctrine in an absolute and extreme form and
      question the faith of worshippers. Nothing would be as destructive of
B     the values underlying Article 25 of the Constitution.
               I. Places of Worship Act
             78. Parliament enacted the Places of Worship (Special Provisions)
      Act 199133. Sections 3, 6 and 8 of the legislation came into force at
C     once on the date of enactment (18 September 1991) while the other
      provisions are deemed to have come into force on 11 July 1991. The
      long title evinces the intent of Parliament in enacting the law, for it is:
               “An Act to prohibit conversion of any place of worship and to
               provide for the maintenance of the religious character of any
D              place of worship as it existed on the 15th day of August, 1947,
               and for matters connected therewith or incidental thereto.”
             The law has been enacted to fulfil two purposes. First, it prohibits
      the conversion of any place of worship. In doing so, it speaks to the
      future by mandating that the character of a place of public worship
      shall not be altered. Second, the law seeks to impose a positive obligation
E
      to maintain the religious character of every place of worship as it existed
      on 15 August 1947 when India achieved independence from colonial
      rule.
               79. The expression ‘place of worship’ is defined in Section 2(c)
      thus :
F
               “2(c) “place of worship” means a temple, mosque, gurudwara,
               church, monastery or any other place of public religious worship
               of any religious denomination or any section thereof, by whatever
               name called.”
            In Section 2(a), the Places of Worship Act provides that the
G
      “commencement of this Act” means the commencement on 11 July
      1991.
            Section 3 enacts a bar on the conversion of a place of worship
      of any religious denomination or a section of it into a place of worship
      33
H          “Places of Worship Act”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          149


of a different religious denomination or of a different segment of the     A
same religious denomination:
      “3. Bar of conversion of places of worship.—No person shall
      convert any place of worship of any religious denomination or
      any section thereof into a place of worship of a different section
      of the same religious denomination or of a different religious       B
      denomination or any section thereof.”
       Section 4 preserves the religious character of a place of worship
as it existed on 15 August 1947:
      “4. Declaration as to the religious character of certain places of
      worship and bar of jurisdiction of courts, etc.—(1) It is hereby     C
      declared that the religious character of a place of worship
      existing on the 15th day of August, 1947 shall continue to
      be the same as it existed on that day.
      (2) If, on the commencement of this Act, any suit, appeal or
      other proceeding with respect to the conversion of the               D
      religious character of any place of worship, existing on the
      15th day of August, 1947, is pending before any court,
      tribunal or other authority, the same shall abate, and no suit,
      appeal or other proceeding with respect to any such matter shall
      lie on or after such commencement in any court, tribunal or other
                                                                           E
      authority:
      Provided that if any suit, appeal or other proceeding,
      instituted or filed on the ground that conversion has taken
      place in the religious character of any such place after the
      15th day of August, 1947, is pending on the commencement
                                                                           F
      of this Act, such suit, appeal or other proceeding shall not
      so abate and every such suit, appeal or other proceeding shall
      be disposed of in accordance with the provisions of sub-section
      (1).
      (3) Nothing contained in sub-section (1) and sub-section (2) shall
      apply to,—                                                           G

           (a) any place of worship referred to in the said sub-sections
               which is an ancient and historical monument or an
               archaeological site or remains covered by the Ancient
               Monuments and Archaeological Sites and Remains Act,
                                                                           H
150            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                      1958 (24 of 1958) or any other law for the time being
                       in force;
                  (b) any suit, appeal or other proceeding, with respect to any
                       matter referred to in sub-section (2), finally decided,
                       settled or disposed of by a court, tribunal or other
B                      authority before the commencement of this Act;
                  (c) any dispute with respect to any such matter settled by
                       the parties amongst themselves before such
                       commencement;
                  (d) any conversion of any such place effected before such
C                      commencement by acquiescence;
                  (e) any conversion of any such place effected before such
                       commencement which is not liable to be challenged in
                       any court, tribunal or other authority being barred by
                       limitation under any law for the time being in force.”
                                                           (Emphasis supplied)
D
             The Places of Worship Act however contains an exemption from
      the application of its provisions to the place of worship “commonly
      known as Ram Janam Bhumi –Babri Masjid” and to any suit, appeal
      or proceeding relating to it. Section 5 stipulates:
             “5. Act not to apply to Ram Janma Bhumi-Babri Masjid.—
E            Nothing contained in this Act shall apply to the place or place of
             worship commonly known as Ram Janma Bhumi-Babri Masjid
             situated in Ayodhya in the State of Uttar Pradesh and to any suit,
             appeal or other proceeding relating to the said place or place of
             worship.”
F            Section 6 provides for a punishment of three years’ imprisonment
      and a fine for contravening the provisions of Section 3 and for an attempt
      or act of abetment:
             “6. Punishment for contravention of section 3.—(1) Whoever
             contravenes the provisions of section 3 shall be punishable with
             imprisonment for a term which may extend to three years and
G
             shall also be liable to fine.
             (2) Whoever attempts to commit any offence punishable under
             sub-section (1) or to cause such offence to be committed and in
             such attempt does any act towards the commission of the offence
             shall be punishable with the punishment provided for the offence.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             151


      (3) Whoever abets, or is a party to a criminal conspiracy to            A
      commit, an offence punishable under sub-section (1) shall,
      whether such offence be or be not committed in consequence
      of such abetment or in pursuance of such criminal conspiracy,
      and notwithstanding anything contained in section 116 of the Indian
      Penal Code, be punishable with the punishment provided for the
      offence.”                                                               B
      Section 7 confers upon the Places of Worship Act overriding
force and effect:
      “7. Act to override other enactments.—The provisions of this Act
      shall have effect notwithstanding anything inconsistent therewith
      contained in any other law for the time being in force or any           C
      instrument having effect by virtue of any law other than this
      Act.”
      80. The law imposes two unwavering and mandatory norms:
      (i)    A bar is imposed by Section 3 on the conversion of a place
             of worship of any religious denomination or a section of a       D
             denomination into a place of worship either of a different
             section of the same religious denomination or of a distinct
             religious denomination. The expression ‘place of worship’
             is defined in the broadest possible terms to cover places
             of public religious worship of all religions and                 E
             denominations; and
      (ii) The law preserves the religious character of every place
             of worship as it existed on 15 August 1947. Towards
             achieving this purpose, it provides for the abatement of suits
             and legal proceedings with respect to the conversion of the
             religious character of any place of worship existing on 15       F
             August 1947. Coupled with this, the Places of Worship Act
             imposes a bar on the institution of fresh suits or legal
             proceedings. The only exception is in the case of suits,
             appeals or proceedings pending at the commencement of
             the law on the ground that conversion of a place of worship      G
             had taken place after 15 August 1947. The proviso to sub-
             section (2) of Section 4 saves those suits, appeals and legal
             proceedings which are pending on the date of the
             commencement of the Act if they pertain to the conversion
             of the religious character of a place of worship after the
                                                                              H
152                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A                     cut-off date. Sub-Section (3) of Section 4 however
                      stipulates that the previous two sub-sections will not apply
                      to:
                         (a) Ancient and historical monuments or archaeological
                             sites or remains governed by Act 24 of 1958 or any
B                            other law;
                         (b) A suit or legal proceeding which has been finally
                             decided settled or disposed of;
                         (c) Any dispute which has been settled by the parties
                             before the commencement of the Act;
C
                         (d) A conversion of a place of worship effected before
                             the commencement of the Act by acquiescence; and
                         (e) Any conversion of a place of worship before the
                             commencement of the Act in respect of which the
                             cause of action would be barred by limitation.
D
             Section 5 stipulates that the Act shall not apply to Ram
      Janmabhumi – Babri Masjid and to any suit, appeal or any proceeding
      relating to it. Consequently, there is a specific exception which has been
      carved out by the provisions of the Places of Worship Act in respect
      of the present dispute.
E
               The intention of Parliament
           81. The purpose of enacting the law was explained by the Union
      Minister of Home Affairs on the floor of the Lok Sabha on 10
      September 199134:
F              “We see this Bill as a measure to provide and develop our
               glorious traditions of love, peace and harmony. These traditions
               are part of a cultural heritage of which every Indian is justifiably
               proud. Tolerance for all faiths has characterized our great
               civilization since time immemorial.
G              These traditions of amity, harmony and mutual respect came under
               severe strain during the pre-independence period when the
               colonial power sought to actively create and encourage communal
               divide in the country. After independence we have set about
               healing the wounds of the past and endeavoured to restore
      34
H          Lok Sabha Debates, Volume V, nos 41-49, page 448
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            153


       our traditions of communal amity and goodwill to their past glory.       A
       By and large we have succeeded, although there have been,
       it must be admitted, some unfortunate setbacks. Rather than
       being discouraged by such setbacks, it is our duty and
       commitment to taken lesson from them for the future.”
                                                      (Emphasis supplied)       B
      The Union Minister of Home Affairs indicated that the law which
sought to prohibit the forcible conversion of places of worship was not
“to create new disputes and to rake up old controversies which had
long been forgotten by the people…but facilitate the object sought to
be achieved”35. Speaking in support of the cut-off date of 15 August            C
1947, one of the Members (Shrimati Malini Bhattacharya) explained36:
       “But I think this August 15, 1947 is crucial because on that date
       we are supposed to have emerged as a modern, democratic
       and sovereign State thrusting back such barbarity into the
       past once and for all. From that date, we also distinguished
                                                                                D
       ourselves…as State which has no official religion and which
       gives equal rights to all the different religious
       denominations. So, whatever may have happened before that,
       we all expected that from that date there should be no such
       retrogression into the past.”
                                                      (Emphasis supplied)       E

       82. The Places of Worship Act which was enacted in 1991 by
Parliament protects and secures the fundamental values of the
Constitution. The Preamble underlines the need to protect the liberty
of thought, expression, belief, faith and worship. It emphasises human
dignity and fraternity. Tolerance, respect for and acceptance of the            F
equality of all religious faiths is a fundamental precept of fraternity. This
was specifically adverted to by the Union Minister of Home Affairs in
the course of his address before the Rajya Sabha37 on 12 September
1991 by stating:
       “I believe that India is known for its civilization and the greatest     G
       contribution of India to the world civilization is the kind of
       tolerance, understanding, the kind of assimilative spirit and the
       cosmopolitan outlook that it shows…
35
   Lok Sabha Debates, Volume V, nos 41-49, page 448
36
   Lok Sabha Debates, Volume V, nos 41-49, pages 443-444
37
   Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522
                                                                                H
154               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            The Advaita philosophy…clearly says that there is no difference
             between God and ourselves. We have to realize that God is not
             in the mosque or in the temple only, but God is in the heart of a
             person…
             Let everybody understand that he owes his allegiance to the
B            Constitution, allegiance to the unity of the country: the rest of
             the things are immaterial.”
             In providing a guarantee for the preservation of the religious
      character of places of public worship as they existed on 15 August 1947
      and against the conversion of places of public worship, Parliament
      determined that independence from colonial rule furnishes a
C     constitutional basis for healing the injustices of the past by providing
      the confidence to every religious community that their places of worship
      will be preserved and that their character will not be altered. The law
      addresses itself to the State as much as to every citizen of the nation.
      Its norms bind those who govern the affairs of the nation at every level.
D     Those norms implement the Fundamental Duties under Article 51A and
      are hence positive mandates to every citizen as well. The State, has
      by enacting the law, enforced a constitutional commitment and
      operationalized its constitutional obligations to uphold the equality of all
      religions and secularism which is a part of the basic features of the
E     Constitution. The Places of Worship Act imposes a non-derogable
      obligation towards enforcing our commitment to secularism under the
      Indian Constitution. The law is hence a legislative instrument designed
      to protect the secular features of the Indian polity, which is one of the
      basic features of the Constitution. Non-retrogression is a foundational
      feature of the fundamental constitutional principles of which secularism
F     is a core component. The Places of Worship Act is thus a legislative
      intervention which preserves non-retrogression as an essential feature
      of our secular values.
             Secularism as a constitutional value
             83. In a nine judge Bench decision of this Court in S R Bommai
G     v Union of India38, Justice B P Jeevan Reddy held:
               “304…How are the constitutional promises of social justice,
               liberty of belief, faith or worship and equality of status and of
               opportunity to be attained unless the State eschews the religion,
      38
H          (1994) 3 SCC 1
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               155


       faith or belief of a person from its consideration altogether while      A
       dealing with him, his rights, his duties and his entitlements?
       Secularism is thus more than a passive attitude of religious
       tolerance. It is a positive concept of equal treatment of all
       religions. This attitude is described by some as one of neutrality
       towards religion or as one of benevolent neutrality. This may be
                                                                                B
       a concept evolved by western liberal thought or it may be, as
       some say, an abiding faith with the Indian people at all points of
       time. That is not material. What is material is that it is a
       constitutional goal and a basic feature of the Constitution as
       affirmed in Kesavananda Bharati [Kesavananda Bharati v.
       State of Kerala, (1973) 4 SCC 225 : 1973 Supp SCR 1] and                 C
       Indira N. Gandhi v. Raj Narain [1975 Supp SCC 1 : (1976) 2
       SCR 347] . Any step inconsistent with this constitutional policy
       is, in plain words, unconstitutional.”
        The Places of Worship Act is intrinsically related to the obligations
of a secular state. It reflects the commitment of India to the equality         D
of all religions. Above all, the Places of Worship Act is an affirmation
of the solemn duty which was cast upon the State to preserve and
protect the equality of all faiths as an essential constitutional value, a
norm which has the status of being a basic feature of the Constitution.
There is a purpose underlying the enactment of the Places of Worship
Act. The law speaks to our history and to the future of the nation.             E
Cognizant as we are of our history and of the need for the nation to
confront it, Independence was a watershed moment to heal the wounds
of the past. Historical wrongs cannot be remedied by the people taking
the law in their own hands. In preserving the character of places of
public worship, Parliament has mandated in no uncertain terms that              F
history and its wrongs shall not be used as instruments to oppress the
present and the future.
       84. The observations made on the Places of Worship Act by
Justice D V Sharma are contrary to the scheme of the law as they
are to the framework of constitutional values. Justice D V Sharma               G
observed as follows:
       “1 (c). Section 9 is very wide. In absence of any ecclesiastical
       Courts any religious dispute is cognizable, except in very rare
       cases where the declaration sought may be what constitutes
       religious rite. Places of Worship (Special Provisions) Act, 1991         H
156             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           does not debar those cases where declaration is sought for a
            period prior to the Act came into force or for enforcement of
            right which was recognized before coming into force of the Act.”
             The above conclusion of Justice D V Sharma is directly contrary
      to the provisions of Section 4(2). Justice D V Sharma postulates in the
B     above observations that the Places of Worship Act will not debar cases
      of the following nature being entertained namely:
                  (i) Where a declaration is sought for a period prior to the
                      enforcement of the Places of Worship Act; or
                  (ii) Where enforcement is sought of a right which was
C                      recognised before the enforcement of the Places of
                       Worship Act.
              85. Section 4(1) clearly stipulates that the religious character of
      a place of worship as it existed on 15 August 1947 shall be maintained
      as it existed on that day. Section 4(2) specifically contemplates that all
D     suits, appeals and legal proceedings existing on the day of the
      commencement of the Places of Worship Act, with respect to the
      conversion of the religious character of a place of worship, existing on
      15 August 1947, pending before any court, tribunal or authority shall
      abate, and no suit, appeal or proceeding with respect to such matter
E     shall lie after the commencement of the Act. The only exception in the
      proviso to sub-section (2) is where a suit, appeal or proceeding is
      instituted on the ground that the conversion of the religious character
      of a place of worship had taken place after 15 August 1947 and such
      an action was pending at the commencement of the Places of Worship
      Act. Clearly, in the face of the statutory mandate, the exception which
F     has been carved out by Justice D V Sharma runs contrary to the terms
      of the legislation and is therefore erroneous.
      J. Juristic Personality
            J.1 Development of the law
G            86. At the heart of the legal dispute in the present batch of appeals
      is the question whether the first and second plaintiff in Suit 5 -
      “Bhagwan Sri Ram Virajman” and “Asthan Sri Ram Janam Bhumi,
      Ayodhya”, possess distinct legal personalities or, in other words, are
      “juristic persons”. Courts in India have held that Hindu idols are legal
      persons. The meaning and significance of this doctrine will be examined
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            157


over the course of this judgement. At this juncture it is necessary to       A
note that the legal personality of the first plaintiff in Suit 5 (‘Bhagwan
Sri Ram Virajman’) as represented by the physical idols of Lord Ram
at the disputed site is not contested by any of the parties. Whether the
second plaintiff (‘Asthan Sri Ram Janam Bhumi’) is a juristic person
has however been the subject of controversy in the oral proceedings
                                                                             B
before us.
       87. The present case requires us to answer two important
questions: First, what are the exact contours of the legal personality
ascribed to a Hindu idol? In other words, to what extent is the artificial
legal personality ascribed by courts to a Hindu idol akin to the legal
personality of a natural person? Second, can property of a corporeal         C
nature (in this case land) be ascribed a distinct legal personality? To
answer these questions, it is necessary to understand both the true
purpose underlying the legal innovation of recognising or conferring legal
personality and why courts have conferred legal personality on Hindu
idols.
                                                                             D
       The legal subject: recognising rights, entitlements, duties and
liabilities
       88. The foundational principle of a legal system is that it must
recognise the subjects it seeks to govern. This is done by the law
recognising distinct legal units or ‘legal persons’. To be a legal person    E
is to be recognised by the law as a subject which embodies rights,
entitlements, liabilities and duties. The law may directly regulate the
behaviour of legal persons and their behaviour in relation to each other.
Therefore, to be a legal person is to possess certain rights and duties
under the law and to be capable of engaging in legally enforceable
relationships with other legal persons. Who or what is a legal person is     F
a function of the legal system. The ability to create or recognise legal
persons has always varied depending upon historic circumstances. The
power of legal systems to recognise and hence also to deny legal
personality has been used over history to wreak fundamental breaches
of human rights. Roscoe Pound alludes to this in the following passage
in “Jurisprudence”:                                                          G
      “In civilised 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 Antonius 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   H
158                 SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               of property. … In 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.”39
B
            Pound’s observations were extracted by this Court in Shiromani
      Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass40
      where a two judge Bench of this Court had to determine whether the
      “Guru Granth Sahib” possessed a legal personality. While discussing
      ‘who is a legal person’ Justice A P Misra observed:
C
                “11. …If we trace the history of a “person” in the various
                countries we find surprisingly it has projected differently at
                different times.
                …
D               13. With the development of society, where an individual’s
                interaction fell short, … cooperation of a larger circle of
                individuals was necessitated. Thus, institutions like corporations
                and companies were created, to help the society in achieving the
                desired result. The very constitution of a State, municipal
                corporation, company etc. are all creations of the law and these
E               “juristic persons” arose out of necessities in the human
                development. In other words, they were dressed in a cloak to
                be recognised in law to be a legal unit.”
             89. Legal systems across the world evolved from periods of
      darkness where legal personality was denied to natural persons to the
F     present day where in constitutional democracies almost all natural
      persons are also legal persons in the eyes of the law. Legal systems
      have also extended the concept of legal personality beyond natural
      persons. This has taken place through the creation of the ‘artificial legal
      person’ or ‘juristic person’, where an object or thing which is not a
G     natural person is nonetheless recognised as a legal person in the law.
      Two examples of this paradigm are, where a collection of natural
      persons is collectively conferred a distinct legal personality (in the case
      of a cooperative society or corporation) and where legal personality is
      39
           Roscoe Pound, Jurisprudence, Part IV, 1959 Edition
      40
H          (2000) 4 SCC 146
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                  159


conferred on an inanimate object (in the case of a ship). The conferral               A
of legal personality on things other than natural persons is a legal
development which is so well recognised that it receives little exposition
by courts today. The legal development is nonetheless well documented.
Salmond in his work titled “Jurisprudence” notes:
         “Conversely there are, in the law, persons who are not men. A                B
         joint-stock company or a municipal corporation is a person in legal
         contemplation. It is true that it is only a fictitious, not a real person;
         but it is not a fictitious man. It is personality, not human nature,
         that is fictitiously attributed by the law to bodies corporate.
         So far as legal theory is concerned, a person is any being whom              C
         the law regards as capable of rights and duties. Any being that
         is so capable is a person, whether a human being or not, and no
         being that is not so capable is a person, even though he be a
         man. Persons are the substance of which rights and duties
         are the attributes. It is only in this respect that persons
         possess juridical significance, and this is the exclusive                    D
         point of view from which personality receives legal
         recognition.
         But we may go one step further than this in the analysis. No
         being is capable of rights, unless also capable of interests
         which may be affected by the acts of others. For every right                 E
         involves an underlying interest of this nature. Similarly no being
         is capable of duties, unless also capable of acts by which the
         interests of others may be affected. To attribute rights and duties,
         therefore, is to attribute interests and acts as their necessary
         bases. A person, then, may be defined for the purposes of                    F
         the law, as any being to whom the law attributes a capability
         of interests and therefore of rights, of acts and therefore
         of duties.”41
                                                            (Emphasis supplied)
      90. A legal person possesses a capability to bear interests, rights             G
and duties. Salmond makes a crucial distinction between legal
personality and the physical corpus on which legal personality is
conferred:
41
     J W Salmond, Jurisprudence, Steven and Haynes (1913)                             H
160                SUPREME COURT REPORTS                             [2019] 18 S.C.R.


A              “The law, in creating persons, always does so by personifying
               some real thing. Such a person has to this extent a real existence,
               and it is his personality alone that is fictitious. There is, indeed,
               no theoretical necessity for this, since the law might, if it so
               pleased, attribute the quality of personality to a purely
               imaginary being, and yet attain the ends for which this
B
               fictitious extension of personality is devised.
               Personification, however, conduces so greatly to simplicity
               of thought and speech, that its aid is invariably accepted.
               The thing personified may be termed the corpus of the legal
               person so created; it is the body into which the law infuses
C              the animus of a fictitious personality.
               …
               Legal persons, being the arbitrary creations of the law, may be
               as of as many kinds as the law pleases. Those which are actually
               recognised by our own system, however, all fall within a single
D              class, namely corporations or bodies corporate. A corporation is
               a group or series of persons which by a legal fiction is regarded
               and treated as itself a person. If, however, we take account
               of other systems of our own, we find that the conception
               of legal personality is not so limited in its application…”42
E                                                                  (Emphasis supplied)
             Legal personality is not human nature. Legal personality
      constitutes recognition by the law of an object or corpus as an
      embodiment of certain rights and duties. Rights and duties which are
      ordinarily conferred on natural persons are in select situations, conferred
F     on inanimate objects or collectives, leading to the creation of an artificial
      legal person. An artificial legal person is a legal person to the extent
      the law recognises the rights and duties ascribed to them, whether by
      statute or by judicial interpretation. Salmond presciently notes that the
      rights and duties conferred on artificial legal persons ultimately represent
      the interests and benefits of natural persons. In fact, it is precisely
G     because of the substantial benefits derived by natural persons from such
      objects or collectives that legislators and courts are called upon to
      consider conferring legal personality on such objects or collectives.


      42
H          J.W. Salmond, Jurisprudence, Steven and Haynes (1913)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             161


      91. At a purely theoretical level, there is no restriction on what      A
legal personality may be conferred. What is of significance is the
purpose sought to be achieved by conferring legal personality. To the
extent that this purpose is achieved, legal personality may even be
conferred on an abstract idea. However, Salmond notes that legal
personality is usually conferred on objects which are already the subject
                                                                              B
of personification or anthropomorphisms in layman’s language out of
“simplicity for thought and speech”. The question whether legal
personality is conferred on a ship, idol, or tree is a matter of what is
legally expedient and the object chosen does not determine the
character of the legal personality conferred. The character of the legal
personality conferred is determined by the purpose sought to be               C
achieved by conferring legal personality. There is thus a distinction
between legal personality and the physical corpus which then comes
to represent the legal personality. By the act of conferring legal
personality, the corpus is animated in law as embodying a distinct legal
person possessing certain rights and duties.
                                                                              D
       92. By conferring legal personality, legal systems have expanded
the definition of a ‘legal person’ beyond natural persons. Juristic persons
so created do not possess human nature. But their legal personality
consists of the rights and duties ascribed to them by statute or by the
courts to achieve the purpose sought to be achieved by the conferral
of such personality. It is important to understand the circumstances in       E
which legal personality has been conferred and consequently the rights
and duties ascribed to the inanimate objects on which this conferment
takes place.
      The Corporation
                                                                              F
       93. The most widely recognised artificial legal person is the
corporation in Company law. However, for the purposes of
understanding the circumstances under which courts have conferred
legal personality, the example of the corporation is of limited use. The
idea of treating a collective of individuals as a single unit for the
purposes of identification in law is as old as human civilisation itself.     G
There exists a plethora of examples of such recognition scattered across
human history with the advent of guilds, partnerships and early
unincorporated businesses. As Phillip Blumberg notes in his book titled
“The Multinational Challenge to Corporation Law”:
                                                                              H
162             SUPREME COURT REPORTS                             [2019] 18 S.C.R.


A            “When the Crown finally began to charter craft guilds and trading
             companies - the first business corporations - in the fifteenth
             century, an understanding of the legal nature of the
             corporation was already substantially in place. ... With this
             history before them, Sir Edward Code, writing in the beginning
             of the seventeenth century; ... and Blackstone and Kyd, writing
B
             in the late eighteenth century, could confidently assert what the
             corporation was, how it was created, and what legal attributes
             flowed from its organization. While they had primarily
             ecclesiastical and municipal corporations in mind, their
             commentary fully applied to business corporations as well.”43
C                                                              (Emphasis supplied)
             The jurisprudential concept of treating a collective of
      entrepreneurs as a single unit for the purposes of legal recognition was
      already well established by the time the first business corporations came
      into existence and did not warrant examination by the courts. The author
D
      further states:
             “Until well into the nineteenth century, recognition of a
             corporation for business purposes, both in England and in
             the United States, required a specific governmental
E            decision to grant corporate status. In England, this took the
             form of a character from the Crown or an act of Parliament. In
             the United States it required a legislative act. ... With the
             universal triumph of general incorporation statutes more
             than a century ago, corporations could be formed simply
             by filing certain forms and paying certain fees and taxes.
F            The state’s role has shrunken dramatically to a general
             specification of procedures and a ministerial administrative
             acknowledgement of the incorporators’ compliance with statutory
             formalities.”44
                                                               (Emphasis supplied)
G


      43
         Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search
      for New Corporate Personality, Oxford University Press (1993), at page 3
      44
         Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search
H     for New Corporate Personality, Oxford University Press (1993), at page 22
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            163


       The independent legal personality of a corporation has never been        A
dependent on recognition by courts. The legal personality of the
corporation was originally granted by a positive act of the government.
In later years, as incorporation became the preferred method of doing
business, corporate personality was conferred by general statutes of
incorporation which permitted any person to incorporate a company
                                                                                B
subject to the satisfaction of certain statutory conditions. These historical
developments outline the departure from a positive act of the
government as the basis of corporate personality, to the creation of
statutory frameworks within which it was conferred. It does not,
however, outline the reasons underlining the conferral of legal personality
and is of little assistance in the present situation.                           C
       The Ship
       94. A more pertinent example for the present purposes is the
conferment of legal personality on a ship. The concepts of a maritime
lien and of actions in rem are established precepts of maritime law. A
maritime lien may arise in the case of a wrongdoing or damage caused            D
by a ship which gives the claimant a charge on the ‘res’ of the ship.
The charge is crystallised by an ‘action in rem’ under which the ship
is directly proceeded against, as a legal person. In 1881, Sir George
Jessel MR explained this in The City of Mecca45, where he observed:
       “You may in England and in most countries proceed against the            E
       ship. The writ may be issued against the owner of such a ship,
       and the owner may never appear, and you get your judgement
       against the ship without a single person being named from
       beginning to end. That is an action in rem, and it is perfectly well
       understood that the judgement is against the ship.”
                                                                                F
       D R Thomas in his book titled “Maritime Liens”46 traces the
history of the judicial conferment of legal personality on ships. He speaks
of two theories- the ‘personification theory’ and the ‘procedural theory’
in explaining the evolution of the concept:
       “The first [theory], commonly coined as the personification theory,
       traces the historical origin and development of maritime liens to        G
       the juristic technique, which has obtained since medieval times,
       of ascribing personality to a ship. Under this theory a ship is
45
  The City of Mecca (1881) 5 P.D. 106
46
  D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven &
Sons London 1980)                                                               H
164                 SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A               personified and regarded as a distinct juristic entity with a
                capacity to contract and commit torts. The ship is both the source
                and limit of liability.
                …
                The second theory, known as the procedural theory, is based on
B               the premise that maritime liens evolved out of the process of arrest
                of a vessel in order to compel the appearance of the res owner
                and to obtain a security.
                …
                Although the point is not free of uncertainty it is probably the
C               case that a maritime lien is a substantive right whereas a statutory
                right of action in rem is in essence a procedural remedy. The
                object behind the availability of a statutory right of action in rem
                is to enable a claimant to found a jurisdiction and to provide the
                res as security for the claim.”47
D                                                             (Emphasis supplied)
             95. There is a direct nexus between the conferral of a limited
      legal personality and the adjudicative utility achieved by the conferral.
      Courts treat the physical property of the ship as a legal person against
      which certain actions may be taken. Conferring legal personality on the
E     ship allows for actions to be taken independent of the availability or
      presence of the ship’s owners, who in a great many cases may be in
      other parts of the world. As a ship may only be in port for a brief period,
      an action in rem allows the claimant to ensure pre-judgement security.
      Thus, even absent an express personification, actions against the ship
F     as a legal person ensure the effective adjudication of admiralty disputes.
            96. In M V Elisabeth v Harwan Investment and Trading Pvt
           48
      Ltd. , this Court noticed the underlying basis of this principle of
      Admiralty law. Justice Thommen, speaking for a two judge Bench
      traced the exercise of admiralty jurisdiction by English courts:
G               “44. …The vital significance and the distinguishing feature of an
                admiralty action in rem is that this jurisdiction can be assumed
                by the coastal authorities in respect of any maritime claim by
      47
         D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven &
      Sons London 1980), at pages 7 and 38
H     48
         1993 Supp (2) SCC 433
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              165


      arrest of the ship, irrespective of the nationality of the ship or       A
      that of its owners, or the place of business or domicile or
      residence of its owners or the place where the cause of action
      arose wholly or in part.”
      “…In admiralty the vessel has a juridical personality, an
      almost corporate capacity, having not only rights but                    B
      liabilities (sometimes distinct from those of the owner)
      which may be enforced by process and the decree against
      the vessel, binding upon all interested in her and
      conclusive upon the world, for admiralty in appropriate cases
      administers remedies in rem, i.e., against the property, as well
      as remedies in personam, i.e., against the party personally…”            C
      (Benedict, The Law of American Admiralty, 6th ed., Vol. I p.3.)
      45. Admiralty Law confers upon the claimant a right in rem to
      proceed against the ship or cargo as distinguished from a right
      in personam to proceed against the owner. The arrest of the
      ship is regarded as a mere procedure to obtain security to satisfy       D
      judgement….”                                (Emphasis supplied)
       In this view, the conferral of legal personality on a ship sub-served
the purpose of business certainty and expediency. The decree against
the ship binds all interested in her, and despite her nomadic nature,
satisfies the requirement of ensuring pre-judgment security. Besides the       E
UK and India, the attribution of legal personality to ships has been used
extensively across jurisdictions. Illustrating the approach of American
courts, Professor Douglas Lind traces the evolution of the concept:
       “As the United States entered its first century, the greater part
      of the nation’s trade and commerce, as well as much of the               F
      general transportation of persons, occurred on the high seas or
      along the country’s abundant inland navigable waterways. The
      constitution had extended the federal judicial power to all
      cases of admiralty and maritime jurisdiction.
      …                                                                        G
      [The Brig James Wells v United States] case raised what was
      quickly becoming a common issue: whether an American
      registered vessel should be condemned for violating a federal law.
      The Court held the Brig’s condemnation inevitable. Noteworthy
                                                                               H
166              SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            is the fact that while the case was styled in the name of the
             vessel, neither the term ‘maritime lien’ nor ‘in rem,
             appears, and there is no suggestion that the ship itself,
             rather than those in charge of it, was the offender … The
             practice of naming an action against a vessel did not,
             however, attest to the idea of vessel personification. The
B
             Court treated actions styled against a vessel as including
             everyone with an interest in her as “a party to the suit.”
             …
             Numerous cases had troubled the federal courts regarding
C            enforcement of liens when the principals (owners, masters) with
             interests in a ship had no active role or prior knowledge of the
             wrongdoing alleged. Traditional law of agency, with the ship
             as agent, worked against a coherent rule of responsibility
             and recovery … Given the peculiar vitalism of the ship in lore,
             literature, and poetry, it took only a slight conceptual shift in the
D            legal mind for the federal courts to assume the “mental mode”
             of adaptation to [the] reality of the vitalism of the ship. The
             doctrine gave the courts the “control of the environment” over
             maritime law that they had been lacking … with the doctrine
             of the personality of the ship, the Supreme Court inverted
E            the relationship of agency, making the ship the principal
             rather than the agent. In this way, the “desirable
             consequences” of a coherent, workable admiralty
             jurisdiction seemed possible. The doctrine of the personality
             of the ship, that is, became a central hallmark of nineteenth
             century American admiralty law because it appeared to the
F            Supreme Court “to be good in the way of belief” … The idea
             originated in the practical efforts of the Supreme Court,
             especially Justices Marshall and Story, to meet critical
             social and political needs of the new American republic.”49
                                                            (Emphasis supplied)
G
            97. The experience of American courts was that owners of
      offending ships regularly avoided the jurisdiction of courts. The existing
      law of the day was inadequate to address the situation. The judges of
      49
        Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of
H     the Personality of the Ship, 22 U.S.F. Mar. L.J. 39 (2009) at page 91
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                  167


the American Supreme Court therefore utilised the existing non-legal                  A
practice of anthropomorphising the ship and gave it legal significance
by conferring legal personality on vessels within their jurisdiction.
Significantly, the existing law of agency was ill equipped to deal with
the unique features of Admiralty Law. Allowing actions against ships
then created a vehicle through which the obligations of those with an
                                                                                      B
interest in the ships and her actions, though outside the jurisdiction of
courts, would be fulfilled by the recognition by the law of the personality
of the maritime vessel. Perhaps even more so than in the case of
English admiralty courts, the American experience demonstrates that
the conferral of legal personality on ships was a result of historical
circumstances, shortcomings in the existing law and the need of courts                C
to practically and effectively adjudicate upon maritime claims. Over the
course of several cases, the American Supreme Court solved the
practical difficulties of attribution and agency by making the ship a
distinct legal person for the purposes of adjudicating maritime claims.
          History, necessity and convenience                                          D
      98. These observations are true even beyond the realm of
admiralty law. Bryant Smith in a seminal article titled “Legal
Personality” published in 1928 in the Yale Law Journal50 states that
ordinarily, the subjects of rights and duties are natural persons. However,
he goes on to note that:                                                              E
          “… for some reason or other, it becomes necessary or
          convenient to deal with an inanimate object such as a ship,
          or with a human being in a multiple capacity, as a trustee
          or a guardian, or with an association of human beings in a
          single capacity, as a partnership or a corporation. A
                                                                                      F
          merchant, for example, who has furnished supplies for a voyage,
          or a boss stevedore who has renovated the ship, cannot reach
          the owner of the vessel, who is outside the jurisdiction. The
          obvious solution is to get at the ship itself and, through it, satisfy
          the owner’s obligations. But to devise a new system of
          jurisprudence for the purpose, to work out new forms and                    G
          theories and processes, would too severely tax the
          ingenuity of the profession. The alternative is for the
          judges to shut their eyes to the irrelevant differences

50
     Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296   H
168             SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           between a ship and a man and to treat the ship as if it were
            a man for the purpose of defending a libel.
            …
            It is true, of course, that the benefits and burdens of legal
            personality in other than human subjects, on ultimate
B           analysis, result to human beings, which, we have no doubt,
            is what the writers above cited mean. But the very utility
            of the concept, particularly in the case of corporate
            personality, lies in the fact that it avoids the necessity for
            this ultimate analysis.
C           …
            But, though the function of legal personality, as the quotation
            suggests, is to regulate behaviour, it is not alone to regulate
            the conduct of the subject on which it is conferred; it is to
            regulate also the conduct of human beings toward the
D           subject or toward each other. It suits the purposes of
            society to make a ship a legal person, not because the ship’s
            conduct will be any different, of course, but because its
            personality is an effective instrument to control in certain
            particulars the conduct of its owner or of other human beings.”
E                                                         (Emphasis supplied)
             The above extract affirms Salmond’s observations that the choice
      of corpus (i.e. the object) on which legal personality is conferred is
      not based on strict legal principle but is an outcome of historical
      circumstances, legal necessity and convenience. Historical
F     circumstances require courts to adjudicate upon unique factual
      situations. In American admiralty law, the increase in maritime
      expeditions coupled with the conferral of admiralty jurisdiction on the
      United States Supreme Court led to an influx of cases involving maritime
      claims. The existing law of the day did not allow the court to effectively
      adjudicate upon these new claims, leading to inequitable, absurd or
G     perverse outcomes. Hence, legal innovation was resorted to by courts.
      Both Lind and Smith highlighted several problems arising from the
      uniqueness of the ship itself – a vessel travelling across multiple
      jurisdictions, whose owners may reside in jurisdictions other than those
      where they are sought to be acted against and have little knowledge
H     of, or control, over the operation of the ship. The conferral of legal
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                169


personality on the ship did not change the behaviour of the ship. It             A
however created a legal framework within which the interactions
between natural persons and the ship could be regulated to achieve
outcomes at a societal level which are satisfactory and legally sound.
       99. Both authors note that the existing personification of the ship
required courts to make but a small conceptual leap of faith, which              B
resulted in significant legal benefits for courts. This point is of greater
historical than legal significance for it cannot be stated that where there
is no personification of an object, a court is barred from conferring legal
personality. Arguably, the independent legal personality conferred on a
corporation by acts of the state involved a far greater conceptual leap.
Yet it was deemed necessary and has since crystallised into a                    C
foundational principle in the law of corporations.
        100. There exists another reason to confer legal personality.
Objects represent certain interests and confer certain benefits. In the
case of some objects, the benefits will be material. The benefit may
extend beyond that which is purely material. An artificial legal person,         D
whether a ship or a company cannot in fact enjoy these benefits. The
ultimate beneficiaries of such benefits are natural persons. However,
requiring a court, in every case, to make the distinction between the
artificial legal person and the natural persons deriving benefit from such
artificial person is inordinately taxing, particularly when coupled with the
increasing use of corporations and ships. This leads us to the third rationale   E
for conferring legal personality - convenience. The conferral of legal
personality on objects has historically been a powerful tool of policy to
ensure the practical adjudication of claims. By creating a legal framework,
it equipped the court with the tools necessary to adjudicate upon an
emerging class of disputes. It saved considerable judicial effort and time
by allowing judges to obviate the distinction between artificial and natural     F
persons where it was not relevant. The conferral of legal personality
was thus a tool of legal necessity and convenience. Legal personality
does not denote human nature or human attributes. Legal personality is
a recognition of certain rights and duties in law. An object, even after the
conferral of legal personality, cannot express any will but it represents
                                                                                 G
certain interests, rights, or benefits accruing to natural persons. Courts
confer legal personality to overcome shortcomings perceived in the law
and to facilitate practical adjudication. By ascribing rights and duties to
artificial legal persons (imbued with a legal personality), the law tackles
and fulfils both necessity and convenience. By extension, courts ascribe
legal personality to effectively adjudicate upon the claims of natural           H
170            SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A     persons deriving benefits from or affected by the corpus upon which
      legal personality is conferred. The corollary of this principle is that the
      rights ascribed by courts to the corpus are limited to those necessary to
      address the existing shortcomings in the law and efficiently adjudicate
      claims.
            101. This principle is concisely articulated by Phillip Blumberg:
B
            “Distinguished by their particular legal rights and responsibilities,
            each class of legal unit is unique. They include legal subjects as
            disparate as individuals, maritime vessels, physical objects,
            partnerships, associations, special accounts, funds, economic
            interest groupings, and governmental agencies, as well as the
C           corporation and the corporate group. In each case, the attribution
            of rights and responsibilities demarcating the perimeters
            of legal recognition of the unit reflects all the factors that
            underlie societal lawmaking: the historical development of
            the law, changing values and interests, socio-economic and
            political forces, and conceptual currents.
D
            There are certain fundamental points. First, neither legal rights
            nor legal units exist “in the air”. Legal rights must pertain to a
            legal unit that can exercise them. Further, there can be no
            comprehensive list of legal rights and responsibilities that
            automatically springs into existence upon recognition of a
E           particular subject as a legal unit. Quite the contrary. It is
            the recognition of particular rights and responsibilities
            (principally rights) – one by one – that shapes the juridical
            contours of the legal unit for which they have been created.
            When the law recognises a particular right or imposes a particular
            responsibility on a presumptive legal unit, this constitutes recognition
F
            as a legal unit to the extent of the attribution. Other rights and
            responsibilities may or may not exist, depending on whether
            such recognition of the unit in the view of the lawmaker –
            whether legislator, administrator, or judge – will fulfil the
            underlying policies and objectives of the law of the time in
G           the area. Further, as society changes, the concept of legal identity
            and the legal consequences attributed to them inevitably change
            as well.”51
                                                             (Emphasis supplied)
      51
        Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford
H     University Press 1993), at page 207
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            171


        All legal units are not alike. The conferral of legal personality       A
sub-serves specific requirements that justify its recognition. The
conferral of juristic personality does not automatically grant an ensemble
of legal rights. The contours of juristic personality i.e. the rights and
liabilities that attach upon the object conferred with juristic personality,
must be determined keeping in mind the specific reasons for which such
                                                                                B
legal personality was conferred. The limits or boundaries of the rights
ascribed to the new legal person must be guided by the reasons for
conferring legal personality. The parameters of judicial innovation are
set by the purpose for which the judge innovates. An example of this
is when courts lift the veil of corporate personality where the conferral
of an independent legal personality no longer serves the above goals.           C
The application of the doctrine is defined by its ability to serve the object
underlying its creation. The legal innovation will become unruly if courts
were to confer legal personality on an object and subsequently enlarge
the object’s rights to the point where the original goal of intelligible and
practical adjudication is defeated. With this understanding, it is necessary
                                                                                D
to now turn to the application of these principles with respect to Hindu
idols.
         The Hindu idol and divinity
       102. At the outset, it is important to understand that the conferral
of legal personality on a Hindu idol is not the conferral of legal              E
personality on divinity itself, which in Hinduism is often understood as
the ‘Supreme Being’. The Supreme Being defies form and shape, yet
its presence is universal. In the law of Hindu endowments and in the
present proceedings, it has often been stated that legal personality is
conferred on the ‘purpose behind the idol’. The present judgment shall
advert to the exact legal significance of this statement. For the present,      F
it is sufficient to note that legal personality is not conferred on the
‘Supreme Being’ itself. As observed by this Court in Ram Jankijee
Deities v State of Bihar52:
         “19. God is omnipotent and omniscient and its presence is felt
         not by reason of a particular form or image but by reason of a         G
         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 a manifestation in

52
     (1999) 5 SCC 50                                                            H
172               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A              the 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.”
                                                            (Emphasis supplied)
B            103. In 1991, the English Court of Appeal in Bumper
      Development Corporation Ltd v Commissioner of Police of the
      Metropolis53 was called to decide the question whether a Hindu
      temple and a Hindu idol could sue in a court of law. In 1976, an Indian
      labourer discovered a ‘Siva Natraja’ in Pathur, Tamil Nadu which the
C     labourer subsequently sold to a dealer in religious artefacts. Other
      artefacts were subsequently found, including a ‘Sivalingam’, and were
      reinstated in the Pathur temple. In 1982, Bumper Development
      Corporation purchased the ‘Siva Natraja’ in good faith from a dealer
      in London who produced a false provenance of the Natraja for the
      purposes of the sale. The Natraja was subsequently seized by the
D     Metropolitan Police. At trial, the Government of India and the state
      government of Tamil Nadu intervened, along with the Pathur Temple
      and the Sivalingam as “juristic persons”. The Court of Appeal engaged
      in a lengthy discussion on foreign law in English Courts. However, in
      evaluating the maintainability of the claim by the Pathur temple as a
E     legal entity, the English court made the following observations:
              “(1) Neither God nor any supernatural being can be a
                   person in law. A practical illustration of the truth of this
                   statement is that if the endowments were to vest in God as
                   a supernatural being litigation between different temples
F                  over their respective rights would be impossible. In any
                   event the same “person” would be both plaintiff and
                   defendant since, as Dr. Mukherjea points out, all Hindus
                   always worship the one Supreme Being. That there is much
                   litigation between temples in India is clear beyond a
                   peradventure.
G
                    …
               (4) Any juristic person must be capable of identification.
                   This necessitates that ‘person’ having a name or
                   description. Since every Hindu idol is a manifestation
      53
H          [1991] 1 WLR 1362 (2)
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             173


             of one Supreme Being, one must look elsewhere than                  A
             to the name of God for an identification. The Pathur
             Temple bears the name of its founder in its title; and that
             appears to be the custom in Tamil Nadu. So any idol must
             in practice be referred to by association with the name of
             the temple in which it is.”
                                                                                 B
                                                      (Emphasis supplied)
       104. Hinduism understands the Supreme Being as existing in
every aspect of the universe. The Supreme Being is omnipresent. The
idea of a legal person is premised on the need to ‘identify the subjects’
of the legal system. An omnipresent being is incapable of being identified
or delineated in any manner meaningful to the law and no identifiable            C
legal subject would emerge. This understanding is reflected in the
decisions of this Court as well. In Yogendra Nath Naskar v
Commissioner of Income Tax, Calcutta54, a three judge Bench of
this Court was called upon to determine whether a Hindu idol (or ‘deity’)
falls within the definition of an “individual” under Section 3 of the
Income Tax Act 1922. Justice V Ramaswami speaking for a three judge              D
Bench of this Court held:
       “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 Brahma, Visnu and
       Mahesvara. It is, however, possible that the founder of the               E
       endowment or the worshipper may not conceive of 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                  F
       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. 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         G
       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
       capable of holding property and of being taxed through its

54
     (1969) 1 SCC 555                                                            H
174            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           Shebaits who are entrusted with the possession and management
            of its property.”
                                                        (Emphasis supplied)
             Legal personality is not conferred on the Supreme Being. The
      Supreme Being has no physical presence for it is understood to be
B     omnipresent - the very ground of being itself. The court does not confer
      legal personality on divinity. Divinity in Hindu philosophy is seamless,
      universal and infinite. Divinity pervades every aspect of the universe.
      The attributes of divinity defy description and furnish the fundamental
      basis for not defining it with reference to boundaries – physical or legal.
      For the reason that it is omnipresent it would be impossible to distinguish
C     where one legal entity ends and the next begins. The narrow confines
      of the law are ill suited to engage in such an exercise and it is for this
      reason, that the law has steered clear from adopting this approach. In
      Hinduism, physical manifestations of the Supreme Being exist in the
      form of idols to allow worshippers to experience a shapeless being. The
      idol is a representation of the Supreme Being. The idol, by possessing
D
      a physical form is identifiable.
             105. An exploration of the method adopted for the conferral of
      legal personality on Hindu idols and the reason for the conferment is
      necessary. Chief Justice B K Mukherjea’s, “The Hindu Law of
      Religious and Charitable Trusts” demonstrates a timeless quality
E     and has significance in understanding the evolution of our law on the
      subject. Justice Mukherjea notes that even prior to courts regulating
      the Hindu practice of religious endowments, the clear public interest in
      regulating properties dedicated for religious purposes, resulted in the
      practice being regulated by the rulers of the day. He states:
F           “1.36 … It appears however that from very early times religious
            and charitable institutions in this country came under the special
            protection of the ruling authority. In the celebrated Rameswar
            Pagoda case, it was pointed out by the Judicial Committee that
            the former rulers of this country always asserted the right
            to visit endowments of this kind to prevent and redress
G           the abuses in their management. “There can be little doubt”,
            thus observed Their Lordships, “that the superintending authority
            was exercised by the older rulers.” Mr. Nelson in his Madura
            Manual says: “… The Dharma Kartas held but little
            communication one with another and recognised no earthly
            superior except the king himself. Each was independent of all
H
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                  175


       control and acted altogether as he pleased. This freedom                       A
       led naturally to gross abuses and the king was compelled
       occasionally to interfere in the management of some of the
       churches.” 55
                                                           (Emphasis supplied)
      106. In an article which was published in 2010 in the Economic                  B
and Political Weekly, Gautam Patel traces the historical evolution of
endowments. He noted the reason for the conferment of personality in
law on idols:
       “Emperors and rulers routinely donated property and cash for
       the establishment, maintenance and upkeep of Hindu shrines.                    C
       When land was made over to a temple, it was in the form of a
       sanad, or grant, or firman, by edict. The Shrinathji temple at
       Nathdwara, for instance, was said to have received a firman from
       the emperor Akbar. Given the colonial obsession with orderliness
       and documentation, this situation presented a problem – large                  D
       areas of land were owned, managed and cultivated by
       shebaits and mohunts who were clearly not the owners.
       Temples were, by their nature, malleable and apt to grow and
       change. The entity with some permanence was the idol and
       it is presumably for that reason that the legal concept of the
       Hindu idol as a juristic entity owning land evolved. The reason                E
       may have been purely fiscal – these lands had to be surveyed,
       their ownership ascertained, and then assessed for (or exempted
       from) land revenue and other taxes. But the ownership of land
       almost always depended on the establishment of a positive
       act of giving – by firman, sanad or any other instrument that                  F
       unequivocally shows a dedication of the land to the idol.”56
                                                           (Emphasis supplied)
       The reasons for the recognition of the idol as an entity in law
are intrinsically tied to the historical circumstances in which recognition
took place. The setting up of religious endowments by individuals,                    G
merchants and rulers is an age-old practice in India. However, the
55
   B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition
Eastern Law House, (1983) at page 28
56
   Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17
December 2010) at page 49
                                                                                      H
176               SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     colonial administration in India and English law of the time lacked the
      legal framework within which to record, tax and ultimately adjudicate
      upon claims with respect to Hindu religious endowments. Disputes arose
      with the increase in the value of the properties dedicated. The
      establishment of courts across the country led to their increasingly having
      to adjudicate upon claims concerning endowments, idols, and debutter
B
      properties.
               J.2 Idols and juristic personality
             107. English and Indian judges in India were called upon to
      determine the legal characteristics of Hindu idols and the properties
C     associated with them. In Manohar Ganesh Tambekar v Lakhmiram
      Govindram57, the plaintiffs were persons interested in the religious
      foundation of the temple of Dakor and the defendants were recipients
      of the temple’s offerings. The plaintiff’s prayer was that the court
      appoint a receiver for the accountable disposal of the offerings made
      at the temple. On the other hand, the defendants submitted that the
D     temple offerings were their own absolute and secular property. A
      Division Bench of the Bombay High Court analysed the circumstances
      in which the case took place and considered the need to confer legal
      personality on the Hindu idol. The Court, speaking through Justice R
      West observed:
E              “For a period extending over several centuries the revenues of
               the temple seem to have but slightly, if at all, exceeded the outlay
               required to maintain its services, but recently these revenues have
               very largely increased. The law which protects the foundations
               against external violence guards it also internally against mal-
F              administration, and regulates, conformable to the central principle
               of the institution, the use of its augmented funds.”
             108. The Hindu practice of dedicating properties to temples and
      idols had to be adjudicated upon by courts for the first time in the late
      nineteenth century. The doctrine that Hindu idols possess a distinct legal
G     personality was adopted by English judges in India faced with the task
      of applying Hindu law to religious endowments. Property disputes arose
      and fuelled questions about the ownership of the properties. Two clear
      interests were recognised as subjects of legal protection. First, there
      existed the real possibility of maladministration by the shebaits (i.e.
      57
H          ILR (1888) 12 Bom 247
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            177


managers) where land endowed for a particular pious purpose, ordinarily      A
to the worship of an idol, was poorly administered or even alienated.
Second, where the land was dedicated to public worship, there existed
the threat that access or other religious benefits would be denied to
the public, in particular to the devotees. Where the original founder of
the endowment was not alive and the shebait was not the owner of
                                                                             B
the lands, how were the courts (and through them the State) to give
effect to the original dedication? To provide courts with a conceptual
framework within which they could analyse and practically adjudicate
upon disputes involving competing claims over endowed properties,
courts recognised the legal personality of the Hindu idol. It was a legal
innovation necessitated by historical circumstances, the gap in the          C
existing law and by considerations of convenience. It had the added
advantage of conferring legal personality on an object that within
Hinduism had long been subject to personification. The exact contours
of the legal personality so conferred are of relevance to the present
case to which this judgement now adverts.
                                                                             D
       109. In conferring legal personality on the Hindu idol, courts drew
inspiration from what they saw as factual parallels in Roman law. Justice
B K Mukherjea summarises the position:
      “…from the fifth century onwards – foundations created by
      individuals came to be recognised as foundations in the true legal     E
      sense, but only if they took the form of Pia Causa, i.e., were
      devoted to ‘pious uses’ only, in short, if they were charitable
      institutions. Whenever a person dedicated property whether
      by gift inter vivos or by will – in favour of the poor or the
      sick, or prisoners or orphans, or aged people, he thereby
      created ipso facto a new subject of legal rights – the poor            F
      house, the hospital and so forth and the dedicated property
      became the sole property of the new subject – it became the
      property of the new juristic person whom the founder had
      called into being.
      …                                                                      G
      1…A private person might make over property by way of legacy
      or gift 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 sick or distressed. The receiving corporation would be in the      H
178              SUPREME COURT REPORTS                           [2019] 18 S.C.R.


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 himself to create an institution or foundation. This
             would be a new juristic person, which depended on its
             origin on nothing else but the will of the founder, provided
             it was directed a charitable purpose. The foundation would
B
             be the owner of the dedicated property, and the
             administrators would be the trustees bound to carry out the object
             of the foundation.”58
                                                              (Emphasis supplied)
C            In Roman law, where property was dedicated to a particular
      religious or charitable purpose and not to an identified donee, the
      religious/charitable purpose itself was elevated to the status of a legal
      foundation. The foundation was a separate legal entity and came to
      own the dedicated property. Hindu law does not make a distinction
      between religious and charitable purposes. However, a clear parallel
D     exists in the case of Hindu endowments.
             110. In Manohar Ganesh Tambekar, the Division Bench of the
      Bombay High Court set out the rationale for and the process by which
      legal personality is conferred on a Hindu idol. Justice West observes:
             “The Hindu law, like the Roman law and those derived from it,
E            recognizes, not only corporate bodies with rights of property
             vested in the corporation apart from its individual members, but
             also juridical persons or subjects 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 … A trust is
F            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. 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.
G            …
             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

      58
        B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition,
H     Eastern Law House (1983) at page 9
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            179


      furnishing an ideal centre for an institution to which the necessary   A
      human attributes are ascribed. … 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   B
      due application to the purposes of the foundation.
      …
      The law which protects the foundations against external violence
      guards it also internally against mal-administration, and regulates,
                                                                             C
      conformable to the central principle of the institution, the use of
      its augmented funds. It is only as subject to this control in
      the general interest of the community that the State
      through the law courts recognizes a merely artificial
      person. It guards property and rights as devoted, and thus
      belonging, so to speak, to a particular allowed purpose only           D
      on a condition of varying the application when either the purpose
      has become impracticable, useless or pernicious, or the funds have
      augmented in an extraordinary measure.”
                                                   (Emphasis supplied)
       111. The decision in Manohar Ganesh Tambekar indicates that           E
the expression of a religious or charitable purpose and the creation of
an endowment to effectuate it was adequate. The creation of a trust,
as in English law was not necessary. The creation of an endowment
resulted in the creation of an artificial legal person. The artificial or
juridical person represents or embodies a pious or benevolent purpose
underlying its creation. Legal personality is conferred on the pious         F
purpose of the individual making the endowment. Where the
endowment is made to an idol, the idol forms the material representation
of the legal person. This juridical person (i.e. the pious purpose
represented by the idol) can in law accept offerings of movable and
immovable property which will vest in it. The legal personality of the
                                                                             G
idol, and the rights of the idol over the property endowed and the
offerings of devotees, are guarded by the law to protect the endowment
against maladministration by the human agencies entrusted with the day
to day management of the idol.
     112. Shortly after the decision in Manohar Ganesh Tambekar,
the Madras High Court was called upon to decide a dispute pertaining         H
180               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     to the appointment of the head of a Mutt. In Vidyapurna Tirtha Swami
      v Vidyanidhi Tirtha Swami59, a Division Bench examined the legal
      character of idols, temples and mutts in some detail. Justice B Ayyangar
      went to on to observe:
             “As already stated, the worshippers are beneficiaries only in a
             spiritual sense, and the endowments themselves are primarily
B
             intended for spiritual purposes, through indirectly and incidentally
             a good number of people derive material or pecuniary benefit
             therefrom as office-holders, servants or objects of charity…The
             question has not been suggested or considered, whether
             the community itself for whose spiritual benefit the
C            institution was founded and endowed may not be more
             appropriately be regarded as a corporate body forming the
             juristic person in whom the properties of the institution
             are vested and who act through one or more of the natural
             persons forming the corporate body, these latter being the
             dharmakartas or panchayats, & c., charged with the execution
D
             of the trusts of the institution and possessing strictly limited
             powers of alienation of the endowments, as defined in the cases
             cited above. Though a fluctuating and uncertain body of men
             cannot claim a profit a prendre in alieeno solo, nor be the
             grantee of any kind of real property (see Goodman v Mayor
E            of Saltash, yet there is high authority for treating such
             community as a corporation or juristic person in relation to
             religious foundations and endowments.
             …
             For all practical purposes however it is immaterial whether
F            the presiding idol or the community of worshippers is
             regarded as the corporation or juristic person in which the
             properties are vested, though from a juristic point of view
             there may be a difference of opinion as to which theory is
             more scientific. In the words of a recent writer on
             Jurisprudence (Salmond’s ‘Jurisprudence’ (1902), 346) “the choice
G
             of the corpus into which the law shall breathe the breath of a
             fictious personality is a matter of form rather than of substance,
             of lucid and compendious expression, rather than of legal
             principle,” …”
                                                           (Emphasis supplied)
      59
H          ILR (1904) 27 Mad 435
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               181


       The conferral of juristic personality by courts is to overcome           A
existing shortfalls in the law and ensure societally satisfactory and legally
sound outcomes. Justice Ayyangar observes that a key societal interest
sought to be protected by the conferral of juristic personality on the
idol was the protection of the devotees’ interests. Justice Ayyangar notes
that such protection could also be achieved by conferring juristic
                                                                                B
personality on the devotees as a collective. However, given the
widespread personification of the idol, he holds that juristic personality
should vest in the idol on considerations of practicality and convenience.
        113. In Bhupati Nath Smrititirtha v Ram Lal Maitra60, a five
judge Bench of the Calcutta High Court was constituted to answer the
question whether bequests by a testator to trustees for the establishment       C
of an idol of the Goddess Kali and the worship of the idol after the
testator’s death were invalid due to the Hindu law principle which stated
that gifts could only be made to sentient beings. The testator in that
case had dedicated certain properties to an idol. While the testator died
in 1890, the idol was not consecrated until 1894. A question arose as           D
to whether the non-existence of the idol at the time of the testator’s
death invalidated the provisions of the will dedicated the property. In
an erudite opinion holding that such bequests were valid, Chief Justice
Lawrence Jenkins held:
       “… but the testator directed all his property to be placed in the
       hands of persons named by him and subject to certain payments            E
       these persons were directed to spend the surplus income which
       might be left in the sheba and worship of Kali after establishing
       the image of the Kali after the name of his mother. Now this
       manifestly was a disposition for religious purposes and such
       dispositions are favoured by Hindu Law.                                  F
       …In England it has been held that gifts “for the worship of God”
       or “to be employed in the service of the Lord and Master” are
       good. Then does it invalidate the disposition that the
       discretion is for the spending of the surplus income on the
       sheba and worship of Kali “after establishing the image of
                                                                                G
       the Kali after the name of my mother.” I think not: the
       pious purpose is still the legatee, the establishment of the
       image is merely the mode in which the pious purpose is
       to be effected.”
60
                                                       (Emphasis supplied)
  ILR (1909-1910) 37 Cal 128                                                    H
182             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           In his separate opinion, Justice Stephen noted:
            “But though a dedication to a deity does not constitute a gift, it
            has legal effect. The intention of the donor is that the subject-
            matter of the gift shall be used for doing honour to the deity by
            worship, and for conferring benefit on the worshippers and the
B           ministers of the deity who conduct it. This worship is properly
            and I understand necessarily carried out by having recourse to
            an image or outer physical object, but the image is nothing till
            inspired by the deity. It is the duty of the sovereign to see
            that the purposes of the dedication are carried out.”
C                                                           (Emphasis supplied)
              In holding that the non-existence of the idol at the time of the
      testator’s death did not matter, the opinion of Chief Justice Jenkins
      clearly demonstrates that the endowed property vests in the purpose
      itself. As he notes, “the pious purpose is still the legatee.” It is on this
D     purpose that juristic personality is conferred. In recognising the pious
      purpose as a juristic person, the state gives effect to, and protects the
      endowment. The idol is the material embodiment of the testator’s gift.
      As the gift is one to ensure the continued worship of the deity, the idol
      is a physical manifestation of the testator’s pious purpose. Where courts
      recognise the legal personality of the idol they are in effect recognising
E     and protecting the testator’s desire that the deity be worshipped.
            114. The understanding espoused by the decisions referred to
      above is concisely summarised by Chief Justice B K Mukherjea in the
      following terms:

F           “1.48A.- Principle as to personality of institutions.- Apart from
            natural persons and corporations, which are recognised by English
            law, the position under Hindu law is that if an endowments is
            made for a religious or charitable institution, without the
            instrumentality of a trust, and the object of the endowment is one
            which is recognised as pious, being either religious or
G           charitable under the accepted notions of Hindu law, the
            institution will be treated as a juristic person capable of
            holding property.
            …
            1.48B. Idols.- The position as to idols is of a special nature. In
H           the Hindu Debutter, it seems, the position is slightly different, and
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            183


       not the whole endowment, but the idol w hich as an                       A
       embodiment of a pious or benevolent idea, constitutes the
       centre of the foundation and is looked upon as the juristic
       being in which the Debutter property vests. After all, juristic
       personality is a mere creation of law and has its origins in a desire
       for doing justice by providing, as it were, centres for jural
                                                                                B
       relations. As Salmond says: “It may be of as many kinds as the
       law considers proper,” and the choice of the corpus into which
       the law shall breathe the breath of fictious personality is a matter
       of form than of substance.”61
                                                       (Emphasis supplied)
       115. A Hindu may make an endowment for a religious purpose.              C
There is a public interest in protecting the properties endowed and
ensuring that the original pious purpose of the dedicator is fulfilled. The
law confers legal personality on this pious purpose. However, as Chief
Justice B K Mukherjea notes, it is the idol, as the material manifestation
of the juristic person which is “looked upon” as the centre in which            D
the property vests. The idol as an embodiment of a pious or benevolent
purpose is recognised by the law as a juristic entity. The state will
therefore protect property which stands vested in the idol even absent
the establishment of a specific or express trust. The pious purpose, or
‘benevolent idea’ is elevated to the status of a juristic person and the
idol forms the material expression of the pious purpose through which           E
legal relations are affected. It is the pious purpose at the heart of the
dedication which is the basis of conferring legal personality on the idol
and which is the subject of rights and duties. The need to confer juristic
personality arises out of the need for legal certainty as to who owns
the dedicated property, as well as the need to protect the original intention   F
of the dedicator and the future interests of the devotees. It was open
for courts to even confer the personality on the community of devotees
in certain situations, but the idol is chosen as a centre for legal relations
as the physical manifestation of the pious purpose.
       116. The reason for this is outlined in the decision of the Calcutta
                                                                                G
High Court in Mohatap Bahadur v Kali Pada Chatterjee62. In the
distant past, the Maharaja of Burdwan dedicated certain lands for the
61
   B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn.
Eastern Law House (1983) at page 36
62
   AIR 1914 Cal 200
                                                                                H
184            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     worship of an idol (the ‘Trilokeswar Shiva’) and tasked the predecessor
      of the respondent as shebaits for the management of the worship.
      Subsequent to the dedication, the idol was washed away by the flooding
      of a river nearby. The Maharaja later built a new idol in the same
      village. However, the respondents refused to perform worship at the
      site of the new idol on the ground that the original idol had been washed
B
      away. The appellant’s sought a direction compelling the respondents to
      perform necessary religious rites at the site of the freshly constructed
      idol. The Bench consisting of Chief Justice Jenkins and Justice
      Mookerjee held:
            “4. …It is clear that the property must have been made out by
C           the Maharajah to the predecessor of the defendant in order that
            the income might be applied for the worship of the image [of]
            Trilokeswar Shiva. The question arises whether this trust came
            to an end when the temple was washed away and the image
            was broken….
D           5. …Were the contention of the respondent to prevail the
            endowment would come to an end, if, as has happened in
            this case, the land upon which the temple stood was
            washed away by the action of the river. This view is not
            supported by any text or any principle of the Hindu law
E           which has been brought to our notice.
            6. It is, on the other hand, clearly opposed to the principle
            recognized by a Full Bench of this court in the case of
            Bhupati Nath Smrititirtho v. Ramlal Maitra. If then the
            endowment was not destroyed when the land upon which the
F           temple stood was washed away and the image was broken, what
            has happened since then to alter the position of the parties? The
            defendant is in the same position as if he held a service tenure.
            The land was given to him for definite purpose, namely, that he
            might apply the income thereof for the purpose of the service of
            the image established by the Maharaja….”
G
                                                          (Emphasis supplied)
            The idol constitutes the embodiment or expression of the pious
      purpose upon which legal personality is conferred. The destruction of
      the idol does not result in the termination of the pious purpose and
      consequently the endowment. Even where the idol is destroyed, or the
H
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          185


presence of the idol itself is intermittent or entirely absent, the legal     A
personality created by the endowment continues to subsist. In our
country, idols are routinely submerged in water as a matter of religious
practice. It cannot be said that the pious purpose is also extinguished
due to such submersion. The establishment of the image of the idol is
the manner in which the pious purpose is fulfilled. A conferral of legal
                                                                              B
personality on the idol is, in effect, a recognition of the pious purpose
itself and not the method through which that pious purpose is usually
personified. The pious purpose may also be fulfilled where the presence
of the idol is intermittent or there exists a temple absent an idol
depending on the deed of dedication. In all such cases the pious purpose
on which legal personality is conferred continues to subsist.                 C
       117. After independence, the principles applicable to the Hindu
law of endowments were affirmed by a four judge bench of this Court
in Deoki Nandan v Murlidhar63. In 1919, a Hindu testator executed
a will bequeathing his lands to the idol (or ‘Thakur’) of Shri
Radhakrishnaji. A dispute arose between the direct descendant of the          D
testator and his distant agnates on the management of the Thakur. It
was contended that the Thakur was being mismanaged and the public
was denied worship. A declaration that the Thakurdwara was a public
temple was sought. The issue facing this Court was how to construct
the scope of the dedication in the testator’s will. Justice Venkatarama       E
Ayyar, speaking for this Court, held:
         “6. …The true purpose of a gift of properties to the idol is not
         to confer any benefit on God, but to acquire spiritual benefit by
         providing opportunities and facilities for those who desire to
         worship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it was        F
         held on a consideration of these and other texts that a gift to an
         idol was not to be judged by the rules applicable to a transfer to
         a ‘sentient being’, and that the dedication of properties to an
         idol consisted in the abandonment of the owner of his
         dominion over them for the purpose of their being
         appropriated for the purposes which he intends. Thus, it             G
         was observed by Sir Lawrence Jenkins C.J at p. 138 that
         “the pious purpose is still the legatee, the establishment
         of the image is merely the mode in which the pious

63
     1956 SCR 756                                                             H
186                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A              purpose is to be effected” and that “the dedication to a
               deity” may be “a compendious expression of the pious
               purpose for which the dedication is designed”.
               7. When once it is understood that the true beneficiaries of
               religious endowments are not the idols but the
B              worshippers, and that the purpose of the endowment is the
               maintenance of that worship for the benefit of the
               worshippers, 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
C
               general public or any specified portion thereof.”
                                                            (Emphasis supplied)
             Upon making an endowment, the donor relinquishes all claims
      to the endowed property. The property now vests in the pious purpose
D     at the heart of the endowment which is recognised as a legal person.
      The idol forms the material manifestation of the pious purpose and the
      consequent centre of jural relations. The beneficiaries of the endowment
      are worshippers and the proper maintenance of worship to the idol is
      to enable the worshippers to achieve the spiritual benefit of being in
      communion with the divine.
E
            118. In Yogendra Nath Naskar v Commissioner of Income
      Tax, Calcutta64, in deciding that a Hindu idol (or ‘deity’) fell within
      the definition of “individual” under Section 3 of the Income Tax Act
      1922, Justice Ramaswami speaking for a three-judge Bench of this Court
      held:
F
               “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
G              symbol or image is the recipient and owner of the dedicated
               property.
               …

      64
H          (1969) 1 SCC 555
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            187


      The correct legal position is that the idol as representing            A
      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. [J]ustice
      B.K. Mukherjea: “With regard to the debutter… It is not only a
      compendious expression but a material embodiment of the pious
                                                                             B
      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               C
      which is dedicated to it.” … The legal position is comparable
      in many respects to the development in Roman Law.”
                                                    (Emphasis supplied)
      The purpose behind the dedication
                                                                             D
       119. Similar to the conceptual grounding of juristic personality in
the case of a ship in admiralty law to personify actions in rem, the
material object (i.e. idol), seen as an embodiment of the purpose behind
the dedication, was chosen as the site of legal relations. The creation
by judicial interpretation of an entity in law sub-served an important
function. For it obviated a situation that would arise if, despite a         E
dedication by a Hindu for a pious purpose, there existed no legally
recognised entity which could receive the dedication. Such a situation
was obviated by the judicially recognised principle that where an
endowment is made for a religious or charitable institution and the object
is pious, the institution will be treated as a juristic person even in the   F
absence of a trust. Similarly, where the dedication is for an idol to be
worshipped, the interests of present and future devotees would be at
risk in the absence of a legal framework which ensured the regulation
of the dedication made. The conferment of legal personality on the pious
purpose ensured that there existed an entity in which the property would
vest in an ideal sense, to receive the dedication and through whom the       G
interests of the devotees could be protected. This was for the purpose
of fulfilling the object of the dedication and through the performance
of worship in accordance with religious texts, ensuring that the devotees
realised peace through prayer.
                                                                             H
188               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            120. The recognition of juristic personality was hence devised
      by the courts to give legal effect to the Hindu practice of dedicating
      property for a religious or ‘pious’ purposes. The founder or testator may
      choose to dedicate property for the use of a pious purpose. In many of
      the above cases, this pious purpose took the form of continued
      maintenance and worship of an idol. There was a clear state interest
B
      in giving effect to the will of the founder or testator who has so dedicated
      property, as well as for ensuring that the property is at all times used
      for the purpose of the dedication. A legal fiction was created by which
      legal personality was conferred on the religious or charitable purpose
      for which the endowment was made. In the case of a dedication for
C     an idol, the juristic personality finds ‘compendious expression’ in the
      idol itself. By conferring legal personality, the court gave legal effect
      to the dedication by creating an entity to receive the properties so
      dedicated. By stating that the artificial person created is in fact the
      owner of the dedicated properties, the court guarded against
      maladministration by the shebait. Even though the artificial legal person
D
      cannot sue without the assistance of a natural person, a legal framework
      was brought into existence by which claims for and against the
      dedicated property could be pursued.
             121. Though conceptually courts attributed legal personality to
      the intention of the founder, a convenient physical site of legal relations
E     was found in the physical idol. This understanding is reiterated by this
      Court’s observations in Deoki Nandan that the idol is a “compendious
      expression” of the testator’s pious purpose. The idol, as a representation
      or a “compendious expression” of the pious purpose (now the artificial
      legal person) is a site of legal relations. This is also in consonance with
F     the understanding that even where an idol is destroyed, the endowment
      does not come to an end. Being the physical manifestation of the pious
      purpose, even where the idol is submerged, not in existence temporarily,
      or destroyed by forces of nature, the pious purpose recognised to be a
      legal person continues to exist.
G           122. The extent to which the doctrine arose out of legal necessity
      and convenience is exemplified by Justice Ayyangar in Vidyapurna
      Tirtha Swami v Vidyanidhi Tirtha Swami65 when the learned judge
      noted that it was even possible, by legal fiction, to recognise the
      community or collective of devotees as a single legal person. As he
      65
H          ILR (1904) 27 Mad 435
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              189


noted, this would have equally served the court’s goals of creating an         A
adequate legal framework for protecting the dedicated properties and
the interests of the devotees. However, the court notes that, as there
was no “practical” difference, the legal fiction was applied to the idol
and not to the devotees for the sake of simplicity. This course of
precedent denotes how the continued personification of the idol in
                                                                               B
religious practice laid the foundations for the court to choose the idol
as the site of legal relations.
        123. The recognition of the Hindu idol as a legal or “juristic”
person is therefore based on two premises employed by courts. The
first is to recognise the pious purpose of the testator as a legal entity
                                                                               C
capable of holding property in an ideal sense absent the creation of a
trust. The second is the merging of the pious purpose itself and the
idol which embodies the pious purpose to ensure the fulfilment of the
pious purpose. So conceived, the Hindu idol is a legal person. The
property endowed to the pious purpose is owned by the idol as a legal
person in an ideal sense. The reason why the court created such legal          D
fictions was to provide a comprehensible legal framework to protect
the properties dedicated to the pious purpose from external threats as
well as internal maladministration. Where the pious purpose necessitated
a public trust for the benefit of all devotees, conferring legal personality
allowed courts to protect the pious purpose for the benefit of the             E
devotees.
        124. Having set out the history and the underlying basis of the
legal innovation surrounding the conferral of juristic personality on Hindu
idols, it becomes necessary to advert to the principle question before
us. The present case turns, in a significant measure, on the answer to         F
the contention urged on behalf of the plaintiffs in Suit 5 that the first
and second plaintiffs - Bhagwan Sri Ram Virajman and Asthan Shri
Ram Janam Bhumi are juristic persons. If this contention is accepted,
this Court will then be required to adjudicate upon the legal
consequences of the second plaintiff being declared a juristic person.
                                                                               G
      J.3 Juristic personality of the first plaintiff
       125. For the devotees of Lord Ram, the first plaintiff in Suit 5,
“Bhagwan Sri Ram Virajman” is the embodiment of Lord Ram and
constitutes the resident deity of Ram Janmabhumi. The faith and belief
of the Hindu devotees is a matter personal to their conscience and it is       H
190             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     not for this Court to scrutinise the strength of their convictions or the
      rationality of their beliefs beyond a prima facie examination to ascertain
      whether such beliefs are held in good faith.
             126. The oral and documentary evidence shows that the Hindu
      devotees of Lord Ram hold a genuine, long standing and profound belief
B     in the religious merit attained by offering prayer to Lord Ram at the
      site they believe to be his birth-place. Evidence has been led by the
      plaintiffs in Suit 5 to show a long practice of Hindu worship to Lord
      Ram at the disputed site. The travel logs of Joseph Tieffenthaler in
      the eighteenth century and Robert Montgomery Martin in the early
      nineteenth century record the prevalence of Hindu worship at the
C     disputed site. They also reference special occasions such as Ram
      Navmi during which Hindu devotees converged upon the Janmasthan
      from distant areas motivated by the desire to offer prayer to Lord Ram.
      The continued faith and belief of the Hindu devotees in the existence
      of the Janmasthan below the three domed structure is evidenced by
D     the activities of the Nirmohis, individual devotees such as Nihang Singh
      and the endless stream of Hindu devotees over the years who visited
      the disputed site. This is testament to the long-held belief in the sanctity
      of the disputed site as a place of worship for the Hindu religion. It is
      not necessary to the determination of the legal personality of the first
      plaintiff in Suit 5 to establish whether the devotees believed that the
E     exact spot under the central dome was the birth-place of Lord Ram or
      whether the faith and belief of the devotees itself can confer title. These
      questions are addressed at a later part of this judgement. For the present
      purposes, it is sufficient to note that the factum of Hindu belief in the
      sanctity of the disputed site is established by evidence.
F            127. For the purposes of recognising a legal person, the relevant
      inquiry is the purpose to be achieved by such recognition. To the extent
      such purpose is achieved, the form or corpus of the object upon which
      legal personality is conferred is not a matter of substance but merely a
      question of form. As observed by Salmond, so long as the conferral of
G     legal personality serves the purpose sought to be achieved, legal
      personality may even be conferred on an abstract idea. In the case of
      Hindu idols, legal personality is not conferred on the idol simpliciter but
      on the underlying pious purpose of the continued worship of the deity
      as incarnated in the idol. Where the legal personality is conferred on
      the purpose of a deity’s continued worship, moving or destroying the
H     idol does not affect its legal personality. The legal personality vests in
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                 191


the purpose of continued worship of the idol as recognised by the court.          A
It is for the protection of the continued worship that the law recognises
this purpose and seeks to protect it by the conferral of juristic personality.
       128. In addition to the continued worship of the deity, legal
personality is conferred on Hindu idols to provide courts with a
conceptual framework within which to practically adjudicate disputes              B
involving competing claims over disputed property endowed to or
appurtenant to Hindu idols. In order to adjudicate disputes, the court
locates a site of jural relations to determine proprietary claims,
maladministration by shebaits and protect the interests of devotees. The
law thus protects the properties of the idol even absent the establishment
of a specific or express trust. In the proceedings before us, the legal           C
rights and properties of the first plaintiff in Suit 5 were in dispute.
However, no submissions were made challenging the legal personality
of the first plaintiff. Significantly, Dr Rajeev Dhavan, learned Senior
Counsel appearing for the plaintiffs in Suit 4 admitted the juristic
personality of the first plaintiff. The question of the legal personality of      D
the first plaintiff is distinct from the properties that appertain to the first
plaintiff. The determination of the properties that vest in the deity is
discussed in light of the competing claims to the property later in this
judgement.
       129. In the present case, the first plaintiff has been the object of       E
worship for several hundred years and the underlying purpose of
continued worship is apparent even absent any express dedication or
trust. The existence of the idol is merely a question of form, or corpus,
and the legal personality of the first plaintiff is not dependent on the
continued existence of the idol. At the heart of the present dispute are
questions pertaining to the rightful manager of the deity and the access          F
of the devotees of Lord Ram to the idols. To ensure the legal protection
of the underlying purpose and practically adjudicate upon the dispute,
the legal personality of the first plaintiff is recognised.
       J.4 Juristic personality of the second plaintiff
                                                                                  G
       Submissions
        130. Mr K Parasaran, learned Senior Counsel appearing on behalf
of the plaintiffs in Suit 5 urged that the second plaintiff is a juristic
person. He submitted that in Hindu Law the concept of a juridical person
is not limited to idols. According to Mr Parasaran, the relevant question
                                                                                  H
192             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     is whether prayer is offered to the deity and not the form in which the
      deity appears. It was contended that “Asthan Sri Ram Janam Bhoomi”
      is an object of worship and personifies the spirit of the divine. The faith
      of the devotees regards the land as a deity and prayer is offered to it.
      Hence, it was on this basis that the plaintiffs in Suit 5 submit that this
      court must confer juristic personality on the land represented as Ram
B     Janmasthan. To support this contention, it was urged that God is
      shapeless and formless and there is no requirement that the object of
      worship be an idol. It was urged that the performance of the parikrama
      (circumambulation) around the disputed spot with the faith and belief
      that it is the birth-place of Lord Ram delineates the boundaries of the
C     property on which the status of a juristic entity must be conferred. To
      support this contention, Mr Parasaran relied on the following decisions,
      which shall be adverted to in the course of the judgment:
              Manohar Ganesh Tambekar v Lakhmiram Govindram66,
      Bhupati Nath Smrititirtha v Ram Lal Maitra67, Rampat v Durga
      Bharthi 68 , Ram Brahma v Kedar Nath 69 , Madura,
D     Tirupparankundram v Alikhan Sahib 70 , The Board of
      Commissioners for Hindu Religious Endowments, Madras v
      Pidugu Narasimhan71, TRK Ramaswami Servai v The Board of
      Commissioners for the Hindu Religious Endowments, Madras72,
      The Poohari Fakhir Sadavarthy of Bondipiputram v The
E     Commissioner, Hindu Religious and Charitable Endowments,73
      Venkataramana Murthi v Sri Rama Mandhiram 74, Sastri
      Yagnapurushad Ji v Muldas Bhudardas Vaishya75, Yogendra Nath
      Naskar v CIT, Calcutta76, Kamaraju Venkata Krishna Rao v Sub
      Collector, Ongole 77, Shiromani Gurdwara Prabandhak
      Committee, Amritsar v Som Nath Dass78; and Thayarammal v
F     Kanakammal79.
      66
         ILR 1888 12 Bom 247
      67
         ILR 1909 37 Cal 128
      68
         AIR 1920 Oudh 258
      69
         (1922) 36 CLJ 478
      70
         (1931) 61 Mad. LJ 285
      71
G        1939 1 MLJ 134
      72
         ILR 1950 Mad 799
      73
         1962 Supp 2 SCR 276
      74
         (1964) 2 ANWR 457
      75
         (1966) 3 SCR 242
      76
         (1969) 1 SCC 555
      77
         (1969) 1 SCR 624
      78
H        (2000) 4 SCC 146
      79
         (2005) 1 SCC 457
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            193


        131. Mr C S Vaidyanathan, learned Senior Counsel appearing on           A
behalf of the plaintiffs in Suit 5 adopted the submissions of Mr Parasaran
that the second plaintiff in Suit 5 is a juristic person. He urged that there
is a distinction between: (i) the land being a deity; (ii) the land being the
abode of a deity; and (iii) the land being the property of a deity. It was
urged that in the present case, the land constituting the disputed site, is
an object of worship and is itself the deity. Mr Vaidyanathan urged that        B
the determination of the second plaintiff as a juristic person renders
infructuous questions of possession, joint-possession or adverse possession
as the land itself is a legal person and no other person can possess a
legal personality. It was urged that the mere fact that a mosque existed
at the disputed site cannot evidence a claim of either title or joint
                                                                                C
possession on behalf of the Sunni Waqf Board. By an extension of the
same argument, once it is held that the disputed site is a juristic person,
no partition of the land can be affected as a deity, recognised as a legal
person is impartible and cannot be divided. Any division of the property
will amount to a destruction of the deity. It is on this basis that the
impugned judgment of the High Court directing a three-way division of           D
the property was challenged. Reliance was placed in this regard on the
decisions in Pramatha Nath Mullick v Pradyumna Kumar Mullick80,
Idol of Thakurji Shri Govind Deoji Maharaj, Jaipur v Board of
Revenue, Rajasthan 81, and Profulla Chorone Requitte v Satya
Chorone Requitte82.
        132. Mr Vaidyanathan submitted that the disputed property, being        E
a legal person, is res nullius. Since the disputed property is a juristic
person, it is not alienable. It was contended that land which is res nullius
or res extra commercium cannot be acquired by adverse possession. It
was urged that even if the image of the idol is broken, a deity is immortal
and thus, the construction of the mosque on the land did not take away
                                                                                F
from its character as a deity. Reliance was placed on the decisions in
Mahant Ram Saroop Dasji v SP Sahi, Special Officer-in-Charge of
the Hindu Religious Trusts 83, Ram Jankijee Deities v State of
Bihar84, Amrendra Pratap Singh v Tej Bahadur Prajapati 85,
Thayarammal v Kanakammal86 and Rajasthan Housing Board v
New Pink City Nirman Sahkari Samiti Limited87.                                  G
80
   (1924-25) 52 IA 245
81
   (1965) 1 SCR 96
82
   (1979) 3 SCC 409
83
   1959 Supp (2) SCR 583
84
   (1999) 5 SCC 50
85
   (2004) 10 SCC 65
86
   (2005) 1 SCC 457                                                             H
87
   (2015) 7 SCC 601
194             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            133. On the other hand, Dr Rajeev Dhavan, learned Senior
      Counsel appearing for the Sunni Central Waqf Board, the plaintiffs in
      Suit 4, urged that the ‘Asthan Ram Janma Bhumi’ (the second plaintiff
      in Suit 5) is not a juristic person. He submitted that the contention that
      the disputed land is a juristic person was raised for the first time only
      in 1989. Dr Dhavan urged that there are two separate and distinct issues
B
      that have arisen before this Court. One concerns the faith and belief
      that Lord Ram was born in Ayodhya and the evidence adduced to this
      effect. The other is the set of legal consequences that flow from the
      disputed property being elevated to the status of a juristic person. Dr
      Dhavan submitted that while the faith and belief of a sect that religious
C     significance attaches to the birth-place of Lord Ram cannot be
      questioned, the precise site which constitutes the place of birth is in
      dispute. Moreover, the property cannot be elevated to the status of a
      juristic person only on the basis of faith and belief that it is the birth-
      place of Lord Ram. To this end, it was submitted that the subjective
      belief of a certain section of devotees cannot lead to the objective
D     consequence of a proprietary claim in law. It was urged that in the Vedic
      period, the worship of physical objects of nature was practiced in ancient
      India. Underlying the worship of the object was the purpose it served.
      Dr Dhavan contended that the status of juristic personality does not
      attach to every object of religious significance, and that a positive act
E     of sanctification or recognition is required.
             134. Dr Dhavan further submitted that the conferment of legal
      personality on immoveable property is not supported by the existing law
      on the legal personality of Hindu idols and that conferring legal
      personality on land would be an innovation leading to the insulation of
F     land from any form of adjudication. Legal impregnability would be
      conferred merely on the basis of the faith and belief of devotees. It
      was urged that the conferral of juristic personality on the second plaintiff
      would create two legal regimes – one applicable to idols and the other
      to land – both with distinct rights, power, duties and interests. Dr Dhavan
      drew a distinction between the applicable regime governing the idol and
G     the regime governing land (as emerging from the submissions of the
      plaintiffs in Suit 5) in the following terms:
                  (i) The legal regime applicable to the first plaintiff as
                      a recognised Hindu idol – properties of the idol vest
                      in it in an ideal sense; any claim to title is actionable
H                     only at the behest of the shebait (unless the shebait has
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              195


                acted contrary to the interests of the idol); and the law      A
                of adverse possession and limitation would apply to
                claims involving property owned by the idol; and
           (ii) The legal regime applicable to the second plaintiff
                – juristic recognition would be premised on the subjective
                belief of the devotees that the area is a deity; the           B
                conferral of juristic personality renders infructuous any
                competing proprietary claims; and the law of limitation
                and adverse possession are inapplicable to the property
                in question.
       135. Dr Dhavan argues against accepting any consequence as              C
it emerges based on the above distinction. Dr Dhavan contended that
the conferral of juridical personality on the second plaintiff would carve
out a sphere of legal impregnability. He submitted that while recognising
the idol as a legal person is legally defensible and consistent with the
jurisprudence of this Court, conferring legal personality on land itself is
a legal innovation conferring rights that are not available to the first       D
plaintiff. It was finally urged that no distinction must be drawn between
Indic religions and other religions and no plea for constitutional
protection could be taken by the plaintiffs in Suit 5 in what is essentially
a civil matter. This would result in the faith and belief of one religion
influencing the outcome of a civil adjudication on private rights between      E
two religious communities.
      These rival submissions will now be analysed.
      Distinguishing religious significance and juristic personality
       136. Recognition of the religious significance of a place as a place    F
of public worship is conceptually distinct from recognising the place as
a juristic person. Ram Janmabhumi is undoubtedly of religious
significance to the Hindus based on the faith and belief that it is the
birth-place of Lord Ram. A determination by this Court of whether or
not the disputed site is a juridical person will not in any manner detract
from the significance of the faith and belief of the Hindu community.          G
       137. To support their contention that the second plaintiff is a
juristic person, learned Senior Counsel appearing for the plaintiffs in
Suit 5 relied on a wealth of precedent. A close reading of those decisions
indicates that the counsel have selectively relied on extracts to support
the contention that the disputed site is a juridical person. To determine      H
196               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     the extent to which they support the contentions urged by the plaintiffs
      in Suit 5, it would be necessary now to analyse the cases relied upon
      and examine the context in which they were adjudicated.
             138. In Manohar Ganesh Tambekar v Lakhmiram
      Govindram88, the plaintiff instituted a suit as a party interested in the
B     maintenance of the religious foundation of the temple dedicated to a
      deity. The plaintiff sought to make the defendants, who were the
      recipients of the offerings at the temple, accountable as trustees proper.
      The defendants claimed that they were the absolute owners and held
      all offerings as private property. A Division Bench of the Bombay High
      Court held that while private guilds may exist, under English law an
C     association consisting of a fluctuating or undefined class of individuals,
      whether or not it exists for charitable purposes, cannot be vested with
      property without incorporation. The defendants however put themselves
      forward as a body of proprietors with revenue arising from the
      accumulated offerings of articles of value laid at the feet of the idol.
D     The Court, speaking through Justice R West observed:
               “9. The evidence recorded in the case, including that of many
               donors to the idol Shri Ranchhod Raiji, shows that having
               discharged a religious duty or gained religious merit by a
               gift to the deity, the votary is but little interested in what
E              afterwards becomes of the offering …. Still he must needs
               be and is concerned in the maintenance of a decent and
               orderly worship. …He desires a regular and continuous
               or at least a periodical round of sacred ceremonies, which
               might fail if the offerings of past years were all squandered,
               while those of any given year fell short. The sevaks seem
F              to have received the offerings, both of immovables and of
               moveables, with a consciousness, though but a hazy
               consciousness, that they were bound, out of the funds thus coming
               to them, to provide for the worship of the idol and the
               convenience of the pilgrims who resort to the temple.”
G                                                          (Emphasis supplied)
            The sevaks (defendants) admitted to their responsibility to take
      care of the temple. Articles of value were to be consigned to the
      bhandari. It is in this context that the Court held:
      88
H          ILR 1888 12 Bom 247
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            197


         “11. … Mr. Macpherson admitted for the defendants in this case         A
         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.   B
         It is not consistent with this juridical person’s being conceived
         as a mere slave or property of the sevaks whose very title implies
         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   C
         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.”            D
                                                       (Emphasis supplied)
      The decision clarifies that an idol as a juridical person is the “ideal
embodiment” of a pious or benevolent idea. The status of a juristic
person was conferred on the idol as an entity which encompasses the
                                                                                E
purpose itself in which capacity the properties and offerings vest. The
observations in this case affirm the position that juridical personality was
conferred on the pious purpose and the property endowed or
accumulated did not itself become a juristic entity. It is not the property
endowed which is a juridical person – it is the idol which as an
embodiment of a pious purpose which is recognised as a juristic person,         F
in whom the property stands vested.
       139. In Rampat v Durga Bharthi89, the respondent claimed, as
Mahant of the ‘Asthan’ as well as under the deed of settlement, that
he was entitled to recover properties which appertain to the ‘Asthan’
of Parela. One Mr Ghattari constructed a monastery (‘Asthan’) at                G
Parela and consecrated its building towards the service of his ascetic
brotherhood and purchased the suit villages for the maintenance of the
institution. Justice Nazir Hasan speaking for the Oudh Judicial
Commissioner’s Court on the nature of the ‘Asthan’ held:
89
     AIR 1920 Oudh 258                                                          H
198               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A              “In my opinion, the Asthan at Parela, as founded, was completely
               in accordance with the type of monasteries of the old days. The
               several legal concepts which emerge out of the foregoing
               narrative may be stated to be as follows: (1) It is a
               congregation of Sannyasis, celibates and ascetics, who has
               entirely cut themselves off from worldly ties. (2) The
B              properties appertaining to the Asthan are held in trust for the
               purposes of the Asthan. (3) The purposes of the Asthan are
               maintenance of the devotees and propagation of charities. (4)
               The head of the Asthan is the trustee of the institution and of
               the properties attached to it….An Asthan therefore is
C              essentially an institution of Sannyasis, celibates and
               ascetics – having no wordly connection either of wealth or
               of family.”
                                                            (Emphasis supplied)
             In this view, the ‘Asthan’ was not a building but a seat of religious
D     learning. The nature of the ‘Asthan’ abundantly clarifies that is was
      not treated as corporeal property, but a charitable institution of learning
      which was considered to be the juridical person. The physical property
      that was the monastery was not treated as a juristic person. The court
      concluded that it was the charitable institution as a juristic person in
      which the suit villages vested.
E
             140. In Rambrahma Chatterjee v Kedar Nath Banerjee90,
      the respondents instituted a suit for a declaration that they were entitled
      to participate in the bhog offered to three idols which were consecrated
      by the common ancestors of the respondents and the appellant. A temple
      was constructed, and properties were dedicated to the idols. The
F     respondents, as descendants of the founders through their daughters
      claimed a practice of participating in the bhog and the courts below
      found that the descendants in the male line had consistently been
      shebaits. The question which arose for determination was whether it
      was competent for the founder to direct that the shebaitship should be
G     vested in the descendants through the son and that the descendants
      through the daughters have a right to participate in the bhog offering.
      The High Court of Calcutta, held as follows:
               “…a charitable corporation, in so far as it is charitable, is the
               creature of the founder…There is no reason why the founder,
      90
H          (1922) 36 CLJ 478
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              199


      who is competent to provide for the government and                       A
      administration of the trust, should not be able to give a direction
      for its management, which is not inconsistent with its character
      as a religious and charitable trust…The test in each case is,
      whether the direction given by the founder is inconsistent with
      the nature of the endowment as a religious and charitable trust
                                                                               B
      and is a colourable device for the evasion of the law of
      perpetuities.”
       The court noted that for over two centuries, shebaitship rights
had vested in the descendants through the sons and that the descendants
through the daughters exercised a right to participate in the bhog
offering. In this context, the court held that it would be slow to interfere   C
with the exercise of these rights over a long duration of time without
question and a reasonable presumption will be drawn in favour of such
a right. The plaintiffs in Suit 5 relied on the observation in this case
that a deity is conceived as a real living being. In this regard, the court
noted:                                                                         D
      “…There is a fundamental distinction between a gift to a sentient
      being and an offering or dedication to a deity. Subject to special
      usages to the contrary, the offerings do not become the property
      of the officiating priest, but contribute to the maintenance of the
      shrine with all its rights, ceremonies and charities… It is
                                                                               E
      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 life 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              F
      clothes, the offering of cooked and uncooked food, and the
      retirement to rest. The dedicated food, known as bhog, is, after
      completion of the worship, distributed in charity amongst members
      of the family as also among guests invited and uninvited; for in
      the oldest Brahminical writings hospitality is regarded as the
      discharge of a common debt to humanity and the guest is                  G
      honoured as a divinity. In our opinion, a direction that the
      descendants of the daughters of the founder should participate
      in such a distribution of consecrated food, is in no way
      inconsistent with the purpose of the endowment.”
                                                      (Emphasis supplied)      H
200               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            The method of worshipping an established deity as a real person
      is separate and distinct from the conferral of juristic personality in law.
      Human personality is distinct from legal personality. The court made a
      reference to the methods of worship performed for an established deity,
      which is in accordance with the faith and belief of the worshippers.
      No question of a juristic person arose in this case.
B
               Madhura Tirupparankundram
             141. The plaintiffs in Suit 5 have then placed reliance on the
      decision of the Privy Council in Madura, Tirupparankundram v
      Alikhan Sahib91. It was urged that in this case an entire hill, as a place
C     of public worship, was recognised as a juristic person on the basis of
      the circumambulation performed around it. Consequently, in the present
      case, the performance of the parikrama around the disputed site should
      (it has been urged) have the effect of the land being elevated to the
      status of a juristic person.
             142. The Privy Council in Madura Tirupparankundram was
D
      concerned with the ownership of a barren hill in the Madura District
      of Madras. There was a mosque at the highest point of the hill. The
      Tirupparankundram Temple, represented by its manager, instituted a suit
      claiming the whole hill as temple property (with the exception of certain
      cultivated and assessed lands and the site of the mosque). The
E     Mohammedan defendants asserted ownership over the mosque and a
      portion of the hill known as Nellitope. The Secretary of State claimed
      to be the owner of all unoccupied portions of the hill. The Subordinate
      judge of Madura decreed in favour of the Plaintiffs (with the exception
      of the Nellitope, the mosque itself and the flights of stairs leading to
      it). The Mohammedan defendants filed an appeal and the Secretary of
F
      State was directed to be a party to the appeal. Despite a finding that
      the Hindus and Mohammedans had rights over the hill, and without
      specifying what these rights were, the High Court held that the
      Government was the owner of the hill. Around the base of the hill,
      worshippers performed the Pradakshinan by a circumambulation of
G     the hill. This path was also used for processions with the temple car
      and was known as Ghiri Veedhi. While the judgment of the High Court
      noted evidence on record that the hill as a whole was worshipped by
      the Hindu community as a Linga, the question at the heart of the dispute
      concerned the question of ownership over the unoccupied portions of
      91
H          (1931) 61 Mad LJ 285
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             201


the hill within the Ghiri Veedhi. Under Lord Clive’s treaty with Azim-        A
ul-Dowlah in 1801, Madura came under the control of the East India
Company. The High Court took the view that, post 1801 the entire hill,
being part of the village, became Government property.
       143. The Privy Council held that acts of ownership had been
exercised consistently by the temple for the greater part of a century        B
over all unoccupied portions of the land. Expenses were also incurred
for the upkeep of smaller shrines situated within the Ghiri Veedhi. The
temple was held to have been in possession of the unoccupied portion
of the hill from time immemorial which had been treated by the temple
as temple property. The Privy Council held that, save and except the
mosque, there was “no evidence of expropriation from the remainder”           C
of the hill. Sir George Lowndes held:
      “The only rights which the temple can assert against the
      respondent are rights which the East India Company granted to
      them or allowed them to retain…and their Lordships think the
      evidence shows that the temple was left after 1801 in undisturbed       D
      possession of all that it now claims…Their Lordships do not
      doubt that there is a general presumption that waste lands are
      the property of the Crown, but they think that it is not applicable
      to the facts of the present case where the alleged waste is,
      at all events physically, within a temple enclosure…On the              E
      whole their Lordships are of opinion that the appellant has shown
      that the unoccupied portion of the hill has been in the possession
      of the temple from time immemorial and has been treated by the
      temple authorities as their property.”
                                                     (Emphasis supplied)      F
        A close reading of the judgment makes it evident that the Privy
Council was only concerned with (i) the unoccupied portions of the land
and the protection of other proprietary rights in the hill; and (ii) the
ownership of the property by the temple. The Privy Council was not
concerned with the elevation of the hill itself to the status of a juristic   G
person. There is a distinction between the ownership of the property
by the temple, and the conferral of legal personality on land. Where
land is owned by a person, it cannot be a juristic person, for no person
can own a deity as a juristic person. This case does not further the
argument advanced by the plaintiffs in Suit 5 that the disputed property
is itself a juristic person.                                                  H
202               SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A              Temples governed by statutes
             144. In The Board of Commissioners for Hindu Religious
      Endowments, Madras v Pidugu Narasimhan92, the Board framed
      a scheme on the ground that the institution in question was a temple
      within the meaning of the Madras Hindu Religious Endowments Act
B     1863. The respondent instituted a suit challenging the declaration of the
      institution as a temple under the Act. A Division Bench of the Madras
      High Court observed that the institution had been in existence for several
      centuries and had over time become a place of worship. The court
      observed that the worship must be of sufficient significance to attract
      public endowments. On an assessment of the events carried on within
C
      the institution, the court concluded that there was, within the institution,
      public religious worship. The High Court held that the Board was thus
      authorized to frame a scheme under the Act. Justice Varadachariar
      observed:
               “The test is not whether it conforms to any particular school of
D
               Agama Sastra; 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 superhuman power, it must be regarded as
E              “religious worship.”
             145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit
      5 argued, on the basis of this extract, that by performing the parikrama
      around the disputed site with the faith and belief that the disputed site
      is the birth-place of Lord Ram, the devotees believe that the receive
F     the spiritual benefits of religious worship. This, it was urged, is adequate
      for this Court to hold that the land constituting the second plaintiff is a
      juristic person. The observations of the Madras High Court in Pidugu
      Narasimhan were in the context of assessing whether the performance
      of the ceremonies amounted to “public religious worship” in order to
G     determine whether the institution in question was a temple under the
      Act. No question arose of the temple being a juristic person. At best,
      this case supports the proposition put forth by the plaintiffs in Suit 5
      that the nature of worship performed at the disputed site is of a religious
      nature.
      92
H          1939 1 MLJ 134
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           203


       146. Mr Parasaran placed reliance on a decision of the Madras           A
High Court in TRK Ramaswami Servai v The Board of
Commissioners for the Hindu Religious Endowments, Madras 93
to contend that the presence of an idol is a dispensable requirement
with respect to religious worship and that the faith and belief of the
worshippers along with the performance of the parikrama around the
disputed land is sufficient for a court to confer on the disputed site legal   B
personality. In TRK Ramaswami Servai, a deed of gift was executed
declaring that certain land had been endowed to a temple Devasthanam
and that a temple was under construction. Besides the donor, two
trustees were appointed. In 1937, the Hindu Religious Endowments
Board demanded a contribution from the trustees on the assumption              C
that the construction of the temple was complete. This was resisted
by the appellants on the ground that the temple was not constructed
and that no idol had been installed. The temple was nonetheless declared
a temple within the ambit of the Madras Hindu Religious Endowments
Act, 1926. Subsequently, a scheme of management was sought to be
framed for the temple.                                                         D
       147. Among the various issues addressed by the court, one
concerned the existence of a valid temple for the purposes of the Act.
The two judges on the Division Bench differed and the case was then
referred to a third Judge. Agreeing that there existed a temple for the
purposes of the Act, Justice Viswanatha Sastri held:                           E
         “…The Hindu law recognizes the validity of dedications for the
         establishment of a deity and the maintenance of its worship. It
         is immaterial that the image of the deity has not been established
         before a gift or bequest is made for it…The test is not whether
         the installation of an idol and the mode of its worship conform       F
         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 county or
         blessings of God then, you have got the essential features
         of a temple as defined in section 9, clause 12, of the Act.           G
         The presence of an idol, though an invariable feature of
         Hindu temples, is not a legal requisite under the definition
         of a temple in section 9, clause 12, of the Act.”
                                                      (Emphasis supplied)
93
     ILR 1950 Mad 799                                                          H
204              SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            The observations of the court were made in the context of
      assessing whether the presence of an idol was required for the institution
      to be defined as a temple under Section 9 of the Madras Hindu Religious
      Endowments Act, 1926. It was in this context that the court held that
      the belief of the devotees that they will be the recipients of God’s
      blessings was sufficient for the institution to be held a temple under
B
      the Act. At best, these observations of the court establish that the belief
      of devotees that there is a divine presence is constitutive of a place of
      public worship. This however, is distinct from the conferral of juristic
      personality. An adjudication that an institution is a temple for the purposes
      of a statutory enactment is distinct from the issue as to whether the
C     institution possesses juristic personality. The observations in this case
      were made in the specific context of a statutory definition and cannot
      be applied to a place a religious worship for which no statutory
      enactment exists.
             148. A similar question was adjudicated upon by the High Court
D     of Andhra Pradesh in Venkataramana Murthi v Sri Rama
      Mandhiram94, upon which reliance was placed. In this case, the court
      was required to assess whether an idol was a pre-requisite for a place
      of worship to be a temple within the purview of the Hindu Religious
      and Charitable Endowments Act 1951. The court affirmed that the
      existence of public religious worship and a dedication is adequate for
E     the institution to be declared as a temple under the Act, even absent
      an idol. This case does not support the case of the plaintiffs in Suit 5.
              149. In the decision of this Court in Kamaraju Venkata Krishna
      Rao v Sub Collector, Ongole95, upon which significant reliance has
      been placed, the question before a three judge Bench was whether a
F     tank can be considered a charitable institution within the meaning of
      the Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956.
      Who granted the Inam in question was not known. The appellant sought
      a declaration that the property comprised in the Inam be registered in
      his name. This contention was rejected by the authorities under the Act
G     on the ground that under the records, the Inam was granted to the tank
      itself and the ancestor of the appellant was merely the manager of the
      charitable institution, the tank. It was contended by the appellant that
      even if the Inam was granted for a charitable purpose, the object of
      94
           (1964) 2 ANWR 457
      95
H          (1969) 1 SCR 624
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         205


the charity was a tank which could not be considered a charitable            A
institution. The three judge Bench of this Court, speaking through Justice
KS Hegde held:
         “9. From the above discussion, it is seen that under Hindu Law
         a tank can be an object of charity and when a dedication is made
         in favour of a tank, the same is considered as a charitable         B
         institution. It is not necessary for our present purpose to
         decide whether that institution can also be considered as
         a juristic person. Once we come to the conclusion that the inam
         with which we are concerned in this case was an Inam in favour
         of the “uracheruvu” (tank) that tank must be considered as a
         charitable institution under the Act.”                              C

                                                    (Emphasis supplied)
      This Court was only required to assess whether a tank can be
considered a “charitable institution” within the meaning of the Andhra
Inams (Abolition and Conversion into Ryotwari Act) 1956. Hence, it
                                                                             D
was categorically clarified that there was no need to advert to whether
or not a tank is a juristic person. This case does not further the
arguments urged by the plaintiffs in Suit 5.
         Shiromani Gurdwara Prabandhak Committee
       150. At this stage, it is necessary to advert to the decision of      E
this Court in Shiromani Gurdwara Prabandhak Committee,
Amritsar v Som Nath Dass96. In this case, a two judge Bench held
the Guru Granth Sahib to be a juristic person. Mr Parasaran, learned
Senior Counsel appearing on behalf of the plaintiffs in Suit 5 placed
considerable reliance on this decision to contend that this Court has held
physical property simpliciter to be a juristic person. Hence, he submitted   F
that there is a legal basis in the jurisprudence of this Court to confer
legal personality upon the disputed property. To analyse this contention,
it is necessary to consider the case in some detail.
       151. In Shiromani Gurdwara, 56 persons moved a petition under
Section 7(1) of the Sikh Gurdwaras Act 1925 for a declaration that           G
certain disputed property was a Sikh Gurdwara. Upon the issuance of
a notification to this effect, objections were raised that the disputed
property was a dharamshala and dera. The Tribunal under the Act

96
     (2000) 4 SCC 146                                                        H
206                 SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     dismissed this objection on the ground that the petitioners therein lacked
      locus. In the meantime, the Shiromani Gurdwara Parbandhak
      Committee97 claimed that the disputed property was a Sikh Gurdwara
      and that the “Guru Granth Sahib” was the “only object of worship and
      it was the sole owner of the gurdwara property.” The Sikh Gurdwara
      Tribunal decreed in favour of the SGPC and held that the disputed
B
      property “belonged to SGPC”.
              152. On the basis of a farman-e-shahi issued in 1921, the
      Revenue Officer had ordered mutation in the name of the “Guru Granth
      Sahib Barajman Dharamshala Deh”. Thus, the ownership column of
      the land continued in this name till objections were filed to the declaration
C     of the land as a Sikh Gurdwara. In the appeals before the High Court
      from the findings of the Tribunal, a contention was raised that the entry
      in the revenue records in the name of the Guru Granth Sahib was void
      as it is not a juristic person. The High Court held that the Guru Granth
      Sahib is not a juristic person and consequently, the mutation in the name
D     of the Guru Granth Sahib was liable to be set aside. It was in this
      context that this Court was called to adjudicate whether the Guru
      Granth Sahib is a juristic person, capable of owning the disputed
      property in its own name.
            153. Tracing the evolution of the concept of juristic person, Justice
E     AP Misra noted that recognition in law of a juristic person is to sub-
      serve the needs of the law and society. The Court held:
              “19…When the donor endows for an idol or for a mosque or
              for any institution, it necessitates the creation of a juristic person.
              21…There may be an endowment for a pious or religious purpose.
F             It may be for an idol, mosque, church, etc. Such endowed
              property has to be used for that purpose. The installation and
              adoration of an idol or any image by a Hindu denoting any god
              is merely a mode through which his faith and belief is satisfied.
              This has led to the recognition of an idol as a juristic person.

G             27. The aforesaid conspectus visualizes how “juristic persons”
              was coined to subserve to the needs of the society…Different
              religions of the world have different nuclei and different
              institutionalized places for adoration, with varying
              conceptual beliefs and faith but all with the same end.”
      97
           “SGPC”                                             (Emphasis supplied)
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           207


  Justice Misra further noted:                                            A
  “29…it is not necessary for “Guru Granth Sahib” to be declared
  as a juristic person that it 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,    B
  it can be declared to be so.”
  “31. Now returning to the question, whether Guru Granth Sahib
  could be a ‘juristic person’ or not, or whether it could be placed
  on the same pedestal, we may fist have a glance as the Sikh
  religion…In the Sikh religion, the Guru is revered as the highest       C
  reverential person…
  33. The last living Guru, Guru Gobind Singh, expressed in no
  uncertain terms that henceforth there would not be any living
  Guru. The Guru Granth Sahib would be the vibrating Guru. He
  declared that “henceforth it would be your Guru from which you          D
  will get all your guidance and answer”. It is with this faith that
  it is worshipped like a living Guru. It is with this faith and
  conviction, when it is installed in any gurdwara it becomes
  a sacred place of worship. Sacredness of the gurdwara is only
  because of placement of Guru Granth Sahib in it. This reverential
  recognition of Guru Granth Sahib also opens the hearts of its           E
  followers to pour their money and wealth for it. It is not that it
  needs it, but when it is installed, it grows for its followers, who
  through their obeisance to it, sanctify themselves and also for
  running the langer which is an inherent part of the gurdwara.
  34. … It cannot be equated with an “idol” as idol worship               F
  is contrary to Sikhism. As a concept or a visionary for
  obeisance, the two religions are different. Yes, for its legal
  recognition as a juristic person, the followers of both the religions
  give them respectively the same reverential value….
  42…for all the reason, we do not find any strength in the               G
  reasoning of the High Court in recording a finding that the “Guru
  Granth Sahib” is not a “juristic person”. The said finding is not
  sustainable both on fact and law.”

                                                                          H
208            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            The view of the learned judge was that the creation of a juristic
      person was to ensure the legal protection of the religious beliefs of the
      faith:
            “28. Faith and belief cannot be judged through any judicial
            scrutiny. It is a fact accomplished and accepted by its followers.
B           This faith necessitated the creation of a unit to be
            recognised as a “juristic person”. All this shows that a
            “juristic person” is not roped in any defined circle. With the
            changing thought, changing needs of the society, fresh juristic
            personalities were created from time to time.”
C                                                          (Emphasis supplied)
             154. What emerges from a nuanced reading of the case is this:
      First, the case did not relate to the conferment of juristic personality
      on immoveable property. The relevance of this will be considered in
      the course of this judgement; Second, as a matter of religion, the tenets
D     of Sikhism are opposed to idol worship. Where juridical personality was
      conferred on the idol in Hindu Law as the physical site of jural relations,
      the same physical corpus was absent in Sikhism. This Court was thus
      required to locate a corpus upon which juridical personality may be
      recognised for it was only consequent to this determination that the court
      could decide whether the disputed property vested in the Guru Granth
E     Sahib as a juridical person. As stated above, necessity is often the basis
      of conferring juridical personality. In this case, as it is in the case of
      the idol in Hindu law, it was legally expedient to recognise the legal
      personality of the Guru Granth Sahib as the corpus upon which juridical
      personality would be conferred in order to determine whether the
F     property could vest in the Guru Granth Sahib.
             155. The judgment in Shiromani Gurdwara affirms that there
      is an underlying purpose which is at the heart of conferring legal
      personality on objects. Different religions are assessed in accordance
      with their own faith and belief. The absence of idol worship in Sikhism
      necessitated the conferral of juristic personality on the Guru Granth
G
      Sahib which is, according to the tenets of Sikhism, the Guru.
      Accordingly, it was then held that the disputed property vested in the
      Guru Granth Sahib.
            Thayarammal

H
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             209


       156. Lastly, in Thayarammal v Kanakammal98, by way of                     A
writings on a stone inscription, the suit properties were dedicated for
use by the public as a Dharmachatram (choultry) where travellers and
pilgrims could take shelter and be provided with refreshments. The
property was “dedicated to the general public as a resting place.” No
trustee was mentioned and the witness to the dedication was Lord
                                                                                 B
Thyagaraja himself. The plaintiff claimed to be in occupation of a part
of the dedicated property (Schedule A) and alleged that a portion of
the Schedule B property was encroached upon by the defendants who
were liable to be evicted. The defendants contested the suit on the
ground that they had acquired title to the portion of the property by
way of a purchase made in a court sale conducted in the course of                C
executing a compromise decree. The High Court concluded that the
compromise decree was collusive and that the plaintiff also had no right
as an assumed trustee. Accordingly, the Administrator General under
the Official Trustees Act 1913 was directed to take over the
management of the Trust. The principle question before this Court was
                                                                                 D
whether a trust or charitable endowment had been created.
       157. The Court analysed the stone inscription and held that the
suit property was dedicated for charitable purposes, and it could not
be claimed by the plaintiff as a trustee or the defendant as an owner.
However, in the course of the judgment, Justice DM Dharmadhikari
speaking for the Court held:                                                     E

         “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)        F
         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 person itself as a juristic
         person….The idea is the same, namely, when property is                  G
         dedicated for a particular purpose, the property itself upon which
         the purpose is impressed, is raised to the category of a juristic
         person so that the property which is dedicated would vest in the
         person so created.”
98
     (2005) 1 SCC 457                                                            H
210             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A            A close reading of the decision shows that the principle
      contention urged in the case was that the property described as a
      Dharmachatram is covered under Section 6(5) of the Tamil Nadu
      Hindu Religious and Charitable Endowments Act 1959 as a “charitable
      endowment”. This Court held that the dedication of property for a
      Dharmachatram, is in the strict legal sense, neither a gift nor a trust.
B
      This Court held that the property which was dedicated for a charitable
      purpose could not be claimed by the plaintiff as a trustee or the
      defendant as owner. With this finding, the Court was of the view that
      it was the Tamil Nadu Hindu and Charitable Endowments Act 1959
      which governs the matter and accordingly the suit property shall be taken
C     in control for administration, management and maintenance by the State
      Government and the Commissioner under the 1959 Act.
             158. In assessing the position of the religious charitable institution,
      this Court made certain observations in para 16 upon which reliance
      has been placed. The Court proceeded on the premise that the suit
D     property had been dedicated for a specific purpose and could not be
      owned by the defendant. This was to ensure the protection of the
      purpose with which the suit property was dedicated. Significantly, the
      deed of dedication did not identify a manager for the endowed property
      and the court sought to protect the property by conferring legal
      personality on the intention behind the endowment. Though the Court
E     assessed the position of law on the basis of the theoretical framework
      analysed above, the observations extracted above seem to suggest that
      property itself was elevated to the status of a juristic person. On an
      overall reading of the case as well as the theoretical exposition which
      has been adverted to, the observations made have to be read in the
F     light of protecting the purpose behind the endowment and not to suggest
      that the property itself was conferred legal personality.
             Dedication of properties
             159. The cases referred to Mr C S Vaidyanathan pertained to
      the consequence of conferring legal personality by this Court on the
G     disputed land. Far from assisting the contention urged on behalf of the
      plaintiffs in Suit 5, that the second plaintiff is a juristic person, the cases
      adverted to above affirm that the practice of conferring legal personality
      on Hindu idols was evolved by courts to ensure that the law adequately
      protected the properties endowed to religious purposes. As a large
H     number of endowments were made to specific idols, courts located the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                211


idol as a nucleus in which the rights, powers, privileges and immunities         A
of the endowment would vest. Legal personality was conferred to serve
the very specific public interest of protecting properties so endowed
and creating a centre of jural relations. Necessity mandated the creation
and recognition of an entity in law, allowing courts to regulate the legal
relations between natural persons and the idol and consequently the
                                                                                 B
properties vested in the idol. These cases will be adverted to in the
event the court determines that the second plaintiff is a juristic person.
       Faith and belief
        160. The decisions and their observations which have been
adverted to are premised on the existence of a positive act of dedication        C
or donation. It is pertinent to note that plaintiffs’ claim for the conferment
of juristic personality on the land that is the disputed site is not based
on an express dedication. It was urged that the spot under the central
dome where the idols are placed is the birth-place of Lord Ram. The
faith and belief of the worshippers is of paramount importance. Hindus
perform the parikrama around the disputed site with the faith and belief         D
that it marks the birth-place of Lord Ram. It has thus been argued that
‘Asthan Shri Ram Janam Bhumi’, as a place of religious worship must
consequently be elevated to the status of a juristic person by virtue of
the faith and belief of the worshippers. It was contended that the
presence of an idol is dispensable in Hinduism, this contemplates a              E
situation such as in the case before us, where the land is itself
worshipped as a deity. Devotees pray to the land as the birth-place of
Lord Ram, and consequently, the second plaintiff should, it is urged, be
recognised as a juristic person.
       161. The argument which has been urged on behalf of the plaintiff         F
in Suit 5 is materially different from the case for conferment legal
personality on a Hindu endowment. In the case of an endowment, courts
have recognised the charitable or religious purpose situated in the
institution as a basis for conferring juristic personality on the institution.
In doing so, the court recognises the pious purpose of the founder or
testator to protect the properties so endowed. However, it is not the            G
case of the plaintiffs in Suit 5 that the property styled as the second
plaintiff is debutter property. Rather, by invoking the argument of a
“juristic person”, the plaintiffs have urged this Court to create an
additional ground for the conferral of legal personality – the faith and
belief of the devotees. Amongst the ensemble of arguments advanced               H
212             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     before this Court, this innovative legal claim is at the heart of the present
      dispute.
            162. The first difficulty that arises in accepting the contention
      urged by the plaintiffs in Suit 5 stems from the very practical question
      of how such immovable property is to be delineated. Unlike the case
B     of endowed properties that are delineated in the instrument or deed of
      endowment itself, where legal personality is sought to be conferred on
      the basis of faith and belief of the devotees, the devotees themselves
      may not agree on the exact contours of this property. The question of
      delineation weighed on the mind of Justice Sudhir Agarwal who stated:
C            “1887. What would be the meaning of word “place” and
             what should 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 that that. We know that
             Hindus worship rivers and lakes like Ganga, Yamuna,
D            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
E            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 temple of Ganga,
             Narmada, Yamuna, etc. have been constructed and they are
             religious endowments in their own rights, enjoy all such legal rights
F            and obligations, etc as are available to such endowments.
             Similarly certain hills or mountain or hilly terrains as such are
             treated to be places of worship like, Kailash, Gobardhan,
             Kamathgiri etc.”
                                                             (Emphasis supplied)
G
             Parikrama
            163. Despite these difficulties, the learned judge concluded that
      ‘Asthan Sri Ram Janam Bhumi’ was a juristic person. It was urged
      before us that it is not the entirety of Ayodhya that is the juristic person,
      but only the disputed property. When a question was raised by the Bench
H
     M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         213


as to the physical boundaries of the alleged juristic person, it was urged   A
that the performance of the parikrama (circumambulation) around the
disputed property delineated the property which was worshipped as the
Janmasthan and it is this property, being divine, upon which the status
of a juristic person must be conferred. In this view, the parikrama
served to mark the boundaries of the juristic person. On the other hand,
                                                                             B
Dr Dhavan urged that the parikrama is merely a form of worship and
not a method of delineating the boundaries of a property.
       164. The parikrama may be performed around a small idol,
shrine, temple or land in which the temple is situated. However, its
principle purpose is to offer worship to the divine and it is performed
with the belief that the parikrama would result in the performer being       C
the recipient of some spiritual benefit. The parikrama is not performed
in order to mark the exact boundaries of the property to which juristic
personality is conferred. The performance of the parikrama, which is
a form of worship conducted as a matter of faith and belief cannot be
claimed as the basis of an entitlement in law to a proprietary claim over    D
property.
         Ram Jankijee Deities
       165. The counsel for the plaintiffs in Suit 5 relied on the
observations by this Court in Ram Jankijee Deities v State of Bihar99
to contend that the manner of consecrating a deity is subjective and         E
based on the determination of the devotees. It was submitted that any
method of consecration chosen by the devotees is adequate for the
conferral of legal personality on the deity. In that case, the question
before the court concerned whether the consecration of a deity with a
visible image by the performance of appropriate ceremonies led to the        F
establishment of a valid deity upon which juridical personality could be
conferred “for the purpose of the Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act 1961”. Two deeds
of dedication were executed – one to the deity, Ram Jankijee and the
other to the deity, Thakur Raja. Both deities, recognised as distinct
entities, were given separate properties and put in possession through       G
the shebaits. Both deities were located in separate temples within the
dedicated property.


99
     (1999) 5 SCC 50                                                         H
214            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A             166. The Deputy Collector, for the purposes of the fixation of
      ceiling area, allowed two land units to the deities on the ground that
      there are separate deities to which the land was gifted. The Collector
      disagreed and allowed a single unit on the ground that the entire property
      held by both deities was to be managed by a committee formed under
      the Religious Trust Board and there was no evidence on the property
B
      donated to the deities being treated differently. This Court sought to
      answer whether the two deities were separate and distinct legal entities.
      It is pertinent to note that the Single Judge of the High Court held that
      the image of the deity styled as Thakur Raja (or Raja Rani) was not
      known to Hindu scriptures and hence, there is no second deity to which
C     a separate dedication could be made. It is in this context that this Court
      observed, speaking through Justice Umesh Banerjee:
            “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
D           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
E           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 man-made image
            requires consecration. This man-made image may be painted on
F           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 Vishnu.”
            The Court then surveyed precedent to hold that while an idol is
G     usually consecrated in a temple, it does not appear to be an essential
      condition. The Court held:
            “16…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 the Hindu
H           Shastras — in any event, Hindus have in the Shastras “Agni”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            215


      Devta, “Vayu” Devta — these deities are shapeless and formless         A
      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 consecrates the image.”
                                                                             B
       167. All the cases relied on by the Court pertain to the requisites
of a temple under various statutes or what constitutes a place of
religious worship. The observations of the Court form the basis of
locating the centre of worship, which according to it does not need to
have a fixed image and is based on the faith and belief of the
worshippers. The observations of the Court were in the context of            C
determining whether a valid deity existed to whom a dedication could
be made. The question whether the second deity was a distinct legal
person arose due to the need to determine the validity of the deed of
dedication in favour of the second deity constituting a separate unit for
the purposes of the Bihar Land Reforms (Fixation of Ceiling Area and         D
Acquisition of Surplus Land) Act 1961. It is only consequent to the
establishment of a valid deity that the dedicated property would vest in
the established deity in the ideal sense.
       168. It cannot be said that the observations of the court in
respect of the consecration or establishment of a valid deity apply with     E
equal force to the conferral of juristic personality on property on the
basis of the faith and belief of the devotees. The rationale underlying
the approach adopted by this Court is clarified in the following
observations:
      “17. One cardinal principle underlying idol worship ought              F
      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          G
      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”.                                                     H
216               SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A              (B.K. Mukherjea — Hindu Law of Religious and Charitable
               Trusts, 5th Edn.)”                   (Emphasis supplied)
             The observations in Ram Jankijee Deities were made in the
      specific context of consecrating an image based on the faith and belief
      of devotees for the establishment of a deity to which valid dedications
B     may be made. The observations in this case establish that the existence
      of a valid deity was not to be tested against Hindu Shastras but on the
      basis of the faith and belief of the devotees. Once the faith and belief
      of the devotees had been established, it was an express deed of
      dedication that resulted in the conferral of juridical personality on the
      idol. The observations in this case cannot be equated to the elevation
C     of property itself as a juristic person.
               169. The court in that case was concerned with whether a
      specific image of a deity must be tested against Hindu scriptures and
      it is in this context that the court held that divinity is “formless, shapeless
      but it is the human concept of a particular divine existence which gives
D     it the shape, the size and the colour.” There is no express deed of
      dedication in the present case. The case of Ram Jankijee Deities is
      not an authority for the proposition that the mere faith and belief of the
      devotees is sufficient for the conferral of juristic personality. While it
      was adequate for the existence of a place of religious worship, it was
E     on the basis of a deed of dedication that juristic personality was
      conferred.
               The sacred hill
             170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh100,
      the dispute concerned two sects of the Jain community with regard to
F     the rights of worship of a hill of 25 square miles to which religious
      significance was attached. According to the Digambaras, the sacred
      nature of the hill demanded that the moment they set foot on the hill,
      they must abstain from any offence against nature, even spitting.
      Though this is observed by the Swetambaris as well, the Digambaras
G     adopted a position that any course of action which is inconsistent with
      their worship, such as the regular and continuous employment of human
      beings on the hill involves a desecration of the hill.
            171. In 1918, the Swetambaris acquired, by purchase, the
      proprietary rights to the hill from the Raja of Palgunj. Thereafter, sentries
H     100
            (1933) 38 LW 306 (PC)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               217


and night watchmen were posted on the hill which was accompanied                A
by the construction of dwelling units for them and for other pujaris. The
Digambaris contended that the proposed construction of a gate at the
foot of the hill was intended to obstruct their access to the hill. A suit
was instituted contending that the hill was an object of worship for both
sects and on account of its special status, no construction would take
                                                                                B
place on it. The trial judge held that the plaintiff Digambaris were entitled
to ensure that the hill, as endowed property of the deities, is kept in an
immaculate condition in accordance with their faith. The High Court
reversed this judgment and held that the hill was not debutter property
but the property of the Raja of Palgunj, whose title was transferred.
Further, the proposed construction of the gate was held not to obstruct         C
the right of worship of the Digambaris.
       172. In appeal, the Privy Council examined the evidence on
record to conclude that legal title had vested validly in the Raja. The
result of previous litigation between the Raja and the Swetambaris had
concluded title in favour of the Raja. A suit by the Digambaris in 1903         D
also admitted the title of the Raja subject to their right to worship. The
Privy Council then examined the range of activities that were carried
out on the hill without a disruption of the right to worship, and held that
it was not proved that any of the acts complained of, barring the placing
of the Charans in the three shrines, in the plaint abridged the right to
worship.                                                                        E

       173. The trial judge concluded that the hill was debutter property
of the deities entirely on the belief of its sanctity. Taking exception to
these observations, the Privy Council held:
       “The Subordinate Judge has based his finding that the whole hill         F
       is the debutter property of the jain deities on the belief in its
       sanctity now entertained by both sects. As observed by Ross,
       J., that evidence undoubtedly establishes beyond a doubt
       that in the belief of the Jain community a spiritual quality
       in some way attaches to the hill, but this is a matter of faith
       and cannot in itself determine the physical ownership of                 G
       the hill.”                                 (Emphasis supplied)
       The Privy Council explicitly rejected the contention urged by the
Digambaris of a proprietary claim which was based on the faith and
belief of the sect.
                                                                                H
218             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A             The consequence of absolute title
              174. In the present case, the recognition of ‘Asthan Sri Ram
      Janam Bhumi’ as a juristic person would result in the extinguishment
      of all competing proprietary claims to the land in question. This conferral
      of ‘absolute title’ (resulting from the conferral of legal personality on
B     land) would in truth render the very concept of title meaningless.
      Moreover, the extinguishing of competing claims would arise not by
      virtue of settled legal principles, but purely on the basis of the faith and
      belief of the devotees. This cannot be countenanced in law. The conferral
      of legal personality by courts is an innovation arising out of necessity
      and convenience. The conferral of legal personality on Hindu idols arose
C     due to the fundamental question of who the property was dedicated to
      and in whom the dedicated land vested. The two clear interests that
      the law necessitated protection of were the interests of the devotees
      and the protection of the properties from mismanagement. In the present
      case, there exists no act of dedication and therefore the question of
D     whom the property was dedicated to does not arise and consequently
      the need to recognise the pious purpose behind the dedication itself as
      a legal person also does not arise.
              The Swayambhu argument
              175. It is pertinent to note that in reply, Mr Parasaran advanced
E     a slightly different argument. The initial argument advanced on behalf
      of the plaintiffs in Suit 5 was that the performance of worship at the
      disputed site with the faith and belief that the place is the birth-place
      of Lord Ram is sufficient for this Court to confer on the disputed site
      juristic personality. The argument advanced in reply was that the land
      is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran
F     contended that an idol is not necessary in Hinduism for the performance
      of worship. It was contended that the idol is sacred as a symbol of the
      divinity, however all worship is done to the one indivisible Supreme
      Being. The multitude of idols and deities merely constitute different
      facets of the Supreme Being. Hence, the law must recognize whatever
      form in which God manifests. It was contended that the second plaintiff
G
      was a deity that ‘manifested itself in the land’ and therefore the juristic
      personality of Ram Janmabhumi vested in the immovable property of
      the disputed site. In Mr Parasaran’s submission, worship at the disputed
      site was not offered only to Lord Ram but the very land on which Lord
      Ram is said to have been born. Reliance in this regard was placed on
H     the existence of several temples where worship was performed despite
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        219


the absence an idol – most notably at the Chidambaram temple in Tamil        A
Nadu.
       176. To establish the legal personality of the second plaintiff, Mr
Parasaran urged that as the Ram Janmabhumi is a ‘Swayambhu’ deity,
no dedication or consecration is required for the court to recognise its
juristic personality. It was contended that the deity, by its very nature    B
necessitated the performance of a parikrama around it, which also
delineated the boundaries of the property upon which juristic personality
must be conferred. Mr Parasaran contended that the conferral of juristic
personality sub-served the need to protect the land itself from being
encroached on or alienated. The land is believed to be the birth-place
and is treated reverentially by Hindus who have sought to offer worship      C
there. As a consequence, legal personality must be conferred on the
land for its protection.
       To support these submissions, Mr Parasaran relied on the
following authorities: Sri Adi Visheshwara of Kashi Vishwanath
Temple v State of UP101, Ram Jankijee Deities v State of Bihar102,           D
Yogendra Nath Naskar v CIT, Calcutta 103, Bhupati Nath 104,
Manohar Ganesh Tambekar v Lakhmiram Govindram 105 ,
Guruvayur Devaswom Managing Committee v C K Rajan106, Sri
Sabhanayagar Temple, Chidambaram v State of Tamil Nadu107,
Pinchai v Commissioner, Hindu Religious and Charitable
                                                                             E
Endowments Board108, Saraswathi Ammal v Rajagopal Ammal109;
Kamaraju Venkata Krishna Rao v Sub Collector110, Thayarammal
v Kanakammal111, Shiromani Gurdwara Prabandhak Committee,
Amritsar v Som Nath Dass 112 and Sapneshwar Pujapanda v
Ratnakar Mahapatra113.
                                                                             F
101
    (1997) 4 SCC 606
102
    (1999) 5 SCC 50
103
    (1969) 1 SCC 555
104
    ILR (1909) 37 Cal 128
105
    ILR 1888 12 Bom 247
106
    (2003) 7 SCC 546
107
    (2009) 4 CTC 801
                                                                             G
108
    AIR 1971 Mad 405
109
    1954 SCR 277
110
    (1969) 1 SCR 624
111
    (2005) 1 SCC 457
112
    (2000) 4 SCC 146
113
    AIR 1916 Pat 146                                                         H
220               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            177. Dr Dhavan briefly interjected to contend that though
      Hinduism may recognise a Swayambhu deity, all such instances are
      characterised by the existence of a physical manifestation. Except the
      faith and belief of the devotees, no physical manifestation has been
      forthcoming to separate the disputed site from any other land simpliciter.
B            178. In Mr Parasaran’s view, even absent any distinguishing
      feature on the disputed site to evidence the manifestation of divinity,
      the faith and belief of the devotees is sufficient to recognise that the
      disputed site is a Swayambhu deity. At the heart of the revised argument
      raised by Mr Parasaran is that the faith and belief of the devotees alone
      is sufficient for this Court to recognise the disputed site as a
C     Swayambhu deity and consequently confer upon it legal personality.
      To this extent, the contention urged by Mr Parasaran in his reply
      converges with the earlier argument on faith and belief as the sole basis
      on which juristic personality must be conferred. In both submissions
      advanced by the plaintiffs in Suit 5, the faith and belief of the devotees
D     is claimed to be the sole basis for the conferral of juristic personality.
      The contentions on faith and belief have already been analysed above.
      However, the argument urged that the disputed land is a Swayambhu
      deity raises additional issues outside the realm of the Hindu Law of
      endowments. It is to these issues that it is necessary now to turn.
E            179. Given the range of arguments advanced by the plaintiffs in
      Suit 5, it is necessary to first advert to the cases relied on in reply. The
      observations relied on have been selectively extracted and once the
      context in which the observations were made are fully understood, they
      do not advance the argument set out by Mr Parasaran.

F             180. Reliance was placed on Guruvayoor Devaswom
      Managing Committee v C K Rajan114 to contend that a temple itself
      is a juristic entity. The dispute concerned the mismanagement of temple
      affairs by the Devaswom Committee. A three judge Bench of this Court
      held that devotees could approach a High Court or the Supreme Court
      by way of public interest litigation where their fundamental rights under
G     Article 25 and 26 of the Constitution were violated by action or inaction
      on behalf of the state authorities. The only reference to a temple being
      a juristic person is recorded at paragraph 40 of the judgement. Justice
      S B Sinha noted:

      114
H           (2003) 7 SCC 546
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           221


         “40. … A proceeding initiated as a public interest litigation would    A
         lie before the High Court or this Court, according to Mr Subba
         Rao, where it was found that despite existence of statutory
         provisions the State or the other statutory functionaries were not
         taking recourse to the provisions thereof for remedying the
         grievances of the devotees. In any event, as a Hindu temple
                                                                                B
         is a juristic person the very fact that Section 92 of the
         Code of Civil Procedure seeks to protect the same for the
         same purpose Article 226 and 32 could also be taken
         recourse to. Our attention in this behalf has been drawn
         to Yogendra Nath v. CIT and Manohar Ganesh Tambekar v.
         Lakhmiram Govindram.”                                                  C
                                                       (Emphasis supplied)
       The observation that a temple is a juristic person formed a part
of the submissions made by the counsel and was merely preserved by
the court as a matter of record. There is no evidence that this Court
accepted the contention that the temple is a juristic person. No reliance       D
can be placed on this decision or the observation in paragraph 40 to
contend that a temple is a juristic person.
       181. Mr Parasaran next relied on Sri Sabhanayagar Temple,
Chidambaram v State of Tamil Nadu115 to demonstrate the recorded
existence of a temple without any resident idol. The decision records a         E
brief history of the Chidambaram Temple in Tamil Nadu. Justice T Raja,
speaking for a Division Bench of the Madras High Court notes:
         “…The Chidambaram Temple contains an altar which has no
         idol. In fact, no Lingam exists but a curtain is hung before a wall,
         when people go to worship, the curtain is withdrawn to see the         F
         ‘Lingam’. But the ardent devotee will feel the divinely wonder
         that Lord Siva is formless i.e., space which is known as “Akasa
         Lingam”. Offerings are made before the curtain. This form of
         worshipping space is called the “Chidambara rahasyam”, i.e. the
         secret of Chidambaram.”
                                                                                G
       The decision supports Mr Parasaran’s argument that there can
exist a temple without an idol. An idol is one manifestation of the divine
and it cannot be said that absent an idol, there exists no divinity to which
prayer may be offered. However, the question before the Madras High
115
      (2009) 4 CTC 801                                                          H
222               SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     Court was whether the appellant and his predecessors were the
      founders of the temple and whether it was a denominational temple
      for the purposes of state regulation of the temple’s secular affairs. The
      High Court did not consider whether a temple could be a juristic person
      and the decision does not support Mr Parasaran’s contention that the
      mere worship of empty land or ‘space’, absent a physical manifestation
B
      could confer juristic personality. Moreover, the facts of the case are
      materially different from the present case as the Chidambaram Temple
      is a physical structure built around a specific spot that is considered
      holy. Despite the absence of an idol, the temple serves as the physical
      manifestation of the deity and demonstrates the institutional nature of
C     the worship. This is in contrast to the present case. Worship is offered
      to the idol of Lord Ram. The disputed site is a site of religious
      significance, but that itself is not sufficient to confer juridical personality
      on the land.
              182. Reliance was also placed on Pichal alias Chockalingam
D     Pillai v The Commissioner for Hindu Religions and Charitable
      Endowments (Administrations Department) Madras116 to contend
      that a temple continues to be recognised as a site of public religious
      worship even absent the presence of an idol. The case concerned the
      Kalyansundareswarar temple in Avaniyapuram. In the early twentieth
      century, one Chockalingam Pillai executed a deed of dedication for the
E     construction, installation and continued upkeep for four idols, including
      Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue
      of a compromise deed in 1954 the appellants before the Madras High
      Court came to be the managing trustees. The appellants were accused
      of failing in their upkeep and service of the idol and the Commissioner
F     of Hindu Religions and Charitable Endowments framed a scheme to
      take over management of the temple. The appellants challenged the
      competence of the Commissioner on the ground that the temple was
      not a temple under Section 6(20) of the Madras Hindu Religious and
      Charitable Endowments Act 1959. The primary contention of the
      appellants was that the idols in the Kalyansundareswarar temple had
G     not been duly installed and consecrated. Justice K Reddy speaking for
      the Division Bench of the Madras High Court held that the existence
      of an idol was not necessary for a place of public worship to be a
      “temple” under Section 6(20) of the said Act. He further observed:

      116
H           AIR 1971 Mad 405
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           223


         “… It does not appear that the aforesaid idols in the said temples     A
         have been installed and consecrated according to the rituals and
         ceremonies enjoined by Agama Sastras. They have become
         places of public religious worship by long use of the place as
         such by the Hindu community. We are, therefore, of the view
         that the installation and consecration of idols with ceremonies like
                                                                                B
         Prana pratishta etc, prescribed by Hindu Sastras is not the sine
         qua non for public religious worship. In any event, it is not a
         legal requisite under the definition of a ‘temple’ in the Act…”
       Two points must be noted: First, the observations of the Court
are made in the context of satisfying a pre-existing statutory definition
of a ‘temple’. It is in this context, that the Madras High Court notes          C
that the existence of an idol is not a pre-requisite to satisfy the statutory
definition of a temple. Second, the case does not discuss the question
whether a temple, even absent an idol, can be a juristic person. It is
pertinent to note that absent an idol, the temple itself had existed for
several years. In light of these observations, the decision does not            D
support Mr Parasaran’s argument that absent an idol or any express
form of manifestation or recognition, land can constitute a juristic
person.
        183. Mr Parasaran relied on the decision in Saraswathi Ammal
v Rajagopal Ammal117 to argue that the widespread belief and worship            E
of the land styled as Ram Janmbhumi is sufficient to recognise it as a
juristic person. The case concerned a settlement deed whereby a widow
dedicated in perpetuity the revenue of certain immovable properties for
the performance of daily puja and ‘Gurupuja’ of her former husband’s
tomb. It was urged by the appellants in the case that the dedication
was for the performance of puja and an annual ‘sradh’ on a significant          F
scale, and the dedication was thus for a religious and charitable purpose.
In rejecting this contention, Justice B Jagannadhadas, speaking for a
three judge Bench of this Court observed:
         “6…To the extent, therefore, that any purpose is claimed to be
         a valid one for perpetual dedication on the ground of religious        G
         merit though lacking in public benefit, it must be shown to have
         a Shastric basis so far as Hindus are concerned. No doubt since
         then other religious practices and beliefs may have grown up and

117
      1954 SCR 277                                                              H
224               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A              obtained recognition from certain classes, as constituting purposes
               conducive of religious merit. If such beliefs are to be accepted
               by courts as being sufficient for valid perpetual dedication of
               property therefor without the lement of actual or presumed public
               benefit it must be at least shown that they have obtained wide
               recognition and constitute the religious practice of a substantial
B
               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 belief of one or more
               individuals is sufficient to enable them to make a valid
               settlement permanently tying up property. The heads of
C              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.”                                     (Emphasis supplied)
             The above decision deals with whether a substantial and
D     widespread practice of a large number of Hindus would warrant its
      recognition as a religious or charitable practice. Further, the court
      expressly observes it was not necessary to answer this question as the
      ground of public policy is sufficient to discredit the practice of tomb-
      worship by a few stray individuals. It does not deal with the question
      when a court should confer juristic personality, either on an idol or on
E     land. While a particular practice may or may not be recognised by a
      court as “religious” or “charitable” depending on the scale of adoption
      of the practice, a parallel cannot be drawn with the concept of juristic
      person which operates in an entirely different field of law. The decision
      does not support the contention that widespread belief in the religious
F     nature of a site is sufficient to confer upon that site legal personality.
             Lastly Mr Parasaran sought to rely on two decisions, Sapneswar
      Pujapanda v Ratkanar Mahapatra118 and Sri Adi Visheshwara of
      Kashi Vishwanath Temple v State of UP119 to contend that the second
      plaintiff in Suit 5 is a ‘Swayambhu’ deity which has a recognised legal
G     personality. The decisions merely note that Hinduism recognises the
      concept of a Swayambhu deity, which is not contested by either of
      the parties to the present dispute. Neither decision advances the

      118
            AIR 1916 Pat 146
      119
H           (1997) 4 SCC 606
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          225


argument set out by Mr Parasaran. The substantive content of the               A
arguments advanced by the plaintiffs in Suit 5 is dealt with next.
       184. Mr Parasaran submitted that the various deities and idols
in Hinduism are merely facets of the single indivisible God. It was thus
contended that every manifestation of the indivisible God is worthy of
legal protection and the conferment of legal personality.                      B
                                                                         120
       185. This Court in Yogendra Nath Naskar v CIT, Calcutta
drew a distinction between the perception of the devotee that the idol
is a manifestation of the Supreme Being and the position in law that
legal personality is conferred on the pious purpose of the testator that
is entitled to legal protection. Hinduism is an expansive religion that        C
believes divinity in the form of the Supreme Being is present in every
aspect of creation. The worship of God in Hinduism is not limited to
temples or idols but often extends to natural formations, animals and
can even extend to everyday objects which have significance in a
worshipper’s life. As a matter of religion, every manifestation of the
Supreme Being is divine and worthy of worship. However, as a matter            D
of law, every manifestation of the Supreme Being is not a legal person.
Legal personality is an innovation arising out of legal necessity and the
need for adjudicative utility. Each conferment of legal personality absent
an express deed of dedication must be judged on the facts of the case
and it is not a sound proposition in law to state that every manifestation     E
of the Supreme Being results in the creation of a legal person.
       186. In the present case, it was contended that the land forming
the disputed site is itself the manifestation of Lord Ram. Significant
reliance was placed on the existence of certain temples which do not
possess idols, in particular the Chidambaram temple in Tamil Nadu, to          F
advance two legal propositions: First, that a Hindu deity possessing
juristic personality could exist even absent an idol, and second that
unadorned land, absent any distinguishing features, could constitute a
Swayambhu deity and consequently a juristic person. As noted above,
the cases relied upon by Mr Parasaran with respect to the
Chidambaram and Kalyansundareswar temple do not refer to the                   G
conferral of juristic personality. However, it is true than an idol is not a
pre-requisite for the existence of a juristic person. Where there exists
an express deed of dedication, the legal personality vests in the pious

120
      (1969) 1 SCC 555                                                         H
226            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     purpose of the founder. The idol is the material embodiment of the pious
      purpose and is the site of jural relations. There are instances of the
      submergence or even destruction of the idol inspite of which it has been
      held that the legal personality continues to subsist. Even if a testator
      were to make a dedication to a religious purpose but the idol did not
      exist at the time the dedication was made or the manifestation of the
B
      divine was not in the form of the idol, but in the form of some other
      object of religious significance, the legal personality would continue to
      vest in the pious purpose of the dedication itself. However, that is not
      the situation in the present case. In the case of the second plaintiff in
      Suit 5, there exists no express deed of dedication.
C            187. It is true that merely because the second plaintiff is not an
      idol, and there exists no deed of dedication, it is not precluded from
      being conferred with legal personality. Swayambhu deities, by the very
      fact that they are manifested from nature, may not fit the description
      of an idol in the traditional sense. Courts are not barred from recognising
D     such a material manifestation of the divine as a juristic person. The
      manifestation in a material form is what is the defining feature. In the
      present case however, the arguments advanced in reply on behalf of
      the plaintiffs in Suit 5 rest on a two-fold claim: First, that no material
      manifestation is required for the conferral of juristic personality in the
      case of a Swayambhu deity. In this view, the performance of worship
E     with the faith and belief that corporeal property represents the divine
      is adequate for the conferral of juristic personality. Second, in the
      alternative, assuming that a material manifestation is a pre-requisite for
      a Swayambhu deity, the land at the disputed site represents the material
      manifestation and given the performance of religious worship, no further
F     evidence is required for the conferral of juristic personality. Several
      examples of temples without idols were placed before this court,
      including that of the Chidambaram Temple to contend that the deity of
      Ram had manifested itself in the form of land itself. According to the
      plaintiffs in Suit 5, the birth of Lord Ram at the disputed site is the
      revelation, and the resident deity of Ram Janmabhumi manifests itself
G     in the form of the land that it is the disputed land. At the Chidambaram
      Temple, there exists no idol of the resident deity, Lord Siva. A curtain
      exists at the altar. At the time of worship, the curtain is drawn away
      and the altar is revealed to have an empty space. The empty space at
      the altar is the subject of the prayers and devotees regularly leave
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             227


offerings at the altar. Mr Parasaran sought to draw a parallel to             A
demonstrate how empty space itself, absent any idol or distinguishing
features, was the subject of worship and constituted a valid deity upon
which juristic personality could be conferred.
       188. The arguments urged by Mr Parasaran in his reply raise
three questions for our determination: First, whether a Swayambhu deity       B
may be recognised absent a physical manifestation; second, whether
land can constitute a manifestation of the deity; and third, whether legal
personality can be conferred on immovable property per se.
       189. A Swayambhu deity is a manifestation of God that is ‘self-
revealed’ or ‘discovered as existing’ as opposed to a traditional idol that   C
is hand-crafted and consecrated by the prana pratishta ceremony. The
word ‘swayam’ means ‘self’ or ‘on its own’, ‘bhu’ means ‘to take birth’.
A Swayambhu deity is one which has manifested itself in nature without
human craftsmanship. Common examples of these deities are where a
tree grows in the shape of a Hindu God or Goddess or where a natural
formation such as ice or rock takes the form of a recognised Hindu            D
deity.
       190. Dr Dhavan contended that any case of Swayambhu deity
would necessarily need to be based on: (i) some evidence of the
manifestation of God in a material form followed by; (ii) faith and belief
that a particular piece of corporeal property represents the divine; and      E
(iii) in the absence of traditional prana parishta ceremonies of
consecration, some institutionalised worship constituting recognition by
the religion itself that the manifestation was a deity. In this view, a
Swayambhu deity is premised on faith and belief coupled with a physical
manifestation and religious recognition.                                      F
       191. A Swayambhu deity is the revelation of God in a material
form which is subsequently worshipped by devotees. The recognition
of a Swayambhu deity is based on the notion that God is omnipotent
and may manifest in some physical form. This manifestation is
worshipped as the embodiment of divinity. In all these cases, the very        G
attribution of divinity is premised on the manifestation of the deity in a
material form. Undoubtedly, a deity may exist without a physical
manifestation, example of this being the worship offered to the Sun and
the Wind. But a Swayambhu is premised on the physical manifestation
of the Divine to which faith and belief attaches.
                                                                              H
228             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            192. The difficulty that arises in the present case is that the
      Swayambhu deity seeking recognition before this Court is not in the
      form ordinarily associated with the pantheon of anthropomorphised
      Hindu Gods. The plaintiffs in Suit 5 have sought to locate the disputed
      land as a focal point by contending that the very land itself is the
      manifestation of the deity and that the devotees’ worship not only the
B
      idols of Lord Ram, but the very land itself. The land does not contain
      any material manifestation of the resident deity Lord Ram. Absent the
      faith and belief of the devotees, the land holds no distinguishing features
      that could be recognised by this court as evidence of a manifestation
      of God at the disputed site. It is true that in matters of faith and belief,
C     the absence of evidence may not be evidence of absence. However,
      absent a manifestation, recognising the land as a self-manifested deity
      would open the floodgates for parties to contend that ordinary land
      which was witness to some event of religious significance associated
      with the human incarnation of a deity (e.g. the site of marriage, or the
      ascent to a heavenly abode) is in fact a Swayambhu deity manifested
D
      in the form of land. If the argument urged by Mr Parasaran that there
      is no requirement of a physical manifestation is accepted, it may well
      be claimed that any area of religious significance is a Swayambhu deity
      which deserves to be recognised as a juristic personality. This problem
      is compounded by the fact that worship to a particular deity at a religious
E     site and to the land underlying a religious site are for all intents and
      purposes, indistinguishable. Hence, in order to provide a sound
      jurisprudential basis for the recognition of a Swayambhu deity,
      manifestation is crucial. Absent that manifestation which distinguishes
      the land from other property, juristic personality cannot be conferred
      on the land.
F
             193. It is conceivable that in certain instances the land itself
      would possess certain unique characteristics. For example, it may be
      claimed that certain patterns on a sea-shore or crop formations
      represent a manifestation of the divine. In these cases, the manifestation
      is inseparable from the land and is tied up to it. An independent question
G     arises as to whether land can constitute the physical manifestation of
      the deity. Even if a court recognises land as a manifestation of a deity,
      because such land is also governed by the principles of immoveable
      property, the court will need to investigate the consequences which arise.
      In doing so the court must analyse the compatibility of the legal regime
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           229


of juristic personality with the legal regime on immoveable property. It        A
is necessary now to turn to this.
       Property vested in a deity and property as a deity
       194. There is a significant distinction between property vested
in a foundation (as in Roman law) or a deity as a juristic person (as in
Hindu Law) and property per se being a juristic person. Where the               B
property vests in a foundation constituted for a pious purpose, it retains
its characteristics as immoveable property. This remains true even in
cases where the property vests in the deity in an ideal sense. The
purpose of conferring juristic personality is to ensure both a centre of
legal relations as well as the protection of the beneficial interest of the
devotees. It does not however, alter the character of the property which        C
vests in the juristic person. It remains subject to the framework of the
law which defines all relationships governing rights or interests claimed
in respect of property and the liabilities which attach to jural transactions
arising out of property.
       195. This distinction, which highlights the features of immoveable       D
property received articulation by the Privy Council in The Mosque,
Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak
Committee, Amritsar.121 In that case, a mosque was dedicated in 1722
by one Falak Beg Khan. By the deed of dedication, Sheikh Din
Mohammad and his descendants were appointed as Mutawallis. Since                E
1762, however, the building together with the court-yard, well and
adjacent land, was in the occupation and possession of the Sikhs. The
land adjacent to the mosque became the site of a Sikh shrine. At the
time of the annexation by the British in 1849, the Sikhs were in
possession of both the mosque and the adjacent lands.
       196. Thereafter, the building was demolished “by or with the             F
connivance of its Sikh custodians”. A suit was instituted in 1935 against
Shiromani Gurdawara Parbandhak Committee – who were in
possession of the disputed property, seeking a declaration that the
building was a mosque in which the plaintiffs and all the followers of
Islam had a right to worship along with a mandatory injunction to               G
reconstruct the building. One of the 18 plaintiffs was the mosque itself
- the site and the building. The Privy Council assessed the contention
that the mosque and the adjoining properties were a juristic person.
Rejecting the contention, Justice George Rankin held:
121
      AIR 1940 PC 116                                                           H
230            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           “The argument that the land and buildings of a mosque are not
            property at all because they are a “juristic person” involves a
            number of misconceptions. It is wholly inconsistent with many
            decisions whereby a worshipper or the mutwalli has been
            permitted to maintain a suit to recover the land and buildings for
            the purposes of the wakf by ejectment of a trespasser… That
B
            there should be any supposed analogy between the position in
            law of a building dedicated as a place of prayer for Muslims and
            the individual deities of the Hindu religion is a matter of some
            surprise to their Lordships… the procedure in India takes account
            necessarily of the polytheistic and other features of the Hindu
C           religion and recognizes certain doctrines of Hindu law as essential
            thereto, e.g. that an idol may be the owner of property…
            The decisions recognizing a mosque as a “juristic person” appear
            to be confined to the Punjab : 153 PR 1884; Shankar Das v. Said
            Ahmad (1884) 153 PR 1884 59 PR 1914; Maula Bux v.
D           Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6 In none
            of those cases was a mosque party to the suit, and in none except
            perhaps the last is the fictitious personality attributed to the
            mosque as a matter of decision. But so far as they go these
            cases support the recognition as a fictitious person of a
            mosque as an institution - apparently hypostatizing an
E           abstraction. This, as the learned Chief Justice in the
            present case has pointed out, is very different from
            conferring personality upon a building so as to deprive it
            of its character as immovable property.”
                                                          (Emphasis supplied)
F
             197. The Privy Council noted that if the mosque was a juristic
      person, this may mean that limitation does not apply to it and that “it is
      not property but an owner of property.” Underlying the line of reasoning
      adopted by the Privy Council is that the conferral of legal personality
      on immovable property could lead to the property losing its character
G     as immoveable property. Immoveable property, by its very nature, admits
      competing proprietary claims over it. Immoveable property may be
      divided. However, the recognition of the land itself as a juristic person
      may potentially lead to the loss of these essential characteristics. Where
      juristic personality was recognised in corporeal property itself such as
H     the idol, it served the larger purpose for which juristic personality was
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             231


conferred – to ensure the execution and protection of the pious purpose       A
set out by a donor and the ultimate protection of the beneficial interest
of the worshippers. However, to confer legal personality on immoveable
property leads to consequences that fundamentally have no nexus to
the limited purpose for which juristic personality is conferred. It sets
apart immoveable property on which a juristic character is conferred
                                                                              B
from all other species of immoveable property. This will lead to the claim
that the legal regime which applies to the latter (‘ordinary immoveable
property’) will not apply to that class of immoveable property which is
recognised as a juristic person in and of itself. The principles of adverse
possession and limitation would, if the argument were to be accepted,
not apply to the land as a legal person which is incapable of being           C
“possessed”. The conferral of legal personality in the context of
endowments was to ensure the legal protection of the endowed property,
not to confer upon the property legal impregnability by placing it outside
the reach of the law. The elevation of land to the status of a juristic
person fundamentally alters its characteristics as immoveable property,
                                                                              D
a severe consequence against which a court must guard. Nor is it a
valid safeguard to postulate that the court will decide on a case to case
basis where a particular immoveable property should have a juristic
status. Absent any objective standard of application the process of
drawing lines will be rendered inherently subjective, denuding the
efficacy of the judicial process.                                             E
       198. The land in question has been treated as immoveable
property by all the parties to the present dispute, including those from
the Hindu community until 1989. The litigation over the disputed property
dated back to 1885, and at no point, until Suit 5 in 1989 was a plea
taken that the land in question was anything possessed of a juristic          F
personality. Apart from the reasons which have been outlined above, it
would not be open for the court to treat the property differently now,
solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in
1989.
      Addressing title claims in a conventional framework                     G
       199. The facts of the present case raise questions of access of
the devotees to the site of religious worship and the question of who
has title to the land. The former may be protected by the court in
several ways without the creation of an artificial legal person. The
protection against mismanagement squarely falls within the domain of
                                                                              H
232             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     who should be recognised as a shebait, and this is addressed elsewhere
      in the course of the present judgement. Generally speaking, the court
      is empowered to address such situations upon an application under
      Section 92 of the Code of Civil Procedure 1908. The question of title
      can be adjudicated upon using the existing legal regime applicable to
      immoveable property. There is no reason bearing on necessity or
B
      convenience that would compel the court to adopt the novel argument
      set forth by the plaintiffs in Suit 5 that juristic personality must be
      conferred on the disputed land.
             200. The conferral of juristic personality is a legal innovation
      applied by courts in situations where the existing law of the day has
C     certain shortcomings or such conferral increases the convenience of
      adjudication. In the present case, the existing law is adequately equipped
      to protect the interests of the devotees and ensure against
      maladministration without recognising the land itself as a legal person.
      Where the law is capable of adequately protecting the interests of the
D     devotees and ensuring the accountable management of religious sites
      without the conferral of legal personality, it is not necessary to embark
      on the journey of creating legal fictions that may have unintended
      consequences in the future. There is therefore no merit in the argument
      that faith and belief, and the protection of faith and belief alone may
      necessitate the conferral of legal personality on the second plaintiff.
E     On the contrary, there exists a substantial risk with adopting this
      argument. It may be contended by a section of a religion that a
      particular plot of land is the birth-place, place of marriage, or a place
      where the human incarnation of a deity departed for a heavenly abode;
      according to the faith and belief of the devotees. Corporeal property
F     may be associated with myriad incidents associated with the human
      incarnation of a deity each of which holds a significant place in the
      faith and belief of the worshippers. Where does the court draw the
      line to assess the significance of the belief as the basis to confer juristic
      personality on property? In the absence of an objective criterion, the
      exercise will be fraught with subjectivity. Adopting the argument of the
G     plaintiffs in Suit 5 may result in the conferral of legal personality on all
      such claims to land. This conferral would be to the detriment of bona
      fide litigants outside the faith – who may not share the same beliefs
      and yet find their title extinguished. Further, such conferral of legal
      personality on immovable property would be on the basis of the faith
      and belief of the devotees, which is fundamentally subjective and
H
      incapable of being questioned by this Court.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              233


       201. The purpose for which juristic personality is conferred            A
cannot be ‘evolved’ into a trojan horse that permits, on the basis of
religious faith and belief, the extinguishing of all competing proprietary
claims over property as well stripping the property itself of the essential
characteristic of immoveable property. If the contention urged on the
behalf of the plaintiffs in Suit 5 is accepted, it results in a position in
                                                                               B
law where claims to ‘absolute title’ can be sustained merely on the basis
of the faith and belief of the devotees. The conferral of legal personality
on corporeal property would immunise property not merely from
competing title claims, but also render vast swathes of the law that are
essential for courts to meaningfully adjudicate upon civil suits, such as
limitation, ownership, possession and division, entirely otiose. At best,      C
the contention urged on behalf of the plaintiffs in Suit 5 would sustain
a claim that the specific site is a location of religious significance for
the devotees. It cannot however be extended to sustain proprietary
claims to the law or to immunise the land from proprietary or title based
claims of others by conferring juristic personality on the land itself.
                                                                               D
      Commitment to constitutional values
       202. A final observation must be made on this aspect of the case
which is of significant importance. The rejection of the contention urged
on behalf of the plaintiffs in Suit 5 touches upon the heart of our
constitutional commitment to secularism. The method of worship on the          E
basis of which a proprietary claim may be sustained is relatable to a
particular religion. The conferral of legal personality on idols stemming
from religious endowments is a legal development applicable only to a
practice of the Hindu community. The performance of the parikrama
is a method of worship confined largely to Hinduism. Putting aside the
fact that the argument raised by the plaintiffs in Suit 5 is a novel           F
extension of the law applicable to Hindu religious endowments, this is
a significant matter which requires our consideration.
       203. Religious diversity undoubtedly requires the protection of
diverse methods of offering worship and performing religious
ceremonies. However, that a method of offering worship unique to one           G
religion should result in the conferral of an absolute title to parties from
one religion over parties from another religion in an adjudication over
civil property claims cannot be sustained under our Constitution. This
would render the law, which ought to be the ultimate impartial arbiter,
conferring a benefit on a party with respect to her or his legal claims,       H
234            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     not on the basis of the merits of a particular case, but on the basis of
      the structure or fabric of the religion to which they belong. If the
      contention urged on behalf of the plaintiffs in Suit 5 is accepted, the
      method of worship performed by one religion alone will be conferred
      with the power to extinguish all contesting proprietary claims over
      disputed property.
B
             204. It is true that the connection between a person and what
      they consider divine is deeply internal. It lies in the realm of a personal
      sphere in which no other person must intrude. It is for this reason that
      the Constitution protects the freedom to profess, practice and propagate
      religion equally to all citizens. Often, the human condition finds solace
C     in worship. But worship may not be confined into a straightjacket
      formula. It is on the basis of the deep entrenchment of religion into the
      social fabric of Indian society that the right to religious freedom was
      not made absolute. An attempt has been made in the jurisprudence of
      this court to demarcate the religious from the secular. The adjudication
D     of civil claims over private property must remain within the domain of
      the secular if the commitment to constitutional values is to be upheld.
      Over four decades ago, the Constitution was amended and a specific
      reference to its secular fabric was incorporated in the Preamble. At
      its heart, this reiterated what the Constitution always respected and
      accepted: the equality of all faiths. Secularism cannot be a writ lost in
E     the sands of time by being oblivious to the exercise of religious freedom
      by everyone.
              205. It is for all the reasons highlighted above that the law has
      till today yet to accept the conferral of legal personality on immoveable
      property. Religiosity has moved hearts and minds. The court cannot
F     adopt a position that accords primacy to the faith and belief of a single
      religion as the basis to confer both judicial insulation as well as primacy
      over the legal system as a whole. From Shahid Gunj to Ayodhya, in a
      country like ours where contesting claims over property by religious
      communities are inevitable, our courts cannot reduce questions of title,
G     which fall firmly within the secular domain and outside the rubric of
      religion, to a question of which community’s faith is stronger.
             On a consideration of all the factors outlined above, it is thus
      held that the second plaintiff in Suit 5 – ‘Asthan Shri Ram Janam Bhumi’
      is not a juristic person.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           235


K. Analysis of the suits                                                    A
       206. Suit 1 filed by Gopal Singh Visharad is essentially a suit by
a worshipper for enforcement of his right to worship Lord Ram at the
Janmabhumi. Suit 3 filed by Nirmohi Akhara is for handing over the
management and charge of the Janmabhumi temple to it. Suit 4 filed
by Sunni Central Waqf Board is for a declaration that the entirety of       B
the disputed site, including Babri Masjid and the surrounding graveyard,
is a public mosque and for a decree for possession. Suit 5 is filed by
the deity of Lord Ram and the Janmasthan (both of whom are asserted
to be juridical persons) through a next friend impleaded as a third
plaintiff for a declaration that the entire premises comprised of
annexures 1, 2 and 3 to the plaint constitute Ram Janmabhumi and for        C
an injunction against interference in the construction of a new temple
after the demolition of the existing building.
      The judgment now proceeds to analyse and adjudicate upon the
claims in the suits.
                                                                            D
L. Suit 1: Gopal Singh Visharad since deceased and survived by
Rajendra Singh v Zahoor Ahmad and others
      L.1 Pleadings
       207. On 16 January 1950, a suit was instituted by Gopal Singh        E
Visharad before the Civil Judge at Faizabad, describing himself as a
Hindu devotee. He is a resident of Ayodhya and follower of ‘Santan
Dharm’. His grievance was that he was being prevented by officials
of the government from entering the inner courtyard of the structure
to offer worship. The plaintiff claims that he is entitled to worship the
                                                                            F
deity of Lord Ram. The following reliefs were sought:
            (i) A declaration of his entitlement to worship and seek the
                darshan of Lord Ram, “according to religion and
                custom” at the Janmabhumi temple without hindrance;
                and
                                                                            G
           (ii) A permanent and perpetual injunction restraining
                defendants 1 to 10 from removing the idols of the deity
                and other idols from the place where they were installed;
                from closing the way leading to the idols; or interfering
                in worship and darshan.
                                                                            H
236            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            The cause of action for Suit 1 is stated to have arisen on 14
      January 1950, when the employees of the government are alleged to
      have unlawfully prevented the plaintiff “from going inside the place”
      and exercising his right of worship. It was alleged that the “State”
      adopted this action at the behest of the Muslim residents represented
      by defendant nos 1 to 5, as a result of which the Hindus were stated
B
      to been deprived of their “legitimate right of worship”. The plaintiff
      apprehended that the idols, including the idol of Lord Ram, would be
      removed. These actions were alleged to constitute a “direct attack on
      the right and title of the plaintiff” and was stated to be an “oppressive
      act”, contrary to law.
C           208. Denying the allegations contained in the plaint, the Muslim
      defendant nos 1 to 5 stated in their written statement that:
                  (i) The property in respect of which the case has been
                      instituted is not Janmabhumi but a mosque constructed
                      by Babur. The mosque was built in 1528 on the
D                     instructions of Babur by Mir Baqi, who was the
                      Commander of his forces, following the conquest of the
                      sub-continent by the Mughal emperor;
                 (ii) The mosque was dedicated as a waqf for Muslims, who
                      have a right to worship there. Babur laid out annual
E                     grants for the maintenance and expenditure of the
                      mosque, which were continued and enhanced by the
                      Nawab of Awadh and the British Government;
                 (iii) The Suit of 1885 was a suit for declaration of ownership
                       by Mahant Raghubar Das only in respect of the
F                      Ramchabutra and hence, the claim that the entire
                       building represented the Janmasthan was baseless. As
                       a consequence of the dismissal of the suit on 24
                       December 1885, “the case respecting the Chabutra was
                       not entertained”;
G                (iv) The Chief Commissioner, Waqf appointed under the
                      Muslim Waqf Act 1936 had held the mosque to be a
                      Sunni Waqf;
                 (v) Muslims have always been in possession of the mosque.
                     This position began in 1528 and continued thereafter, and
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            237


               consequently, “Muslims are in possession of that              A
               property… by way of an adverse possession”;
          (vi) Namaz had been offered at Babri Masjid until 16
               December 1949 at which point there were no idols under
               the central dome. If any person had placed any idol
               inside the mosque with a mala fide intent, “the               B
               degradation of the mosque is evident and the accused
               persons are liable to be prosecuted”;
         (vii) Any attempt of the plaintiff or any other person to enter
               the mosque to offer worship or for darshan would violate
               the law. Proceedings under Section 145 of the CrPC            C
               1898 had been initiated; and
         (viii) The present suit claiming Babri Masjid as the place of
                the Janmasthan is without basis as there exists, for quite
                long, another temple with idols of Lord Ram and others,
                which is the actual place of the Janmasthan of Lord          D
                Ram.
      A written statement was filed by defendant no 6, the State,
submitting that:
           (i) The property in suit known as Babri Masjid has been
               used as a mosque for the purpose of worship by                E
               Muslims for a long period and has not been used as a
               temple of Lord Ram;
          (ii) On the night of 22 December 1949, the idols of Lord
               Ram were surreptitiously placed inside the mosque
               imperilling public peace and tranquillity. On 23 December     F
               1949, the City Magistrate passed an order under Section
               144 of CrPC 1898 which was followed by an order of
               the same date passed by the Additional City Magistrate
               under Section 145 attaching the disputed property. These
               orders were passed to maintain public peace; and
                                                                             G
          (iii) The City Magistrate appointed Shri Priya Datt Ram,
                Chairman, Municipal Board, Faizabad-cum Ayodhya as
                a receiver of the property.
      Similar written statements were filed by defendant no 8, the
Additional City Magistrate and defendant no 9, the Superintendent of         H
Police.
238            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           Defendant no 10, the Sunni Central Waqf Board filed its written
      statement stating:
                  (i) The building in dispute is not the Janmasthan of Lord
                      Ram and no idols were ever installed in it;
                 (ii) The property in suit was a mosque known as the Babri
B                     mosque constructed during the regime of Emperor Babur
                      who had laid out annual grants for its maintenance and
                      expenditure and they were continued and enhanced by
                      the Nawab of Awadh and the British Government;
                 (iii) On the night of 22-23 December 1949, the idols were
C                      surreptitiously brought into the mosque;
                 (iv) The Muslims alone had remained in possession of the
                      mosque from 1528 up to 29 December 1949 when it
                      was attached under Section 145. They had regularly
                      offered prayers up to 23 December 1949 and Friday
D                     prayers up to 16 December 1949;
                 (v) The mosque had the character of a waqf and its
                     ownership vested in God;
                 (vi) The plaintiff was estopped from claiming the mosque
                      as the Janmabhumi of Lord Ram as the claim in the Suit
E
                      of 1885 instituted by Mahant Raghubar Das (described
                      to be the plaintiff’s predecessor) was confined only to
                      the Ramchabutra measuring seventeen feet by twenty
                      one feet outside the mosque; and
                (vii) There already existed a Ram Janmasthan Mandir, a short
F
                      distance away from Babri Masjid.
            In the plaintiff’s replication to the written statement of defendant
      nos 1 to 5, it was averred that the disputed site had never been used
      as a mosque since 1934. It was further stated that it was “common
      knowledge” that Hindus were in continuous possession by virtue of
G     which the claim of the defendants ceased.
            L.2 Issues and findings of the High Court
            209. 1. Is the property in suit the site of Janam Bhumi of
      Sri Ram Chandraji?
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          239


          Justice S U Khan - No temple was demolished for                  A
          constructing the mosque. Until the mosque was constructed
          during the period of Babur, the premises in dispute were not
          treated as or believed to be the birth-place of Lord Ram.
          Justice Sudhir Agarwal - The place of birth as believed
          and worshiped by the Hindus is the area covered under the        B
          central dome of the disputed structure in the inner courtyard.
          Justice D V Sharma - Decided against the defendants.
     2. Are there any idols of Bhagwan Ram Chandra Ji and are
his Charan Paduka situated in the site in suit?
                                                                           C
          Justice S U Khan – Idols were kept on the pulpit inside
          the mosque for the first time during the night of 22-23
          December 1949.
          Justice Sudhir Agarwal – Idols were placed under the
          central dome of the disputed structure, within the inner
          courtyard, during the night of 22-23 December 1949 but           D
          before it they existed in the outer courtyard.
          Justice D V Sharma - Decided against the defendants.
     3. Has the plaintiff any right to worship the ‘Charan
Paduka’ and the idols situated in the place in suit?                       E
          Justice S U Khan – The only thing which can be said is
          that Ramchabutra came into existence before the visit of
          Tieffenthaler but after construction of the mosque. Both
          parties were in joint possession.
          Justice Sudhir Agarwal – The plaintiff has a right to            F
          worship subject to reasonable restrictions like safety,
          maintenance and security.
          Justice D V Sharma - Decided in favour of the defendants.
      4. Has the plaintiff the right to have darshan of the place
in suit?                                                                   G
          Justice S U Khan – The only thing which can be said is
          that Ramchabutra came into existence before the visit of
          Tieffenthaler but after construction of the mosque. Both
          parties were in joint possession.
                                                                           H
240           SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A               Justice Sudhir Agarwal – The plaintiff has a right to
                worship subject to reasonable restrictions like safety,
                maintenance and security.
                Justice D V Sharma – Decided in favour of the
                defendants.
B           5(a). Was the property in suit involved in original Suit no
      61/280 of 1885 in the court of sub-judge (Faizabad Raghubar Das
      Mahant v Secretary of State for India and others)?
                Justice S U Khan – Nothing was decided in the Suit of
                1885 and res judicata does not apply.
C
                Justice Sudhir Agarwal – Answered in the negative.
                Justice D V Sharma – Property existed as nazul land.
           5(b). Was it decided against the plaintiff?
                Justice Sudhir Agarwal – Suit of 1885 was decided
D               against Mahant Bhaskar Das and no relief was granted to
                him.
                Justice D V Sharma - Property existed as nazul land.
            5(c). Was that suit within the knowledge of Hindus in
E     general and were all Hindus interested in the same?
                Justice Sudhir Agarwal – Answered in the negative. No
                material on record to justify that the suit was filed by Mahant
                Raghubar Das in a representative capacity.
                Justice D V Sharma – Decided in favour of the
F               defendants.
             5(d). Does the decision in same bar the present suit by
      principles of res judicata and in any other way?
                Justice Sudhir Agarwal – Answered in the negative.

G               Justice D V Sharma – Decided in favour of the
                defendants.
          6. Is the property in suit a mosque constructed by Babur
      commonly known as Babri Mosque, in 1528 A.D?
                Justice S U Khan – The construction of a mosque took
H               place by or under the orders of Babur. Whether it was
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          241


           actually built by Mir Baqi or someone else is not material.     A
           Muslims offered regular prayers until 1934, after which until
           22 December 1949 only Friday prayers were offered. This
           is sufficient for continuous possession and use. No temple
           was demolished for the construction of the mosque.
           Justice Sudhir Agarwal – Plaintiffs have failed to prove        B
           the construction of the structure by Babur in 1528 A. D.
           Justice D V Sharma – Decided against the defendants.
      7. Have the Muslims been in possession of the property
in suit from 1528 A.D. continuously, openly and to the
knowledge of the defendants and Hindus in general? If so, its              C
effect?
           Justice S U Khan – Title follows possession and both
           parties were in joint possession of the disputed premises.
           Justice Sudhir Agarwal – Decided in favour of the               D
           plaintiff.
           Justice D V Sharma – Decided in favour of the
           defendants.
      8. Is the suit barred by proviso to Section 42 of the Specific
Relief Act?                                                                E
           Justice S U Khan – Not barred.
           Justice Sudhir Agarwal – Not barred.
           Justice D V Sharma – Decided in favour of the
           defendants.                                                     F
     9. Is the suit barred by the provisions of Section 5(3) of
the Muslim Waqf Act (U.P. Act 13 of 1936)?
           Justice S U Khan – Agrees with the findings of Justice
           Sudhir Agarwal.
                                                                           G
           Justice Sudhir Agarwal – Decided in favour of the
           plaintiff.
           Justice D V Sharma – Decided in favour of the
           defendants.
                                                                           H
242            SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A           9(a). Has the said Act no application to the right of Hindus
      in general and plaintiff of the present suit, in particular to his
      right of worship?
                  Justice S U Khan – Agrees with the findings of Justice
                  Sudhir Agarwal.
B                 Justice Sudhir Agarwal – In favour of the Hindu parties
                  in general.
                  Justice D V Sharma – Decided in favour of the
                  defendants.
            9(b). Were the proceedings under the said Act, referred
C     to in para 15 of the written statement, collusive? If so its effect?
                  Justice S U Khan – Agrees with the findings of Justice
                  Sudhir Agarwal.
                  Justice Sudhir Agarwal – Decided against the plaintiff.
                  Justice D V Sharma – Decided in favour of the defendant.
D             9(c). Are the said provisions of the U.P. Act 13 of 1936
      ultra vires for reasons given in the statement of plaintiff ’s
      counsel dated 9.3.62 recorded on paper no. 454-A?
                  Justice S U Khan – Agrees with the findings of Justice
                  Sudhir Agarwal.
E                 Justice Sudhir Agarwal – Answered in the negative.
            10. Is the present suit barred by time?
                  Justice S U Khan, Justice Sudhir Agarwal and Justice
                  D V Sharma – The suit is not barred by limitation.
              11(a). Are the provisions of section 91 C.P.C. applicable
F     to the present suit? If so, is the suit bad for want of consent in
      writing by the Advocate General?
                  Justice S U Khan – Agrees with the findings of Justice
                  Sudhir Agarwal
                  Justice Sudhir Agarwal – Answered in the negative.
G                 Justice D V Sharma – Decided in favour of the plaintiff.
            11(b). Are the rights set up by the plaintiff in this suit
      independent of the provisions of section 91 CPC? If not, its
      effect.
                 Justice S U Khan – Agrees with the findings of Justice
H                Sudhir Agarwal.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                     243


          Justice Sudhir Agarwal – Answered in the affirmative.       A
          Justice D V Sharma – Decided in favour of the plaintiff.
     12. Is the suit bad for want of steps and notice under Order
1, Rule 8 CPC? If so, its effect?
          Justice S U Khan – Agrees with the findings of Justice
                                                                      B
          Sudhir Agarwal.
          Justice Sudhir Agarwal and Justice D V Sharma –
          Answered in favour of the plaintiff.
    13. Is the Suit 2 of 50 (Shri Gopal Singh Visharad v Zahoor
Ahmad) bad for want of notice under Section 80 CPC?                   C
          Justice S U Khan – Agrees with the findings of Justice
          Sudhir Agarwal.
          Justice Sudhir Agarwal – Not rejected as barred.
          Justice D V Sharma – Decided in favour of the
                                                                      D
          defendants.
     14. Is the Suit no 25 of 50 Param Hans Ram Chandra v
Zahoor Ahmad bad for want of valid notice under Section 80
CPC?
          Justice S U Khan – Agrees with the findings of Justice      E
          Sudhir Agarwal.
          Justice Sudhir Agarwal and Justice D V Sharam –
          Issue redundant after dismissal of the suit as withdrawn.
     15. Is the suit bad for non-joinder of the defendants?
                                                                      F
          Justice S U Khan – Agrees with the findings of Justice
          Sudhir Agarwal.
          Justice Sudhir Agarwal and Justice D V Sharma –
          Answered in the negative and in favour of the plaintiff.
      16. Are the defendants or any of them entitled to special       G
costs under Section 35-A CPC?
          Justice S U Khan – Agrees with the findings of Justice
          Sudhir Agarwal.
          Justice Sudhir Agarwal – Counsel did not press the issue.
                                                                      H
244            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                Justice D V Sharma – Plaintiff is not entitled for relief
                 and suit dismissed with easy costs.
            17. To what reliefs, if any, is the plaintiff entitled?
                 Justice S U Khan – Agrees with the findings of Justice
                 Sudhir Agarwal
B
                 Justice Sudhir Agarwal – The plaintiff’s right of worship
                 cannot be doubted since the site in dispute includes part of
                 the land which is believed to be the place of birth of Lord
                 Ram. To this extent the plaintiff is entitled for a declaration
                 subject to restrictions which may be necessary on account
C                of security, safety and maintenance of the place of worship.
                 Justice D V Sharma – Plaintiff is not entitled for relief
                 and suit is dismissed with easy costs.
            L.3 Analysis
D           210. Mr Ranjit Kumar, learned Senior Counsel appearing on
      behalf of the Plaintiff in Suit 1 adverted to the order of the Magistrate
      dated 29 December 1949, under Section 145 CrPC by which the
      disputed premises were attached and a receiver was appointed.
      Learned Counsel stated that fourteen affidavits were filed by certain
      Muslims under Order XIX, Rule 1 of the CPC between 8-16 February
E
      1950, stating that:
                  (i) The place where the Babri Masjid was situated is the
                      birth-place of Lord Ram. The Babri Masjid was built
                      by ‘breaking’ the birth-place of Lord Ram;
F                (ii) After British Rule, Muslims were only reading Friday
                      namaz in the mosque;
                 (iii) After the construction of the Masjid, Hindus did not give
                       up their possession and continued to worship there;
                 (iv) Both Hindus and Muslims continued to worship at the
G                     disputed site;
                 (v) Post the riots of 1934, Muslims had stopped going to
                     the Masjid out of fear and ever since, the Hindus had
                     taken possession of the main place in the mosque; and

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           245


          (vi) There was no objection if the possession of the mosque       A
               was to be handed over to the Hindus as reading namaz
               at that place was against the Shariat.
      211. Justice Sudhir Agarwal did not pay any credence to the
affidavits and held that:
      “3020... The aforesaid documents to the extent to prove the fact      B
      that the same were filed before the Magistrate and constitute
      part of the record of 145 Cr.P.C. proceeding before the City
      Magistrate is not disputed but to believe the contents thereof, in
      our view, it was necessary to produce the authors of the
      documents and to give an opportunity of cross-examination to          C
      the other parties against whose interest the documents contain
      certain averments. None of the author of the said documents
      have been produced and they are also not party to the
      proceedings individually. We have no benefit of testifying the
      correctness of the contents of the said documents. In the absence
      of any one available to prove the contents of the said documents,     D
      in our view, the same cannot be relied and therefore, nothing turns
      out from the aforesaid documents either in favour or against any
      of the parties.”
       Justice S U Khan agreed with the observations made by Justice
Sudhir Agarwal. However, Justice D V Sharma has held the affidavits         E
to be admissible and observed that:
      “...affidavits of the persons under or through whom the plaintiffs
      are claiming were sworn before an official empowered by the
      Magistrate are admissible evidence...”
                                                                            F
      212. Mr Ranjit Kumar, has made the following submissions:
           (i) The Suit of 1885 will have no impact on the present suit
               as in the earlier suit the relief sought was for the
               permission to establish a temple over a platform which
               was confined to the Chabutra outside the mosque.
                                                                            G
               However, the present suit is with respect to the right to
               worship and seek the darshan of Lord Ram, “according
               to religion and custom” at the Janmabhumi temple;
           (ii) On 3 March 1951, the Trial Court confirmed the ad-
                interim order dated 19 January 1950 passed in Suit 1
                                                                            H
246   SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          by which the injunction was modified to prevent the
           idols from being removed from the disputed site and
           from causing interference in the performance of puja.
           The trial judge referred to the affidavits of certain
           Muslim residents of Ayodhya and stated that at least
           from 1936 “the Muslims have neither used this site as
B
           a mosque nor offered prayers there” and “the affidavits
           referred do make out a prima facie case in favour of
           the plaintiff”. The above order was confirmed by a
           Division Bench of the High Court of Allahabad in appeal
           on 26 April 1955, though the High Court made an
C          observation that taking on record the affidavits after the
           judgment had been reserved, was not correct;
      (iii) Despite the publication of public notices in three
            newspapers calling objections with respect to the Section
            145 proceedings, none of the Muslim defendants filed
D           any contrary statements;
      (iv) These affidavits have corroborative value: when
           defendant nos 1 to 5 filed their written statements in Suit
           1 on 21 February 1950, despite having knowledge of the
           affidavits filed in the Section 145 proceedings, they did
E          not object to the stand taken by Muslims;
       (v) Before the High Court, the affidavits had been brought
           on record in the present suit and were duly exhibited.
           They form part of relevant historical facts and could not
           be rejected outright;
F     (vi) Defendant nos 1 to 5 filed an application praying that
           Suit 1 be treated as a representative suit under Order I
           Rule 8, which was opposed by the plaintiff. The Civil
           Judge by an order dated 27 October dismissed the
           application;
G     (vii) During the course of arguments before this Court, in the
            exhibits relied upon by the Sunni Central Waqf Board
            to show possession from 1858 the disputed site has been
            referred to as “Janam Asthan Masjid” or “Masjid Janam
            Asthan” signifying that the site was always referred to
            as the Janmasthan or birth-place of Lord Ram;
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         247


           (viii) The right of entry into the temple for purposes of          A
                  “darshan” or worship is a right which flows from the
                  nature of the institution itself (Nar Hari Shastri v Shri
                  Badrinath Temple Committee122). Worship includes
                  attendance at the temple for the purpose of darshan of
                  a deity or deities in the precincts (Sastri
                                                                              B
                  Yagnapurushadji v Muldas Bhudardas Vaishya123).
                  If the general public have always made use of the
                  temple for public worship and devotion in the same way
                  as they do in other temples, it is a strong circumstance
                  in favour of the conclusive existence of a public temple
                  (Bala Shankar Maha Shanker Bhattjee v Charity               C
                  Commissioner, Gujarat State124).
       Mr Ranjit Kumar, learned Senior Counsel referred to the order
of the Magistrate dated 30 July 1953, by which the file in the
proceedings under Section 145 was consigned to the record in view of
the temporary injunction granted on 3 March 1951. The Magistrate noted        D
that the case under Section 145 had been pending ‘unnecessarily’ and
dates were being fixed in the hope that the civil suit will be disposed of
or the temporary injunction will be vacated. However, the Magistrate
noted that the finding of the civil court was binding on the criminal court
and there was no purpose in starting the proceedings separately under
Section 145. Mr Ranjit Kumar drew this Court’s attention to the               E
application dated 22 July 1954 filed by Gopal Singh Visharad before
the Magistrate requesting him to preserve all files with respect to the
proceedings under Section 145 and not to weed them out till the finality
of the decision of the civil court.
       213. Dr Rajeev Dhavan, learned Senior Counsel appearing for
the Sunni Central Waqf Board, has raised the following submissions in         F
reply:
             (i) The written statements filed by defendant nos 1 to 5 do
                 not include the Sunni Central Waqf Board;
            (ii) The mosque was constructed by Babur through his
                 Commander Mir Baqi and was dedicated as a valid              G
                 waqf. Under the Muslims Waqf Act 1936, the Chief

122
    1952 SCR 849
123
    (1966) 3 SCR 242
124
    1995 Supp (1) SCC 485
                                                                              H
248            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                      Commissioner Waqf decided that the mosque was a
                       Sunni Waqf;
                 (iii) The Muslims have been in possession of the mosque
                       since 1528 and by virtue of being in possession for more
                       than 400 years, affirmed their right of adverse
                       possession over the disputed property;
B
                 (iv) Suit 1 has been primarily filed against the State
                       authorities as the main grievance was against the
                       authorities preventing the plaintiff from offering worship
                       inside the disputed premises;
                 (v) The suit was filed to enforce a personal right of the
C                    plaintiff i.e. the right to worship inside the disputed
                     structure and thus, the right gets automatically
                     extinguished on his death;
                 (vi) The fourteen affidavits filed by the Muslim persons of
                      Ayodhya in the proceedings under Section 145
D                     proceedings are not admissible in evidence under Section
                      3 of the Indian Evidence Act. The affidavits have no
                      relevance as the authors of the affidavits have not been
                      cross examined and since they are not parties to any of
                      the suits individually, they cannot be relied upon. Justice
E                     Sudhir Agarwal has found these affidavits to be
                      unreliable;
                (vii) There is no clear mention of whether the plaintiff had
                      earlier carried out any worship inside the disputed
                      structure and he has not mentioned the exact place of
F                     birth of Lord Ram below the central dome; and
                (viii) The exhibits relied upon by the Sunni Central Waqf
                       Board clearly show that the Hindu parties had access
                       to only the outer courtyard restricted to the
                       Ramchabutra and Sita Rasoi. All efforts of trespass in
                       the inner courtyard were thwarted and the authorities
G
                       passed directions evicting those who tried to enter the
                       inner courtyard.
             214. None of the persons who are alleged to have filed affidavits
      in the proceedings under Section 145 were examined in evidence during
      the course of the civil trial before the High Court. The credibility of a
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                249


statement made by a person on affidavit can only be accepted if the              A
witness is produced in evidence. However, in the present case, the
Muslim residents who presented the affidavits before the Magistrate
in the proceedings under Section 145 were not cited or produced as
witnesses. In the absence of any opportunity to the opposite side to
challenge the statements made in the affidavits, no reliance can be
                                                                                 B
placed upon the contents of the affidavits.
       215. The original plaintiff Gopal Singh Visharad passed away
during the pendency of the suit and was substituted by his son, Rajendra
Singh Visharad pursuant to the court’s order dated 22 February 1986.
It was contended that the original plaintiff instituted the suit for enforcing
his private right to worship at the disputed property and that upon his          C
death, such right was extinguished, and the suit stood abated. It is
necessary to advert to the pleadings in Suit 1 to determine whether the
right asserted by the original plaintiff was a private right or involved a
larger public right claimed in common with other worshippers.
Paragraph 3 of the plaint in Suit 1 reads as follows:                            D
       “…Defendant No.6 prevented the plaintiff from going inside the
       place where the idol of Shri Ramchandra Ji and others are placed
       and it was learnt that after getting influence with the baseless
       and false perversity of the Defendants No.1 to 5 and their other
       fellows, Defendant No.7 to 9 have deprived the Hindu                      E
       public from their legitimate right of performing worship and
       having darshan and because of undue insistence of the
       Defendants No.1 to 5 etc., Defendant No. 6 declares that
       Hindu Public shall be deprived from their above rights in
       the same manner in future also and because of the above
       unjustifiable act, proprietary right of original plaintiff which he       F
       had always used, is being infringed and in the above
       circumstances, present plaintiff has the complete apprehension
       and fear of improper and unlawful interference in the
       Defendants in exercise of the above religious rights.”
                                                       (Emphasis supplied)       G
       Defendant no 6 is the State of Uttar Pradesh defendants nos 7
to 9 are the Deputy Commissioner, Additional City Magistrate and the
Superintendent of Police, Faizabad respectively. The pleadings indicate
that the right asserted was not a private right, but a right in common
with and for the benefit of other Hindu devotees to pray at the disputed         H
250             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A     property. The right claimed was that of the “Hindu public” to worship
      at the disputed property without undue interference. Byan order dated
      22 February 1986, the court permitted Rajendra Singh Visharad, the
      son of the original plaintiff, to be substituted as the first plaintiff in Suit
      1. Rajendra Singh Visharad is also a follower of the ‘Sanatan Dharm’
      and performed worship at the disputed site. The right asserted on behalf
B
      of the larger “Hindu public” does not stand extinguished upon the death
      of the original plaintiff and can be pursued by his son who is also a
      worshipper.
             216. The remaining issues in contention in Suit 1 are connected
      with the ones argued in Suit 5. The relief sought in Suit 5 will have a
C     direct impact on the plaintiff’s right to pray as claimed in Suit 1.
      Accordingly, we will deal with the contentions raised in Suit 1 at the
      time of addressing the contentions in Suit 5.

             M. Suit 3: Nirmohi Akhara
D
             M.1 Pleadings
            217. Nirmohi Akhara claims that the Janmasthan, commonly
      known as Janmabhumi, which is the birth-place of Lord Ram “belongs
      and has always belonged” to it and it has been “managing it and
      receiving offerings through the reigning Mahant and Sarbrahkar”.
E
      Besides the receiver, the second to fifth defendants are official
      respondents represented by the State of Uttar Pradesh and its officers.
      The plaint contains an averment that the temple has “ever since been
      in the possession of” Nirmohi Akhara and only Hindus have been
      allowed to enter and worship in it, at least since 1934. In other words,
F     Nirmohi Akhara denies the status of the disputed structure as a mosque.
      The basis for the institution of the suit is the initiation of the proceedings
      under Section 145 of the CrPC 1898 by the City Magistrate. The
      proceedings are alleged to be without lawful cause and under the
      “wrong persuasion” of the Muslim parties represented by the sixth and
      eighth defendants. As a result, the Nirmohis allege that they were
G
      wrongfully deprived “of their management and charge of the said
      temple” and that though they were awaiting the conclusion of the
      proceedings under Section 145, the proceedings have been unduly
      prolonged with the connivance of the defendants.

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             251


       The Muslim parties have been impleaded because they are alleged        A
to be interested in ensuring that the charge and management of the
temple is not handed over to Nirmohi Akhara. The cause of action for
the suit is stated to have arisen on 5 January 1950 when the receiver
is alleged to have illegally taken over management and charge of the
temple from Nirmohi Akhara. Following the incident which took place
                                                                              B
on 6 December 1992 (which the Nirmohis claim as the demolition of
the property of the temple by “some miscreants”), the plaint was
amended. The amended plaint refers to the trust deed executed by
Nirmohi Akhara on 19 March 1949 reducing its existence into writing.
The Akhara claims to own several temples and properties, which vest
in it. The relief that is claimed in the suit is for the removal of the       C
receiver “from the management and charge of the said temple of
Janmabhoomi” and for delivering it to the plaintiff.
        The averments contained in the plaint as well as the reliefs which
have been claimed by Nirmohi Akhara indicate that the claim is founded
on an entitlement, which is asserted to be the charge and management          D
of the temple. In that capacity, the Nirmohis state that they have been
in possession of the Janmabhumi temple and have received offerings
made by devotees. The plaint contains a reference to the temples that
are owned and managed by Nirmohi Akhara. There is a reference to
the possession of the Janmasthan temple by the Akhara. Ultimately,
the claim for relief is a direction simpliciter to the receiver to handover   E
the management and charge of the temple to it.
       218. In the written statement, which was filed by the Muslim
parties (defendant nos 6 to 8), the plea taken was that in the Suit of
1885 which was instituted by Mahant Raghubar Das, the relief was
confined to the Chabutra outside the mosque and no objection was taken        F
in respect of the mosque which was depicted in the site plan.
        In its replication, Nirmohi Akhara expressed ignorance about the
suit filed by Mahant Raghubar Das. The Akhara claims that it has been
wrongfully deprived of charge and the right to manage the temple as a
result of the proceedings. Though in the plaint it appears that the claim     G
in the suit was in respect of the inner courtyard, in the replication filed
by Nirmohi Akhara to the written statement of the tenth defendant, it
has been stated that the outer enclosure was in its possession and was
owned and managed by it until 1982 when it came into possession of
the receiver in a suit inter se being Regular Suit 39 of 1982.                H
252             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A            219. The averments contained in the pleadings of Nirmohi Akhara
      in Suit 3 must be read together with the nature of their defence to Suit
      5. Suit 5 has been instituted on behalf of the deity of Lord Ram and
      the Janmasthan by a next friend. Nirmohi Akhara in its written
      statement in Suit 5 opposes the maintainability of the Suit on the ground
      that the Janmasthan is not a juridical person and the next friend had no
B
      right or authority to institute a suit on behalf of the deity and the
      Janmasthan. Nirmohi Akhara has distanced itself from Suit 5, claiming
      that the idol of Lord Ram is not known as “Ram Lala Virajaman” and
      that the Janmasthan is simply a place and not a juridical person.
             Nirmohi Akhara has claimed in its written submissions that it is
C     the “Shebait of Bhagwan Shri Ram installed in the temple in dispute”
      and that the Akhara “alone” has the right to control, supervise and repair
      or even to reconstruct the temple, if necessary. It claims that in its
      capacity as the shebait and manager, “the temple belongs to Nirmohi
      Akhara” and the plaintiffs in Suit 5 “have no real title to sue”. It has
D     been urged that Suit 5 encroaches upon the rights of Nirmohi Akhara
      to manage the temple. Nirmohi Akhara urges that the entire premises
      belong to it and the plaintiffs in Suit 5 have no right of declaration against
      the right and title of Nirmohi Akhara. In the additional written statement,
      it has been claimed that the outer part was in the management and
      charge of Nirmohi Akhara till it was attached when the receiver was
E     appointed in Regular Suit 239 of 1982.
             M.2 Conflict between Suit 3 and Suit 5
            220. The following position emerges from an analysis of the
      pleadings of Nirmohi Akhara in Suit 3 and as a defendant in Suit 5:
F                  (i) The claim of Nirmohi Akhara is for the management
                       and charge of Ram Janmabhumi temple;
                  (ii) The relief sought is for handing over of the management
                       and charge of the temple by the receiver to it;
                  (iii) In the context of (i) and (ii) above, Nirmohi Akhara has
G
                        claimed that it was in possession of the temple;
                 (iv) The deprivation of the right claimed arose when the
                      receiver took over management and charge on 5 January
                      1950;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                253


            (v) The claim of Nirmohi Akhara is in the capacity of a              A
                shebait and as a manager of the temple;
           (vi) Nirmohi Akhara opposes the maintainability of Suit 5 on
                the ground that as a shebait, it alone is entitled to
                represent the deity of Lord Ram;
           (vii) The entitlement of Nirmohi Akhara to sue is to the              B
                 exclusion of any third party and hence, Suit 5 which has
                 been instituted through a next friend, is asserted as not
                 being maintainable; and
          (viii) The status of Ram Janmasthan as a juristic entity is
                 denied and hence it would (according to Nirmohi                 C
                 Akhara) not be entitled to pursue the claim in Suit 5.
      Both on the basis of the pleadings and the submissions which
have been urged during the course of the hearing, a clear conflict of
claims and entitlements has emerged between the plaintiffs in Suit 3
and Suit 5.                                                                      D
       221. Mr K Parasaran, learned Senior Counsel appearing on behalf
of the plaintiffs in Suit 5 has submitted that Suit 3 is barred by limitation,
a submission which has also been urged on behalf of the plaintiff in
Suit 4 by Dr Dhavan. On the other hand, it must be noted that Dr
Dhavan submitted that Nirmohi Akhara is as a matter of fact and                  E
evidence entitled to claim shebaiti rights in respect of the idols of Lord
Ram at the Janmabhumi. He however maintains that Suit 3 is barred
by limitation and hence, no relief should or could have been granted in
their suit. Hence, from the arguments before this Court it has emerged
that:                                                                            F
             (i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit
                 3 on the ground of the bar of limitation;
            (ii) The plaintiffs in Suit 5 oppose the claim of the plaintiff
                 in Suit 3 to be the shebait of the idols of Lord Ram;
                 and                                                             G
            (iii) The plaintiff in Suit 4 accepts the entitlement of the
                  plaintiff in Suit 3 as a shebait, subject to the caveat that
                  the suit itself is barred by limitation.
      222. A query was addressed by this Court to Mr S K Jain, learned
Senior Counsel appearing for the plaintiff in Suit 3 as to whether it is         H
254             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     open to a shebait to assert title or ownership in a manner hostile to the
      claim of the deity. In response, Mr Jain submitted that the claim of
      Nirmohi Akhara is for management and charge of the temple in its
      character as a shebait and no more. Hence, though it has used the
      phrases ‘own’ and ‘belong’, they are not intended to assert a claim of
      full ownership, over and above or any higher than as a shebait. This
B
      aspect of Mr Jain’s submission will be examined shortly in the context
      of the issue of limitation. However, it must be also noted at this stage
      that, during the course of the hearing, Mr Jain tendered a statement on
      the stand of Nirmohi Akhara on the maintainability of Suit 5 in the
      following terms:
C            “1. The Nirmohi Akhara would not press the issue of
                 maintainability of Suit No. OOS No. 5 of 1989 which has
                 been filed on behalf of the deities Plaintiff No. 1 and 2
                 through Plaintiff No. 3 as their next friend under Order 32
                 Rule 1 CPC provided the other Hindu Parties i.e. Plaintiff
D                of OOS No. 1 of 1989 and Plaintiff No. 3 of OOS No. 5
                 of 1989 do not press or question the Shebaiti right of
                 Nirmohi Akhara in relation to the deities in question and the
                 maintainability of Suit OOS No. 3 of 1989 by the Plaintiff
                 Nirmohi Akhara.
E             2. It is submitted that the plaintiff – Nirmohi Akhara can
                 independently maintain the suit even in the absence of deities
                 as parties in Suit OOS No. 3 of 1989 as the identity of the
                 deities is merged in the identity of the Shebait – Nirmohi
                 Akhara. A suit filed by the Nirmohi Akhara “as a Shebait”
                 is a suit filed by and on behalf of the deities.
F
              3. It is stated that, the reliefs sought by the Nirmohi Akhara
                 “For restoration of charge and management from the
                 receiver” cannot be categorized as reliefs “against” the
                 interest of the deities for which it can be said that they should
                 be represented as a defendant through a disinterested next
G                friend.”
             In other words, the stand of Nirmohi Akhara is that it alone is
      entitled to represent the interest of the deity in its character as a shebait
      which it has done in Suit 3. Moreover, absent any allegation of
      mismanagement on the part of the shebait, a suit cannot be instituted
H     in the name of the deity by a next friend, as has been done in Suit 5.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            255


This aspect will be explored in greater detail when the maintainability      A
of Suit 5 is analysed. At this stage, we must also notice the implications
of Dr Dhavan having accepted the shebaiti claim of Nirmohi Akhara.
The concession cannot exist in a vacuum. The assertion of the claim
can only take place in a context which acknowledges the existence of
a deity whom the shebait seeks to represent. Hence, a specific query
                                                                             B
was posed to Dr Dhavan as to whether, quite independent of the issue
of limitation, the concession which has been made on his behalf would
necessarily result in a legal consequence in regard to the position of
the deity’s presence at Ram Janmasthan. To this, it must be noted that
the response of Dr Dhavan was that the presence of the deity at
Ramchabutra, in his submission, envisaged only an easementary right          C
to worship for the Hindu devotees to pray and, for that purpose, to gain
access to the courtyard.
      M.3 Issues and findings of the High Court
       223. Before proceeding with our analysis any further, it is
necessary at this stage to enumerate the issues which were framed in         D
Suit 3 and the findings of the High Court.
      1 Is there a temple of Janmabhumi with idols installed
therein as alleged in para 3 of the plaint in Suit 3?
            Justice S U Khan - The idols were held to have been              E
            placed in the pulpit inside the constructed portion of the
            mosque for the first time during the night of 22/23
            December 1949.
            Justice Sudhir Agarwal – The premises in dispute cannot
            be treated to be a temple in the manner as claimed by the        F
            plaintiffs in Suit 3. Hence, issue 1 was answered in the
            negative.
            Justice D V Sharma – There is no evidence to establish
            that there was any temple belonging to Nirmohi Akhara
            inside the structure in which idols have been installed from
                                                                             G
            time immemorial.
      2 Does the property in Suit belong to the plaintiff in Suit
3?
            Justice Sudhir Agarwal - The property which forms the
            subject matter of the claim in Suit 3 consists of the premises   H
256            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                in the inner courtyard. There is no documentary evidence
                 to establish title nor is there any evidence to establish
                 adverse possession.
                 Justice D V Sharma held against the plaintiff.
           3 Have plaintiffs acquired title by adverse possession for
B     over 12 years?
                 Justice S U Khan – For the period before 1855, there is
                 no need to decide the question of adverse possession.
                 Justice Sudhir Agarwal held against the plaintiff.
C                 Justice D V Sharma held against the plaintiff.
            4 Are plaintiffs entitled to get management and charge of
      the said temple?
                  Justice Sudhir Agarwal held against the plaintiff. The idols
                  were placed under the central dome on the night intervening
D                 22/23 December 1949. The plaintiff having disputed this
                  cannot be treated as shebaits of the idols placed under the
                  central dome since there is no evidence of their taking care
                  of the deity in the inner courtyard under the central dome.
                  Justice D V Sharma held against the plaintiff.
E           5 Is the property in suit a mosque made by Emperor Babur
      known as Babri Masjid?
                  Justice S U Khan – The constructed portion of the
                  disputed premises was put up as a mosque by or under the
                  orders of Babur. It was not material if it was built by Mir
                  Baqi or someone else. However, it is not proved by direct
F
                  evidence that the premises in dispute including the
                  constructed portion belonged to Babur or to the person who
                  constructed the mosque. On the basis of the inscriptions
                  alone it cannot be held that the building was constructed
                  by or under the orders of Babur or that it was constructed
G                 in 1528.
                  Justice Sudhir Agarwal – The defendants failed to prove
                  that the property in dispute was constructed by Babur in
                  1528.
                  Justice D V Sharma – The property in dispute has been
H                 constructed by Babur.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            257


     6 Was the alleged mosque dedicated by Emperor Babur                     A
for worship by Muslims in general and made a public waqf
property?
          Justice S U Khan – It cannot be held that the mosque
          was not a valid mosque, having been constructed over the
          land of someone else.                                              B
          Justice Sudhir Agarwal – In the absence of evidence
          direct, circumstantial or otherwise issue no 6 has not been
          proved and is answered in the negative.
          Justice D V Sharma – Decided together with issue no 1.
     7(a) Has there been a notification under Muslim Waqf Act                C
(Act no 13 of 1936) declaring this property in suit as a Sunni
Waqf?
           Justice Sudhir Agarwal – Answered in the negative.
           Justice D V Sharma – As per the conclusions drawn in
           Suit 4.                                                           D

      7(b) Is the said notification final and binding? Its effect.
           Justice Sudhir Agarwal – Answered In the negative.
           Justice D V Sharma – As per the conclusions drawn in
           Suit 4.                                                           E
     8 Have the rights of the plaintiffs been extinguished for
want of possession for over 12 years prior to the suit?
           Justice S U Khan – Parties are enjoying joint possession
           and hence, it was not necessary to decide the issue of
                                                                             F
           adverse possession.
           Justice Sudhir Agarwal – The suit was instituted in 1959
           and it cannot be said that in the preceding 12 years, the
           plaintiffs never had possession of the inner courtyard.
           Neither of the plaintiffs have discharged the burden of
           establishing that they were owners of the property in             G
           dispute nor have the defendants established that the plaintiffs
           remain dispossessed for over 12 years and that the
           defendants have fulfilled the requirements of adverse
           possession. The issue is accordingly answered in the
           negative.                                                         H
258     SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          Justice D V Sharma – Answered against the plaintiff and
           as per the conclusions drawn in Suit 4.
      9 Is the suit within time?
           Justice S U Khan – The suit was within limitation.
B          Justice Sudhir Agarwal – The suit is barred by limitation
           under Article 120 of the Limitation Act. Articles 47, 142 and
           144 of the Limitation Act were inapplicable.
           Justice D V Sharma – The suit is barred by limitation.
      10(a) Is the suit bad for want of notice u/s 80C?
C
           Justice Sudhir Agarwal – answered in favour of the
           plaintiffs.
           Justice D V Sharma – answered in favour of the plaintiffs.
      10(b) Is the above plea available to contesting defendants?
D          Justice Sudhir Agarwal – answered in favour of the
           plaintiffs.
           Justice D V Sharma – answered in favour of the plaintiffs.
      11 Is the suit bad for non-joinder of necessary defendants?
E          Justice S U Khan – though the issue has not been dealt
           with specifically, he has agreed with the findings of Justice
           Sudhir Agarwal which are not inconsistent with his own
           findings.
           Justice Sudhir Agarwal – answered in favour of plaintiffs
F          as not pressed.
           Justice D V Sharma – decided in terms of the findings
           on issue 21 in Suit 4.
      12 Are defendants entitled to special costs u/s 35 CPC?
G          Justice Sudhir Agarwal – answered in favour of the
           plaintiffs as not pressed.
           Justice D V Sharma – answered in the negative.
      13 To what relief, if any, is the plaintiff entitled?

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            259


          Justice S U Khan – Each of the three parties (Muslims,             A
          Hindus and Nirmohi Akhara) is entitled to a declaration of
          joint title and possession to the extent of one-third share each
          and a preliminary decree is passed to that effect.
          Justice Sudhir Agarwal – The plaintiff in Suit 3 is not
          entitled to any relief. Despite this, it has been held that        B
          possession of the area governed by Ramchabutra, Sita
          Rasoi and Bhandar in the outer courtyard is declared to be
          the share of Nirmohi Akhara in the absence of any claim
          for better title. Moreover, the open area in the outer
          courtyard shall be shared by Nirmohi Akhara with the
          plaintiffs in Suit 5.                                              C

          Justice D V Sharma – the suit is dismissed and Nirmohi
          Akhara is not entitled to any relief.
     14 Is the suit not maintainable as framed?
          Justice S U Khan – Issue not decided specifically.                 D
          Miscellaneous findings – he has agreed with Justice Sudhir
          Agarwal, subject to anything contrary in his (Justice S U
          Khan’s) judgment.
          Justice Sudhir Agarwal – suit held not maintainable. Upon
          the attachment of the property under Section 145 of the
          CrPC 1898, the plaintiffs could have filed an objection            E
          before the Magistrate. The plaintiff did not file any
          objections or seek any declaration of title, in the absence
          of which the civil judge could not have directed the handing
          over of charge by the receiver to the plaintiff.
          Justice D V Sharma – The issue is decided in favour of             F
          the plaintiffs.
       15 Is the suit property valued and court-fee paid
sufficient?
          Justice Sudhir Agarwal – answered in favour of the
          plaintiffs as not pressed.                                         G
     16 Is the suit bad for want of notice u/s 83 of U.P. Act 13
of 1936?
          Justice Sudhir Agarwal – – answered in the negative.
    17 Whether Nirmohi Akhara, the Plaintiff, is a Panchayati
Math of Ramanand sect of Bairagis and as such, is a religious                H
260                    SUPREME COURT REPORTS                                               [2019] 18 S.C.R.


A     denomination following its religious faith and per suit according
      to its own customs? (added by Hon’ble High Court’s order
      dated 23 February 1996)
                           Justice Sudhir Agarwal – answered in favour of the
                           plaintiffs.
B                          Justice D V Sharma – answered held in favour of the
                           plaintiffs.
                  M.4 Limitation in Suit 3
              224. Suit 3 was instituted on 17 December 1959. The Limitation
      Act of 1908 was in force on the date of the institution of the Suit. Section
C     3 of the Limitation Act provides that subject to the provisions contained
      in Sections 4 to 25 (inclusive) every suit instituted, appeal preferred,
      and application made, after the period of limitation prescribed by the
      first schedule shall be dismissed, although limitation has not been set
      up as a defence. Section 31(b)125 of the Limitation Act 1963 saves suits,
      appeals and applications which were pending on the date of its
D     commencement from the application of the legislation. As a result, the
      issue of limitation for the purpose of Suit 3 is governed by the Limitation
      Act 1908.
            By a split 2:1 verdict, the High Court held that Suit 3 was barred
      by limitation, the dissenting judge on this issue being Justice S U Khan.
E            225. Three articles of the schedule to the Limitation Act 1908
      have been pressed in aid and the issue is which of those articles would
      stand attracted. The relevant articles are Articles 47, 120 and 142. These
      articles are extracted in the table below:
            Descr iption of suit                              Period of limitation   Time from which pe riod
                                                                                     begins to run
F           47. By any person bound by an orde r              [Three yea rs]         The da te of the final order in
            respecting the possession of immoveable                                  the case.
            proper ty made under the Code of Crimina l
            Pr ocedure, 1898, or the M amlatdars Courts
            Act, 1906, or by any one c la iming under suc h
            person, to recover the prope rty comprise d in
            such order.
            120. Suit for which no period of limitation is    [Six years]            Whe n the right to sue accrues.
            provided elsewhere in this schedule.
G           142. For possession of immoveable property        [Twelve years]         The da te of the dispossession
            when the plaintiff, w hile in possession of the                          or discontinuanc e.
            proper ty, has been dispossessed or has
            discontinue d the possession.

      125
         Section 31. Provisions as to barred or pending suits, etc...
      (b) affect any suit, appeal or application instituted, preferred or made before, and
H     pending at, such commencement.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           261


      Relevant dates                                                        A
      226. Before we enter upon the issue of limitation, it is necessary
to recapitulate the relevant dates bearing on the issue. They are as
follows:
       (i) On 29 December 1949, a preliminary order was passed
           under Section 145 of the CrPC 1898 by the Additional City        B
           Magistrate and while ordering attachment, a receiver was
           appointed;
       (ii) On 5 January 1950, the receiver took charge and made an
            inventory of the attached properties;
                                                                            C
      (iii) On 16 January 1950, Suit 1 was instituted by Gopal Singh
            Visharad seeking a declaration that he was entitled to
            worship and offer prayers at the main Janmabhumi near the
            idols. On the same date, an ad interim injunction was
            granted in the Suit;
                                                                            D
      (iv) On 19 January 1950, the ad interim injunction in Suit 1 was
           modified in the following terms:
               “The opposite parties are hereby restrained by means
               of temporary injunction to refrain from removing the
               idols in question from the site in dispute and from
                                                                            E
               interfering with puja etc. as at present carried on. The
               order dated 16.01.1950 stands modified accordingly.”
      (v) On 3 March 1951, the order of temporary injunction dated
          16 January 1950 as modified on 19 January 1950 was
          confirmed;
                                                                            F
      (vi) On 30 July 1953, the Additional City Magistrate passed the
           following order in the proceedings under Section 145:
               “The finding of the Civil Court will be binding on the
               Criminal Court. It is no use starting proceedings in this
               case under Section 145 Cr.P.C. and recording evidence        G
               specially when a temporary injunction stands, as it
               cannot be said that what may be the finding of this Court
               after recording the evidence of parties. From the
               administrative point of view the property is already under
               attachment and no breach of peace can occur.
                                                                            H
262            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                    I, therefore, order that the file under Section 145 Cr.P.C.
                     be consigned to records as it is and will be taken out
                     for proceedings further when the temporary injunction
                     is vacated.”
           (vii) On 31 July 1954, the Additional City Magistrate issued the
B                following directions:
                     “This file cannot be weeded as it is not a disposed of
                     file. How do you report that it will be weeded of?”
           (viii) On 26 April 1955, an appeal against the order dated 3
                  March 1951 under Order XLIII, Rule 1(r) of the Code of
C                 Civil Procedure 1908 was dismissed by the High Court; and
            (ix) On 17 December 1959, Suit 3 was instituted by Nirmohi
                 Akhara for a decree against the receiver for handing over
                 charge and management of the temple.

D           Reasons of the High Court
             227. Justice S U Khan adduced the following reasons for holding
      that the suit was not barred by limitation:
             (i) First, the last order which was passed in the proceedings
                 under Section 145 was on 30 July 1953 (except for an order
E                in 1970 for replacing the receiver on the death of the
                 incumbent). This order and the subsequent order of the
                 Magistrate dated 31 July 1954 indicated that the proceedings
                 under Section 145 had not been dropped or finalised. In the
                 event that the Magistrate had passed some final order either
                 after the dismissal of the appeal against the order granting
F
                 an interim injunction or on some other date, it would have
                 provided a fresh starting point for the purpose of limitation
                 to file a suit for a declaration;
            (ii) Even if it were to be held that Suit 3 is barred by limitation,
                 the rights and entitlement of the contesting parties would
G                have to be decided in Suit 1 which was instituted within the
                 period of limitation. A decision on the title of Nirmohi Akhara
                 in Suit 1 would be sufficient for the purpose of Section
                 146(1) of the CrPC;

H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          263


         (iii) The demolition of the constructed portion of the premises       A
               on 6 December 1992, acquisition of the premises and the
               adjoining area by the Union Government and the decision
               of the Supreme Court in Dr M Ismail Faruqui v Union
               of India126, gave a fresh starting point for limitation. Even
               if the remedy of all parties (except the plaintiff in Suit 1)
                                                                               B
               was barred by limitation, its rights still subsisted. The
               demolition of the structure gave a fresh cause of action for
               a declaratory suit under Section 42 of the Specific Relief
               Act 1877;
         (iv) The receiver appointed under Section 145 of the Magistrate
              cannot hold the property indefinitely after attachment.          C
              Hence, a liberal view would have to be taken in the absence
              of which uncertainty would be created. Where due to the
              attachment, a suit for possession could not be filed, Section
              28 would not extinguish the rights of the parties. Moreover,
              the principle of a continuing wrong under Section 23 of the      D
              Limitation Act 1908 was applicable and Nirmohi Akhara was
              being constantly denied their right to charge and
              management; and
          (v) In any event, even if the suit was barred by limitation, the
              court was bound to pronounce on all issues as required by        E
              Order XIV Rule 2(1) of the Code of Civil Procedure 1908.
      Justice Sudhir Agarwal adduced the following reasons for holding
that Suit 3 was barred by limitation:
          (i) The cause of action for the Suit arose on 5 January 1950
              upon the receiver taking charge of the inner courtyard;          F
          (ii) Suit 3 was confined to the premises of the inner courtyard.
               The plaintiffs in their pleadings have neither sought a
               declaration of title nor have they claimed to have been
               dispossessed illegally by anyone. The claim is that the City
               Magistrate had illegally taken over management and charge       G
               of the temple. The City Magistrate passed a statutory order
               under Section 145 and pursuant to the order of attachment
               the possession of the inner courtyard was given to the

126
      (1994) 6 SCC 360                                                         H
264            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A                receiver. An order of attachment under Section 145 could
                 not constitute a deprivation of the right to possession of the
                 real owner but the receiver is said to hold the property on
                 behalf of the true owner. There being no dispossession of
                 Nirmohi Akhara, Article 142 had no application; and
B           (iii) Article 47 is also not applicable. Hence, the issue of
                  limitation was required to be adjudicated upon with reference
                  to Article 120. The suit was instituted beyond the period of
                  six years specified in Article 120 and hence was barred by
                  limitation.
C            Justice D V Sharma held that for the purposes of determining
      limitation in Suit 3, Article 120 was applicable. Suit 3 was filed on 17
      December 1959. The suit not having been filed within six years of the
      accrual of the cause of action, it was barred by limitation.
            Submissions of Nirmohi Akhara
D            228. Mr S K Jain, learned Senior Counsel for the plaintiffs in
      Suit 3 made the following submissions with respect to limitation:
              I No final order has been passed in the proceedings
                under Section 145. Hence, limitation under Article 47
                of the Limitation Act 1908 has not commenced:
E
                  (i) The cause of action in the Suit arose on 5 January 1950
                      when the receiver took charge of the inner courtyard;
                 (ii) The Magistrate’s order under Section 145 dated 29
                      December 1949 was a preliminary order and provided
                      the cause of action. However, the limitation for such a
F
                      suit would commence only upon passing of a final order
                      in the proceedings under Section 145. In the present
                      case, as noted by the Magistrate in the order dated 31
                      July 1954, the proceedings under Section 145 had not
                      been disposed of and therefore, the final order had
G                     still not been passed. The proceedings under Section
                      145 continue to remain pending; and
                 (iii) The suit is governed by Article 47 of the Limitation Act
                       1908. The limitation of three years for a suit under
                       Article 47 commences from the date of the final order
H                      in the case. Under Article 47, the first column contains
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           265


                  the description of the suit and refers to a person bound      A
                  by an order respecting the possession of
                  immovable property made under the CrPC. The
                  third column under Article 47 specifies the time from
                  which limitation begins to run and mentions the
                  commencement of limitation from the date of the passing
                                                                                B
                  of the final order. A suit that is categorised in the first
                  column would be governed only by that, unaffected by
                  the use of the words in the third column. The Limitation
                  Act bars suits filed “after” the limitation period but does
                  not prevent suits from being instituted “before” the
                  period has commenced.                                         C
          II Denial of Nirmohi Akhara’s ‘absolute’ shebaiti rights
             of management and charge is a continuing wrong. By
             virtue of Section 23 of the Limitation Act 1908, a fresh
             cause of action arose every day:
              (i) The limitation for Suit 3 is governed by Article 142 as       D
                  the plaintiffs were dispossessed of their property. Article
                  142 is applicable when the suit is filed for possession
                  of immovable property when the plaintiff, while in
                  possession of the property, has been dispossessed or has
                  discontinued the possession. The plaintiffs in Suit 3 had     E
                  the management and charge over the idols and the
                  temple as they were performing the puja, taking care
                  of the pilgrims and performing other duties. The rights
                  to do puja, et al. i.e. the shebaiti rights are attached to
                  the possession of the immovable property. The plaintiff
                  relied on the following precedents to illustrate its          F
                  proprietary interest in the property:
                  (a) Angurbala Mullick v Debabrata Mullick 127
                      where it was held that a shebait enjoys some sort
                      of right or interest in the endowed property which
                      partially at least has the character of a proprietary     G
                      right; and
                 (b) Commissioner, Hindu Religious Endowments
                     v Sri Lakshmindra Thirtha Swamiar of Sri Shirur
127
      1951 SCR 1125                                                             H
266                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                            Mutt128 where it was held that in shebaitship both
                             the elements of office and property, of duties and
                             personal interest are blended together. The office of
                             the Mahant has the character of a proprietary right
                             which, though anomalous to some extent, is still a
                             genuine legal right.
B
                     (ii) A suit for restoration of shebaiti rights would be for
                          recovery of possession and restoration of management.
                          Article 142 would be attracted which provides a
                          limitation of 12 years from the date of dispossession;

C                   (iii) The cause of action arose on 5 January 1949 by which
                          Nirmohi Akhara was denied its absolute right as a
                          shebait and it continues to be denied those rights. The
                          obstruction of the plaintiff’s right to manage the bhog
                          and prayers independently is a continuing wrong under
                          Section 23 of the Limitation Act and every obstruction
D                         provides a fresh cause of action. Reliance was placed
                          upon the judgement of the Privy Council in Sir Seth
                          Hukum Chand v Maharaj Bahadur Singh129 where
                          the obstruction of prayer and worship has been held to
                          be a continuing wrong.

E               III Article 120 of the Limitation Act 1908 is a residuary
                    provision and is applicable when no other provision,
                    including Articles 47 and 142 applies. The doctrine of
                    merger applies, and the preliminary order dated 29
                    December 1949 passed under Section 145 merges
                    with the order dated 26 April 1955 by which the ad-
F                   interim injunction in Suit 1 was upheld by the High
                    Court:
                     (i) The submission is on the assumption (without conceding)
                         that Articles 47 and 142 are not applicable and Article
                         120 applies;
G                    (ii) By virtue of the doctrine of merger, the order of the
                          Additional City Magistrate dated 29 December 1949 in
                          the proceedings under Section 145 of the CrPC merged
                          with the order of the High Court dated 26 April 1955 in
      128
            1954 SCR 1005
      129
H           (1933) 38 LW 306 (PC)
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          267


                   the appeal against the interim order to maintain status     A
                   quo in Suit 1. Therefore, the plaintiff’s right to sue
                   accrued on 26 April 1955. Suit 3 which was filed on 17
                   December 1959 was within the period of limitation of
                   six years. Reliance was placed upon the decisions of
                   this Court in:
                                                                               B
                  (a) Chandi Prasad v Jagdish Prasad130, where it was
                      held that the doctrine of merger postulates that there
                      cannot be more than one operative decree governing
                      the same subject-matter at a given point of time.
                      When the appellate court passes a decree, the
                      decree of the trial court merges with the decree of      C
                      the appellate court, irrespective of whether the
                      appellate court affirms, modifies or reverses the
                      decree passed by the trial court; and
                  (b) S S Rathore v State of Madhya Pradesh 131,
                      where it was held that a decree of a court of first      D
                      instance merges in the decree passed in appeal.
          IV In a suit for restoration of possession from a receiver,
             the question of limitation can never arise and such
             suits can never be barred by limitation.
               (i) So long as the property of a person from whom               E
                   possession was taken continues to be under a receiver,
                   the question of limitation can never arise; and
              (ii) The property cannot remain custodia legis ad-infinitum
                   and it is incumbent for the court to adjudicate upon the
                   issue of title and the suit cannot be dismissed as barred   F
                   by limitation.
           V In determining the entitlement to mesne profits, the
             question of title will have to be adjudicated upon and
             possession will have to be delivered by the receiver
             to the true owner:                                                G
               As the property is under the control of the receiver, a suit
               for mesne profits for income derived by the receiver can
               be filed by the true owner and in such a suit, any benefit
130
      (2004) 8 SCC 724
131
      (1989) 4 SCC 582                                                         H
268            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                which accrues would give rise to a continuing cause of
                 action.
             VI It is the plaintiff’s claim that Nirmohi Akhara is also
                the shebait of the janmasthan and the idols. For the
                same reason that Suit 5 of 1989 was held to be within
B               limitation i.e. the deity was a perpetual minor, the suit
                of the plaintiff cannot be barred by limitation.
             229. Mr K Parasaran, learned Senior Counsel for the plaintiffs
      in Suit 5 refuted the submissions made by Mr S K Jain and made the
      following submissions with respect to limitation and the maintainability
C     of Suit 3:
              I The Magistrate’s order under Section 145 is an
                exercise of police powers for securing peace and does
                not determine title or possession over the property.
                Since such an order does not purport to give
D               possession to any party, the question of Nirmohi
                Akahara being dispossessed on account of an order
                in proceedings under Section 145 proceedings does
                not arise.
                  (i) An order under Section 145 is an exercise of police
E                     powers for securing peace. It is only for preventing
                      breach of peace and does not determine the rights of
                      parties with respect to title over property. Section 145
                      proceedings simply freeze or protect the rights of the
                      rightful owner. An order of the Magistrate in exercise
                      of the executive function can never be a wrongful act
F                     or cause injury. The order of a civil court cannot be
                      considered as a ‘wrong’ giving rise to a cause of action.
                      Only a judicial authority has the power to decide
                      whether the action of the civil court is wrong. Questions
                      relating to title and possession are exclusively matters
G                     for civil courts and the Magistrate’s order under Section
                      145 cannot oust the jurisdiction of the civil court;
                 (ii) The proceedings under Section 145 are distinct and there
                      exists no bar for parties to file a civil suit for title or
                      possession after the order has been passed by the
                      Magistrate. The jurisdiction of the civil court is not
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           269


                curtailed by the order of the Magistrate under Section          A
                145 and civil proceedings can be pursued independently.
                Reliance was placed upon the decisions of this Court in
                the following cases:
                 (i) Bhinka v Charan Singh132, where it was held that
                     under Section 145(1), the Magistrate’s jurisdiction is     B
                     confined only to decide whether, any and if so, which
                     of the parties was on the date of the preliminary
                     order in possession of the land in dispute. The order
                     only declares the actual possession of a party on a
                     specified date and does not purport to give possession
                     or authorise any party to take possession;                 C

                (ii) Jhummamal alias Devandas v State of Madhya
                     Pradesh133, where it was held that an order made
                     under Section 145 deals only with the factum of
                     possession of the party as on a particular day. It
                     confers no title to remain in possession of the            D
                     disputed property. The unsuccessful party therefore
                     must get relief only in the civil court in a properly
                     constituted suit. A party may file a suit for
                     declaration and prove a better right to possession.
                     The civil court has jurisdiction to give a finding
                                                                                E
                     different from that which the Magistrate has
                     reached in the proceedings under Section 145; and
               (iii) Deokuer v Sheoprasad Singh134, where it was
                     held that in a suit for declaration of title to property
                     filed when the property is attached under Section
                     145, it is not necessary to ask for further relief of      F
                     delivery of possession.
            (iii) Mr S K Jain’s submission in Suit 3 stating that the
                  proceedings under Section 145 have not attained finality
                  and therefore, the limitation under Article 47 cannot begin
                  to run cannot be accepted. Irrespective of the                G
                  proceedings under Section 145, Nirmohi Akhara could
                  independently have filed a suit for title and possession.
132
    1959 Supp (2) SCR 798
133
    (1988) 4 SCC 452
134
    (1965) 3 SCR 655                                                            H
270               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                II Section 3 of the Limitation Act 1908 provides that
                    every suit instituted after the period of limitation shall
                    be dismissed. The Supreme Court can dispose of
                    appeals only on the ground of limitation. Unlike the
                    Trial Court that has to decide on all issues, the
                    Supreme Court is not bound to do so once it comes
B
                    to the conclusion that a suit is barred by limitation.
                     (i) Reliance was placed upon the decision of this Court in
                         Yeswant Deorao Deshmukh v Walchand Ramchand
                         Kothari135, where it was observed that the rules of
                         equity have no application where there are definitive
C                        statutory provisions specifying the grounds on the basis
                         of which alone stoppage or suspension of the running
                         of time can arise. While the courts necessarily are
                         “astute in checkmating or fighting fraud”, it should be
                         equally borne in mind that statutes of limitation are
D                        statutes of repose.
                III The High Court’s decision has to be set aside. The
                    decree is contrary to the law of pleadings. No prayer
                    for a partition of land was sought by Nirmohi Akhara.
                    The High Court’s order has not been passed in
                    pursuance of the ends of justice but is an end of
E                   justice.
                IV Section 28 of the Limitation Act 1908 extinguishes the
                   substantive rights of a person. Accordingly, if the party
                   fails on the issue of limitation, then it also fails on all
                   other substantive issues and therefore, this Court
F                  cannot give any relief to Nirmohi Akhara in Suit 3.
                 V Article 120 alone governs the suit filed by Nirmohi
                   Akhara. Articles 142 and 144 of the Limitation Act are
                   not applicable. Once limitation starts to run, it cannot
                   be stopped.
G                    (i) Reliance was placed upon the decision of the Privy
                         Council in Raja Rajgan Maharaja Jagatjit Singh v
                         Raja Partab Bahadur Singh136, where it was held with

      135
            (1950) SCR 852
      136
H           (1942) 2 Mad LJ 384
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             271


                  regard to the statutory period of limitation, that Article      A
                  47 does not apply, as there has been no order for
                  possession by the Magistrate under Section 145. In a
                  suit for declaration of title, Articles 142 and 144 do not
                  apply and the suit is governed by Article 120.
        230. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiff           B
in Suit 4 made the following submissions with respect to limitation of
Suit 3:
           I The relief which Nirmohi Akhara has sought in Suit 3
             is for management and charge. However in its plaint,
             it has claimed that Janmasthan ‘belongs’ and ‘has                    C
             always belonged to it’ and the use of these terms in a
             loose sense may in a given context be inferred as
             ‘possession’, ‘ownership’ and ‘implied title’.
              (i) The relief sought by Nirmohi Akhara was only with
                  respect to management and charge of the idols of Lord           D
                  Ram. The case of Nirmohi Akhara is based on the
                  deprivation of shebaiti rights by an order under Section
                  145 of the CrPC 1898. The claim is against the State
                  for possession of usufruct and to render services to the
                  deity. Words such as “belong” or “belonging” have a
                  flexible meaning. Reliance was placed upon the                  E
                  decisions of this Court in:
                  (a) Late Nawab Sir Mir Osman Ali Khan v
                      Commissioner of Wealth Tax, Hyderabad137 in
                      relation to the discussion on the meaning of
                      ‘belonging to’; and                                         F
                  (b) Raja Mohammad Amir Ahmad Khan v
                      Municipal Board Sitapur 138 in relation to the
                      discussion on making unequivocal assertions in the
                      plaint and reading the plaint in its entirety to decipher
                      the true meaning.                                           G
              (ii) Nirmohi Akhara had claimed in paragraph 2 of its plaint
                   that the Jamnasthan belongs and has always belonged

137
      1986 Supp SCC 700
138
      AIR 1965 SC 1923                                                            H
272     SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A             to it. Further, it has been claimed in paragraph 4 of the
              plaint that the temple has been in the possession of the
              plaintiff. However, in the written submissions, the
              plaintiff has adverted to a claim of ownership and
              possession.
B        (iii) Use of the terms ‘belongs’ or ‘belonging to’ may in a
               given context be inferred as ‘possession’, ‘ownership’
               and ‘implied title’. The term ‘belongs’ or ‘belonging to’
               is not a term of art and does not have a definitive
               meaning. Its interpretation can be open.
C     II Nirmohi Akhara is using the term ‘belongs’ to claim
         title and obviate the bar of limitation. The term
         ‘belongs’ should be given its ordinary meaning. If
         Nirmohi Akhara claims title for itself then it is at odds
         with the suit of the deity. It can only claim ancillary
         rights:
D
          (i) Nirmohi Akhara merely claims to serve the idol and is
              not claiming the idol itself. Nirmohi Akhara is claiming
              a duty and not the right to ownership and title.
              Accordingly, only Article 120 can apply; and
          (ii) Unlike the law of trusts in the United Kingdom, in India,
E
               no ownership or title devolves upon the shebait. The
               shebait is not the owner of the property of the idol.
      III Nirmohi Akhara has used the proceedings under
          Section 145 to urge that the action of the government
          in denying them absolute shebait rights is a
F
          continuing wrong:
          (i) Section 145 proceedings are not for determining claims
              for title or ownership. Nothing prevented Nirmohi
              Akhara from filing a declaratory suit for possession and
              title; and
G
          (ii) The specific date pleaded of when the cause of action
               arose was 5 January 1950. Where the law has interfered
               to take away possession under the order of the
               Magistrate, the period of six years started on that date
               and there was no scope for invoking a continuing wrong
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            273


               because the action was complete, and remedies lay             A
               elsewhere.
       Having adverted to the submissions which were urged by the
learned Senior Counsel on the issue of whether Suit 3 is barred by
limitation, we now proceed to analyse various provisions of the CrPC
1898 and Articles of the Limitation Act 1908.                                B
      Nature and Scope of Section 145 proceedings
       231. The Magistrate attached the property by an order dated 29
December 1949 made under Section 145 of the CrPC 1898. The
plaintiffs in Suit 3 state that the cause of action arose on 5 January
1950 when the receiver took charge of the property and they were             C
denied charge and management of the temple.
      232. Section 145 was included in Chapter XII of the Code of
1898, titled “Disputes as to Immovable Property”. Section 145 states
thus:
                                                                             D
      “Section 145. Procedure where dispute concerning land, etc., is
      likely to cause breach of peace
           (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
                                                                             E
               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        F
               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        G
               other produce of land, and the rents or profits of any
               such property.
           (3) A copy of the order shall be served in the manner
               provided by this Code for the service of a summons
               upon such person or persons as the Magistrate may             H
274   SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          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 of the claims of any of such parties to a right to
B          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
C          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
D          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.

E      (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
F          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 first proviso to sub-section (4) be
           treated as being in such possession of the said subject,
           he shall issue an order declaring such party to be entitled
G          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 first proviso to sub-section (4), may restore
           to possession the party forcibly and wrongfully
           dispossessed.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                275


            (7) When any party to any such proceeding dies, the                  A
                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,
                                                                                 B
                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              C
                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        D
                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            E
                under section 107.”
        Section 145 is recognised to be a branch of the preventive
jurisdiction of the Magistrate.139 Section 145(1) can be invoked on the
satisfaction of the Magistrate that “a dispute likely to cause a breach
of the peace exists…”. The provision relates to disputes regarding               F
possession of land or water or its boundaries which may result in breach
of the peace. The function of the Magistrate is not to go into questions
of title, but to meet the urgency of the situation by maintaining the party
in possession. The Magistrate is empowered to call upon the parties to
put in written statements in support of their claim to “actual possession”.      G
Such an order is to be served as a summons upon the parties. The
Magistrate is to peruse the statements, hear the parties and weigh the
evidence, in order to ascertain who was in possession at the date of
139
    Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th
edition (2016) at page 426                                                       H
276             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A     the order. The Magistrate may make that determination “if possible”
      to do so. Moreover, the determination is about the factum of possession
      on the date of the order “without reference to the merits of the claim
      of any of such parties to a right to possess the subject of the dispute”.
      These words indicate that the Magistrate does not decide or adjudicate
      upon the contesting rights to possess or the merits of conflicting claims.
B
      The Magistrate is concerned with determining only who was in
      possession on the date of the order. If possession has been wrongfully
      taken within two months of the order, the person so dispossessed is to
      be taken as the person in possession. In cases of emergency, the
      Magistrate can attach the subject of the dispute, pending decision. The
C     action ultimately contemplated under Section 145 is not punitive, but
      preventive, and for that purpose is provisional only till a final or formal
      adjudication of rights is done by a competent court in the due course
      of law. Thus, nothing affecting the past, present and future rights of
      parties is contemplated under the provision.
D            233. The object of the provision is merely to maintain law and
      order and to prevent a breach of the peace by maintaining one or other
      of the parties in possession, which the Magistrate finds they had
      immediately before the dispute, until the actual right of one of the parties
      has been determined by a civil court.140 The object is to take the subject
      of dispute out of the hands of the disputants, allowing the custodian to
E     protect the right, until one of the parties has established her right (if
      any) to possession in a civil court.141 This is evident from the provisions
      of sub-section (6) of Section 146. The Magistrate declares the party
      which is entitled to possession “until evicted therefrom in due course
      of law.” While proceeding under the first proviso, the Magistrate may
F     restore possession to a party which has been wrongfully and forcibly
      dispossessed. No party can be allowed to use the provisions of Section
      145 for ulterior purposes or as a substitute for civil remedies. The
      jurisdiction and power of the civil court cannot in any manner be
      hampered.142
G
      140
          Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th
      edition (2016) at page 427
      141
          Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th
      edition (2016) at page 427
      142
          Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th
H     edition (2016) at page 451
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       277


      234. This Court has analysed the nature and scope of proceedings      A
under Section 145 in the following cases:
       (i) In Bhinka v Charan Singh143, the respondent, claimed the
           lands in dispute “to be his sir”, while the appellants claimed
           to be in possession of the lands as hereditary tenants. The
           Magistrate initiated proceedings under Section 145, attached     B
           the lands in dispute and directed them to be placed in
           possession of a superdgidar pending disposal of those
           proceedings. After enquiries, the Magistrate concluded that
           the appellants were entitled to be in possession until evicted
           in due course of law. Thereafter, the respondent filed a suit
           before the Revenue Courts. The appeal before the Supreme         C
           Court arose from that proceeding. One of the issues before
           this Court was whether the appellants had taken possession
           in accordance with the provisions of Section 145. Justice
           Subba Rao, speaking for a three judge Bench of this Court,
           held thus:                                                       D
               “16… Under Section 145(6) of the Code, a Magistrate
               is authorized to issue an order declaring a party to be
               entitled to possession of a land until evicted therefrom
               in due course of law. The Magistrate does not
               purport to decide a party’s title or right to                E
               possession of the land but expressly reserves that
               question to be decided in due course of law. The
               foundation of his jurisdiction is on apprehension
               of the breach of the peace, and, with that object,
               he makes a temporary order irrespective of the
               rights of the parties, which will have to be agitated        F
               and disposed of in the manner provided by law. The
               life of the said order is co-terminus with the
               passing of a decree by a civil court and the
               moment a civil court makes an order of eviction,
               it displaces the order of the criminal court. The            G
               Privy Council in Dinomoni Chowdhrani v. Brojo Mohini
               Chowdhrani [(1901) LR 29 IA 24, 33] tersely states the
               effect of orders under Section 145 of the Code of
               Criminal Procedure thus:
143
      1959 Supp (2) SCR 798                                                 H
278                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A                        “These orders are merely police orders made to
                         prevent breaches of the peace. They decide no
                         question of title…”.
                         We, therefore, hold that a provisional order of a
                         Magistrate in regard to possession irrespective of the
B                        rights of the parties cannot enable a person to resist the
                         suit under Section 180 of the Act.”
                                                             (Emphasis supplied)
                (ii) In R H Bhutani v Miss Mani J Desai144, the appellant
                     entered into a leave and license agreement with the first
C
                     respondent to occupy a cabin owned by her. When a dispute
                     over increase in compensation arose between the parties,
                     the first respondent sought to evict the appellant and also
                     hand over the possession of the cabin to the second and
                     third respondents. Thereafter, the appellant filed an
D                    application under Section 145 and the Magistrate
                     commenced the proceedings. While the proceedings were
                     pending, the respondent filed a civil suit. The Magistrate
                     concluded that appellant was in actual possession of the
                     cabin and had been forcibly dispossessed. In the Revision
                     Petition before the High Court, the Magistrate’s order was
E                    set aside and it was held that the Magistrate had breached
                     the scope of his powers under Section 145. The order of
                     the High Court was assailed before this Court, which set
                     aside the order of the High Court and restored the order of
                     the Magistrate. Justice JM Shelat, speaking for a three judge
                     Bench of this Court discussed the scope of proceedings
F
                     under Section 145 if the following terms:
                         “8. The object of Section 145, no doubt, is to
                         prevent breach of peace and for that end to provide
                         a speedy remedy by bringing the parties before the court
                         and ascertaining who of them was in actual
G                        possession and to maintain status quo until their
                         rights are determined by a competent court… The
                         enquiry under Section 145 is limited to the
                         question as to who was in actual possession on the
      144
            (1969) 1 SCR 80
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             279


                   date of the preliminary order irrespective of the              A
                   rights of the parties.”
                                                        (Emphasis supplied)
         (iii) In Shanti Kumar Panda v Shakuntala Devi145, there was
               a dispute between the parties regarding a shop. Proceedings
               under Section 145 were commenced on the basis of a                 B
               complaint filed by the appellant and the Magistrate attached
               the property. The respondent, who claimed to be interested
               in the subject-matter of the dispute was not allowed to be
               impleaded in the proceedings. The final order under Section
               145 was in favour of the appellant. Revision petitions against     C
               the order were dismissed. Thereafter, the respondent filed
               a civil suit and secured an injunction. The injunction was
               however, vacated by the District Court on the ground that
               since Section 145 proceedings had terminated in the
               appellant’s favour, the Trial Court was not justified in issuing
               the injunction unless and until the order of the Magistrate        D
               was superseded by a civil court’s decree and no injunction
               could be granted while the property was ‘custodia legis’.
               The High Court reversed the District Court’s order. The
               decision of the High Court was assailed before this Court.
               A three judge Bench of this Court dismissed the appeal and         E
               dealt with the nature of proceedings under Section 145.
               Justice J M Shelat, speaking for the Court held:
                   “10. The proceedings under Sections 145/146 of the
                   Code have been held to be quasi-civil, quasi-criminal in
                   nature or an executive or police action. The purpose of        F
                   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 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          G
                   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 the proviso to sub-section (4) of Section
145
      (2004) 1 SCC 438                                                            H
280             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                     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
B
                      possession and is not over possession simpliciter…”
           The Court in the following observations dealt with the interplay
      between the order of a Magistrate and the jurisdiction of a civil court:
            “15. It is well settled that a decision by a criminal court does not
C           bind the civil court while a decision by the civil court binds the
            criminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) A
            decision given under Section 145 of the Code has relevance and
            is admissible in evidence to show: (i) 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
D           a preliminary order under Section 145(1) or an attachment under
            Section 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
E           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 though, as
            between the parties, the order of the Magistrate would be
            evidence of possession. The finding recorded by the
F           Magistrate does not bind the court. The competent court
            has jurisdiction and would be justified in arriving at a
            finding inconsistent with the one arrived at by the
            Executive Magistrate even on the question of possession.”
                                                            (Emphasis supplied)
G
             The Court held that the order passed by the Magistrate will not
      be treated as binding even the interlocutory jurisdiction of the civil court
      under Order XXXIX of the Code of Civil Procedure:
            “22…The civil court shall also respect such order and will be
            loath to arrive at an interim arrangement inconsistent with the
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         281


         one made by the Executive Magistrate. However, this is far           A
         from holding that the civil court does not have jurisdiction
         to make an order of 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. There may be cases such as one where the
                                                                              B
         order of the Executive Magistrate can be shown to be
         without jurisdiction, palpably wrong or containing self-
         contradictory findings. For example, the Magistrate may
         have made an order treating the party dispossessed
         beyond two months to be as in possession. There may be
         cases where in spite of the order made by the Executive              C
         Magistrate based on the evidence adduced before it, the
         competent court, based on the material produced before
         such court, may be inclined to hold that prima facie a very
         strong case for retaining or placing one of the parties in
         possession of the suit property is made out or where it will
                                                                              D
         be totally unjust or inequitable to continue one party in
         possession of the property as ordered by the Executive
         Magistrate. In such exceptional situations, the competent court
         (which will mostly be a civil court) may have jurisdiction for
         granting an order of injunction in departure from the findings
         recorded and the declaration made by the Executive Magistrate        E
         under Section 145 of the Code of Criminal Procedure. The order
         under Section 146 of the Code would not pose a problem of that
         magnitude. Inasmuch as the property is under attachment and is
         placed in the hands of a receiver, the civil court can comfortably
         examine whether it would be just and expedient to continue with
                                                                              F
         the attachment and with the same receiver or to appoint another
         receiver or to make some other interim arrangement during the
         pendency of the civil suit.”
                                                      (Emphasis supplied)
         (iv) In Surinder Pal Kaur v Satpal146, reliance was placed           G
              upon the decision in Shanti Kumar Panda. Justice Dipak
              Misra (as the learned Chief Justice then was) speaking for
              the two judge Bench, held thus:

146
      (2015) 13 SCC 25                                                        H
282               SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A                        “10... It is a settled position of law that the observations
                         made in the proceedings drawn under Section 145 CrPC
                         do not bind the competent court in a legal proceeding
                         initiated before it.”
              235. Section 145 proceedings do not purport to decide a party’s
B     title or right to possession of the land. The property held in attachment
      in proceedings under Section 145 is ‘custodia legis’. Hence, it is not
      necessary to secure possession from a party who is not in possession
      and is hence, not in a position to deliver possession. This Court has
      analysed the nature of the property under attachment in the following
      decisions:
C
                (i) In Deokuer v Sheoprasad Singh147, a three judge Bench
                    of this Court, held that property held under attachment under
                    Section 145 is ‘custodia legis’. The appeal arose out of a
                    suit brought by the appellants in 1947 for a declaration that
                    the respondents had acquired no right or title to a property
D                   under certain deeds and that the deeds were inoperative and
                    void. The suit was decreed by the Trial Court, but on appeal,
                    the High Court set aside the decree. The High Court held
                    that as the appellants were not in possession of the property
                    at the date of the suit, their suit must fail under the proviso
E                   to Section 42 of the Specific Relief Act as they had failed
                    to ask for the further relief of recovery of possession from
                    the respondents. On the date of the suit, the property in
                    dispute had been attached by the Magistrate, exercising his
                    powers under Section 145 and was not in the possession
                    of any party. The issue that arose before this Court was
F                   whether in view of the attachment, the appellants could have
                    in their suit, sought the relief for delivery of possession to
                    them. Speaking for the three judge Bench, Justice A K
                    Sarkar held thus:
                         “4. In our view, in a suit for declaration of title to
G                        property filed when it stands attached under Section 145
                         of the Code, it is not necessary to ask for the further
                         relief of delivery of possession. The fact, if it be so, that
                         in the case of such an attachment, the Magistrate holds
                         possession on behalf of the party whom he ultimately
      147
H           (1965) 3 SCR 655
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            283


           finds to have been in possession is, in our opinion,            A
           irrelevant. On the question however whether the
           Magistrate actually does so or not, it is unnecessary to
           express any opinion in the present case.
           5. The authorities clearly show that where the defendant
           is not in possession and not in a position to deliver           B
           possession to the plaintiff it is not necessary for the
           plaintiff in a suit for a declaration of title to property to
           claim possession: see Sunder Singh — Mallah Singh
           Sanatan Dharam High School, Trust v. Managing
           Committee, Sunder Singh-Mallah Singh Rajput High
           School [(1957) LR 65 IA 106] . Now it is obvious that           C
           in the present case, the respondents were not in
           possession after the attachment and were not in a
           position to deliver possession to the appellants. The
           Magistrate was in possession, for whomsoever, it does
           not matter, and he was not of course a party to the suit.       D
           It is pertinent to observe that in Nawab Humayun
           Begam v. Nawab Shah Mohammad Khan [AIR (1943)
           PC 94] it has been held that the further relief
           contemplated by the proviso to Section 42 of the Specific
           Relief Act is relief against the defendant only. We may
           add that in K. Sundaresa Iyer v. Sarvajana Sowkiabil            E
           Virdhi Nidhi Ltd. [(1939) ILR Mad 986] it was held
           that it was not necessary to ask for possession when
           property was in custodia legis. There is no doubt that
           property under attachment under Section 145 of the
           Code is in custodia legis. These cases clearly establish        F
           that it was not necessary for the appellants to have
           asked for possession.”
   (ii) In Shanti Kumar Panda, this Court formulated the legal
        principles governing the effect of the order of a Magistrate
        under Section 145/146 when legal proceedings are instituted        G
        before a court of competent jurisdiction:
      “(1) The words “competent court” as used in sub-section (1)
           of Section 146 of the Code do not necessarily mean a
           civil court only. A competent court is one which has the
           jurisdictional competence to determine the question of
                                                                           H
284   SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          title or the rights of the parties with regard to the
           entitlement as to possession over the property forming
           the subject-matter of proceedings before the Executive
           Magistrate:
       (2) A party unsuccessful in an order under Section 145(1)
B          would initiate proceedings in a competent court to
           establish its entitlement to possession over the disputed
           property against the successful party. Ordinarily, a relief
           of recovery of possession would be appropriate to be
           sought for. In legal proceedings initiated before a
           competent court consequent upon attachment
C          under Section 146(1) of the Code it is not
           necessary to seek relief of recovery of possession.
           As the property is held custodia legis by the
           Magistrate for and on behalf of the party who would
           ultimately succeed from the court, it would suffice
D          if only determination of the rights with regard to
           the entitlement to the possession is sought for.
           Such a suit shall not be bad for not asking for the
           relief of possession.
       (3) A decision by a criminal court does not bind the civil
E          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 weight before the competent court at the
F          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
G          injunction or to order an interim arrangement inconsistent
           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
H          executive orders made within jurisdiction by their
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            285


                   makers; and certainly not a tab on the power of court.        A
                   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
                                                                                 B
                   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,   C
                   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
                                                                                 D
                   evicting therefrom the party successful before the
                   Executive Magistrate within the meaning of sub-section
                   (6) of Section 145.”
                                                        (Emphasis supplied)
      The above formulation is essentially a restatement of the principles       E
which emerge from a consistent line of precedent of the Court [See
also Jhummamal alias Devandas v State of Madhya Pradesh148.]
        236. Where a suit is instituted for possession or for declaration
of title before a competent civil court, the proceedings under Section
145 should not continue. This Court has analysed the above proposition           F
of law in the following cases:
          (i) In Amresh Tiwari v Lalta Prasad Dubey149, Justice S N
              Variava, speaking for a three judge Bench of this Court held
              thus:
                   “12… The law on this subject-matter has been settled          G
                   by the decision of this Court in the case of Ram Sumer
                   Puri Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985

148
      (1988) 4 SCC 452
149
      (2000) 4 SCC 440                                                           H
286               SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A                        SCC (Cri) 98] In this case it has been held as follows:
                         (SCC pp. 428-29, para 2)
                         “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
B                        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…parallel proceedings should not be permitted to
                         continue and in the event of a decree of the civil court,
C                        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
D                        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….”
E
            The Court rejected the submission that the principle in Ram
      Sumer Puri Mahant v State of UP150 will apply only after the civil
      court has adjudicated on the issue:
               “13. We are unable to accept the submission that the principles
F              laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC
               (Cri) 98] would only apply if the civil court has already
               adjudicated on the dispute regarding the property and given a
               finding. In our view Ram Sumer case [(1985) 1 SCC 427 : 1985
               SCC (Cri) 98] is laying down that multiplicity of litigation should
               be avoided as it is not in the interest of the parties and public
G              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

      150
H           (1985) 1 SCC 427
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              287


      pendency of the dispute, the parallel proceedings i.e. Section 145       A
      proceedings should not continue.”
      Dealing with the issue as to when the proceedings under Section
145 should not be pursued any further on the institution of a suit for
adjudication, this Court held:
      “14. Reliance has been placed on the case of Jhummamal v.                B
      State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] It is
      submitted that this authority lays down that merely because a
      civil suit is pending does not mean that proceedings under Section
      145 of the Criminal Procedure Code should be set at naught. In
      our view this authority does not lay down any such broad                 C
      proposition. In this case the proceedings under Section 145 of
      the 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     D
      did not mean that the concluded order under Section 145 of the
      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                     E
      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 Sumer case [(1985) 1 SCC 427 : 1985
      SCC (Cri) 98] fully applies. We clarify that we are not stating
      that in every case where a civil suit is filed, Section 145
      proceedings would never lie. It is only in cases where civil             F
      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               G
      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.”
                                                     (Emphasis supplied)
                                                                               H
288            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            Having set out the position established in law with respect to
      Section 145 proceedings, we now advert to the application of the law
      to the set of facts in the present case. The provisions of Section 145
      can be invoked only when there is a danger of a breach of peace. The
      jurisdiction of the Magistrate does not extend to adjudicate into disputed
      questions of title. The Magistrate has been vested with the authority to
B
      meet the urgency of the situation and maintain peace. The determination
      of the Magistrate is confined to which party was in actual possession
      on the date of the order. The real purpose is to decide who has actual
      physical possession and not legal possession supported by title over the
      land. To initiate proceedings under Section 145, the Magistrate has to
C     be satisfied of the existence of a dispute which is likely to cause a
      breach of peace. The enquiry by the Magistrate is of a summary nature,
      the object being to ensure tranquillity in the locality when the dispute is
      likely to result in a breach of peace.
             237. On 29 December 1949, a preliminary order under sub-
D     section (1) of Section 145 was issued by the Additional City Magistrate,
      Faizabad-cum-Ayodhya. Simultaneously an order of attachment was also
      passed under the second proviso to sub-section (4) treating the situation
      to be one of emergency. On 5 January 1950, the receiver took charge
      and made an inventory of the attached items. Pursuant to the order of
      the Magistrate, only two or three pujaris were permitted to go inside
E     the place where idols were kept to perform religious ceremonies like
      bhog and puja and the general public was permitted to have darshan
      only from beyond the grill-brick wall. The proceedings under Section
      145 were not judicial; the Magistrate while exercising authority under
      the provision was not empowered to deal with the substantive rights of
F     the parties. The proceedings under Section 145 are not akin to a civil
      proceeding. Adjudication of substantive claims over title and ownership
      over a property can be decided in a competent civil proceeding.
      Proceedings under Section 145 are not in the nature of a trial before a
      civil court and are merely in the nature of police proceedings. The
      Magistrate’s order cannot adversely impact the substantive rights of
G     parties. Upon the attachment of the property and after the appointment
      of the receiver, the property became custodia legis and the receiver
      held the property for the benefit of the true owner. The receiver so
      appointed could not be described as a party interested in the dispute.
      By his subsequent orders dated 30 July 1953 and 31 July 1954, the
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           289


Magistrate deferred the proceedings and continued the order of              A
attachment.
      238. Justice Sudhir Agarwal correctly observed that in view of
the ad-interim injunction in Suit 1 by which status quo was ordered
and sewa-puja was continued, the proceedings under Section 145 could
not have been dropped as it would have disturbed the status quo. Justice    B
Agarwal observed:
      “2244. … From perusal of injunction order passed by the
      Civil Court, we find that on 16th January, 1950 a simple
      order, in terms of the prayer made in the interim injunction
      application, was passed directing the parties to maintain             C
      status quo. Thereafter on 19th 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,                D
      in Suit-1, the City Magistrate was also impleaded as one
      of the defendants 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…the Magistrate could not have ignored this                   E
      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 been construed by the Civil Judge as an order
      disobeying the order of status quo. Had the Civil Judge
      passed an order appointing a Court’s Receiver and                     F
      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         G
      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 fail 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
                                                                            H
290             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            not give a cause of action and on the contrary it only makes 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 exists some dispute and not the order of the Magistrate
B
             whereby he attached the property in question and placed it in
             the charge of the Receiver.”
                                                            (Emphasis supplied)
             239. In view of the settled position in law, as it emerges from
      the decisions of this Court, after the Magistrate’s order dated 29
C     December 1949 for attachment of property, nothing prevented Nirmohi
      Akhara from filing a declaratory suit for possession and title. The
      Magistrate’s order did not decide or adjudicate upon the contesting
      rights to possess or the merits of conflicting claims of any of the parties.
      Substantive rights with respect to title and possession of the property
D     could have been dealt with only in civil proceedings before a civil court.
      The Magistrate did not have jurisdiction to determine questions of
      ownership and title. The proceedings under Section 145 could not have
      resulted in any adjudication upon title or possession of the rightful owner
      as that is within the exclusive domain of civil courts. Nirmohi Akhara
      cannot take the defence that no final order had been passed in Section
E     145 proceedings and as a result limitation did not commence. The
      Magistrate simply complied with the directions given by a civil court
      with respect to maintaining status quo in Suit 1 and accordingly,
      deferred the proceedings under Section 145.
             The case under Article 142 of the Limitation Act 1898
F            240. Article 142 governs a suit for possession of immoveable
      property when the plaintiff while in possession has been dispossessed
      or “has discontinued the possession”. The period of limitation under
      Article 142 is 12 years. Time begins to run from the date of the
      dispossession or discontinuance. Nirmohi Akhara claims that the cause
G     of action arose on 5 January 1950 and the suit which was instituted on
      17 December 1959 is within the limitation of twelve years.
             The concepts of dispossession and discontinuance of
      possession
             241. Besides the absence of specific relief in Nirmohi’s Suit with
H     respect to seeking possession of the Janmasthan temple, there is another
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          291


aspect to be explored with respect to the applicability of the concepts        A
of dispossession and discontinuance of possession in the facts of the
present case. Article 142 of the Limitation Act 1908 encompasses a
suit for possession of immovable property. It covers those suits for
possession of immoveable property which fall within either of two
descriptions. The first is when the plaintiff while in possession of the
                                                                               B
property has been dispossessed. The second covers a situation where
the plaintiff while in possession has discontinued the possession. In other
words, Article 142 which deals with suits for possession of immoveable
property qualifies this with the requirement that the plaintiff should have
been in possession of the property when either of the two events have
taken place namely, the event of being dispossessed or, as the case            C
may be, the event of having discontinued the possession. Article 142
has not confined the description of the suit to simply a suit for possession
of immoveable property. The provision incorporates a requirement of
prior possession of the plaintiff and either the dispossession or the
discontinuance of possession while the plaintiff was in possession. The
                                                                               D
period of limitation is 12 years and time begins to run from the date of
dispossession or discontinuance.
       242. Article 144 is a residuary provision dealing with suits for
possession of immoveable property or any interest in immoveable
property not specifically provided for elsewhere. As a residuary
provision, Article 144 applies to suits for possession of immoveable           E
property which do not fall within a description which is specially
enumerated in the articles of the schedule. In the case of Article 144,
the period of limitation is 12 years and time begins to run when the
possession of the defendant has become adverse to the plaintiff.
       243. Article 142, as seen above, incorporates two distinct              F
concepts. The first is of dispossession and the second is of
discontinuance of possession. Dispossession connotes an ouster; it
involves a situation where a person is deprived of her/his possession
with the coming of another person into possession. Dispossession implies
deprivation of a right to possess which is not voluntary and involves an
act of ouster which displaces the person who was in possession of the          G
property. The expression ‘dispossession’ is defined in Black’s Law
Dictionary151 as follows:


151
      Black’s Law Dictionary, Tenth Edition at p. 572                          H
292             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A            “Deprivation of, or eviction from, rightful possession of property;
             the wrongful taking or withholding of possession of land from
             the person lawfully entitled to it; ouster.”
             The expressions ‘discontinuance’ and ‘dispossession’ have been
      defined in P Ramanatha Aiyar’s Advanced Law Lexicon152:
B            “Discontinuance means that a person in possession goes out and
             is followed into possession by another person. It implies that all
             indications of occupation have been withdrawn.”
             “Dispossession or ouster is wrongfully taking possession of land
             from its rightful owner. The dispossession applies only to cases
C            where the owner of land has, by the act of some person, been
             deprived altogether of his dominion over the land itself, or the
             receipt of its profits. A person cannot be dispossessed of
             immoveable property unless he was possessed thereof at the
             time.”
             Dispossession presupposes the pre-existing possession of the
D     person at a given time who was subsequently dispossessed. A person
      who is not in possession cannot be said to be dispossessed.
      Discontinuance on the other hand, embodies a notion of abandonment
      of possession and is sometimes described as a voluntary act of the
      person who discontinues possession on his own accord. G W Paton153
E     in his seminal treatise on “Jurisprudence” notes that “as with most
      words in the English language, the word ‘possession’ has a variety of
      uses and a variety of meanings, depending upon context and use”. The
      author tells us that “the search for one appropriate, complete meaning
      for the word is likely to be a fruitless one”.
             Black’s Law Dictionary154 defines the expression ‘possession’
F
      thus:
             “1. The fact of having or holding property in one’s power; the
                   exercise of dominion over property.
               2. The right under which one may exercise control over
                   something to the exclusion of all others; the continuing
G
                   exercise of a claim to the exclusive use of a material object.”
      152
          P Ramanantha Aiyar’s Advanced Law Lexicon, Fifth Edition at pgs. 1537 and
      1563
      153
          G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3rd Edition,
      Oxford: Clarendon Press (1964)
      154
H         Black’s Law Dictionary, Tenth Edition at page 1351
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         293


        In Supdt and Remembrancer of Legal Affairs West Bengal                A
v Anil Kumar Bhunja155, this Court observed that “possession is a
polymorphous term” and, therefore, it was not possible to ascribe a
meaning which would apply in every context. Drawing sustenance from
Salmond’s Jurisprudence, the Court noted that possession implies a right
and a fact; the right to enjoy annexed to the right to property and the
                                                                              B
fact of the real intention. Possession as a concept comprehends “corpus
possessionis and animus possidendi”. The former embraces the
power to use the thing in possession and the existence of a ground of
expectation that the use of the possession shall not be interfered with.
The latter postulates the intent to appropriate to oneself the exclusive
use of the thing which is possessed.                                          C
        244. In Shyam Sunder Prasad v Raj Pal Singh156, this Court
speaking through a Bench of three judges elaborated on the distinction
between Articles 142 and 144 of the Limitation Act 1908. The Court
observed:
“3…Under the old Limitation Act, all suits for possession whether based       D
on title or on the ground of previous possession 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           E
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.”
        245. In order to bring the suit within the purview of Article 142,
the following requirements must be fulfilled:                                 F
        (i) The suit must be for possession of immoveable property;
        (ii) The plaintiff must establish having been in possession of the
              property; and
        (iii) The plaintiff should have been dispossessed or must have
              discontinued possession while in possession of the property.    G
      For Article 142 to apply, these requirements must cumulatively
be established.

155
      (1979) 4 SCC 274
156
      (1995) 1 SCC 311                                                        H
294             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            246. The Suit by Nirmohi Akhara postulates that the Janmasthan,
      commonly known as Janmabhumi, which is the birth-place of Lord Ram
      “belongs and has always belonged” to Nirmohi Akhara which has been
      “managing it and receiving offerings”. According to the plaintiffs, the
      temple has ever since been in the possession of Nirmohi Akhara. The
      grievance in the Suit is that the plaintiffs were wrongfully deprived of
B
      their management and charge of the temple as a result of the order of
      attachment under Section 145 and the proceedings have been unduly
      prolonged by the Magistrate with the connivance to the Muslim parties.
      Nirmohi Akhara prays for the removal of the receiver from management
      and charge and for delivering it to the plaintiffs. Essentially, it is on the
C     basis of the expressions “belongs” in paragraph 2 and “possession” in
      paragraph 4 of the pleadings that Nirmohi Akhara has sought to bring
      the suit within the purview of Article 142 (and hence, outside the
      purview of residuary Article 120).
             247. Dr Rajeev Dhavan, learned Senior Counsel appearing on
D     behalf of the Sunni Central Waqf Board, has made a painstaking effort
      to demonstrate how a careful attempt has been made on behalf of
      Nirmohi Akhara to travel beyond the pleadings and more specifically
      the relief which has been claimed in the suit by seeking to expand the
      scope of the suit in the written submissions.

E            248. In our view, it would be instructive having set out the ambit
      of Suit 3, to demonstrate how the written submissions attempt (through
      the craft of Counsel) to change the nature of the suit in order to bring
      it within limitation. As a matter of first principle, the plaint must be read
      as a whole. However, this is quite distinct from permitting the plaintiff
      to a suit to alter its nature on the basis of written submissions in appeal.
F     Any alteration in the content of a plaint can only take place by an
      amendment under Order VI Rule 17 of the CPC. Instead, as we shall
      see, an ingenious effort has been made to gloss over the contents of
      the suit in the written submissions. This is impermissible. Mr S K Jain,
      learned Senior Counsel appearing on behalf of the plaintiff in Suit 3,
      made the following submission in paragraph 13(d) of his written
G     submissions:
             “(d) The plaintiff – Nirmohi Akhara was not only claiming
             ownership and possession of the property i.e. the Main
             Temple or the Inner Courtyard but was also claiming to be the
             Manager (Shebiat) of “Janma Asthan” as well as the idols of
H            Lord Ram Chandra, Laxmanji, Hanumanji and Saligramji.”
                                                            (Emphasis supplied)
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          295


  In paragraph 17(j) of the written submissions, it has been urged:      A
  “(j) Since the property was attached and placed under a receiver,
  it is incumbent for the court to decide and adjudicate the
  issue of title and the suits cannot be dismissed as barred by
  limitation. The property must revert to the rightful owner and
  cannot remain custodia legis for time ad-infinitum. Hence in a         B
  suit for restoration of possession from a receiver, the question
  of limitation can never arise and such suits cannot (sic) never
  become barred by limitation so long as such property continues
  to be under a receiver at least of a person from whom possession
  was taken.”
                                                                         C
                                                (Emphasis supplied)
  Again, in paragraph 18(k), it has been stated:
  “(k). Since the property is under the control of the receiver, a
  suit for mesne profits for incomes derived by the receiver can
  still be filed by the true owner and in such a suit, for which cause   D
  of action arises any benefit accrues would thus give rise to a
  continuous cause of action. While determining the issue of
  entitlement of mesne profits, the question of title will have
  to be adjudicated and upon adjudication possession will have
  to be delivered by the receiver to the true owner.
                                                                         E
       (i) Ellappa Naicken vs Lakshmana Naicken AIR 1949
           Madras 71
       (ii) Rajab of Venkatagiri v. Isakapalli Subbiah, ILR 26
            Madras 410.”                  (Emphasis supplied)
  Then, in paragraph 18(m), it has been stated:                          F
  “(m) The plaintiff – Nirmohi Akhara was not only claiming
  ownership and possession of the property i.e. the Main
  Temple or the Inner Courtyard but was also claiming to
  the Manager (Shebiat) of “Janma Asthan’ as well as the idols
  of Lord Ram Chandra, Laxmanji, Hanumanji and Sabgramji. It             G
  is stated for the reasons which found favour with the court to
  hold that the suit OOS No. 5 of 1989 is within limitation that the
  deity was a perpetual minor, the suit of the plaintiff Nirmohi
  Akhara cannot also be held to be barred by limitation.”
                                                (Emphasis supplied)
                                                                         H
296               SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A              Finally, it has been stated in paragraph 18 that:
               “18. The claim of the property “belonging” to the plaintiff in the
               plaint is based on two-fold submissions – (i) that the property
               belongs to the plaintiff in the capacity of manager/shebait; and
               (ii) that the Plaintiff being in possession acquires
B              possessory title in view of Section 110 Evidence Act and
               is entitled to be and continue in possession unless the
               defendant can show a better title than the Plaintiff.”
                                                              (Emphasis supplied)
               This is completely at variance with the pleadigns in the suit.
C
            249. The expression “belonging to” is not a term of art and its
      content varies according to context. In Raja Mohammad Amir Ahmad
      Khan v Municipal Board of Sitapur157, a three judge Bench of this
      Court considered whether the use of the expression “belonging to him”
      by a tenant amounted to a disclaimer of the reversionary interest of
D     the Government. In that context, Justice N Rajagopala Ayyangar,
      speaking for the three judge Bench, observed:
               “24…Though the word “belonging” no doubt is capable of
               denoting an absolute title, is nevertheless not confined to connoting
               that sense. Even possession of an interest less than that of full
E              ownership could signified by that word. In Webster “belong to”
               is explained as meaning inter alia “to be owned by, be the
               possession of”. The precise sense which the word was meant
               to convey can therefore be gathered only by reading the document
               as a whole and adverting to the context in which it occurs.”
F            On the facts of the case, it was held that the circumstances of
      the tenancy were material for determining the nature of the assertion.
      The origin of the tenancy was not definitely known, the lessee had
      constructed super structures and the appellant and his ancestors had
      been enjoying the property for three quarters of a century and more.
G     Transfers had been affected and the property had been the subject of
      inheritance. There was a public document to the effect that though it
      was government land, there was a permanent heritable and transferable
      right. In this context, it was held that use of the word “belonging” did
      not amount to repudiation of the title of the government. Similarly, the
      157
H           AIR 1965 SC 1923
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       297


Court held that the use of the expression owner did not denote              A
ownership in an absolute sense so as to amount to a renunciation or
disclaimer of tenancy:
       “25…Though divorced from the context these words are capable
       of being construed as an assertion of absolute ownership, they
       cannot, in our opinion, in the setting in which they occur and       B
       bearing in mind the history of the enjoyment by the appellant and
       his predecessors of this property, be deemed an assertion
       unequivocal in nature of absolute ownership sufficient to entail
       a forfeiture of a permanent tenancy of this nature. In this
       connection it might be noticed that this enjoyment is stated to be
       with the consent of the Government. If the assertion were            C
       understood to be as an absolute owner in derogation of the rights
       of the Government as landlord, the reference to the consent of
       Government to such an enjoyment would be wholly inappropriate.
       Consent would have relevance only if the Government had interest
       in the property and we, therefore, understand the passage to         D
       mean that the permanent, transferable and heritable, particularly
       the right to transfer which was being denied by the municipality,
       was stated to have been enjoyed with the consent of the
       Government. That is an additional reason for our holding that at
       the worst the assertion was not unequivocal as to entail a
       forfeiture of the tenancy.”                                          E
       250. In Late Nawab Sir Mir Osman Ali Khan v
Commissioner of Wealth Tax158, a two judge Bench of this Court
construed the expression “belonging to the assessee on the valuation
date” in Section 2(m) of the Wealth Tax Act 1957. In the context of
the statutory provision which was being interpreted, this Court held that   F
mere possession without a legal right would not bring the property within
the meaning of the expression “net-wealth” for it would not be an asset
which belongs to the assessee. The Court adverted to the decision in
Raja Mohammad noting that though the phrase “belonging to” was
capable of denoting an absolute title, it was nevertheless not confined
                                                                            G
to connoting that sense. In the case at hand, the Court held:
       “29…We have discussed the cases where the distinction between
       “belonging to” and “ownership” has been considered. The
       following facts emerge here: (1) the assessee has parted with
158
      1986 Supp SCC 700                                                     H
298               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            the possession which is one of the essentials of ownership. (2)
             The assessee was disentitled to recover possession from the
             vendee and the assessee alone until the document of title is
             executed was entitled to sue for possession against others i.e.
             other than the vendee in possession in this case. The title in rem
             vested in the assessee. (3) The vendee was in rightful possession
B
             against the vendor. (4) The legal title, however, belonged to the
             vendor. (5) The assessee had not the totality of the rights that
             constitute title but a mere husk of it and a very important element
             of the husk.”
             Both these decisions, which have been pressed in aid by Dr
C     Dhavan indicate that the expression ‘belonging to’ must receive a
      meaning based on context. In a given context, the words may convey
      the meaning of an absolute title but in other factual situations the words
      may convey something which falls short of an absolute interest.
             251. In the present case, it is evident that the use of the
D     expression ‘belongs’ by the Nirmohi Akhara in the plaint has been
      deployed only in the context of management and charge. The entire
      case of Nirmohi Akhara is of the deprivation of its shebaiti rights by
      the Magistrate’s order under Section 145. The claim of Nirmohi Akhara
      is against the state so as to enable the plaintiff to utilise the usufruct to
      render services to the deity. Nirmohi Akhara, in other words, claims
E     ancillary rights with reference to management and charge. Indeed, the
      most significant aspect which emerges from the relief which has been
      claimed in Suit 3 is a decree for the removal of the first defendant “from
      the management and charge of the said temple of Janmabhumi and for
      delivering the same to the plaintiff”. Suit 3 filed by Nirmohi Akhara is
F     therefore not a suit for possession which falls within the meaning and
      ambit of Article 142.
             252. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait.
      A four judge Bench of this Court in Angurbala Mullick v Debabrata
      Mullick159 dealt with the nature and position of a shebait. Justice B K
      Mukherjea (as he then was) speaking for the Court held that the position
G
      of a shebait in regard to the debutter property does not exactly
      correspond to that of a trustee in English law. In English law, the legal
      estate in trust property vests in the trustee. On the other hand, in the
      case of a Hindu religious endowment, the ownership of the dedicated
      159
H           1951 SCR 1125
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             299


property is transferred to the deity or institution as a juristic person and      A
the shebait is a mere manager who handles the affairs with respect to
the deity’s properties. Referring to the extract from the Privy Council’s
decision in Vidya Varuthi Thirtha v Balusami Ayyar160, this Court
observed that though, the shebait is a manager and not a trustee,
shebaitship is not a ‘mere office’:
                                                                                  B
         “12…The shebait has not only duties to discharge in connection
         with the endowment, but he has a beneficial interest in the
         debutter property. As the Judicial Committee observed in the
         above case, in almost all such endowments the shebait has a
         share in the usufruct of the debutter property which depends upon
         the terms of the grant or upon custom or usage. Even where no            C
         emoluments are attached to the office of the shebait, he enjoys
         some sort of right or interest in the endowed property which
         partially at least has the character of a proprietary right. Thus,
         in the conception of shebaiti both the elements of office and
         property, of duties and personal interest, are mixed up and
                                                                                  D
         blended together; and one of the elements cannot be detached
         from the other. It is the presence of this personal or beneficial
         interest in the endowed property which invests shebaitship with
         the character of proprietary rights and attaches to it the legal
         incidents of property.”
       253. A Constitution Bench of this Court speaking through Chief             E
Justice B K Mukherjea in Commissioner, Hindu Religious
Endowments Madras v Sri Lakshmindra Thirtha Swamiar Of Sri
Shirur Mutt161, construed the position of a Matadhipati. Adverting to
the earlier decision in Angurbala Mullick, this Court held that as in
the case of a shebait so also in a case involving a mahant, both elements
                                                                                  F
of office and property are blended together:
         “11. As regards the property rights of a Mathadhipati, it may not
         be possible to say in view of the pronouncements of the Judicial
         Committee, which have been accepted as good law in this country
         ever since 1921, that a Mathadhipati holds the Math property as
                                                                                  G
         a life tenant or that his position is similar to that of a Hindu widow
         in respect to her husband’s estate or of an English Bishop holding
         a benefice. He is certainly not a trustee in the strict sense. He
         may be, as the Privy Council [Vide Vidya Varuthi v. Balusami,
160
      AIR 1922 PC 123
161
      1954 SCR 1005                                                               H
300            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           48 IA 302] says, a manager or custodian of the institution who
            has to discharge the duties of a trustee and is answerable as
            such; but he is not a mere manager and it would not be right to
            describe Mahantship as a mere office. A superior of a Math has
            not only duties to discharge in connection with the endowment
            but he has a personal interest of a beneficial character which is
B
            sanctioned by custom and is much larger than that of a Shebait
            in the debutter property. It was held by a Full Bench of the
            Calcutta High Court [Vide Monahar v. Bhupendra, 60 Cal 452]
            that Shebaitship itself is property, and this decision was approved
            of by the Judicial Committee in Ganesh v. Lal Behary [63 IA
C           448] and again in Bhabatarini v. Ashalata [70 IA 57]. The effect
            of the first two decisions, as the Privy Council pointed out in the
            last case, was to emphasise the proprietary element in the
            Shebaiti right and to show that though in some respects an
            anomaly, it was an anomaly to be accepted as having been
            admitted into Hindu law from an early date. This view was
D
            adopted in its entirety by this Court in Angurbala v. Debabrata
            [1951 SCR 1125] and what was said in that case in respect to
            Shebaiti right could, with equal propriety, be applied to the office
            of a Mahant. Thus, in the conception of Mahantship, as in
            Shebaitship, both the elements of office and property, of duties
E           and personal interest are blended together and neither can be
            detached from the other. The personal or beneficial interest of
            the Mahant in the endowments attached to an institution is
            manifested in his large powers of disposal and administration and
            his right to create derivative tenures in respect to endowed
            properties; and these and other rights of a similar character invest
F
            the office of the Mahant with the character of proprietary right
            which, though anomalous to some extent, is still a genuine legal
            right. It is true that the Mahantship is not heritable like ordinary
            property, but that is because of its peculiar nature and the fact
            that the office is generally held by an ascetic, whose connection
G           with his natural family being completely cut off, the ordinary rules
            of succession do not apply.”
             The claim of Nirmohi Akhara for management and charge
      therefore rests on its assertion of being a shebait. In the case of a
      shebait as the above decisions authoritatively explained, the elements
H     of office and of a proprietary interest are blended together. The Suit
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              301


by Nirmohi Akhara was a suit for restoration of management and                     A
charge so as to enable the Akhara to have the benefit of the usufruct
in the discharge of its obligations towards the deity. The suit was
therefore not a suit for possession within the meaning of Article 142.
Despite the ingenuity of counsel in seeking to expand the nature and
ambit of the suit, we are categorically of the view that written
submissions filed in the appeal cannot be a valid basis to reconfigure             B
the nature of the suit. The suit has to be read on the basis of the original
plaint in the trial court. Despite the amendment to the plaint in Suit 3,
the relief as it stands does not bring it within the ambit of Article 142.
It may also be noted at this stage that during the course of the
submissions, Mr S K Jain, clarified that Nirmohi Akhara by using the               C
expression “belongs to” is not claiming title or ownership to the property.
The Suit by Nirmohi Akhara is not a suit for possession. Hence, neither
Article 142 nor Article 144 has any application.
       254. In Ramiah v N Narayana Reddy162, a two judge Bench
of this Court elaborated on the distinction between Articles 142 and
                                                                                   D
144 of the Limitation Act 1908 (corresponding to Articles 64 and 65 of
the Limitation Act 1963) thus:
         “9…Article 64 of the Limitation Act, 1963 (Article 142 of the
         Limitation Act, 1908) is restricted to suits for possession on
         dispossession or discontinuance of possession. In order to bring
                                                                                   E
         a suit within the purview of that article, it must be shown that
         the suit is in terms as well as in substance based on the allegation
         of the plaintiff having been in possession and having subsequently
         lost the possession either by dispossession or by discontinuance.
         Article 65 of the Limitation Act, 1963 (Article 144 of the
         Limitation Act, 1908), on the other hand, is a residuary article          F
         applying to suits for possession not otherwise provided for. Suits
         based on the plaintiff’s title in which there is no allegation of prior
         possession and subsequent dispossession alone can fall within
         Article 65. The question whether the article of limitation
         applicable to a particular suit is Article 64 or Article 65, has to
                                                                                   G
         be decided by reference to pleadings.”
     There is a fundamental reason why the Suit instituted by Nirmohi
Akhara is not maintainable, quite apart from the bar of limitation.

162
      (2004) 7 SCC 541                                                             H
302             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     Nirmohi Akhara sought a relief simpliciter of the handing over of
      management and charge of the Janmasthan by the receiver to it. The
      receiver was appointed by the Magistrate in the proceedings under
      Section 145. The Magistrate who attached the property holds it for the
      true owner who obtains an adjudication of rights before the court of
      competent jurisdiction. Nirmohi Akhara sought no declaration of its status
B
      or rights. It merely sought a decree against a Magistrate for the handing
      over of management and charge. It had to seek relief against someone
      interested in opposing its claim and by getting its own right adjudicated.
      Instead, without doing so, it merely sought a decree for the handing
      over of management and charge against the Magistrate. Such a suit
C     was indeed not maintainable.
              255. Once it has been held that neither Article 47 nor Article
      142 is attracted, Suit 3 filed by Nirmohi Akhara is governed by the
      provisions of Article 120, the residuary article in the Limitation Act 1908.
      The period of limitation under Article 120 is six years. Nirmohi Akhara
D     claims that the cause of action arose on 5 January 1950. The suit was
      instituted on 17 December 1959. Hence, the suit is outside the prescribed
      period of limitation and is barred.
            Continuing wrong
             256. The alternate submission which has been urged on behalf
E     of the Nirmohi Akhara by Mr S K Jain is based on the provisions of
      Section 23 of the Limitation Act 1908. It is submitted that the denial or
      obstruction of Nirmohi Akhara’s ‘absolute’ shebait rights of
      management and charge is a continuing wrong and by virtue of Section
      23, a fresh cause of action arose every day. Section 23 reads as follows:
F           “23. Continuing breaches and wrongs. - 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.”
G            257. The contention of Mr S K Jain is that upon the order of
      attachment, the charge and management, along with property related
      rights of the Janmasthan temple have been taken over and are the
      subject matter of Suit 3. This, it is urged, constitutes a continuing wrong
      so long as they are not restored. In this context, reliance has been placed
      on the decision of the Privy Council in Sir Seth Hukum Chand v
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            303


Maharaj Bahadur Singh 163, in support of the submission that                     A
obstruction of prayer and worship is a continuing wrong. The submission
is that the obstruction of the plaintiffs’ right to manage the bhog and
prayers independently, as a result of the appointment of a receiver is a
continuing wrong within the meaning of Section 23 and hence, every
act of obstruction provides a fresh cause of action and a fresh starting
point for limitation.                                                            B
       258. The decision in Hukum Chand, involved a contest between
the Swetambari and Digambari Jain sects over the right of worship of
Parasnath hill. The Swetambaris acquired the proprietary rights of the
Raja of Palgunj in the hill by purchase. They commenced the
construction of dwellings for watchmen on the top of the hill and for            C
other temple employees, besides constructing dharamsalas. This was
objected to by the Digambaris who instituted a suit against the
Swetambaris claiming that the entire hill was sacred. There were
Charans in the old shrines containing impressions of the footprints of
saints, bearing a lotus mark. The Swetambaris evolved another form               D
of Charan which was opposed by the Digambaris who refused to
worship it as being a representation of a detached part of the human
body. Both the lower courts held that the action of placing the Charans
in the shrines was wrong in respect of which the Digambaris were
entitled to complain. One of the questions which arose before the Privy
Council was in regard to the finding of the Subordinate judge that the           E
suit brought by the Digambaris was within limitation. In that context,
Sir John Wallis delivering the judgment of the Privy Council held:
          “As regards limitation the Subordinate Judge held on rather
          insufficient grounds that the acts complained of took place within
          six years of suit so that this part of the claim could not be barred   F
          by Article 120, but he also held that it could not be barred under
          that article as it was a continuing wrong, as to which under
          section 23 of the Limitation Act a fresh period begins to run at
          every moment of the day on which the wrong continues. The
          High Court on the other hand were of opinion that it was not a         G
          continuing wrong and that the claim was barred under article 120.
          In their Lordships’ opinion the Subordinate Judge was right in
          holding that the acts complained of were a continuing wrong and
          consequently that this part of the claim is not barred. This
163
      (1933) 38 LW 306 (PC)                                                      H
304                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               question is covered by the decision of this Board in Rajrup Koer
                v. Abul Hossein [(1880) I.L.R. 6 Cal. 394 : L.R. 7 I.A. 240.] ,
                of diverting an artificial water course and cutting off the water-
                supply of the plaintiff’s lower lying lands.”
             259. The above extract has been relied upon in support of the
B     submission that a deprivation of the right to worship is a continuing
      wrong. Significantly, the Privy Council relied upon its earlier decision
      in Maharani Rajroop Koer v Syed Abul Hossein164 which involved
      an asserted right to an artificial water-course by cutting of the water
      supply of the lands belonging to the plaintiffs. In Maharani Rajroop
C     Koer, the Privy Council held, speaking through Sir Montague E Smith,
      that obstructions which interfered with the flow of water to the plaintiff
      were in the nature of continuing nuisances:
             “If the Judges really meant to apply the limitation of Article 34
             above referred to, their decision is clearly wrong; for the
             obstructions which interfered with the flow of water to the
D
             Plaintiff’s mehal were in the nature of continuing nuisances, as
             to which the cause of action was renewed de die in diem so
             long as the obstructions causing such interference were allowed
             to continue. Indeed, sect. 24 of the statute contains express
             provision to that effect.”
E            260. The notion of what constitutes a continuing wrong has
      evolved through the decisions of this Court, depending on the factual
      context involved in each case. The decision of two judges in State of
      Bihar v Deokaran Nenshi165, dealt with the provisions of Sections
      66 and 79 of the Mines Act 1952. Section 66 provides a penalty for an
F     omission to file a return which may extend to Rs. 1000/-. However,
      Section 79 stipulates that no court shall take cognizance of any offence
      unless a complaint is filed within six months from the date of the alleged
      commission of offence or within six months from the date on which
      the alleged commission of offence came to the knowledge of the
      inspector, whichever is later. However, the explanation stipulates that
G     if the offence is a continuing offence, the limitation shall be computed
      with reference to every point of time during which the offence
      continued. Under regulation 3, annual returns in the preceding year
      were required to be filed on or before the twenty-first day of January
      164
            (1879-80) 7 IA 240
H     165
            (1972) 2 SCC 890
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        305


each year. Dealing with the question of limitation, this Court considered    A
whether an offence involving a failure to file a return is covered by
the substantive part of Section 79 (in which case the complaint was
time barred) or by the explanation, involving a continuing offence.
Justice J M Shelat, speaking for the Bench observed:
         “5. A continuing offence is one which is susceptible of             B
         continuance and is distinguishable from the one which is
         committed once and for all. It is one of those offences which
         arises out of a failure to obey or comply with a rule or its
         requirement and which involves a penalty, the liability for which
         continues until the rule or its requirement is obeyed or complied
         with. On every occasion that such disobedience or non-compliance    C
         occurs and reoccurs, there is the offence committed. The
         distinction between the two kinds of offences is between an act
         or omission which constitutes an offence once and for all and
         an act or omission which continues, and therefore, constitutes a
         fresh offence every time or occasion on which it continues.”        D
        The Court held that the infringement occurred upon the failure
to file annual returns on or before January 21 of the relevant year and
was complete on the owner failing to furnish the annual returns by that
day. The Court held that the provision does not stipulate that the owner
or manager would be guilty if he continues to carry on the mine without      E
furnishing the returns or that the offence continues until the requirement
of regulation 3 is complied with. In other words:
         “9…As in the case of a construction of a wall in violation of a
         rule of a bye-law of a local body, the offence would be complete
         once and for all as soon as such construction is made, a default
                                                                             F
         occurs in furnishing the returns by the prescribed date.”
      261. Another decision of a two judge of this Court in
Commissioner of Wealth Tax, Amritsar v Suresh Seth 166, was
based on the provisions of the Wealth Tax Act. Section 18(1)(a)
provided for the levy of a penalty for failure to file a return of net-
wealth without reasonable cause. The issue before this Court was             G
whether the default in filing a return amounts to a continuing wrong.
Justice E S Venkataramiah (as the learned Chief Justice then was)
speaking for this Court held:

166
      (1981) 2 SCC 790                                                       H
306             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A             “11. A liability in law ordinarily arises out of an act of commission
              or an act of omission. When a person does an act, which law
              prohibits him from doing it and attaches a penalty for doing it,
              he is stated to have committed an act of commission which
              amounts to a wrong in the eye of law. Similarly, when a person
              omits to do an act which is required by law to be performed by
B             him and attaches a penalty for such omission, he is said to have
              committed an act of omission which is also a wrong in the eye
              of law. Ordinarily a wrongful act or failure to perform an act
              required by law to be done becomes a completed act of
              commission or of omission, as the case may be, as soon as the
C             wrongful act is committed in the former case and when the time
              prescribed by law to perform an act expires in the latter case
              and the liability arising therefrom gets fastened as soon as the
              act of commission or of omission is completed.”
              This Court made a distinction between a continuing wrong and
      a wrong or default which is complete when it is committed in the
D     following observations:
              “11…The distinctive nature of a continuing wrong is that the law
              that is violated makes the wrongdoer continuously liable for
              penalty. A wrong or default which is complete but whose effect
              may continue to be felt even after its completion is, however,
E             not a continuing wrong or default.”
              Dealing with the provisions of the statute, this Court held that
      the default is only one which takes place on the expiry of the last date
      of filing a return and is not a continuing wrong. Consequently, the default
      does not give rise to a fresh cause of action every day. Indicating in
      the following passage illustrations of continuing wrongs, the Court held:
F
              “17. The true principle appears to be that where the wrong
              complained of is the omission to perform a positive duty requiring
              a person to do a certain act the test to determine whether such
              a wrong is a continuing one is whether the duty in question is
              one which requires him to continue to do that act. Breach of a
G             covenant to keep the premises in good repair, breach of a
              continuing guarantee, obstruction to a right of way, obstruction
              to the right of a person to the unobstructed flow of water, refusal
              by a man to maintain his wife and children whom he is bound to
              maintain under law and the carrying on of mining operations or
              the running of a factory without complying with the measures
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          307


       intended for the safety and well-being of workmen may be                A
       illustrations of continuing breaches or wrongs giving rise to civil
       or criminal liability, as the case may be, de die in diem.”
       In the view of this Court, non-performance of any of the acts
mentioned in Section 18(1)(a) gives rise to a single breach and to a
single penalty, the measure of which however relates to the time lag           B
between the last date on which the return has to be filed and the date
on which it is actually filed.
       262. The provisions of another revenue statute, the Income Tax
Act 1961 came up for consideration before a three judge Bench of this
Court in Maya Rani Punj v CIT167. In this case, Section 271(1)(a) of
the Income Tax Act 1961 entailed imposing a penalty for filing late            C
returns. The penalty was imposable not only for the first default but as
long as the default continued. The assessee filed its return more than
seven months after the due date. The three judge Bench disapproved
of the decision in Suresh Seth. Justice Sabyasachi Mukherji (as the
learned Chief Justice then was) held that the default continued so long        D
as a return was not filed and was hence a continuing wrong:
       “19. The imposition of penalty not confined to the first default
       but with reference to the continued default is obviously on the
       footing that non-compliance with the obligation of making a
       return is an infraction as long as the default continued. Without       E
       sanction of law no penalty is imposable with reference to the
       defaulting conduct. The position that penalty is imposable not only
       for the first default but as long as the default continues and such
       penalty is to be calculated at a prescribed rate on monthly basis
       is indicative of the legislative intention in unmistakable terms that
       as long as the assessee does not comply with the requirements           F
       of law he continues to be guilty of the infraction and exposes
       himself to the penalty provided by law.”
       263. The application of the principle of continuing wrong in the
context of service jurisprudence came up before a two judge Bench
of this Court in Union of India v Tarsem Singh168. In that case, the           G
respondent was invalidated out of the Indian Army on medical grounds
in November 1983. He approached the High Court in 1999 seeking
disability pension. The High Court issued a mandamus for the payment
167
      (1986) 1 SCC 445
168
      (2008) 8 SCC 648                                                         H
308             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     of disability pension but restricted it to a period of 38 months prior to
      the institution of the writ petition. The claim of the respondent however
      was that disability pension should be granted with effect from
      November 1983 which was allowed by the Division Bench of the High
      Court in a Letters Patent Appeal. In a challenge before this Court to
      the above decision of the Division Bench of the High Court, Justice R
B
      V Raveendran, speaking for the two judge Bench, observed that to the
      principle that a belated service claim is liable to be rejected on the ground
      of delay and laches, there is a settled exception in relation to a
      continuing wrong. However, there is a further exception to the
      exception where the grievance is in respect of a decision which is liable
C     to affect others in the service prejudicially. This Court held:
             “7. To summarise, normally, a belated service-related claim will
             be rejected on the ground of delay and laches (where remedy is
             sought by filing a writ petition) or limitation (where remedy is
             sought by an application to the Administrative Tribunal). One of
D            the exceptions to the said rule is cases relating to a continuing
             wrong. Where a service-related claim is based on a continuing
             wrong, relief can be granted even if there is a long delay in
             seeking remedy, with reference to the date on which the
             continuing wrong commenced, if such continuing wrong creates
             a continuing source of injury. But there is an exception to the
E            exception. If the grievance is in respect of any order or
             administrative decision which related to or affected several others
             also, and if the reopening of the issue would affect the settled
             rights of third parties, then the claim will not be entertained. For
             example, if the issue relates to payment or re-fixation of pay or
F            pension, relief may be granted in spite of delay as it does not
             affect the rights of third parties. But if the claim involved issues
             relating to seniority or promotion, etc., affecting others, delay
             would render the claim stale and doctrine of laches/limitation will
             be applied. Insofar as the consequential relief of recovery of
             arrears for a past period is concerned, the principles relating to
G            recurring/successive wrongs will apply.”
             The High Court in appeal was held not to be justified in directing
      the payment of arrears for the payment beyond three years before the
      institution of the writ petition.
             264. Many of the above judgments have adverted to a three
H     judge Bench decision in Balakrishna Savalram Pujari Waghmare v
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           309


Shree Dhyaneshwar Maharaj Sansthan169. The appellants claimed                   A
rights of hereditary worshippers in a religious institution and that their
ancestors were in possession of a temple and in the management of
its affairs including the worship of a shrine. The trustees dismissed some
pujaris for misconduct. Meantime, in 1922, the pujaris obtained forcible
possession of the temple. The trustees instituted a suit which resulted
                                                                                B
in a decree. Possession of the temple was recovered in execution of
the decree. Later, the pujaris instituted a suit claiming hereditary rights
under the religious institution. In an appeal arising from the decree in
the suit, the High Court held that Article 120 of the Limitation Act applied,
and the suit had been initiated beyond the period of six years prescribed
by the article. In appeal before this Court, it was urged that the suit         C
was not barred under Article 120 because Section 23 of the Limitation
Act applied, the conduct of the trustees being a continuing wrong. While
considering the argument, Justice PB Gajendragadkar (as the learned
Chief Justice then was) held:
        “31… In dealing with this argument it is necessary to bear in           D
        mind that Section 23 refers not to a continuing right but to a
        continuing wrong. It is the very essence of a continuing wrong
        that it is an act which creates a continuing source of injury and
        renders the doer of the act responsible and liable for the
        continuance of the said injury. If the wrongful act causes an injury
        which is complete, there is no continuing wrong even though the         E
        damage resulting from the act may continue. If, however, a
        wrongful act is of such a character that the injury caused by it
        itself continues, then the act constitutes a continuing wrong. In
        this connection it is necessary to draw a distinction between the
        injury caused by the wrongful act and what may be described             F
        as the effect of the said injury. It is only in regard to acts which
        can be properly characterised as continuing wrongs that Section
        23 can be invoked.”
        265. This Court held that the act of the trustees in discontinuing
the alleged rights of the appellants as hereditary worshippers and in
claiming and obtaining possession from them in the suit in 1922 could           G
not held to be a continuing wrong. The Court held that the decree
obtained by the trustees, had effectively and completely injured the rights
of the appellants though the damage may have subsequently continued.
Upon the execution of the decree, the rights of the appellants were
169
      1959 Supp (2) SCR 476                                                     H
310               SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A     completely injured and though their dispossession continued, it was held
      not to constitute a continuing wrong. In that context, the Court noted:
             “We think there can be no doubt that where the wrongful act
             complained of amounts to ouster, the resulting injury to the right
             is complete at the date of the ouster and so there would be no
B            scope for the application of Section 23 in such a case. That is
             the view which the High Court has taken and we see no reason
             to differ from it.”
             This Court distinguished the decision of the Privy Council in
      Maharani Rajroop Koer v Syed Abul Hossein170 on the ground that
      it was a case where a continuing obstruction caused to the flow of water
C     was held to be in the nature of continuing nuisances. Similarly, the
      decision in Sir Seth Hukum Chand v Maharaj Bahadur Singh171
      relied on the earlier decision in Maharani Rajroop Koer. Distinguishing
      the decision, this Court held that the action which was impugned did
      not amount to ouster or complete dispossession of the plaintiffs.
D            266. A continuing wrong, as this Court held in Balakrishna
      Savalram is an act which creates a continuing source of injury. This
      makes the doer of the act liable for the continuance of the injury.
      However, where a wrongful act amounts to an ouster, as in the present
      case, the resulting injury is complete on the date of the ouster itself. A
E     wrong or default as a result of which the injury is complete is not a
      continuing wrong or default even though its effect continues to be felt
      despite its completion.
             267. The submission of Nirmohi Akhara is based on the principle
      of continuing wrong as a defence to a plea of limitation. In assessing
      the submission, a distinction must be made between the source of a
F     legal injury and the effect of the injury. The source of a legal injury is
      founded in a breach of an obligation. A continuing wrong arises where
      there is an obligation imposed by law, agreement or otherwise to continue
      to act or to desist from acting in a particular manner. The breach of
      such an obligation extends beyond a single completed act or omission.
G     The breach is of a continuing nature, giving rise to a legal injury which
      assumes the nature of a continuing wrong. For a continuing wrong to
      arise, there must in the first place be a wrong which is actionable
      because in the absence of a wrong, there can be no continuing wrong.
      170
            (1879-80) 7 IA 240
      171
H           (1933) 38 LW 306 (PC)
                            [2019] 18 S.C.R. 311                               311


       It is when there is a wrong that a further line of enquiry of           A
whether there is a continuing wrong would arise. Without a wrong there
cannot be a continuing wrong. A wrong postulates a breach of an
obligation imposed on an individual, where positive or negative, to act
or desist from acting in a particular manner. The obligation on one
individual finds a corresponding reflection of a right which inheres in
                                                                               B
another. A continuing wrong postulates a breach of a continuing duty
or a breach of an obligation which is of a continuing nature. This indeed
was the basis on which the three judge Bench in Maya Rani Punj
approved the statement in a decision of the Calcutta High Court in the
following terms:
      “In G.D. Bhattar v. State [AIR 1957 Cal 483 : 61 CWN 660 :               C
      1957 Cri LJ 834] it was pointed out that a continuing offence or
      a continuing wrong is after all a continuing breach of the duty
      which itself is continuing. If a duty continues from day to day,
      the non-performance of that duty from day to day is a continuing
      wrong.”                                                                  D
       Hence, in evaluating whether there is a continuing wrong within
the meaning of Section 23, the mere fact that the effect of the injury
caused has continued is not sufficient to constitute it as a continuing
wrong. For instance, when the wrong is complete as a result of the
act or omission which is complained of, no continuing wrong arises even        E
though the effect or damage that is sustained may enure in the future.
What makes a wrong, a wrong of a continuing nature is the breach of
a duty which has not ceased but which continues to subsist. The breach
of such a duty creates a continuing wrong and hence a defence to a
plea of limitation.
                                                                               F
       268. In the present case, there are several difficulties in accepting
the submission of Nirmohi Akhara that there was a continuing wrong.
First and foremost, the purpose and object of the order of the Magistrate
under Section 145 is to prevent a breach of peace by securing
possession, as the Magistrate finds, on the date of the order. The
Magistrate does not adjudicate upon rights nor does the proceeding             G
culminate into a decision on a question of title. The order of the
Magistrate is subordinate to the decree or order of a civil court. Hence,
to postulate that the order of the Magistrate would give rise to a wrong
and consequently to a continuing wrong is inherently fallacious. Secondly,
would the surreptitious installation of the idols on the night between 22
                                                                               H
                                   311
312               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     and 23 December 1949 create a right in favour of Nirmohi Akhara?
      Nirmohi Akhara denies the incident completely. The right which Nirmohi
      Akhara has to assert cannot be founded on such basis and if there is
      no right, there can be no corresponding wrong which can furnish the
      foundation of a continuing wrong. There was no right inhering in Nirmohi
      Akhara which was disturbed by the order of the Magistrate. The claim
B     of Nirmohi Akhara was in the capacity of a shebait to secure
      management and charge of the inner courtyard. Nirmohi Akhara has
      itself pleaded that the cause of action for the suit arose on 5 January
      1950. Proceeding on the basis of this assertion, it is evident that the
      ouster which the Akhara asserts from its role as a shebait had taken
C     place and hence, there was no question of the principle of continuing
      wrong being attracted.
              269. The decision of the Madras High Court in Ellappa Naicken
      v K Lakshmana Naicken 172 is of no assistance to the Nirmohi
      Akhara. That was a case where during the pendency of the proceedings
D     under Section 145, the Magistrate had passed an order under Section
      146 for the appointment of a receiver as the court was unable to satisfy
      itself as to which of the parties was in possession. The respondents
      had filed a suit for a declaration of title and possession which was
      dismissed in default and an application to set aside the order under
      Order IX of Rule 9 of the CPC was also dismissed. An appeal from
E     the order was also dismissed. Thereafter the petitioner who was the
      defendant applied for possession before the Magistrate after the
      dismissal of the suit on the ground that the District Munsif had
      determined his rights. The Magistrate passed an order holding that there
      was no declaration by a civil court as to who was entitled to the suit
      premises and therefore the land would continue in the possession of
F
      the receiver. It is in that context, that the learned Judge held that either
      party to a decision under Section 146 has to file a suit for declaration
      of title within the period of limitation or to bring a suit for the recovery
      of the profits of the land. In such a suit, the question as to who is
      entitled to the profits will be decided with the result that the question
G     of title would also to be adjudicated. This would operate as res judicata
      for the purpose of Section 146. These observations were made by the
      learned Single Judge of the Madras High Court in support of the ruling
      that it was not as if parties were without remedy, resulting in the
      property remaining custodia legis for all time. Either party was entitled
      172
H           AIR 1949 Madras 71
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           313


to bring a suit for recovery of profits within limitation where the question    A
of title would be adjudicated. This decision is of no assistance to the
Nirmohi Akhara. Certain decisions have been relied upon by Nirmohi
Akhara but these are in regard to the commencement of limitation for
the enforcement of a decree by execution. In Chandi Prasad v Jagdish
Prasad173, a two judge Bench of this Court held that an appeal under
the statute is a continuation of the suit for all intents and purposes.         B
Hence, when a higher forum entertains an appeal and passes an order
on merit, the doctrine of merger applies and there is a merger of the
decree of the trial court with the order of the appellate court. Hence,
once a decree is sought to be enforced for the purpose of execution,
irrespective of being original or appellate, the date of the decree or any      C
subsequent order directing payment of money or delivery of property
at a certain date would be considered to be the commencement of
limitation. The same principle has been emphasized by a three judge
Bench in Union of India v West Coast Paper Mills Ltd.174 and in
Shanti v T D Vishwanathan175. The essential issue is whether their
suit was within limitation and for the reasons which have been indicated,       D
the answer to that must be in the negative.
        M.5 Oral testimony of the Nirmohi witnesses
       270. Having held that Suit 3 instituted by Nirmohi Akhara is
barred by limitation, it does not strictly speaking become necessary for
                                                                                E
this Court to deal with the evidence, oral and documentary. Mr
Parasaran urged, that unlike the Trial Court, this Court is not required
to answer all the questions which arise in the first appeal and if limitation
alone concludes the issue it is unnecessary to deal with all the issues
in contest. The Trial Court, it was urged, has to deal with all issues
since its decision is subject to appeal. Having carefully evaluated this        F
submission, it is appropriate to scrutinize the evidence adduced by
Nirmohi Akhara and to render a full adjudication, having regard to the
nature of the controversy. The evidence recorded in all the suits has
been relied upon during the hearing of the appeals. Hence it becomes
necessary to advert to the oral evidence. Nirmohi Akhara has relied
                                                                                G
on the oral evidence of the following witnesses during the course of
the hearing:

173
    (2004) 8 SCC 724
174
    (2004) 2 SCC 747
175
    2018 SCCOnLine SC 2196
                                                                                H
314            SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A           271. Mahant Bhaskar Das (DW 3/1): The date of the
      Examination-in-Chief of the witness is 29 August 2003. He was 75 years
      of age on the date of the deposition and claimed to be a disciple of
      Baba Baldeo Das. He was the Sarpanch of Shri Manch Ramanandiya
      Nirmohi Akhara and prior to it claimed to be a Panch and pujari of the
      Ram Janmabhumi temple. The witness stated that:
B
             (i) Nirmohi Akhara is the owner of the idols, the disputed
                 temple, Ram Janmabhumi and other temples in the vicinity
                 for several hundred years;
            (ii) The consecration of Lord Ram seated in Ram Janmabhumi
C                temple and Ramchabutra was performed by a Mahant of
                 Nirmohi Akhara;
            (iii) This information was passed down to disciples from their
                  old preceptors from generation to generation;
            (iv) That he was performing worship and aarti in the
D                Ramchabutra temple from 1946-1949;
            (v) Both the inner and outer courtyards have always been in
                the possession of Nirmohi Akhara, there was a sanctum
                sanctorum in the inner part of which the attachment was
                made;
E
            (vi) The entire outer part was in possession of Nirmohi Akhara
                 since time immemorial;
           (vii) No incident took place during the night of 22/23 December
                 1949, when he was asleep below the northern dome of the
                 disputed structure;
F
           (viii) Aarti and worship of Lord Ram was being conducted in the
                  sanctum sanctorum even prior to 29 December 1949 and
                  the inner temple was attached on 19 December 1949;
            (ix) After the riot of 1934, no Muslim had visited the disputed
G                site to offer namaz;
            (x) No idol was taken from Ramchabutra temple on 22/23
                December 1949 and the possession of the disputed temple
                had all along been with Nirmohi Akhara;
            (xi) The servicing rights in respect of the main temple had been
H                with Nirmohi Akhara until 29 December 1949. Nirmohi
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          315


           Akhara had been performing worship of Lord Ram and              A
           other idols in the outer premises till the second attachment
           in February 1982; and
     (xii) Lord Ram was seated in the inner part even prior to 1934,
           which was in continuous possession of Nirmohi Akhara
           since then.                                                     B
       Dr Dhavan, learned Senior Counsel appearing on behalf of the
Sunni Central Waqf Board, has pointed out the following contradictions
in the evidence of the witness:
       (i) While the witness stated that there was no incident on 22/
           23 December 1949, and that he was sleeping below the            C
           northern dome of the disputed structure, the High Court has
           recorded the statement of Counsel for Nirmohi Akhara to
           the effect that the idols were shifted from Ramchabutra and
           kept under the central dome of the disputed building; and
      (ii) The witness initially stated that there were two idols of Ram   D
           Lalla in the disputed building; one on the throne and one on
           the stairs but he subsequently clarified that by two idols he
           meant one of Ram Lalla and another of Lakshman.
           Moreover, the witness claims that he had himself performed
           Aarti of Lord Ram inside the disputed site prior to its         E
           attachment on 29 December 1949 in spite of which he was
           not able to make any statement in regard to the number of
           idols inside the disputed structure. Moreover, while on the
           one hand, the witness stated that the parikrama was at the
           back of the disputed structure later on he stated that
           parikrama was being performed around Ramchabutra.               F
      272. The testimony of the witness on certain other aspects also
merits scrutiny. The witness stated that Babri Masjid was built in 1528
by demolishing the Ram Janmabhumi temple. Then he stated that:
      “Since the buildings built by Vikramaditya were 2500 years old,
                                                                           G
      they collapsed on their own and the Janmbhumi temple was
      demolished in the year 1528. The building which was demolished
      in the year 1528, was originally built by Vikramaditya.”
      The witness stated that the building of a Ram Janmabhumi temple
by Vikramaditya and the construction of the disputed structure in 1528
                                                                           H
316            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     upon the demolition of the temple was what he heard from his ancestors
      and was not read by him anywhere. According to the witness, worship
      in the mosque had been continuing by the Hindus before 1934.
      According to him, the idols had been installed prior to 1934 but he was
      unaware by whom they were installed. The witness then stated:
B           “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 of the three domed disputed
            structure i.e. after the year 1528, were the idols installed in the
            disputed structure.”
C            According to the witness, in 1946, the gates of the grill-brick wall
      were opened for devotees and the temple used to remain open. He
      stated that namaz was not offered in the disputed structure till December
      1949. As regards the incident on 22/23 December 1949, the witness
      has the following explanation:
D           “No incident occurred in the disputed structure in 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
E           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.”
            The ignorance which the witness feigns of the incident is evident.
      The deposition of the witness assumes importance because he was the
      Panch of Nirmohi Akhara since 1950 and was at the material time the
F     Sarpanch. His evidence has several contradictions. He stated:
            “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.”
G
            On the other hand, the witness stated:
            “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.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        317


       The witness then admitted that he had referred to two idols of    A
Lord Ram when there was only one idol of Lord Ram and one of
Lakshman. As regards the idols at Ramchabutra, the witness stated
that they were installed during Akbar’s reign. While on the one hand,
the witness stated that namaz had never been offered in the mosque
since the days of Babur, on the other hand, when he deposed about
                                                                         B
the idol of Ram Lalla in the disputed structure, he stated that it was
prior to 1934 but the exact date and period was not known to him.
According to the witness, the idol of Ram Lalla seated on the throne
was a chal – vigrah or moveable idol.
       Much of the evidence of the witness is hearsay in nature. His
statements are based on what has been communicated to him by others.     C
The explanation of the witness that he was asleep in the disputed
premises on 22/23 December 1949 and that no incident had taken place
is a figment of his imagination. The statement that the idols of Ram
Lalla have been placed in the disputed structure much prior to 1934 is
unworthy of credence.                                                    D
      273. Raja Ram Pandey (DW 3/2): The date of the Examination-
in-Chief of the witness is 22 September 2003. The witness stated that
he was 87 years old at the time of deposition and that he had come to
Ayodhya in 1930 since when he claimed to have been visited the Ram
Janmabhumi temple. The witness stated that:                              E
       (i) He had seen the Nirmohi Akhara Aarti prior to the
           attachment of the inner courtyard;
      (ii) The duty of opening and closing the gates of the outer
           courtyard was performed by Nirmohi Akhara;
                                                                         F
      (iii) No Muslims were allowed to enter from the outer gate
            between 1930-1949 and he was able to view the inner part
            of the sanctum sanctorum where some idols had been
            engraved; and
      (iv) Ever since his arrival until the date of attachment, the
                                                                         G
           premises have never been used as a mosque.
       Dr Dhavan has during the course of his submissions emphasized
the following aspects of the cross-examination:
       (i) The witness has accepted that earlier the Chabutra was
           known as Janmabhumi temple;                                   H
318            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            (ii) The witness was unaware as to when the disputed structure
                  with three domes was built and who had got it built; he had
                  no knowledge as to when and who had installed the idols
                  inside the disputed structure; and
            (iii) The witness was unaware as to when and by whom Nirmohi
B                 Akhara was made the owner of Ram Janmabhumi temple.
             The witness stated during the course of his examination that he
      was hearing of the Babri mosque since 1949 but he was unaware where
      in Ayodhya it is or was situated. He stated that he came to know later
      from the cross-examination that the building which he called the Ram
C     Janmabhumi temple is called the Babri mosque by Muslims. Though,
      he stated he had held meetings with Muslims in 1992-93, he stated he
      was not informed by any of them that the mosque has been demolished
      on 6 December 1992. On his own ability to recall events, the witness
      stated:
D           “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            The witness deposed that he had no knowledge of who had
      installed the idols in the three domed disputed structure but claimed to
      have been seeing them ever since he was visiting it. While on the one
      hand, the witness admitted to the weakness of his memory, he purported
      to depose to what had taken place in 1930, 73 years earlier when he
      visited the disputed structure for darshan. According to him, his father
F     had stated that the pillars contained images of Lord Hanuman.
             274. Satya Narain Tripathi (DW 3/3): The Examination-in-Chief
      of the witness was on 30 October 2003 when he was 72 years old.
      The witness stated that he had first visited the Ram Janmabhumi temple
      in 1941 when he was ten years old and had been continuously visiting
G     since then. The witness stated that no namaz was offered at the disputed
      site nor had any Muslims offered prayer. Though, the witness stated
      that he has been continuously visiting the disputed structure, when asked
      about the physical features, he stated that he never saw any part of
      the disputed structure with much attention.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            319


       The witness expressed ignorance about whether certain                 A
individuals had entered the mosque and placed idols on the night of 23
December 1949. The High Court has noted that most of the statements
of this witness are on assumption and hearsay. While on the one hand,
he referred to the idols which were placed on the sinhasan in the
disputed structure which remained there from 1941-1992, he later
                                                                             B
retracted the statement when shown the photographs and stated that it
was not clear to him when he used to visit and in what manner the
idols were kept.
      275. Mahant Shiv Saran Das (DW 3/4): The witness was
examined on 14 November 2003. He was 83 years old. He stated that
he had been going for darshan to Shri Ram Janmabhumi since 1933              C
and had darshan of Lord Ram inside the sanctum sanctorum until
attachment in 1949.
      Dr Dhavan, learned Senior Counsel appearing for the Sunni
Central Waqf Board, has emphasized the following aspects of the
testimony of this witness:                                                   D

       (i) The witness submitted that he had read his affidavit of
           evidence only cursorily and had not read it completely;
      (ii) Though the witness stated that when he visited the disputed
           site in 1936, there were no walls or iron-bars, it is relevant    E
           to note that grill-brick wall was placed in 1856-57 to
           separate the inner and the outer courtyards; and
      (iii) Though, in the course of his Examination-in-Chief, the
            witness stated that he had taken darshan of the inner
            sanctum sanctorum until its attachment in 1949, during his       F
            cross-examination he stated that he had not visited the
            disputed building before 1986. On the above basis, it is urged
            that as a matter of fact, the witness has not visited the
            disputed site at the material time.
      On his residence in Ayodhya, the witness stated:
                                                                             G
      “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.”
                                                                             H
320            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           The witness stated that he was a priest at the disputed structure
      which he must have visited several hundred times. However, he did
      not remember the year in which he was a priest. During the course of
      his cross-examination, the witness stated that he was a priest at the
      three domed structure for “2-4 years” but later admitted that his
      statement was wrong:
B
            “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.
C           Question: Then I have to say that your statement dated 5th
            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
D           statement of mine has gone wrong.”
            Later, he admitted that his statement in the Examination-in-Chief
      that he was going for darshan to the Ram Janmabhumi since 1933
      contained a wrong reference to the year. Moreover, the witness
      accepted that he did not remember whether or not he had visited the
E     disputed building before February 1986. The witness also stated that
      he had wrongly made a reference to his residing in Ayodhya
      continuously from 1930-42.
             276. Raghunath Prasad Pandey (DW 3/5): The Examination-
      in-Chief of the witness is dated 18 November 2003. The witness was
F     73 years old when he deposed. According to him, the Ram Janmabhumi
      temple is about 16 or 17 kilometres from his village and he has visited
      it since the age of 7.
           277. The following aspects of the cross-examination have been
      emphasized by Dr Dhavan:
G            (i) The witness had no knowledge of whether the pictures were
                 of the west side wall or the lower portion of the middle
                 dome of the disputed building because he had gone for
                 darshan and had not paid careful attention to the walls;
            (ii) Though, he had seen the grill-brick wall, he did not
H                remember if one had to pass through the barricades to enter
                 the disputed structure; and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            321


      (iii) Though the witness claimed to have visited Ayodhya with          A
            his mother from 1937-1948, and that the idols of Lord Ram
            Lalla were inside the building under the central dome, he
            subsequently contradicted himself when confronted with
            various photographs.
       The High Court has noted that most of his statements travelled        B
into antiquity and were inadmissible since he had no personal knowledge
of the facts. When questioned about the source of his knowledge, he
stated that he had heard stories from his teachers. Initially, the witness
stated that the three domed structure was constructed by Vikramaditya.
He then stated that the building constructed by Vikramaditya was
demolished and the disputed building was constructed. Though, he             C
attributed this information to the Ayodhya Mahatmya, counsel for
Nirmohi Akhara conceded before the High Court that the document
does not mention that the building was constructed by Vikramaditya
and was demolished after which the disputed structure was constructed.
Though, the witness had served in the Indian Railways from 1948-1988,        D
he claimed to have heard the name of Babri mosque for the first time
on 18 November 2003.
      278. Sri Sita Ram Yadav (DW 3/6): The date of the
Examination-in-Chief of the witness is 6 January 2004. The witness
stated that he was born in 1943 and that he attained the age of              E
understanding in 1951 when he was 8 years of age. The statements of
this witness were therefore not relevant to the controversy since his
factual knowledge pertains to the period after 1951. This witness was
born in 1943 and had no personal knowledge of the facts up to
December 1949. The evidence of the witness was hearsay in nature.
                                                                             F
       279. Mahant Ramji Das (DW 3/7): The following aspects of
the testimony have been emphasized by Dr Dhavan:
       (i) The witness accepted that the disputed building was built
           by Emperor Babur but he stated that it was constructed as
           Sita Pak but not as a mosque, which is contrary to the stand      G
           of Nirmohi Akhara in its written statement;
       (ii) According to the witness, the disputed temple was
            constructed after the demolition of Janmasthan Mandir by
            Emperor Babur by way of Goodar Baba (which is not the
            pleaded case of any of the Hindu Parties); and
                                                                             H
322            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           (iii) Babur got ‘Sita Pak’ written on the disputed building because
                  he was unable to construct the mosque because Hanumanji
                  would demolish the structure whenever an attempt was
                  made to build a mosque.
            As to his own personal knowledge, the witness stated:
B           “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
C           year 1934, but when I first went to Ayodhya after the year 1934,
            I stayed for 3-4 days.”
            Contrary to the stand of the Nirmohi Akhara, he stated that the
      disputed structure was built by Babur, though in the shape of Sita Pak:
            “The disputed structure, which was demolished on 6th December,
D           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
E           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
F           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.”
              Eventually, the witness stated that he had not read his affidavit
G     by way of Examination-in-Chief at the time of signing it and had read
      it in the court room.
            280. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914
      and stated that Ram Janmabhumi is situated at a distance of less than
      400 yards from his house. He was 90 years old at the time of deposing.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         323


      281. The following aspects of the testimony of the witness have     A
been emphasised by Dr Dhavan:
       (i) The statement of the witness that the central dome is
           swayambhu is against the pleaded case of Nirmohi Akhara;
      (ii) According to the witness, in 1992 the dome of the
           janmasthan temple came down due to its antiquity and due       B
           to lack of proper maintenance; and
      (iii) While deposing, the witness seems to distinguish between
            Ramchabutra temple and the “three dome temple” and
            stated that it was the Ramchabutra temple which was in
            the ownership of Nirmohi Akhara and remained silent about     C
            the management and ownership of the “three domed
            temple”.
      The witness stated that he had no knowledge about the observance
or non-observance of worship at the disputed site before he attained
the age of 14 years.                                                      D
      282. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-
Chief of the witness was recorded on 22 March 2004 when he was
72 years of age. He claims to reside in close proximity to the Ram
Janmabhumi temple.
                                                                          E
      283. Dr Dhavan has submitted that this witness is completely
unaware of what is stated in his Examination-in-Chief, which needs to
be completely disregarded for the following reasons:
       (i) In the course of his cross-examination, the witness admitted
           that while he had no knowledge of what was written in his
                                                                          F
           affidavit, he cannot recollect what exactly was written
           though it was read out to him;
      (ii) The answers which he has furnished maybe right or wrong
           and that his memory had been affected;
      (iii) He was unaware whether the main affidavit was typed in        G
            Faizabad or Lucknow;
      (iv) He had visited the sanctum sanctorum for darshan even
           before 22/23 December 1949 and the statement that an idol
           was placed on those dates was untrue; and
                                                                          H
324            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           (v) The witness was unaware whether the dates 22/23
                December pertained to the year 1949 or not.
            Though, the affidavit was prepared merely ten months earlier,
      the witness was unable to recollect anything from the document. He
      was unaware of the history of Nirmohi Akhara and had no knowledge
B     whether the disputed shrine was attached. This witness stated that he
      was unaware of the contents of his affidavit by way of Examination-
      in-Chief:
            “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
C           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. This affidavit ran into three or four
            pages.”
D            Later, he stated that his mind was not functioning properly for
      eight to ten months and his memory had become weak. He stated:
            “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
E           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 forged action
            taken’. I do not recollect as to in which behalf, was this forged
            action. Stated on his own that I cannot tell whether the forged
F           action mentioned by me was related to the incident of year 1934
            or not.”
           284. Sri Pateshwari Dutt Pandey (DW 3/10): The
      Examination-in-Chief of the witness is dated 23 March 2004. The
      witness who was 74 years of age stated that he was the local
G     commissioner who performed a site survey in relation to another case
      (Nirmohi Akhara v Ram Lakhan Sharan Das – Suit 9 of 1973).
            Dr Dhavan has adverted to the following points in regard to the
      testimony to the witness:

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          325


       (i) Though, his report marks the existence of a Mandir at the       A
           disputed site, he accepted that the word ‘Mandir’ had been
           inserted by him at the behest of certain other persons. He
           did not know whether the place was Babri Masjid or
           otherwise and stated that he had written what was informed
           to him by others; and
                                                                           B
      (ii) Consequently, the report of the witness cannot be relied
           upon to establish that the disputed structure was a temple
           as he marked it as a temple only on the suggestion of others.
       These admissions of the witness cast serious doubt on his
credibility.                                                               C
       285. Sri Bhanu Pratap Singh (DW 3/11): The Examination-
in-Chief of this witness was recorded on 28 April 2004 when he was
70 years of age. He claimed to be visiting the Ram Janmabhumi temple
since the age of 10. The witness stated that his memory is weak. He
was unable to state whether any other temple apart from the Ram            D
Janmabhumi temple is related to Nirmohi Akhara. When confronted with
his Examination-in-Chief, he stated:
      “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      E
      facts due to which such statements are made. By forgetting, I
      mean that I do not remember those facts at that time.”
      286. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-
in-Chief was recorded on 25 May 2004. The witness who was 70 years
of age stated that he was visiting the Ram Janmabhumi temple since         F
the age of 12.
       The following aspects of the testimony of the witness are
significant:
       (i) The witness admitted that his information about the disputed
           structure had been gathered from his grandfather;               G
      (ii) Though, in his Examination-in-Chief, he stated that he used
           to do the parikrama, in the course of his cross-examination,
           he stated that he had never seen the three domes from
           behind the structure;
                                                                           H
326            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           (iii) The witness stated that he had not performed the parikrama
                  of the Ram Janmabhumi but of Ramchabutra;
           (iv) According to the witness, he was informed by the villagers
                that the Ram Janmabhumi in which Ram Lalla was present
                had collapsed as it was old; and
B           (v) The witness stated that he neither read nor heard about who
                had constructed the disputed structure with three domes.
                The witness eventually accepted the weakness of his own
                memory rendering him unreliable.
             287. Mahant Ram Subhag Shashtri (DW 3/13): The
C     Examination-in-Chief was recorded on 25 May 2004. The witness was
      86 years of age and stated that he had come to Ayodhya in 1933 and
      his guru was connected to Nirmohi Akhara. The following aspects of
      the testimony of witness are relevant:
             (i) The witness stated that there was a disturbance on the night
D                of 22/23 December 1949 in the disputed structure and
                 though he was not aware about the arrangements which
                 were made on that night, it transpired that new idols were
                 installed;
            (ii) As regards the construction of the mosque, the witness
E                stated:
                     “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
F                    became a place of idol.”
            (iii) The witness stated that possibly facts pertaining to the period
                  after 1933-34 had vanished from his memory. The statement
                  of the witness that the idols were installed in the disputed
                  structure on the night of 22/23 December 1949 is contrary
G                 to the case of Nirmohi Akhara. According to Nirmohi
                  Akhara, there never existed any mosque at the disputed site
                  and all along there was a temple which was in its
                  management, and that no incident had taken place on 22/
                  23 December 1949.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             327


       288. Jagad Guru Ramanandacharya Swami Haryacharya                      A
(DW 3/14): The Examination-in-Chief was recorded on 23 July 2004
when the witness was 69 years old. He was the head of Ramanand
Sampradaya since 1985-86. He came to Ayodhya in 1949 at the age
of 10. According to him, he had seen the idol of Ram Lalla inside the
disputed structure under the central dome as well as outside at
                                                                              B
Ramchabutra. The witness deposed when he first had darshan from a
distance of 15 feet, it was not from under the dome but from the
courtyard. The witness had no information whether namaz was offered
in the disputed structure before he came to Ayodhya. The witness did
not rule out the possibility that the idols were placed inside the disputed
structure in 1949, when he stated:                                            C
      “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.”
      289. Narendra Bahadur Singh (DW 3/15): The Examination-                 D
in-Chief was recorded on 17 August 2004. The witness was 72 years
of age. According to him, when he was 11 years old, he went to Ram
Janmabhumi with his parents and saw the idol of Ram Lalla seated
under the central dome. He claimed that since the age of 15, he was
going alone to the temple until demolition.                                   E
      Dr Dhavan has adverted to the following points in regard to the
testimony of the witness:
       (i) The witness needs to be completely disregarded for having
           furnished varied time periods of when he commenced
           visiting the disputed site. Though, he stated in his               F
           Examination-in-Chief that he first visited at the age of 11,
           in his cross-examination, he stated that he had seen the
           Nirmohis managing the disputed structure since the age of
           5-6 years and 8-9 years;
       (ii) Regarding his statement that he had never seen any namaz          G
            at the disputed site, he stated that he was not there at the
            site and hence could not see whether namaz was being
            conducted; and
      (iii) The witness denied the existence of the Janmasthan Mandir
            on the north side which has been accepted by Nirmohi              H
            Akhara in its replication.
328            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            290. Shiv Bhikh Singh (DW 3/16): The witness was 79 years
      of age on the date on which his affidavit, by way of Examination-in-
      Chief, dated 24 August 2004 was sworn. He claimed that he had been
      visiting Ram Janmabhumi temple since the age of 12 and had seen the
      idol of Lord Ram under the central dome. The witness stated that the
      idol of Ram Lalla was situated in the Ram Janmabhumi temple and
B
      there were three caves. He denied that the idols were placed in the
      disputed structure on 23 December 1949. According to him, the idols
      existed at the disputed structure even before his forefathers. The witness
      spoke about darshan in the three domed structure where the idol existed
      but stated that circumambulation was performed inside the grill-brick
C     wall. According to him there was no place called Sita Rasoi in the
      disputed premises. The witness also stated that when he had first gone
      to the three domed structure, he had not been exactly under the central
      dome and that he had taken darshan from the gate in the front of the
      lower side of the dome.
D            291. Sri Mata Badal Tewari (DW 3/17): The witness was 84
      years of age on the date of his Examination-in-Chief dated 31 August
      2004. He claimed that he had visited the Ram Janmabhumi temple for
      the first time in 1935 at the age of 15 and has visited Ayodhya since
      then. The witness had no knowledge about the Babri Masjid at Ayodhya
      or where it is situated. He however stated that he heard of the mosque.
E     The lack of awareness of this witness about the mosque is contradicted
      by his account of the riots of 1934:
            “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
F           people. The damagers were followers of Hindu religion.”
            If, according to the witness, the persons who damaged the domes
      in 1934 were Hindus by religion, it is impossible to accept his lack of
      awareness about the existence of the mosque.

G           292. Sri Acharya Mahant Bansidhar Das (DW 3/18): The
      witness who was born in 1905, stated that he had come to Ayodhya in
      1930. He was 99 years of age on the date of his Examination-in-Chief
      on 15 September 2004. He stated that he was continuously visiting the
      disputed structure and worshipping idols in the inner courtyard. The
      following aspects of the testimony of this witness need to be noted:
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         329


       (i) The witness deposed that Ramchabutra is also called Bedi       A
           and the word can be used for a small or large Chabutra;
      (ii) The witness stated that there is no harm in telling a lie if
           there is a religious place and if someone is acquiring it
           through wrong means or forcibly occupying it;
      (iii) The witness admitted that his memory was not good due to      B
            age;
      (iv) The witness had given testimony in about two hundred suits.
           The witness had varied theories about the construction of
           the temple contrary to the pleaded case of the litigating
           Hindu parties:                                                 C

          (a) According to him, the repairs of the Ram Janmabhumi
              was carried by Nirmohi Akhara during the last 700
              years;
          (b) The temple of Kasauti black stones was constructed          D
              by Nirmohi Akhara;
          (c) The temple said to be made during the time of
              Vikramaditya was constructed by the King of Kannuz
              and not by the King of Ayodhya;
          (d) Mir Baki destroyed the Ram temple but did not construct     E
              the Masjid, the temple was reconstructed by Govind Das
              who was the Mahant of Nirmohi Akhara during the
              regime of Babur;
          (e) Govind Das Ji constructed the building with three domes;
           (f) Some part of the temple was constructed during the         F
               regime of Babur which was destroyed during the regime
               of Humayun but was reconstructed by Govind Das Ji;
               and
          (g) Anantananda, disciple of Ramanand, reconstructed the
              temple at the disputed site.                                G
      293. Sri Ram Milan Singh (DW 3/19): The witness was 75
years of age on 17 August 2004 when his Examination-in-Chief was
recorded. He sought to prove the existence of idols under the central
dome in the inner courtyard and on the Ramchabutra, stating that he
                                                                          H
330            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     had been visiting since 1940 till 1951 and occasionally after 1952. When
      questioned about his affidavit, he stated:
            “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
B           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.”
C
            The above admission renders his evidence untrustworthy and not
      deserving of credence.
             294. Mahant Raja Ramchanbdr-Acharya (DW 3/20): The
      witness was 76 years old on the date of the Examination-in-Chief on
      27 October 2004. He was a pupil of Mahant Raghunath Das, the second
D
      plaintiff in Suit 3. The witness stated that in 1943, when he first came
      to Ayodhya, the Babri Masjid did not exist and that the disputed building
      is not a mosque:
            “In 1943, when I first came to Ayodhya, the Babri mosque was
            not at all existing there. There was no mosque on the disputed
E           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
F           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
G           be Pooja-Sewa (offering worship and rendering service) over
            there. Three domes were built in the disputed building.”
             According to the witness, namaz was not offered at the disputed
      building from 1943 to 1950 and puja was being performed; and the
      sanctum sanctorum was situated beneath the three domed structure of
H     the disputed building.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           331


       295. The above account of the oral evidence of the witnesses         A
who deposed in support of the Nirmohi Akhara indicates that their
statements are replete with hearsay. Witnesses who claimed to have
visited the disputed site on numerous occasions were unable to record
its physical features. Though, the witnesses have purported to state that
no incident had taken place on 22/23 December 1949 and one of them
                                                                            B
feigned ignorance on the ground that he was sleeping inside the disputed
structure at the time, it is impossible to accept this as a credible or
trustworthy account. The statements of the witnesses are replete with
inconsistencies and contradictions. The witnesses were unclear about
the nature of the parikrama route and the number of idols. While
furnishing a description of the idols inside the disputed structure, many   C
witnesses acknowledged that they had not entered the disputed
structure. Many of the witnesses had not read their affidavits in lieu of
the Examination-in-Chief and had merely appended their signatures
without understanding the contents. Many of the witnesses have not
been able to confirm their assertions in the Examination-in-Chief and
                                                                            D
have in fact contradicted their own statements. Many of the witnesses
offered accounts with respect to the disputed structure which are at
variance with the pleaded case of Nirmohi Akhara. Some of the
witnesses in fact supported the case in Suit 4 that Babri Masjid existed
where prayers had been conducted. Consequently, the witness accounts
cannot be regarded as credible proof in support of the case of Nirmohi      E
Akhara.
      M.6 Nirmohi Akhara’s claim to possession of the inner
courtyard
       296. The claim of Nirmohi Akhara in Suit 3 is in respect of the
inner courtyard, including the three domed structure of the mosque.         F
Nirmohi Akhara denies the incident of 22/23 December 1949 during
the course of which the idols were surreptitiously installed into the
disputed structure. According to Nirmohi Akhara, the structure is a
temple and not a mosque. The oral evidence which has been adduced
to support this submission has been analysed earlier. The oral evidence     G
does not indicate any cogent, credible or trustworthy account of Nirmohi
Akhara being in possession of the inner courtyard or structure. With
this state of the record in regard to the oral accounts of the witnesses
produced by Nirmohi Akhara, it becomes necessary to scrutinise
whether the documentary evidence supports the case of Nirmohi Akhara
being in possession of the inner courtyard and structure.                   H
332            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           297. Mr S K Jain, learned Senior Counsel appearing on behalf
      of the plaintiffs in Suit 3, emphasized the findings contained in the
      judgments of Justice Sudhir Agarwal and Justice D V Sharma that
      Nirmohi Akhara had a presence at Ayodhya from 1734 after Mahant
      Govind Das left Jaipur to come to Ayodhya. Justice Sudhir Agarwal
      observed, while deciding issue 17 in Suit 3 that:
B
            “799…Nirmohi Akhara, plaintiff no. 1 is a Panchayati Math of
            Ramanandi Sect of Bairagies and as such is a religious
            denomination following its religious faith and pursuit according
            to its own custom. We however further hold that its continuance
            in Ayodhya find sometimes (sic) after 1734 AD and not earlier
C           thereto.”
             Justice D V Sharma placed reliance on the evidence of Mahant
      Bhaskar Das (DW 3/1) and Raja Ramachandracharya (DW 3/20) to
      hold that:
D           “Nirmohi Akhara is a Panchayati of Ramanandi sect of Bairagies
            and as such is religious denomination. The custom has already
            been registered in the year 1949.”
             298. These findings do not establish Nirmohis being in possession
      of the inner courtyard. While scrutinizing the documentary evidence
E     which has been relied upon by them, a distinction must be drawn
      between a mere presence of Nirmohi Akhara at Ayodhya or around
      the disputed site and actual possession of the disputed structure. Mr S
      K Jain in that context adverted to the account of Tieffenthaler of 1770
      which refers to the presence of the Bedi or cradle symbolizing the place
      of birth of Lord Ram. The reference to the cradle in Tieffenthaler’s
F     account cannot be regarded as indicative of the Nirmohi Akhara being
      in possession of the disputed structure or inner courtyard of the mosque.
      Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18),
      who was a witness for Nirmohi Akhara stated that Ramchabutra is also
      called Bedi. The statement of this witness to the effect that the Bedi
G     / cradle was at Ramchabutra cannot be taken out of context and has
      to be read in the light of the entirety of the evidence, including
      Tieffenthaler’s observations on what he had noticed. Among the other
      documents, which have been relied upon are:
             (i) “East India Gazetteer of Hindustan” by Walter Hamilton;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         333


      (ii) Edward Thornton’s “The Gazetteer of the Territories            A
           under the Government of East India Company”;
      (iii) The complaint of 25 September 1866 by Meer Rajab Ali
            Khateeb regarding the “Kothri” constructed by certain
            Bairagis inside the compound of the mosque;
     (iv) Carnegie’s “Historical Sketch of Faizabad”;                     B

      (v) Permission granted to Mahant Khem Das on 13 April 1877
          for the construction of a new gate on the northern side;
     (vi) The appeal filed on 13 December 1877 against the grant
          of permission for the new gate;                                 C
     (vii) The report made by the Deputy Commissioner in view of
           the above appeal;
    (viii) The order of the Commissioner dated 13 December 1877
           dismissing the appeal;
                                                                          D
     (ix) Gazetteer of the Province of Oudh (1877-78);
      (x) The plaint in the suit instituted by Syed Mohd Asghar against
          Mahant Raghubar Das on 8 November 1882 seeking rent
          for the use of the Chabutra;
     (xi) The order of the Sub-Judge, Faizabad dated 18 June 1883         E
          dismissing the suit;
     (xii) The application filed by Syed Mohd Asghar on 2 November
           1883 for permission to carry out repairs of the mosque;
    (xiii) The order of the Deputy Commissioner dated 12 January
           1884;                                                          F
    (xiv) The order of the Assistant Commissioner dated 22 January
          1884; and
     (xv) The complaint by Mahant Raghubar Das dated 27 June 1884
          seeking spot inspection in view of the work being carried
                                                                          G
          out by Syed Mohd Asghar for white washing the walls of
          the mosque.
      299. These documents have been analysed in the judgment of
Justice Sudhir Agarwal who observed that the idol existed at
Ramchabutra and Nirmohi Akhara was likely looking after the worship
                                                                          H
334            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     of the idol, which was not seriously disputed by the other Hindu parties.
      However, Justice Agarwal observed that there was no basis to hold
      that Nirmohi Akhara continued to do so even after the idols were shifted
      inside the structure on 22/23 December 1949. This finding was because
      Nirmohi Akhara plainly denied that any incident had taken place on 22/
      23 December 1949 and they had no cogent explanation to offer of the
B
      events which took place on the intervening night. A careful scrutiny of
      the documents which have been relied upon by Nirmohi Akhara does
      not lead to the inference that Nirmohi Akhara had exclusive possession
      of the disputed structure. We must bear in mind the submission of Mr
      S K Jain that the disputed structure of the mosque was landlocked and
C     that the outer courtyard which included Ramchabutra, Sita Rasoi and
      the Bhandar had to be traversed in order to gain entry to the mosque.
      There were two gates to the outer courtyard namely Singh Dwar and
      Hanumat Dwar. But, would the landlocked character of the disputed
      structure lead ipso facto of the conclusion that Nirmohi Akhara was
      in possession of the inner structure? It is not possible to draw that
D
      inference on a preponderance of probabilities.
             300. In 1885, a suit was instituted by Mahant Raghubar Das
      seeking permission for the construction of the temple on the Chabutra.
      The Sub-Judge at Faizabad in his judgment dated 24 December 1985
E     observed that though the area occupied by the Chabutra was in the
      possession and ownership of the plaintiff, permission for carrying out
      construction should be refused on the ground that it was not in public
      interest and would lay the seeds of conflict between the Hindus and
      Muslim communities. In appeal, the District Judge Faizabad on 18/26
      March 1886 deleted the observations on the ownership of the Chabutra
F     made in favour of Mahant Raghubar Das. Mr S K Jain, in his written
      submissions has fairly accepted that the events arising out of the Suit
      of 1885 have been relied upon to show the presence of Mahant
      Raghubar Das at the Ramchabutra in the outer courtyard. Besides this,
      the Nirmohis have been ambivalent about the Suit of 1885 indicating
      unawareness about it at one stage and then adopting an inconsistent
G
      position at other times.
          301. The next set of documents relied on by Nirmohi Akhara
      commence from 1900. These documents are set out below:

H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                      335


         (i) Agreement permitting Jhingoo to provide drinking water to     A
             pilgrims176;
         (ii) H R Nevill’s “The Gazetteer of the United Provinces of
              Agra and Oudh 1905” stating that the Nirmohi Akhara sect
              formerly held the Ram Janmabhumi temple in Ramkot, the
              remains of which still belong to them;                       B
                                                                     177
        (iii) Mutation entry in favour of the Mahant Raghunath Das ;
        (iv) Agreement of Theka shop dated 13 October 1942 178;
         (v) Agreement dated 29 October 1945 executed in respect of
             a shop by Mahant Raghunath Das179;                            C
        (vi) The report by the Waqf Inspector stating that Muslims were
             not able to perform namaz Isha at the mosque due to the
             fear of Hindus and Sikhs180;
        (vii) The report of the Waqf Inspector dated 29 December 1949
              recording the presence of police personnel between 22/23     D
              December 1949181, and that no namaz was being performed
              except on Friday when the mosque is open for 3-4 hours
              and that several bairagis were trying to forcibly take
              possession of the mosque;
       (viii) The report of the receiver dated 5 January 1950 which        E
              refers to Nirmohi Akhara while depicting the boundaries of
              the property taken into possession by him. 182 Post
              attachment on 5 January 1950, it has been submitted that
              objections were filed by Mahant Baldeo Das in the
              proceedings under Section 145183;
                                                                           F
        (ix) In 1961, permissions were sought for carrying out
             construction in the outer courtyard; and


176
    Exhibit 8
177
    Exhibit 49
                                                                           G
178
    Exhibit 9
179
    Exhibit 10
180
    Exhibit A-63 - Suit 1
181
    Exhibit A- 64 - Suit 1
182
    Exhibit A– 3 – Suit 4
183
    Exhibit 6 -Suit 3                                                      H
336             SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A             (x) The clarification of the City Magistrate dated 9 February
                  1961 stating that there was no objection to the replacing of
                  canvas or cover.
            Adverting to the documents which have been relied upon by
      Nirmohi Akhara, Justice Sudhir Agarwal held that the contents of
B     documents to which the defendants were not parties are not relevant
      on questions of title and possession. The documentary evidence relied
      upon by Nirmohi Akhara does not shed light in respect of the premises
      within the inner courtyard.
             302. Dr Rajeev Dhavan has, in the course of the hearing of the
C     appeal, filed a detailed response to the exhibits which were relied upon
      by Nirmohi Akhara. The course of events in the history of the
      communal conflict indicates a series of conflagrations between Hindus
      and Muslims in 1856-57 and 1934. The mosque was partially damaged
      in 1934 and subsequently, obstructions were placed in the course of
      offering namaz in the mosque involving a denial of the right to pray for
D
      the Muslims. This is followed by the events which took place on 22/23
      December 1949 when idols were surreptitiously placed under the central
      dome. Soon thereafter, proceedings were initiated under Section 145
      resulting in the attachment of the property. In this background, it is
      difficult to accept the case of Nirmohi Akhara that the disputed structure
E     was a temple which was in its exclusive possession and that no incident
      had taken place on 22/23 December 1949.
              Documentary evidence in regard to the mosque (1934-
      1949)
             303. In order to refute the claim of Nirmohi Akhara in regard to
F
      possession of the disputed structure, Mr Zafaryab Jilani, learned Senior
      Counsel appearing for the Sunni Central Waqf Board relied on
      documentary evidence to support the case that the structure situated
      within the inner courtyard was a mosque and that it was being used by
      Muslims to offer namaz from 1934 to 1949. This documentary evidence
G     has a bearing on the correctness of the claim of Nirmohi Akhara in
      regard to exclusive possession of the mosque and hence needs to be
      scrutinised. The documentary evidence consists of the following:
              (i) Certified copy of the order dated 4 June 1942184 and decree
                  dated 6 July 1942 in Regular Suit 95 of 1941 (Mahant
H                 Ramcharan Das v Raghunath Das) before the Additional
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        337


             Civil Judge, Faizabad.185 A compromise was arrived at in        A
             the Suit. The terms of compromise contain a specific
             reference to the “Babri Masjid”186:
                  “2. A pucca temple along with lands situated at
                  Janambhumi-Babri Masjid in Mohalla Ramkot, City
                  Ayodhya, Pargana Haveli Awadh, Tehsil & Dist.              B
                  Faizabad, whose boundaries are described as under:
                  East : Parti & Kabristan (Graveyard)
                  West: Babri Masjid
                  North: Pucca Road                                          C
                  South: Kabristan (Graveyard).”
             The suit was between the Nirmohis inter se. The above
             document indicates that the existence of the mosque cannot
             be denied;
                                                                             D
         (ii) After the riots which took place on 27 March 1934 on or
              about the occasion of Bakri-Eid, a portion of the mosque
              was destroyed. In that connection, there are documents
              relating to the repair of the premises:
             (a) Permission granted for cleaning of Babri Masjid and its
                 use for religious services187;                              E
             (b) Application of Mohd Zaki and others dated 5 June 1934
                 for the recovery of fines from the Bairagis for causing
                 damage to the mosque188;
             (c) The order of the District Magistrate dated 6 October
                 1934 for the payment of compensation for the damage         F
                 caused to the mosque189;
             (d) Application of Tahawar Khan, the contractor, dated 25
                 February 1935 for the payment of his bills for the repair
                 of the mosque190;
                                                                             G
184
    Exhibit A-4 – Suit 4
185
    Exhibits A-5 - Suit 4
186
    Exhibit A-6 – Suit 4
187
    Exhibit A-49- Suit 1
188
    Exhibit A-6- Suit 1
189
    Exhibit A-43- Suit 1
190
    Exhibit –A- 51 – Suit 1                                                  H
338              SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                  (e) The order of the Deputy Commissioner, Faizabad dated
                       26 February 1935 for inspection of the work done by
                       the SDM Sadar prior to payment of bills for the repair
                       of the mosque191;
                   (f) Estimate of repairs submitted by the contractor on 15
B                      April 1935 including the repair of the domes192;
                   (g) An application of the contractor dated 16 April 1935 in
                       regard to the delay in the completion of work. The letter
                       stated that the repair to the dome was under preparation
                       as were the marble tablets with the inscriptions of
                       Allah193;
C
                   (h) Inspection note dated 21 November 1935 of the Assistant
                       Engineer, Public Works Department, Faizabad regarding
                       repair of Babri Masjid, noting that the work was
                       inspected and found to be satisfactory194;
                    (i) Report of the bill clerk dated 27 January 1936 on the
D
                        bill of the contractor regarding the repair of the
                        mosque195;
                    (j) Order of Mr A D Dixon dated 29 January 1936 regarding
                        payment for the work of repair of Babri Masjid196; and

E                  (k) Application of the contractor dated 30 April 1936
                       complaining of the deductions made from his bill for the
                       repair of Babri Masjid.197
             The above documents which have been duly exhibited indicate
      that following the riots of 1934, a Muslim contractor was engaged for
F     the repairs of the Babri Masjid. There is a reference to the damage
      sustained by the mosque and to the work of restoration that was carried
      out by the contractor.
             304. Besides the documentary evidence relating to repair, another
      set of documents relates to the services of the Imam at Babri Masjid:
G     191
          Exhibit A-45- Suit 1
      192
          Exhibit –A-44- Suit 1
      193
          Exhibit –A-50- Suit 1
      194
          Exhibit A-48- Suit 1
      195
          Exhibit A-46 – Suit 1
      196
          Exhibit A-47- Suit 1
      197
H         Exhibit A-52- Suit 1
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           339


         (i) An agreement/undertaking was executed by Syed Mohd                 A
             Zaki, trustee of Babri Masjid on 25 July 1936 in favour of
             the Maulvi Abdul Ghaffar, Pesh Imam of Babri Masjid
             regarding the payment of his outstanding salary until 1935198;
         (ii) Application of Syed Mohd Zaki dated 19/20 July 1938 before
              the Waqf Commissioner in response to a notice under Section       B
              4 of the Muslim Waqf Act 1936199;
        (iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjid
              dated 20 August 1938 before the Waqf Commissioner,
              Faizabad, seeking a direction to the Mutawalli for the
              payment of the arrears of his salary due upto 31 July             C
              1938200;
        (iv) Reply of the brother of Syed Mohd Zaki (the former
             Mutawalli) dated 20 November 1943 to the notice of the
             Sunni Waqf Board dated 27 October 1943.201 The letter
             contains a clear reference to the arrangement made for             D
             maintaining the daily needs for the mosque as well as the
             requirements for Friday prayers:
                  “That mat, floor cloth and janamaaz – prayer rug etc.
                  are kept sufficient for daily needs only. Other floor cloth
                  and prayer rugs are kept with the Maulavi Abdul               E
                  Ghaffar, Pesh Imam. These are brought to the mosque
                  on every Friday and are kept back in the same place
                  after Jumah prayers because floor cloth often gets stolen
                  from the masjid. It is for the reason that all mats and
                  floor cloth are not kept in the masjid.”
                                                                                F
         (v) Notice dated 11 April 1945 of the Shia Waqf Board to the
             Sunni Waqf Board before instituting a suit under Section 5(2)
             of the UP Muslim Waqf Act 1936, challenging the
             notification dated 26 February 1944 declaring the mosque
             as a Sunni Waqf202;
                                                                                G

198
    Exhibit A-7- Suit 1
199
    Exhibit A- 67- Suit 1
200
    Exhibit A- 61- Suit 1
201
    Exhibit A-66- Suit 1
202
    Exhibit A-65- Suit 1                                                        H
340             SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            (vi) Notice dated 25 November 1948 of the Secretary, Sunni
                  Waqf Board about charge of Tauliat due to the death of the
                  Mutawalli203;
            (vii) The report of the Waqf Inspector dated 10/12 December
                  1949 regarding the harassment of Muslims while going for
B                 prayers204; and
            (viii) Report of Waqf Inspector dated 23 December 1949 in
                   regard to the condition of Babri Masjid, stating that keys
                   remained with the Muslims and only Friday prayers were
                   being offered205:
C                       “I had to inquire into the present condition of Babri
                        Masjid Ayodhya and Qabrastan (graveyard) on 22nd
                        December, 49 I spent the whole day making inquiry. My
                        inquiry made me aware about the following conditions
                        and events. A period of three months has elapsed to the
D                       arrival of Baba Raghunath ostensibly to visit the
                        janamasthan. He exhorted the Beragis and Pujaris –
                        worshippers forcefully that Ramayanpath – recitation of
                        Ramayan – should be done at janmasthan. This
                        message spread to all nearby and surrounding areas.
E                       After a month of the departure of Baba Raghubardas,
                        thousands of Hindus and Pujaris and Pandits gathered
                        there for Ramayan path. The path (recitation) went on
                        for weeks. In the meantime the Beragis dug outside the
                        front part of the Masjid and part of Qabrasthan and
                        leveled it to the ground. They also erected a makeshift
F                       maker and put stones on the site of some graves. There
                        was police bandobast at the time of recitation of
                        Ramayan. Despite this, the graves were dug out. Police
                        arrested four people who were later released on bond.
                        Khawaja Rahmatullah’s mausoleum which is nearby the
G                       graveyard on a rising mound has also been dug out and
                        levelled to the ground. A Bairagi has started residing
                        there. The Bairagis’ are squatting near the pucca grave
      203
          Exhibit A-62- Suit 1
      204
          Exhibit A-63- Suit 1
H     205
          Exhibit A-64- Suit 1
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                      341


         which is near the door of the courtyard adjacent to the     A
         walls of the Masjid. The Bairagis have erected a hut.
         Before the commencement of this recitation, the Bairagis
         had looted and broken the fence. The muezzin was
         thrashed and thereafter they tried to dug out the
         inscription on the Masjid. Two Muslims who were             B
         strangers were beaten and they suffered serious injuries.
         Now there are two camps outside the Masjid. In one
         of them are stationed police constables and in another
         sepoys of the battalions. The total numbers of
         (constables and sepyoys) is about 7 to 8. Now the Masjid
                                                                     C
         remains locked. No Azaan is allowed nor Namaaz
         performed except on the day and time of Jumaaah.
         The lock and the keys remain with Muslims. But
         the police do not allow them to open the lock. The
         lock is opened on the day of Jumaah, i.e. Friday
         for two or three hours. During this period, the             D
         Masjid is cleaned and Jumaah prayers are offered.
         Thereafter it is locked as usual. At the time of
         Jummah much noise is created. When the Namazis
         go downstairs, shoes and clouds of earth are
         thrown at them. But Muslims do not react to it out          E
         of fear. After Raghavdas, Mr Lohia had also come to
         Ayodhya and he had addressed people saying that
         flower plants should be planted on the place of graves.
         A minister also came from Lucknow. The Bairagis told
         him that Masjid is the Janmbhoomi. Help us get it. He       F
         refused to do this by force. Hearing this Bairagis got
         angry with him, and he had to return to Faizabad under
         Police protection. In the meantime, in the Kanak Bhavan
         Mandir of Ayodhya, Mahant Babasthan, Mahant
         Raghubardas, Vedantiji, Narayan Das, Acharyaji wanted
                                                                     G
         to call Muslims but none came out there with the
         exception of Zahoor Ahmad. Hindus asked Zahoor
         Ahmad to help them get the Masjid. He was told that if
         it is done then we are brothers, otherwise, we are
         enemies. I stayed at Ayodhya during night. In the
         morning I came to know that Bairagis are trying to          H
342                SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A                      occupy the Masjid forcibly. It is Jumaah-Friday –today.
                       When I reached the site, 10 to 15 Bairagis with clubs
                       and axes were found present in the courtyard of the
                       Masjid and many Bairagis are sitting on the door of the
                       Masjid with clubs. Hindus of the surrounding area are
B                      also gathering there. City Magistrate, Police Officer of
                       the City and other police force is deployed in sufficient
                       numbers. Muslims from Faizabad would certainly come
                       to offer of Jumaah (Friday) prayers. What would be
                       their fate I do not know. Now I am crossing the river
                       and going to Lakkadmandi Gonda.”
C
                                                           (Emphasis supplied)
             Justice Sudhir Agarwal held that the undertaking/agreement206
      for the payment of salary including arrears to the Pesh Imam has not
      been proved. Besides being exhibited in evidence, this document finds
      a reference in an application by the Pesh Imam before the Waqf
D     Inspector for the payment of his salary in terms of the agreement, a
      copy of which was filed with the application.207 As regards the reports
      of the Waqf Inspector, the written submissions filed on behalf of the
      Nirmohi Akhara in fact rely on both the reports. The reason indicated
      by Justice Sudhir Agarwal for not relying on the reports – that no one
E     has seen the Waqf Inspector is specious. The report dated 10/12
      December 1949 has been specifically relied upon in the plaint in Suit 5
      and in the Examination-in-Chief of plaintiff 3 in Suit 5.
             305. The above documents demonstrate:
               (i) The steps taken after the riots of 1934 for the restoration
F                  of the mosque;
              (ii) The repairs carried out by the contractor for repairing the
                   mosque and payments made by Public Works Department;
             (iii) The engagement of services of the Pesh Imam and the
                   attendant dispute pertaining to non-payment of his arrears
G                  of salary;
            (iv) The report of the Waqf Inspector in December 1949 stating
                   that the Muslims were being harassed in offering prayers

      206
            Exhibit A-7- Suit 1
      207
H           Exhibit A-61
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          343


          in the mosque as a result of which only Friday prayers were      A
          being offered; and
     (v) The apprehension expressed by the Waqf Inspector of
          danger to the mosque.
     306. In view of the above analysis of the oral evidence and
documentary material, the following conclusions can be drawn:              B
      (i) There are serious infirmities in the oral accounts of Nirmohi
          witnesses that the disputed structure was not a mosque but
          the Janmabhumi temple;
       (ii) The documentary evidence relied on by Nirmohi Akhara
            does not establish its possession of the inner courtyard and   C
            the structure of the mosque within it, being the subject of
            Suit 3;
      (iii) Contrary to the claims of Nirmohi Akhara, documentary
            evidence establishes the existence of the structure of the
            mosque between 1934 and 1949; and                              D
      (iv) As regards namaz within the mosque, the Muslims were
           being obstructed in offering prayers as a result of which
           by December 1949, Friday prayers alone were being
           offered.
                                                                           E
       This documentary evidence in regard to the presence and use
of the mosque until December 1949 is supported by the letter of the
Superintendent of Police, Faizabad dated 29 November 1949
specifically, referring to the attempts whichwere being made to surround
the mosque so as to lead the Muslims to abandon it. This is coupled
with the letter dated 16 December 1949 of the District Magistrate to       F
the Chief Secretary seeking to allay the apprehensions in regard to the
safety of the mosque.

       307. Suit 3 has been held to be barred by limitation. The oral
and documentary evidence have been analysed above to render a full
adjudication of the claims of Nirmohi Akhara: (i) denying the existence    G
of the mosque; (ii) asserting that the structure in the inner courtyard
was a temple which was in its exclusive possession; and (iii) denying
the incident on the night between 22/23 December 1949. Nirmohi
Akhara has failed to prove its assertions. The documentary evidence
will be of relevance in determining the objections raised by Nirmohi       H
344             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     Akhara (supported by the Sunni Central Waqf Board) to the
      maintainability of Suit 5. Whether Nirmohi Akhara has established that
      they were a shebait in service of the deity of Lord Ram was an issue
      struck in Suit 5 and will hence be considered while dealing with that
      suit. Some of the evidence which has been discussed above is also of
B     relevance on the question of title and will be re-visited at the appropriate
      stage in the course of this judgment.
      N. Suit 5: The deities
            N.1 Array of parties

C            308. Suit 5 was instituted on behalf of the first and second
      plaintiffs through a next friend who was impleaded as the third plaintiff.
      The first and second plaintiffs are: “Bhagwan Sri Ram Lala Virajman”
      and “Asthan Sri Ram Janma Bhumi, Ayodhya”. The third plaintiff was
      Sri Deoki Nandan Agarwala, a former Judge of the Allahabad High
      Court. The third plaintiff was subsequently substituted by an order of
D     the High Court as a result of his death.
              309. The first defendant is the legal representative of Gopal Singh
      Visharad (the plaintiff in Suit 1); the second defendant was the plaintiff
      in Suit 2 (which was subsequently withdrawn); the third defendant is
      Nirmohi Akhara (the plaintiff in Suit 3); the fourth defendant is the
E
      Sunni Central Waqf Board (the plaintiff in Suit 4); the fifth and sixth
      defendants are Muslim residents of Ayodhya and Faizabad; the seventh,
      eighth, ninth and tenth defendants are the State of Uttar Pradesh and
      its officers; the eleventh defendant is the President of the All India Hindu
      Mahasabha; the twelfth and thirteenth defendants represent the All India
F     Arya Samaj and the All India Sanatan Dharma Sabha respectively; the
      fourteenth defendant was Sri Dharam Das, described as the Chela of
      Baba Abhiram Das, who was allegedly involved in the incident which
      took place on 22/23 December 1949; defendants fifteen and sixteen
      are Hindu residents of Ayodhya and Faizabad; defendant seventeen was
G     a resident of District Faizabad (since deleted); defendants eighteen and
      nineteen are Mahant Ganga Das and Swami Govindacharya Manas
      Martand; defendant twenty was Umesh Chandra Pandey who opposed
      the claim of the Nirmohi Akhara in Suit 3 (but did not lead any evidence);
      defendant twenty-one is described as the “Sri Ram Janma Bhumi Nyas”,
      a trust which has been impleaded through its managing trustee Sri
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            345


Ashok Singhal; defendants twenty-two to twenty-five are the Shia                 A
Central Board of Waqfs, individuals representing the Shias; defendant
twenty-six is the General Secretary of the Jamaitul Ulema Hind U P
and defendant twenty-seven is a Muslim resident of Faizabad.
          N.2 No contest by the State of Uttar Pradesh
                                                                                 B
      310. The State of Uttar Pradesh filed a statement (in Suit 4 of
1989) stating that “the government is not interested in the properties in
dispute” and the actions of the officials in regard to the properties in
dispute were bona fide in due discharge of their official duties.
          N.3 Pleadings                                                          C
       311. The plaint in Suit 5 proceeds on the foundation that the first
and second plaintiffs “are juridical persons with Bhagwan Sri Rama as
a presiding deity of the place”. The third plaintiff is described as a
‘Vaishnava Hindu’. The plaint adopts for its description of Ram
Janmabhumi, “two site plans of the building premises and of the adjacent         D
area known as Sri Ram Janma Bhumi prepared by Shiv Shankar Lal”
in discharge of his duty as a Commissioner appointed by the Court of
the Civil Judge, Faizabad in Suit 1. These site plans together with his
report are Annexures I, II and III to the plaint.
       312. After setting out a history of the earlier suits instituted before   E
the civil court208 and the proceedings under Section 145, the plaint states
that these suits continue to remain pending “with a dim prospect of their
immediate hearing”. Though, the seva and puja of the plaintiff deities
is stated to have been carried out properly, it has been stated that
darshan has been allowed only from behind a barrier for Hindu
devotees. The plaintiff deities and devotees are stated to be “extremely         F
unhappy” with the delay in the disposal of the suits, the deterioration in
the management of the affairs of the temple and with the alleged
misappropriation of the offerings of worshippers by pujaris and other
temple staff. The Hindu devotees, it has been stated, are desirous of
having a new temple constructed after removing the existing structure            G
at Ram Janmabhumi. According to the plaint, the head of the
Ramananda Sampradaya was entrusted with the task of addressing the
mismanagement of the temple and facilitating the construction of a new
temple. This eventually led to the Deed of Trust dated 18 December
208
      Suit 2 of 1950, Suit 25 of 1950, Suit 26 of 1959 and Suit 12 of 1961       H
346             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     1985 which was registered with the Sub-Registrar. The trust has been
      named the “Sri Ram Janma Bhumi Nyas” and consists of ten trustees.
      In addition, the Vishva Hindu Parishad, through its Marga Darshak
      Mandal is to nominate four trustees, which it did. Further, five trustees
      have been nominated from amongst “eminent Hindu citizens of India”.
      Of the aforesaid five persons, the third plaintiff was nominated as one
B
      of the trustees. Ram Janmabhumi Nyas is stated to be directly
      interested in the seva-puja and other affairs of the plaintiff deities. The
      plaintiffs further indicate that the existing suits “are inadequate” and
      cannot result in a settlement of the dispute as neither the presiding deity,
      Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (both
C     of whom are stated to be juridical persons) were impleaded in the
      previous suits. Moreover, it is alleged that some of the parties to the
      earlier suits are “to some extent” involved in seeking to gratify their
      personal interest by obtaining control over worship of the plaintiff deities.
      In this background, the plaintiffs have instituted a suit of their own.
D            313. The plaint states that it is established by “unimpeachable
      authority” that the premises in dispute represent the place where Lord
      Ram was born. The second plaintiff, described as “Asthan Sri Ram
      Janma Bhumi”, is stated to be an independent object of worship,
      worshipped by the devotees as personifying the divine spirit of Lord
      Ram. Hence, it has been averred that the land at Ram Janmabhumi
E     has possessed a juridical personality even prior to the construction of
      the existing structure or the installation of idols within the central dome.
      It has been stated that Hindus worship not merely the material form or
      shape of an idol but the divine spirit which is invoked by consecration
      or prana pratishtha. It is stated that the divine spirit is worshipped as
F     a deity at the site of the second plaintiff and hence it has been submitted
      that the place itself is a deity. The deity, it has been submitted, being
      indestructible, continues to exist so long as the place exists, and the
      place being land, continues to exist irrespective of any construction on
      it.
G             314. The plaint proceeds to rely on the 1928 edition of the
      Faizabad Gazetteer, in support of the plea that the ancient temple, called
      the Ram Janmabhumi temple, was destroyed by Babur in 1528 and on
      its site, a mosque was built largely with the materials of the destroyed
      temple, including the Kasauti pillars. Yet, according to the plaint, the
      worshippers continued to worship Lord Ram through symbols such as
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                347


the Charan and Sita Rasoi and the idol of Lord Ram on the Ramchabutra            A
within the enclosure. It has been submitted that no one could enter the
building except after passing through areas where Hindus worshipped.
The plaint disputes whether a mosque could validly be constructed in
accordance with Islamic tenets on the site of a Hindu temple which is
surrounded by Hindu places of worship. According to the plaintiffs,
                                                                                 B
worshippers of the deities have continued to pray at Ram Janmabhumi
for centuries; the place belongs to the deities and no valid waqf was
ever created or could have been created. Despite occasional trespass
by the Muslim residents, it has been stated that title and possession
vested in the plaintiff deities. It is alleged that no prayers were offered
at the mosque. After independence, the graves surrounding Ram                    C
Janmabhumi were dug up by the Bairagis and eventually on the night
of 22/23 December 1949, an idol of Lord Ram was installed with due
ceremony under the central dome of the disputed building. This was
followed by proceedings under Section 145 to which the plaintiff deities
were not parties. In the alternate to the plea of the original title vesting
                                                                                 D
in the plaintiff deities, it has been stated that the deities have been in
possession and any claim of title adverse to the deities stands
extinguished by adverse possession.
        315. The plaint sets out that Hindu devotees were desirous of
constructing a temple at the disputed site and, the “active movement”
was scheduled to commence from 30 September 1989 with the                        E
foundation stone being laid on 9 November 1989. Nirmohi Akhara, it
has been stated, has put forward a personal interest in the management
of the worship of the plaintiff-deities and there being no other fit person
to represent them, the third plaintiff has instituted the suit as next friend.
It is averred that in order to remove any obstacles in the fulfilment of         F
the movement to construct a new temple, the entire premises at the
disputed site constitute “one integral complex” with “a single identity”.
The claim of the Muslims is stated to be confined to the enclosure within
the inner boundary wall.
       The plaint was amended after the demolition of Babri Masjid in            G
1992 to incorporate averments pertaining to the circumstances prior to,
during and following the demolition. According to the plaintiffs, shebaiti
rights were taken away and entrusted to the statutory receiver following
the enactment of the acquisition ordinance and the law enacted by
Parliament.
                                                                                 H
348             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A            The cause of action for the institution of the suit is stated to have
      accrued “from day to day” especially when the plans for construction
      of a new temple were alleged to be obstructed by violent action on the
      part of certain Muslims.
             On the above pleadings, two reliefs have been sought in Suit 5:
B            (a) A declaration that the entire premises of Sri Ram
                 Janmabhumi described in Annexures I, II and III belong to
                 the plaintiff-deities; and
             (b) A permanent injunction prohibiting the defendants from
                 interfering with or obstructing the construction of a new
C                temple at Sri Ram Janmabhumi after the demolition and
                 removal of the existing buildings and structures.
             N.4 Written statements
             Nirmohi Akhara
D            316. In response to Suit 5, Nirmohi Akhara filed its written
      statement submitting that the suit instituted through a next friend is
      malicious and is a “design to damage the title and interest of the
      answering defendants”. Nirmohi Akhara denies the locus of the next
      friend as the third plaintiff to represent the deities. It specifically denies
      the status of the second plaintiff as a juridical person. Bhagwan Sri
E
      Ram, according to Nirmohi Akhara is installed not at Ram Janmabhumi
      but in the temple known as the Janmabhumi temple for whose charge
      and management it has instituted Suit 3. According to the written
      statement, Asthan simply means a place and is not a juridical person.
      The third plaintiff, it has been asserted is not a worshipper of the deity
F     and is a Vaishnavite and has no locus to represent the deity or the “so-
      called Asthan”. It has been urged that there was an attempt to mobilise
      a sum of Rs. 25 crores for the construction of a new temple. Nirmohi
      Akhara states that the birth-place of Lord Ram is not in dispute and it
      is located at Ayodhya where the Ram Janmabhumi temple stands. The
      Ram Janmabhumi temple is stated to be in the disputed land which the
G
      Muslims claim to be a mosque. Asthan Janmabhumi is stated to be the
      birth-place of Lord Ram comprising of the entire city of Ayodhya.
      Nirmohi Akhara has claimed that it is the shebait of the idol of Lord
      Ram installed in the temple in dispute and that it alone has the right to
      control, supervise, repair and reconstruct the temple. It has been
H     submitted that Nirmohis’ suit was filed in 1959, whereas, the Ram
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                349


Janmabhumi Nyas has come into existence in 1985 “with an obvious                 A
design to damage the title and interest of the Akhara”. Nirmohi Akhara
has alleged that the idol of Lord Ram was always installed in the Ram
Janmabhumi temple; that the temple belongs to it and no one else has
the right to construct a new temple. Suit 5 has been opposed on the
ground that the plaintiffs have “no real title to sue” and that the suit is
                                                                                 B
an encroachment on the rights of the Nirmohis to manage the temple.
Hence, according to it, the disputed premises mentioned by the plaintiffs
in Suit 5 belong to the Nirmohi Akhara and the plaintiffs cannot seek a
declaration against the right and title of Nirmohi Akhara. Accordingly,
Nirmohi Akhara has prayed for the dismissal of Suit 5.
        In its additional written statement, Nirmohi Akhara has stated that      C
the outer Sahan (courtyard) “carried a little temple” of Lord Ram which
was regularly worshipped according to the customs prevailing among
Ramanandi Bairagis. The outer part of this temple is stated to have
been in the management and charge of Nirmohi Akhara as its shebait
till the outer portion was attached on 16 February 1982 in Regular Suit          D
239 of 1982. The outer portion, it has been stated, has been in possession
and management of Nirmohi Akhara and the idol of Lord Ram installed
on Ramchabutra is stated to be a distinct legal entity owned by Nirmohi
Akhara. It has been submitted that the Magistrate’s order of attachment
under Section 145 pertained only to the three-domed structure where
the idol of Lord Ram is stated to have been installed by Nirmohi Akhara          E
from time immemorial and which was always in its management and
possession. In a further written statement, Nirmohi Akhara has claimed
that the constitution of the Ram Janmabhumi Nyas is illegal.
       All India Hindu Mahasabha
                                                                                 F
      317. The President of the All India Hindu Mahasabha filed a
written statement claiming that as a party to the Sri Ram Janmabhumi
Nyas, it is directly dedicated to the seva-puja and other affairs of the
Ram Janmabhumi temple.
       Sunni Central Waqf Board                                                  G
       318. The Sunni Central Waqf Board has opposed the suit of the
plaintiff-deities. In its written statement, it denies the juridical status of
the first and second plaintiffs and the locus of the third plaintiff to act
as a next friend. According to the Sunni Central Waqf Board, no deities
were installed within the premises of Babri Masjid until the idol was
                                                                                 H
350              SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     surreptitiously brought in on the night between 22-23 December 1949.
      The written statement denies the presence of a presiding deity or of
      “any Asthan”. Placing reliance on the dismissal of the Suit of 1885
      instituted by Mahant Raghubar Das, it has been submitted that the
      plaintiffs cannot claim any portion of the Babri Masjid to have assumed
      a juridical personality by the name of “Ashthan Ram Janmabhumi”,
B
      particularly in the absence of the installation of a deity or a
      personification in accordance with the tenets of Hindu religion or law.
      The written statement contains a denial of the allegation that their
      existed any temple at the site of Babri Masjid or that the mosque was
      constructed after destroying it, with the material of the alleged temple.
C     The mosque, it has been averred, has always been used as a mosque
      since its construction during the regime of Babur. The land is stated to
      have belonged to the State when it was constructed, and the mosque
      is claimed to have been built on vacant land. The Ramchabutra is alleged
      to have been created around 1857. The possession of the Muslims is
      stated to have been uninterrupted and continuous since the construction
D
      of the mosque up to 23 December 1949 and hence, any right, title or
      interest to the contrary would stand extinguished by adverse possession.
      According to the written statement, regular prayers were offered in
      the mosque up to 22 December 1949 and Friday prayers until 16
      December 1949. According to the written statement, the cause of action
E     must be deemed to have accrued in December 1949 when the property
      was attached, and the Muslims denied the claim of the Hindus to perform
      puja in the mosque. Hence, the suit is stated to be barred by limitation.
             319. The fifth defendant209, in his written statement, has denied
      the locus of the Nyas. Besides this, it has been submitted that the
F     premises have always been a mosque since its construction in the
      sixteenth century and were used by Muslims for offering namaz and
      for no other purpose. The fifth defendant denied the juridical status of
      the first and second plaintiffs and the locus of the third plaintiff. In an
      additional written statement filed jointly by the Sunni Central Waqf Board
      and the fifth defendant, the contents of the amended plaint have been
G     denied and it has been urged that the claim in regard to the idols stood
      extinguished after they were removed on 6 December 1992.
               N.5 Issues and findings of the High Court


H     209
            Mohammad Hashim
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       351


       320. The issues which were framed in the Suit and the findings   A
of the three judges in the High Court are catalogued below:
        • Whether the first and second plaintiffs are juridical
          persons.
            • Justice S U Khan – The idol is duly capable of holding
              property.                                                 B

            • Justice Sudhir Agarwal – Answered in the affirmative
              – both plaintiffs 1 and 2 are juridical persons.
            • Justice D V Sharma – Decided in favour of the
              plaintiffs.                                               C
        2 Whether the suit in the name of deities described in
          the plaint as the first and second plaintiffs is not
          maintainable through the third plaintiff as next friend.
            • Justice S U Khan – Followed the decision of Justice
              Sudhir Agarwal.                                           D
            • Justice Sudhir Agarwal – Suit held to be maintainable.
            • Justice D V Sharma – Suit held to be maintainable.
     3(a) Whether the idol in question was installed under the
          central dome of the disputed building (since                  E
          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 X Rule 2
          of the CPC.
            • Justice S U Khan - The idols were placed inside the       F
              mosque for the first time during the night of 22/23
              December 1949.
            • Justice Sudhir Agarwal – Answered in the
              affirmative.
            • Justice D V Sharma – Answered in the affirmative.         G
     3(b) Whether the same idol was reinstalled at the same
          place on a Chabutra under the canopy.
            • Justice S U Khan – Adopted the findings of Justice
              Sudhir Agarwal.
                                                                        H
352      SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            • Justice Sudhir Agarwal – Answered in the
               affirmative.
             • Justice D V Sharma - Answered in the affirmative.
      3(c) Whether the idols were placed at the disputed site on
           or after 6 December 1992 in violation of the court’s
B          order dated 14 August 1989 and 15 November 1991.
             • Justice S U Khan - Adopted the findings of Justice
               Sudhir Agarwal.
             • Justice Sudhir Agarwal – Answered in the negative.
C            • Justice D V Sharma - Decided in favour of the
               plaintiffs.
      3(d) If the aforesaid issue is answered in the affirmative,
           whether the idols so placed still acquire the status of
           a deity.
D
             • Justice S U Khan - Adopted the findings of Justice
               Sudhir Agarwal.
             • Justice Sudhir Agarwal - Answered in the affirmative.
             • Justice D V Sharma - Answered in the affirmative.
E       4 Whether the idols in question had been in existence
          under the “Shikhar” prior to 6 December 1992 from
          time immemorial as alleged in paragraph 44 of the
          additional written statement of Nirmohi Akhara (the
          third defendant).
F            • Justice S U Khan – The idols were placed inside the
               mosque for the first time on 22-23 December 1949.
             • Justice Sudhir Agarwal - Answered in the negative;
               the idols under the central dome were in existence prior
               to 6 December 1992 but were placed during the night
G              of 22-23 December 1949.
             • Justice D V Sharma – The idols were not under the
               central dome prior to 22-23 December 1949.
        5 Is the property in question properly identified and
          described in the plaint.
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        353


        • Justice S U Khan - No temple was demolished for              A
          constructing the mosque. Until the mosque was
          constructed during the reign of Babur, the premises were
          neither treated nor believed to be the birth-place of Lord
          Ram.
        • Justice Sudhir Agarwal – There is no ambiguity in the        B
          identification or description of the property.
        • Justice D V Sharma – Answered in favour of the
          plaintiffs.
    6 Is third plaintiff not entitled to represent plaintiffs 1
      and 2 as their next friend and is the suit not competent         C
      on this account.
        • Justice S U Khan - Adopted the findings of Justice
          Sudhir Agarwal.
        • Justice Sudhir Agarwal – Answered in the negative,           D
          in favour of the plaintiffs.
        • Justice D V Sharma – Decided in favour of the
          plaintiffs.
    7 Whether Nirmohi Akhara (the third defendant) alone
      is entitled to represent the first and second plaintiffs,        E
      and is the suit not competent on that account as
      alleged in paragraph 49 of the additional written
      statement of Nirmohi Akhara (the third defendant).
        • Justice S U Khan - Adopted the findings of Justice
          Sudhir Agarwal.                                              F
        • Justice Sudhir Agarwal – Answered in the negative
          against Nirmohi Akhara, in favour of the plaintiffs.
        • Justice D V Sharma – Answered against Nirmohi
          Akhara, in favour of the plaintiffs.
                                                                       G
    8 Is the defendant Nirmohi Akhara the “Shebait” of
      Bhagwan Sri Ram installed in the disputed structure.
        • Justice S U Khan – Adopted the findings of Justice
          Sudhir Agarwal.
                                                                       H
354    SUPREME COURT REPORTS                   [2019] 18 S.C.R.


A          • Justice Sudhir Agarwal – Answered against Nirmohi
             Akhara.
           • Justice D V Sharma – Answered against Nirmohi
             Akhara, held that Nirmohi Akhara is incompetent to
             represent the first and second plaintiffs.
B      9 Was the disputed structure a mosque known as Babri
         Masjid?
           • Justice S U Khan – The mosque was constructed by
             or under the orders of Babur. Until 1934, Muslims
             offered regular prayers and thereafter, until 22
C            December 1949 only Friday prayers were offered.
           • Justice Sudhir Agarwal – Answered against the
             plaintiffs.
           • Justice D V Sharma – Answered against the Sunni
D            Central Waqf Board and in favour of the plaintiffs.
      10 Whether the disputed structure could be treated to
         be a mosque on the allegations contained in paragraph
         24 of the plaint.
           • Justice S U Khan – The mosque was a valid mosque.
E          • Justice Sudhir Agarwal – Answered in the
             affirmative.
           • Justice D V Sharma – The mosque was constructed
             upon demolition of the temple.

F     11 Whether on the averments made in paragraph 25 of
         the plaint, no valid waqf was created in respect of the
         structure in dispute to constitute it as a mosque.
           • Justice S U Khan – The mosque is a valid mosque.
           • Justice Sudhir Agarwal – Answered in the
G            affirmative.
           • Justice D V Sharma – No valid waqf with respect to
             the disputed property.
      12 Deleted vide order dated 23 February 1996.
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       355


   13 Whether the suit is barred by limitation.                       A
        • Justice S U Khan – The suit is not barred by limitation.
        • Justice Sudhir Agarwal – The suit is not barred by
          limitation.
        • Justice D V Sharma – The suit is not barred by              B
          limitation.
   14 Whether the disputed structure claimed to be Babri
      Masjid was erected after demolishing Janmasthan
      temple at its site.
        • Justice S U Khan – No temple was demolished for             C
          the construction of the mosque. Until the mosque was
          constructed during the reign of Babur, the premises were
          not believed to be the birth-place of Lord Ram.
        • Justice Sudhir Agarwal – Answered in the
          affirmative.                                                D
        • Justice D V Sharma – Decided in favour of the
          plaintiffs, against the Sunni Central Waqf Board.
   15 Whether the disputed structure claimed to be Babri
      Masjid was always used only by the Muslims
      regularly for offering namaz ever since its alleged             E
      construction in 1528 A.D. to 22 December 1949 as
      alleged by the defendants 4 and 5.
        • Justice S U Khan – Until 1934, Muslims were offering
          regular prayers in the mosque. Thereafter, until 22
          December 1949, only Friday prayers were offered.            F

        • Justice Sudhir Agarwal – At least from 1860, namaz
          was offered in the inner courtyard. The last namaz was
          on 16 December 1949.
        • Justice DV Sharma – Connected with Issue Nos. 1-            G
          B(c), 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit
          4 which were decided against the Sunni Central Waqf
          Board.
   16 Whether the title of plaintiffs 1 and 2, if any, was
      extinguished as alleged in paragraph 25 of the written
                                                                      H
356    SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A        statement of defendant 4. If yes, have plaintiffs 1 and
         2 reacquired title by adverse possession as alleged
         in paragraph 29 of the plaint.
           • Justice S U Khan – Both parties were in joint
             possession before 1855 and hence, there was no need
B            to decide the issue of adverse possession.
           • Justice Sudhir Agarwal – The title of the first and
             second plaintiffs has never been extinguished.
           • Justice DV Sharma - Connected with Issue Nos. 1B-
             (c), 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit
C            4 which were decided against the Sunni Central Waqf
             Board.
      17 Deleted vide order dated 23 February 1996.
      18 Whether the suit is barred by Section 34 of the
D        Specific Relief Act as alleged in paragraph 42 of the
         additional written statement of defendant 3 and also
         as alleged in paragraph 47 of the written statement
         of defendant 4 and paragraph 62 of the written
         statement of defendant 5.
           • Justice S U Khan – Adopted the findings of Justice
E
             Sudhir Agarwal.
           • Justice Sudhir Agarwal – Answered in the negative
             against the third, fourth and fifth defendants.
           • Justice D V Sharma – In favour of the plaintiffs,
F            against the defendants.
      19 Whether the suit is bad for non-joinder of necessary
         parties, as pleaded in paragraph 43 of the additional
         written statement of defendant 3.
           • Justice S U Khan – Adopted the findings of Justice
G            Sudhir Agarwal.
           • Justice Sudhir Agarwal – Answered in the negative.
           • Justice D V Sharma – The suit held to maintainable.
      20 Whether the alleged Trust creating the Nyas,
H        defendant 21, is void on the facts and grounds stated
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                    357


       in paragraph 47 of the written statement of defendant       A
       3.
        • Justice S U Khan – Not answered.
        • Justice Sudhir Agarwal – Not answered.
        • Justice D V Sharma – Answered in favour of the           B
          plaintiffs.
   21 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 4 and in
      paragraph 1 of the written statement of defendant 5.         C
        • Justice S U Khan - Adopted the findings of Justice
          Sudhir Agarwal.
        • Justice Sudhir Agarwal and Justice D V Sharma -
          Answered against the Sunni Central Waqf Board and
          fifth defendant.                                         D
   22 Whether the premises in question or any part thereof
      is by tradition, belief and faith the birth-place of Lord
      Ram as alleged in paragraphs 19 and 20 of the plaint?
      If so, its effect.
        • Justice S U Khan – Neither was any temple                E
          demolished for constructing the mosque nor until the
          construction of the mosque were the premises treated
          or believed to be birth-place of Lord Ram.
        • Justice Sudhir Agarwal – The place of birth of Lord
          Ram as believed and worshipped by Hindus is covered      F
          under the central dome of the three-domed structure in
          the inner courtyard of the premises in dispute.
        • Justice D V Sharma – Connected with Issue Nos 1,
          1(a), 1(b),1B-(b), 11,19(d),19(e) and 19(f) in Suit 4.
          Decided against the Sunni Central Waqf Board.            G

   23 Whether the judgment in Suit of 1885 filed by Mahant
      Raghubar Das in the Court of Special Judge, Faizabad
      is binding upon the plaintiffs by application of the
      principles of estoppel and res judicata as alleged by
      the defendants 4 and 5.                                      H
358    SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A          • Justice S U Khan - Section 11 of the CPC is not
             attracted as virtually nothing was decided in the Suit of
             1885.
           • Justice Sudhir Agarwal – Answered in the negative.
           • Justice D V Sharma – Answered in favour of the
B            plaintiffs.
      24 Whether worship has been done of the alleged
         plaintiff-deity on the premises in the suit since time
         immemorial as alleged in paragraph 25 of the plaint.

C          •   Justice S U Khan - Neither was any temple
               demolished for constructing the mosque nor were the
               premises treated or believed to be the birth-place of Lord
               Ram until the mosque was constructed.
           •   Justice Sudhir Agarwal – Worship of the first and
D              second plaintiffs has been since time immemorial: issue
               answered in the affirmative.
           •   Justice DV Sharma – Connected with Issue Nos. 1-
               B(c), 2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit
               4. Answered against the Sunni Central Waqf Board.
E     25 Whether the judgment and decree dated 30 March
         1946 passed in Suit no 29 of 1945 is not binding upon
         the plaintiffs as alleged by the plaintiffs.
           •   Justice S U Khan - Adopted the findings of Justice
               Sudhir Agarwal.
F          •   Justice Sudhir Agarwal - The plaintiffs were not a
               party to the suit and the judgment is therefore not
               binding on them.
           •   Justice DV Sharma – Decided in favour of the
               plaintiffs.
G
      26 Whether the suit is bad for want of notice under
         Section 80 CPC as alleged by the defendants 4 and
         5.
           •   Justice S U Khan - Adopted the findings of Justice
               Sudhir Agarwal.
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                  359


        •   Justice Sudhir Agarwal – Answered in favour of the   A
            plaintiffs.
        •   Justice D V Sharma - Answered in favour of the
            plaintiffs.
   27 Whether the plea of suit being bad for want of notice
      under Section 80 CPC can be raised by defendants 4         B
      and 5.
        •   Justice S U Khan - Adopted the findings of Justice
            Sudhir Agarwal.
        •   Justice Sudhir Agarwal – Answered in favour of the   C
            plaintiffs.
        •   Justice D V Sharma - Answered in favour of the
            plaintiffs.
   28 Whether the suit is bad for want of notice under
      Section 65 of the U.P. Muslim Waqf Act 1960 as             D
      alleged by defendants 4 and 5. If so, its effect.
        •   Justice S U Khan - Adopted the findings of Justice
            Sudhir Agarwal.
        •   Justice Sudhir Agarwal – The provision is not
                                                                 E
            applicable.
        •   Justice D V Sharma – Decided in favour of the
            plaintiffs.
   29 Whether the plaintiffs are precluded from bringing the
      present suit on account of dismissal of Suit 57 of 1978    F
      (Bhagwan Sri Ram Lala v State) of the Court of Munsif
      Sadar, Faizabad.
        •   Justice S U Khan - Adopted the findings of Justice
            Sudhir Agarwal.
        •   Justice Sudhir Agarwal and Justice D V Sharma -      G
            Answered in favour of the plaintiffs.
   30 To what relief, if any, are plaintiffs or any of them
      entitled?
        •   Justice S U Khan - Adopted the findings of Justice
            Sudhir Agarwal.                                      H
360              SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                    •   Justice Sudhir Agarwal – The suit was partly decreed
                         in accordance with the directions contained in paragraph
                         4566.
                     •   Justice D V Sharma – The plaintiffs were held entitled
                         to relief and the suit was decreed.
B             321. Justice Sudhir Agarwal granted the following relief in the
      Suit:
              “(i) It is declared that the area covered by the central dome of
                   the three domed structure, i.e., the disputed structure being
                   the deity of Bhagwan Ram Janamsthan and place of birth
C                  of Lord Rama as per faith and belief of the Hindus, belong
                   to plaintiffs (Suit-5) and shall not be obstructed or interfered
                   in any manner by the defendants. This area is shown by
                   letters AA BB CC DD is Appendix 7 to this judgment.
              (ii) The area within the inner courtyard denoted by letters B C
D                  D L K J H G in Appendix 7 (excluding (i) above) belong to
                   members of both the communities, i.e., Hindus (here
                   plaintiffs, Suit-5) and Muslims since it was being used by
                   both since decades and centuries. It is, however, made clear
                   that for the purpose of share of plaintiffs, Suit-5 under this
E                  direction the area which is covered by (i) above shall also
                   be included.
              (iii) The area covered by the structures, namely, Ram Chabutra,
                    (EE FF GG HH in Appendix 7), Sita Rasoi (MM NN OO
                    PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
F                   7) in the outer courtyard is declared in the share of Nirmohi
                    Akhara (defendant no. 3) and they shall be entitled to
                    possession thereof in the absence of any person with better
                    title.
              (iv) The open area within the outer courtyard (A G H J K L E
                   F in Appendix 7) (except that covered by (iii) above) shall
G
                   be shared by Nirmohi Akhara (defendant no. 3) and
                   plaintiffs (Suit-5) since it has been generally used by the
                   Hindu people for worship at both places.
          (iv-a) It is however made clear that the share of muslim parties
                 shall not be less than one third (1/3) of the total area of the
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          361


        premises and if necessary it may be given some area of           A
        outer courtyard. It is also made clear that while making
        partition by metes and bounds, if some minor adjustments
        are to be made with respect to the share of different parties,
        the affected party may be compensated by allotting the
        requisite land from the area which is under acquisition of
                                                                         B
        the Government of India.
   (v) The land which is available with the Government of India
       acquired under Ayodhya Act 1993 for providing it to the
       parties who are successful in the suit for better enjoyment
       of the property shall be made available to the above
       concerned parties in such manner so that all the three            C
       parties may utilise the area to which they are entitled to,
       by having separate entry for egress and ingress of the
       people without disturbing each others rights. For this purpose
       the concerned parties may approach the Government of
       India who shall act in accordance with the above directions       D
       and also as contained in the judgement of Apex Court in
       Dr. Ismail Farooqi (Supra).
  (vi) A decree, partly preliminary and partly final, to the effect
       as said above (i to v) is passed. Suit-5 is decreed in part to
       the above extent. The parties are at liberty to file their        E
       suggestions for actual partition of the property in dispute in
       the manner as directed above by metes and bounds by
       submitting an application to this effect to the Officer on
       Special Duty, Ayodhya Bench at Lucknow or the Registrar,
       Lucknow Bench, Lucknow, as the case may be.
                                                                         F
  (vii) For a period of three months or unless directed otherwise,
        whichever is earlier, the parties shall maintain status quo as
        on today in respect of property in dispute.”
  Justice S U Khan issued the following directions:
  “Accordingly, all the three sets of parties, i.e. Muslims, Hindus      G
  and Nirmohi Akhara are declared joint title holders of the property/
  premises in dispute as described by letters A B C D E F in the
  map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/
  Commissioner appointed by Court in Suit No.1 to the extent of
  one third share each for using and managing the same for
                                                                         H
362            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           worshipping. A preliminary decree to this effect is passed.
            However, it is further declared that the portion below the central
            dome where at present the idol is kept in makeshift temple will
            be allotted to Hindus in final decree.
            It is further directed that Nirmohi Akhara will be allotted share
B           including that part which is shown by the words Ram Chabutra
            and Sita Rasoi in the said map.
            It is further clarified that even though all the three parties are
            declared to have one third share each, however if while allotting
            exact portions some minor adjustment in the share is to be made
C           then the same will be made and the adversely affected party may
            be compensated by allotting some portion of the adjoining land
            which has been acquired by the Central Government.
            The parties are at liberty to file their suggestions for actual
            partition by metes and bounds within three months.”
D
            Justice D V Sharma decreed the suit of the plaintiffs in the
      following terms:
            “Plaintiffs’ suit is decreed but with easy costs. It is hereby
            declared that the entire premises of Sri Ram Janm Bhumi at
            Ayodhya as described and delineated in annexure nos. 1 and 2
E
            of the plaint belong to the plaintiff nos. 1 and 2, the deities. The
            defendants are permanently restrained from interfering with, or
            raising any objection to, or placing any obstruction in the
            construction of the temple at Ram Janm Bhumi Ayodhya at the
            site, referred to in the plaint.”
F           N.6 Shebaits: an exclusive right to sue?
            The role and position of a shebait
             322. Courts recognise a Hindu idol as the material embodiment
      of a testator’s pious purpose. Juristic personality can also be conferred
      on a Swayambhu deity which is a self-manifestation in nature. An idol
G
      is a juristic person in which title to the endowed property vests. The
      idol does not enjoy possession of the property in the same manner as
      do natural persons. The property vests in the idol only in an ideal sense.
      The idol must act through some human agency which will manage its
      properties, arrange for the performance of ceremonies associated with
H     worship and take steps to protect the endowment, inter alia by bringing
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            363


proceedings on behalf of the idol. The shebait is the human person who           A
discharges this role.
       323. Nirmohi Akhara has instituted Suit 3 on the ground that it is
the shebait of the deities of Lord Ram at the disputed site. Whether or
not Nirmohi Akhara is a shebait, has a material bearing on the
determination of rights inter se between the parties in Suits 3 and 5.           B
To adjudicate on this controversy, it is necessary to analyse the position
of a shebait in our law.
       324. An early decision was rendered by the Privy Council in
Posunno Kumari Debya v Golab Chand Baboo. 210 A suit was
instituted by the shebaits of an idol against their immediate predecessor
                                                                                 C
to set aside two execution decrees directing the sale of the property.
Analysing whether the actions of a shebait binds subsequent shebaits,
the Privy Council, speaking through Justice ME Smith held:
          “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    D
          property, at least to as great a degree as the manager of an infant
          heir. If this were not so, the estate of the idol might be destroyed
          or wasted, and its worship discontinued for want of necessary
          funds to preserve and maintain them.”
      The Privy Council summarised in the above extract the true                 E
function and purpose underlying the concept of a shebait. Since, the
dedicated property vests in an idol in an ideal sense, the shebait is
entrusted with its management. An idol cannot personally take actions
required for the benefit and preservation of its property. The idol must
necessarily act through a human agent and it is for this reason that the
                                                                                 F
manager of the idol is conferred by law with the status of a shebait.
The law recognises the legal personality of the idol to facilitate the
protection of the rights and the duties owed to the idol. The natural
personality of the shebait is the human agency through which the needs
and concerns of the idol are fulfilled.
      325. The law expounded in 1875 by the Privy Council has found              G
resonance in a decision of this Court in 1979. In Profulla Chorone
Requitte v Satya Chorone Requitte211, a question arose whether it

210
      (1875) 14 L Beng LR 450
211
      (1979) 3 SCC 409                                                           H
364                SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     was the founder’s intention to confer the status of a shebait upon the
      person designated as trustees in his will. Justice RS Sarkaria, speaking
      for a two judge Bench of this Court held:
                “20. … Property dedicated to an idol vests in it in an ideal sense
                only; ex necessitas, the possession and management has to be
B               entrusted to some human agent. Such an agent of the idol is
                known as shebait in Northern India. The legal 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.”
C
              326. The recognition of a person or a group of persons as shebaits
      is a substantive conferment of the right to manage the affairs of the
      deity. A necessary adjunct of the status of a shebait, is the right to brings
      actions on the behalf of an idol and bind it and its properties to the
      outcomes. The purpose for which legal personality is conferred upon
D     an idol as the material embodiment of the pious purpose is protected
      and realised through the actions of the human agent, that is the shebait.
      The shebait is entrusted with the power and the duty to carry out the
      purpose of the donor in respect of the idol and its properties. In the
      vast majority of cases, a shebait is appointed in accordance with the
E     terms of a deed of dedication by which property is endowed to an idol.
      It is for the protection of this property that the law recognises either
      the donor or a person named in the deed of endowment as the shebait.
      In the absence of an expressly appointed or identified shebait, the law
      has ensured the protection of the properties of the idol by the recognition
      of a de facto shebait. Where a person is in complete and continuous
F     management of the deity’s affairs coupled with long, exclusive and
      uninterrupted possession of the appurtenant property, such a person may
      be recognised as a shebait despite the absence of a legal title to the
      rights of a shebait. This will be adverted to in the course of the
      judgement.
G            327. The position of a shebait in Hindu Law is distinct from the
      position of a trustee in English Law. Before the Privy Council in Vidya
      Varuthi Thirtha v Balusami Ayyar212 the question was whether the
      terms “conveyed in trust” and “trustee” as they appear in Article 134
      of the Limitation Act 1908 apply to properties endowed to the Mahant
      212
H           AIR 1922 PC 123
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           365


of a Hindu mutt. The Privy Council rejected the contention that persons     A
managing endowed properties are in the position of trustees under
English Law. Justice Ameer Ali held:
      “It is also to be remembered that a “trust” in the sense in which
      the expression is used in English Law, is unknown in the Hindu
      system, pure and simple. Hindu piety found expression in gifts        B
      to idols and images consecrated and installed in temples, to
      religious institutions of every kind….Religious institutions, known
      under different names, and regarded as possessing the same
      “juristic” capacity, and gifts are made to them eo nomine
      …When the gift is directly to an idol or a temple, the seisin
      to complete the gift is necessarily effected by human                 C
      agency. Called by whatever name, he is only the manager
      and custodian of the idol of the institution. In no case was
      the property conveyed to or vested in him, nor is he a
      ‘trustee’ in the English sense of the term, although in view
      of the obligations and duties vesting on him, he is                   D
      answerable as a trustee in the general sense, for mal-
      administration…it would follow that an alienation by a
      manager or superior by whatever name called cannot be
      treated as the act of a “trustee” to whom property has been
      “conveyed in trust” and who by virtue thereof has the
      capacity vested in him which is possessed by a “trustee”              E
      in English law.”
      …
      ...Neither under the Hindu law nor in the Mahomedan system is
      any property ‘conveyed’ to a shebait or a mutavalli in the case
      of a dedication. Nor is any property vested in him, whatever          F
      property he holds for the idol or the institution he holds as
      manager with certain beneficial interest regulated by custom and
      usage.”
                                                   (Emphasis supplied)
                                                                            G
       328. The decision in Vidya Varuthi affirms the distinction
between the position of a shebait in Hindu Law and a trustee in English
Law. Unlike in the case of a trust, dedicated property does not legally
vest in the shebait. The purpose for which property is dedicated to an
idol is executed and protected by the shebait. Though the dedicated
                                                                            H
366             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     property does not vest in the shebait, they are responsible for managing
      the properties and are answerable in law for any mismanagement of
      the endowed properties. The shebait holds the property of an idol for
      the benefit of the idol. There is thus a distinction between the proprietary
      right of a trustee in English law and a shebait in Hindu Law. Chief
B     Justice B K Mukherjea, in his seminal work “Hindu Law of Religious
      Charitable Trusts” states:
             “In English law the legal estate in the trust property vests in the
             trustee who holds it for the benefit of the cestui que trust. In a
             Hindu religions endowment, the entire ownership of the dedicated
C            property is transferred to the deity or the institution itself as a
             juristic person, and the Shebait or Mahant is a mere manager.” 213
            The above distinction was affirmed by this Court in Profulla
      Chorone. In dealing with the concept of a shebait, Justice RS Sarkaria
      held:
D            “As regards the administration of the debutter, his position is
             analogous to that of a trustee; yet, he is not precisely in the
             position of a trustee in the English sense, because under Hindu
             Law, property absolutely dedicated to an idol, vests in the
             idol, and not in the shebait. Although the debutter never vests
E            in the shebait, yet, peculiarly enough, almost in every case, the
             shebait has a right to a part of the usufruct, the mode of
             enjoyment, and the amount of the usufruct depending again on
             usage and custom, if not devised by the founder.”
                                                            (Emphasis supplied)
F            329. These observations affirm that the position of a shebait is
      distinct from that of a trustee in English law. The dedicated property
      legally vests in the idol in an ideal sense and not in the shebait. A shebait
      does not bring an action for the recovery of the property in a personal
      capacity but on behalf of the idol for the protection of the idol’s
G     dedicated property. Ordinarily, a deed of dedication will not contain a
      provision for the duties of the shebait. However, an express stipulation
      or even its absence does not mean that the property of the idol vests
      in the shebait. Though the property does not legally vest in the shebait,
      213
         B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn.
      Eastern Law House, 1983) at page 204
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          367


the shebait may have some interest in the usufruct generated from it.          A
Appurtenant to the duties of a shebait, this interest is reflected in the
nature of the office of a shebait.
      330. In Manohar Mukherji v Bhupendranath Mukherji214,
the question before a Full Bench of the Calcutta High Court was
whether shebaitship in Hindu law is property or an office to which the         B
founder of an endowment is competent to appoint or nominate persons
in any order of succession. Surveying the precedent, Justice Mukerji
held:
        “…I can find no authority for the proposition that the limited
        ownership which a shebait, in ordinary cases, exercises over           C
        debuttor property is not property in the eye of Hindu law…
        having regard to the rights which ordinarily attach to the
        office of a shebait, the office and the property of the
        endowment go together and that when it is a question
        between two persons one claiming and the other disputing
        a right to be the shebait, the question is a question of               D
        property…The religious office itself, of course, cannot be the
        object of sale, and jewels and other materials used in religious
        worship, to the custody of which the alleged vendor is entitled
        and to the careful custody of which he is bound, are by all systems
        of law and by Hindu law more emphatically than by another,             E
        absolutely extra commercium.”
                                                      (Emphasis supplied)
       331. In addition to the duties that must be discharged in relation
to the debutter property, a shebait may have an interest in the usufruct
of the debutter property. In this view, shebaitship is not an office           F
simpliciter, but is also property for the purposes of devolution. 215 This
view has been affirmed by this Court in Angurbala Mullick v
Debabrata Mullick216. The controversy in that case was whether the
appellant, as the widow of the shebait, was entitled to act as the shebait
of the idol instead of the minor son of the shebait borne from his first       G
marriage who was the respondent. It was contended that the office of
shebaitship would devolve in accordance with the Hindu Women’s Right
214
    ILR (1933) 60 Cal 452
215
    Approved by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur
(1935-36) 63 IA 448, and Bhabatarini Debi v Ashalata Debi (1942-43) 70 IA 57
216
    1951 SCR 1125                                                              H
368             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     to Property Act 1937. Justice BK Mukherjea speaking for a four judge
      Bench of this Court accepted this contention and held:
            “12…But though a shebait is a manager and not a trustee in the
            technical sense, it would not be correct to describe the shebaitship
            as a mere office. The shebait has not only duties to discharge in
B           connection with the endowment, but he has a beneficial interest
            in the debutter property. As the Judicial Committee observed in
            the above case, in almost all such endowments the shebait has
            a share in the usufruct of the debutter property which depends
            upon the terms of the grant or upon custom or usage. Even
            where no emoluments are attached to the office of the shebait,
C           he enjoys some sort of right or interest in the endowed property
            which partially at least has the character of a proprietary right.
            Thus, in the conception of shebaiti both the elements of office
            and property, of duties and personal interest, are mixed up and
            blended together; and one of the elements cannot be detached
D           from the other. It is the presence of this personal or beneficial
            interest in the endowed property which invests shebaitship with
            the character of proprietary rights and attaches to it the legal
            incidents of property.”
            The Court held that a shebait has a beneficial interest in the
E     usufruct of the debutter property. This beneficial interest is in the form
      of a proprietary right. Though the role of the shebait is premised on
      the performance of certain duties for the idol and the benefits are
      appurtenant, neither can be separated from the other. Thus, office and
      property are both blended in shebaitship, the personal interest of a shebait
      being appurtenant to their duties.217
F
            Pujaris
             332. A final point may be made with respect to shebaits. A pujari
      who conducts worship at a temple is not merely, by offering worship
      to the idol, elevated to the status of a shebait. A pujari is a servant or
      appointee of a shebait and gains no independent right as a shebait
G
      despite having conducted the ceremonies for a long period of time. Thus,
      the mere presence of pujaris does not vest in them any right to be
      shebaits. In Gauri Shankar v Ambika Dutt218, the plaintiff was the
      217
          Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla Chorone
      Requitte v Satya Chorone Requitte, (1979) 3 SCC 409
      218
H         AIR 1954 Pat 196
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            369


descendant of a person appointed as a pujari on property dedicated for           A
the worship of an idol. A suit was instituted for claiming partition of
the right to worship in the temple and a division of the offerings. A
Division Bench of the Patna High Court held that the relevant question
is whether the debutter appointed the pujari as a shebait. Justice
Ramaswami held:
                                                                                 B
         “7…It is important to state that a pujari or archak is not a shebait.
         A pujari is appointed by the Shebait as the purohit to conduct
         the worship. But that does not transfer the rights and obligations
         of the Shebait to the purohit. He is not entitled, to be continued
         as a matter of right in his office as pujari. He is merely a servant
         appointed by the Shebait for the performance of ceremonies.             C
         Where the appointment of a purohit has been at the will of the
         founder the mere fact that the appointees have performed the
         worship for several generations, will not confer an independent
         right upon the members of the family so appointed and will not
         entitle them as of right to be continued in office as priest…”
                                                                                 D
       333. A shebait is vested with the authority to manage the
properties of the deity and ensure the fulfilment of the purpose for which
the property was dedicated. As a necessary adjunct of this managerial
role, a shebait may hire pujaris for the performance of worship. This
does not confer upon the appointed pujaris the status of a shebait. As
                                                                                 E
appointees of the shebait, they are liable to be removed from office
and cannot claim a right to continue in office. The distinction between
a shebait and a pujari was recognised by this Court in Sree Sree
Kalimata Thakurani of Kalighat v Jibandhan Mukherjee.219 A suit
was instituted under Section 92 of the Code of Civil Procedure 1908
for the framing of a scheme for the proper management of the seva-               F
puja of the Sree Sree Kali Mata Thakurani and her associated deities.
A Constitution Bench of this Court, speaking through Justice JR
Mudholkar held:
         “…It is wrong to call shebaits mere pujaris or archakas. A shebait
         as has been pointed out by Mukherjea J. (as he then was), in            G
         his Tagore Law Lectures on Hindu Law of Religious and
         Charitable Trusts, is a human ministrant of the deity while a pujari
         is appointed by the founder or the shebait to conduct worship.

219
      AIR 1962 SC 1329                                                           H
370            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           Pujari thus is a servant of the shebait. Shebaitship is not mere
            office, it is property as well.”
             334. A pujari is appointed by the founder or by a shebait to
      conduct worship. This appointment does not confer upon the pujari the
      status of a shebait. They are liable to be removed for any act of
B     mismanagement or indiscipline which is inconsistent with the
      performance of their duties. Further, where the appointment of a pujari
      has been at the will of the testator, the fact that appointees have
      performed the worship for several generations does not confer an
      independent right upon the appointee or members of their family and
C     will not entitle them as of right to be continued in office as priests. Nor
      does the mere performance of the work of a pujari in and of itself render
      a person a shebait.
            An exclusive right to sue?
             335. The position of a shebait is a substantive position in law that
D     confers upon the person the exclusive right to manage the properties
      of the idol to the exclusion of all others. In addition to the exclusive
      right to manage an idol’s properties, the shebait has a right to institute
      proceedings on behalf of the idol. Whether the right to sue on behalf
      of the idol can be exercised only by the shebait (in a situation where
E     there is a shebait) or can also be exercised by the idol through a ‘next
      friend’ has been the subject of controversy in the proceedings before
      us. The plaintiff in Suit 3 - Nirmohi Akhara contends that the Nirmohis
      are the shebaits of the idols of Lord Ram at the disputed site. Mr S K
      Jain, learned Senior Counsel appearing on behalf of Nirmohi Akhara,
      urged that absent any allegation of maladministration or misdemeanour
F     in the averments in the plaint in Suit 5, Devki Nandan Agarwal could
      not have maintained a suit on behalf of the idols as a next friend. Mr
      Jain placed significant reliance on the contention that the plaint in Suit
      5 does not aver any mismanagement by the Nirmohis. Mr S K Jain
      urged that though the plaintiffs in Suit 5 (which was instituted in 1989)
G     were aware of Suit 3 which was instituted by Nirmohi Akhara (in 1959)
      claiming as a shebait, the plaint in Suit 5 does not challenge the position
      of Nirmohi Akhara as a shebait. Consequently, Nirmohi Akhara urged
      that a suit by a next friend on behalf of the idol is not maintainable.
      The argument that Nirmohi Akhara is the shebait of the idols and is
      consequently vested with the exclusive right to bring an action on behalf
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              371


of the idols of Lord Ram was also supported by Dr Dhavan, learned                  A
Senior Counsel appearing on behalf of the plaintiffs in Suit 4. He urged
that despite his submission that Suit 3 was barred by limitation, a
dismissal of that suit only extinguished the remedy of Nirmohi Akhara
to file a suit for possession but did not extinguish the Nirmohi’s rights
as shebaits. Therefore, in Dr Dhavan’s submission, Nirmohi Akahara                 B
continued to be shebaits and possess an exclusive right to sue on behalf
of the idols of Lord Ram even in 1989. This, it is urged, renders Suit 5
not maintainable.
       336. The challenge to the maintainability of Suit 5 is premised
on the contention that only a shebait can sue on behalf of the idol. The           C
question of who can sue on behalf of the idol arises due to the unique
nature of the idol. The idol is a juristic person and the owner of the
debutter property, but (as we have discussed earlier) only in an ideal
sense. In law, the idol is capable of suing and being sued in its own
name. However, for all practical purposes any suit by the idol must
necessarily be brought by a human actor. In Maharaja Jagadindra                    D
Nath Roy Bahadur v Rani Hemanta Kumari Debi220 the plaintiff
instituted a suit as shebait of an idol alleging dispossession of certain
lands by the defendant. The defendant resisted the suit on the ground
of limitation. The shebait alleged that at the time of the dispossession,
he was a minor and therefore the period of limitation did not begin                E
against him until he attained majority. The Privy Council, speaking
through Sir Arthur Wilson held:
          “But assuming the religious dedication 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
                                                                                   F
          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 sec. 7 of the Limitation Act which says that: “if a          G
          person entitled to institute a suit … be, at the time from which
          the period of limitation is to be reckoned, a minor,” he may institute
          the suit after coming of age within a time, which in the present
          case would be three years.”
220
      (1903-04) 31 IA 203                                (Emphasis supplied)       H
372             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            The Privy Council examined whether, at the time of the
      dispossession, limitation began running against the shebait. In doing this,
      the Privy Council located the right to sue as vested in the shebait and
      not the idol. Ultimately, the Privy Council held that the suit was not
      barred by limitation as the shebait was a minor at the time of the
      dispossession. Thus, it was not relevant whether or not limitation ran
B
      against the deity’s right to sue as such right vested in the shebait.
             337. Ordinarily, the right to sue on behalf of the idol vests in the
      shebait. This does not however mean that the idol is deprived of its
      inherent and independent right to sue in its own name in certain
      situations. The property vests in the idol. A right to sue for the recovery
C     of property is an inherent component of the rights that flow from the
      ownership of property. The shebait is merely the human actor through
      which the right to sue is exercised. As the immediate protector of the
      idols and the exclusive manager of its properties, a suit on behalf of
      the idol must be brought by the shebait alone. Where there exists a
D     lawfully appointed shebait who is able and willing to take all actions
      necessary to protect the deity’s interests and to ensure its continued
      protection and providence, the right of the deity to sue cannot be
      separated from the right of the shebait to sue on behalf of the deity. In
      such situations, the idol’s right to sue stands merged with the right of
      the shebait to sue on behalf of the idol. This understanding is summarised
E     by Justice B K Mukherjea in “The Hindu Law of Religious and
      Charitable Trusts” in the following manner:
            “This decision [in Jagadindra Nath], therefore, establishes three
            things: -

F                 (1) That the right of a suit in respect of the deity’s property
                      is in the Shebait;
                  (2) this right is a personal right of the Shebait which entitles
                      him to claim the privilege afforded by the Limitation Act;
                      and
G                 (3) the Shebait can sue in his own name and the deity need
                      not figure as a plaintiff in the suit, though the pleadings
                      must show that the Shebait is suing as such.”221

      221
         B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn.
H     Eastern Law House, 1983) at pages 257-258
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           373


        338. A suit by a shebait on behalf of an idol binds the idol. For       A
this reason, the question of who can sue on behalf of an idol is a question
of substantive law. Vesting any stranger with the right to institute
proceedings on behalf of the idol and bind it would leave the idol and
its properties at the mercy of numerous individuals claiming to be ‘next
friend’. Therefore, the interests of the idol are protected by restricting
                                                                                B
and scrutinising actions brought on behalf of the idol. For this reason,
ordinarily, only a lawful shebait can sue on behalf of the idol. When a
lawful shebait sues on behalf of the deity, the question whether the deity
is a party to the proceedings is merely a matter of procedure. As long
as the suit is filed in the capacity of a shebait, it is implicit that such a
suit is on behalf of and for the benefit of the idol.                           C
         A suit by a worshipper or person interested
       339. There may arise a situation where a shebait has been
derelict in the performance of duties, either by not taking any action or
by being complicit in the wrongful alienation of the endowed property.
In such a situation, where a suit is instituted for the recovery of the         D
deity’s property, the action is against both the shebait and the person
possessing or claiming the property in a manner hostile to the deity.
The remedy for an action against mismanagement simpliciter by a
shebait can be found in Section 92 of the Civil Procedure Code 1908.
However, where an action against a stranger to the trust is                     E
contemplated, the remedy is not a suit under Section 92 of the Civil
Procedure Code 1908 but a suit in general law.
       340. In Vemareddi Ramaraghava Reddy v Konduru Seshu
Reddy222, the plaintiffs accused the defendants, who were the managers
of the temple and its properties, of mismanagement. Subsequently, a             F
compromise decree was executed between the defendants and the
Hindu Religious Endowments Board which inter alia declared the
temple properties as the personal property of the defendants. The
plaintiffs sought a declaration under Section 42 of the Specific Relief
Act 1963 that the provision of the compromise decree stating that the
temple properties were the absolute personal properties of the defendant        G
was not binding on the temple. The defendants resisted this contention
on the ground that the plaintiffs had no legal interest in the temple or
temple property and were mere worshippers whose suit could not bind

222
      1966 Supp SCR 270                                                         H
374             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A     the temple. Justice V Ramaswami, speaking for a two judge Bench of
      this Court held:
             “13. … As a matter of law the only person who can represent
             the deity or who can bring a suit on behalf of the deity is the
             Shebait, and although a deity is a judicial person capable of holding
B            property, it is only in an ideal sense that the property is so held.
             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
C            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 other relief. Such a
D            next friend may be a person who is worshipper a of the
             deity or as a prospective Shebait is legally interested in
             the endowment. In a case where the Shebait has denied the
             right of the deity to the dedicated properties, it is obviously
             desirable that the deity should file the suit through a disinterested
             next friend, nominated by the court…”
E
                                                             (Emphasis supplied)
              341. A necessary adjunct of managing of the temple properties
      is the right to sue for recovery of the said properties. Ordinarily a
      shebait alone will be entitled to bring a suit on behalf of the idol. In
      addition to being convenient and providing immediate recourse for the
F     idol, it also provides a valuable check against strangers instituting suits,
      the outcomes of which may adversely impact the idol without the
      knowledge of the idol or the shebait. But there may be cases where
      the conduct of a shebait is in question. In certain cases, where the
      shebait itself is negligent or sets up a claim hostile to the idol, it is open
G     for a worshipper or a next friend interested in protecting the properties
      of the idol to file a suit to remedy the situation. In the above case, by
      entering into the compromise decree declaring the temple properties
      as personal properties of the defendant shebaits, the defendants set up
      a title contrary to the title of the idol itself. This Court held that it was
      hence permissible for the plaintiffs, who were worshippers, to maintain
H     a suit invalidating the compromise decree.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            375


      342. However, in Vemareddi Reddy, the suit was not instituted              A
on behalf of the deity. The suit was instituted in a personal capacity
by the worshipper seeking a declaration that the property in question
was debutter property. In this context, the court held:
         “11. … If a shebait has improperly alienated trust property a suit
         can be brought by any person interested for a declaration that          B
         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 a temple are in the position of cestuui que
         trustent or beneficiaries in a spiritual sense. … Since
         worshippers do not exercise the deity’s power of suing to               C
         protect its own interests, they are not entitled to recover
         possession of the property improperly alienated by the
         Shebait, but they can be granted a declaratory decree that
         the alienation is not binding on the deity…”
                                                        (Emphasis supplied)      D

      The significance of the distinction between suing on behalf of
the deity and the institution of a suit in a personal capacity for the
benefit of the deity will be adverted to shortly.
      343. In Bishwanath v Sri Thakur Radha Ballabhji223 a next                  E
friend of the idol challenged the alienation of its properties by the
defendant shebait. One of the defences taken by the shebait was that
the next friend was not capable of maintaining a suit on behalf of the
deity. Justice Subba Rao, speaking for a three-judge Bench of this
Court affirmed the principle that ordinarily a shebait possesses the
exclusive right to sue on behalf of the idol:                                    F
         “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      G
         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…”

223
      (1967) 2 SCR 618                                                           H
376             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A           The learned judge then evaluated when persons other than a
      shebait may be entitled to maintain a suit on behalf of the deity:
             “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
B            not see any justification for denying such a right to the
             worshipper. An idol is in the position of a minor 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
C            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
D            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 the 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 prolonged
             and a complicated one and the interest of the idol may
E            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…”
F                                                              (Emphasis supplied)
             344. The decision reiterates the holding in Vemareddi Reddy
      that where a shebait refuses to act for the benefit of the idol, or where
      the shebait’s actions are prejudicial to the interest of the idol, an
      alternative method must be provided for protecting the idol’s interests.
G     In such cases, a next friend interested in the protection of the endowed
      properties is vested with the right to institute a suit. Where an action
      prejudicial to the interests of the idol is taken by the shebait, it is unlikely
      that the shebait will institute a suit challenging its own actions. Therefore,
      it becomes necessary to confer on a next friend the right to bring an
H     action in law against the shebait and the stranger who threatens the
      idol’s interests.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         377


       345. It is important to note that unlike in Vemareddi Reddy, this      A
Court in Bishwanath permitted worshippers to sue on behalf of the
idol. The suit in Bishwanath was not instituted by a worshipper in their
personal capacity, but rather as a representative of the idol to the
exclusion of the shebait. The next friend stepped into the shoes of the
shebait for the limited purpose of the litigation.
                                                                              B
       346. The position in law with respect to when a worshipper may
institute proceedings is settled. A worshipper can institute a suit to
protect the interests of the deity against a stranger where a shebait is
negligent in its duties or takes actions that are hostile to the deity. The
question whether the remedy available to the worshipper is a suit in a
                                                                              C
personal capacity or a suit on behalf of the idol (as next friend) is one
which must be answered. The suit in Vemareddi Reddy was a suit
filed by worshippers in their personal capacity and the court had no
occasion to determine whether a suit by a next friend on behalf of the
idol itself would be maintainable. However, given the express
observations that a worshipper cannot exercise the deity’s right to sue,      D
this matter must be considered.
       347. In this regard, Dr Dhavan brought to our notice the separate
opinion of Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar Sridhar
Salagram Shila Thakur224, as a member of a Division Bench of the
Calcutta High Court. The case arose from a rather unique factual              E
background. A suit was instituted by Anupama, who was not the shebait
but the daughter of the then shebait. Anupama sought to stay the sale
of certain property on the ground that the property was absolute debutter
property. Anupama’s suit was subsequently dismissed and fresh
proceedings were instituted by the shebaits proper. Justice Nasim Ali
                                                                              F
and Justice Pal both held that Anupama was not a shebait and thus the
dismissal of her suit was irrelevant for the purposes of deciding the
fresh suit. However, Justice Pal further observed:
           “Persons having individual rights under such endowments can
          bring suits to enforce such individual rights by an ordinary suit
          in their own name without being obliged to bring a suit in          G
          the name of the idol. This right reserved to the worshippers
          sufficiently safeguards the interest of the worshippers or other
          persons interested in the debutter. At the same time it obviates

224
      AIR 1942 Cal 99                                                         H
378            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           the risk of jeopardising the interests of the idol by allowing
            it to be affected by the intermeddling of persons whose
            fitness has never been enquired into and adjudicated
            upon.”
                                                          (Emphasis supplied)
B            Justice Pal opines that even in situations where the shebait acts
      contrary to the interests of the idol, a worshipper cannot sue on behalf
      of the idol, but only in a personal capacity. This stems from the concern
      that persons whose fitness or bona fides has not been enquired into
      or adjudicated upon by the courts may be able to adversely bind the
C     idol and its properties. In this view, the worshipper does not sue on
      behalf of the deity, but may, at the very highest, obtain a declaratory
      decree challenging the shebait’s actions as not binding on the deity.
             348. Where a shebait acts prejudicially to the deity’s interests,
      there thus exist two views on the remedies available to the interested
D     worshipper. The position taken by this Court in Bishwanath is that a
      worshipper can sue as a next friend on behalf of the deity. As next
      friend, the worshipper directly exercises the deity’s right to sue. The
      alternative view taken by Justice Pal in Tarit Bhushan Rai and as
      observed by this Court in Vemareddi Reddy is that a worshipper can
      file a suit in a personal capacity to protect the deity’s interests but
E     cannot sue directly on behalf of the deity although the suit may be for
      the benefit of the deity. In this view, the deity is not bound by the suit
      of the worshippers unless the remedy provided is in rem in nature. The
      matter raises two questions: First, is a suit filed by a worshipper in a
      personal capacity a sufficient and expedient method to protect the
F     interests of the deity? Second, does allowing a next friend to sue on
      behalf of the deity without establishing the bona fide intentions and
      qualifications of the next friend put the deity’s interest at risk?
            349. A suit by a worshipper in their personal capacity may be
      an appropriate remedy in certain cases. For example, where a shebait
G     denies worshippers access to the idol, a suit by the worshipper in a
      personal capacity to grant access to the idol may constitute a suitable
      remedy against the shebait. A further benefit of confining the suits of
      worshippers to suits filed in a personal capacity is that in cases
      concerning the recovery of property, a suit by a worshipper in a personal
      capacity does not raise the question as to whom the possession of the
H     land would be given. However, where a suit is filed by a next friend
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                       379


on behalf of the deity itself, a problem arises: in a suit for the recovery                 A
of property on behalf of the idol, the court cannot deliver possession of
the property to the next friend. The next friend is merely a temporary
representative of the idol for the limited purposes of the individual
litigation. Where a worshipper can only sue in their personal capacity,
the question of the delivery of possession does not arise.
                                                                                            B
       350. A suit by a worshipper in their personal capacity cannot
however canvas the range of threats the idol may face at the hands of
a negligent shebait and it may be necessary for the court to permit the
next friend to sue on behalf of the idol itself to adequately protect the
interests of the idol. For example, where a shebait fails to file a suit
for possession on behalf of a deity, a suit by a worshipper in their                        C
personal capacity is inadequate. Rather, what is required is a suit by a
next friend on behalf of the idol for the recovery of possession of the
property. It is true that possession will not be delivered to the next friend.
However, the court can craft any number of reliefs, including the
framing of a scheme upon an application by the Advocate General or                          D
two persons under Section 92 of the Civil Procedure Code 1908225, to
ensure that the property is returned to the idol. Where the inaction or
mala fide action of the shebait has already been established, such a
225
    92. Public charities.—(1) In the case of any alleged breach of any express or
constructive trust created for public purposes of a charitable or religious nature, or      E
where the direction of the Court is deemed necessary for the administration of any
such trust, the Advocate-General, or two or more persons having an interest in the
trust and having obtained the [leave of the Court,] may institute a suit, whether
contentious or not, in the principal Civil Court of original jurisdiction or in any other
Court empowered in that behalf by the State Government within the local limits of
whose jurisdiction the whole or any part of the subject-matter of the trust is situate
to obtain a decree—                                                                         F
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a
trustee, to deliver possession of any trust property in his possession to the person
entitled to the possession of such property;]
(d) directing accounts and inquiries;
                                                                                            G
(e) declaring what proportion of the trust property or of the interest therein shall be
allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged
or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.            H
380             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     scheme may be the appropriate remedy, however this will necessarily
      depend on the facts and circumstances of every case.
             351. In view of these observations, it is apparent that where the
      interests of the idol need to be protected, merely permitting interested
      worshippers to sue in their personal capacity does not afford the deity
B     sufficient protections in law. In certain situations, a next friend must
      be permitted to sue on behalf of the idol – directly exercising the deity’s
      right to sue. The question of relief is fundamentally contextual and must
      be framed by the court in light of the parties before it and the
      circumstances of each case.

C            352. This, however, brings us to the second question whether
      allowing a next friend to sue on behalf of the idol puts the idol at risk.
      The idol and its properties must be protected against the threat of a
      wayward ‘next friend’. Where the shebait acts in a mala fide manner,
      any person claiming to be a ‘next friend’ may sue. Such a person may
      in truth have intentions hostile to the deity and sue under false
D     provenance. Even a well-intentioned worshipper may sue as a next
      friend and purely due to financial constraints or negligence lose the suit
      and adversely bind the deity. A solution offered by Justice Pal in Tarit
      Bhushan Rai, and urged by Dr Dhavan in the present proceedings, is
      that only court appointed next friends may sue on behalf of the idol.
      No doubt this would satisfy the court that the next friend is bona fide
E
      and can satisfactorily represent the deity.
              353. It is true that unless the fitness of the next friend is tested
      in some manner, an individual whose bona fides has not been
      determined may represent and bind the idol to its detriment. However,
      it would be unnecessarily burdensome to require every next friend to
F
      first be appointed by a court or for a court to find a disinterested person
      to represent the deity. The deity’s interests would be sufficiently
      protected if, in cases where the bona fides of the next friend are
      contested by another party, the court substantively examines whether
      the next friend is fit to represent the idol. In an appropriate case, the
G     court can do so of its own accord where it considers it necessary to
      protect the interest of the deity. In the absence of any objection, and
      where a court sees no deficiencies in the actions of the next friend,
      there is no reason why a worshipper should not have the right to sue
      on behalf of the deity where a shebait abandons his sacred and legal
H     duties. Very often, worshippers are best placed to witness and take
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             381


action against any maladministration by a shebait. Therefore, where a             A
shebait acts adverse to the interests of the deity, a worshipper can, as
next friend of the deity, sue on behalf of the deity itself, provided that
if the next friend’s bona fides are contested, the court must scrutinise
the intentions and capabilities of the next friend to adequately represent
the deity. The court may do so of its own accord, ex debito justitae.             B
          The competence of the third plaintiff
       354. In the present proceedings, both Mr S K Jain and Dr Dhavan
urged that the third plaintiff in Suit 5 was not fit to represent the first
and the second plaintiffs. Suit 5 was instituted in 1989 by Deoki Nandan
Agarwal, a Vaishnavite. The principal deity of Vaishnavas is Lord                 C
Vishnu. The Vaishnava sect worships Lord Ram as one of the many
avatars of Lord Vishnu. Deoki Nandan Agarwal was appointed as next
friend to the first and the second plaintiffs by an order of the Civil Judge
dated 1 July 1989.
                                                                                  D
       355. A Mohd. Hashim filed a civil miscellaneous application226
challenging the appointment of Shri Deoki Nandan Agarwal. The
relevant enquiry is whether any substantial contest was raised to the
bona fides of the third plaintiff to represent the first and second
plaintiff. The application stated:
                                                                                  E
          “5. That the alleged plaintiffs 1 a nd 2, taking into account the
          plaint averments to be gospel truth are not legal persons, and, as
          such, suit being not for the legal person the question of
          appointment of next friend could not be considered and without
          prima facie satisfying that the suit has been filed by a legal person
          the question of appointment of next friend could not be                 F
          considered.
          8. That for appointment of next friend there has to be an
          averment that the alleged next friend has got no interest
          adverse to the interest of the next person for whom he is
          being appointed next friend and in the absence of any                   G
          averment regarding the same and without satisfying about
          absence of adverse interest by the court the order appointing
          plaintiff no. 3 as a next friend is bad and illegal.”
                                                          (Emphasis supplied)
226
      CM Application No. 10(0) of 1989 in Regular Suit No. 236 of 1989.           H
382            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A             In para 5 of the application, the applicant questioned the juristic
      personality of the first and the second plaintiff. It was averred that
      absent an established juristic person, the question of appointing a next
      friend did not arise. Be that as it may, the averment cannot be read as
      challenging the bona fides of the third plaintiff. In para 8, the applicant
      stated that any application for appointment of a next friend must be
B
      accompanied by a specific averment that there is no interest adverse
      to the deity the person seeks to represent. Further, the applicant must
      satisfy the court of the absence of an adverse interest. It is true that
      where the fitness of the next friend is in dispute the court should
      scrutinise the bona fides of the next friend. However, a bare allegation
C     that is not substantiated with any evidence does not constitute a contest
      to the bona fides of the next friend. Barring a stray statement in para
      8, the application did not substantiate or raise contest to the bona fides
      of the third plaintiff.
             356. Deoki Nandan Agarwal passed away on 8 April 2002 and
D     an application was made to the court to allow Dr T P Verma to be
      appointed as next friend of the first and the second plaintiffs. By an
      order dated 25 April 2002, Dr T P Verma was appointed as next friend
      by the Allahabad High Court. Subsequently, an application was filed to
      allow Triloki Nath Pande to replace Dr T P Verma as next friend of
      the first and the second plaintiffs. This application was dismissed by
E     the Allahabad High Court. On appeal, by an order dated 8 February
      2010, this Court held:
            “3. Mr. K.N. Bhat, learned senior counsel appearing on behalf
            of the appellants very earnestly argues that instead of Dr. Thakur
            Prsad Verma, Mr. Triloki Nath Pande be appointed as next friend
F           of appellant-plaintiff Nos. 1 & 2 under the provisions of Order
            XXXII Rule 8 of Code of Civil Procedure since Dr. Verma has
            serious health problems. He futher points out that insofar as the
            costs already incurred are concerned, the present next friend Dr.
            Verma shall give an undertaking to the High Court indicating
G           therein that he would be responsible for the costs already
            incurred.
            4. The other side has no objections for this arrangement. In that
            view, it is not necessary for us to examine the correctness or
            otherwise of the impugned order passed by the High Court. If
H           the aforesaid undertaking is given and the willingness of Mr.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               383


       Triloki Nath Pandey is indicated to the High Court, in that case,        A
       Mr. Triloki Nath Pandey shall act as a next friend of appellant-
       plaintiff Nos. 1 and 2 subject to the undertaking given by Dr.
       Verma.”
       By the order of this Court, Triloki Nath Pande was permitted to
act as next friend of the first and the second plaintiffs. No objection         B
was raised to the appointment of Triloki Nath Pande in the proceedings
before this Court. There was no reason for this Court to examine the
correctness of the order of the High Court dismissing the application
to permit TP Verma to retire from acting as the next friend. The
Allahabad High Court subsequently appointed Triloki Nath Pande as
next friend by an order dated 18 March 2010.                                    C

       357. Where the fitness of the next friend is in dispute the court
should scrutinise the bona fides of the next friend. However, in the
present case, this enquiry is not necessary as the third plaintiff in Suit
5 has been appointed as next friend of the first and the second plaintiffs
under the orders of the court. With the appointment of Triloki Nath             D
Pande, this Court has applied its mind to the question and permitted
Triloki Nath Pande to act as next friend of the first and the second
plaintiffs. Given the scrutiny that the appointment of the next friend has
been subject to in the present proceedings there is no merit in the
argument that the third plaintiff in Suit 5 is not fit to institute a suit as   E
the next friend of the first and the second plaintiffs.
       Nirmohi Akhara and shebaiti rights
       358. Where there exists an express deed of dedication identifying
the shebait, the position in law with respect to who can sue on behalf
of an idol is as follows: (i) The right to sue vests exclusively in the         F
lawfully appointed shebait; however, (ii) Where the shebait acts in a
manner negligent or hostile to the interests of the idol through express
action or inaction, any person who is interested in the endowment may
institute a suit on behalf of the idol; and (iii) The exact nature of the
interest possessed by the next friend, and whether the next friend is
                                                                                G
bona fide are matters of substantive law. If contested, it must be
adjudicated upon by the court.
      The maintainability of Suit 5 hinges on the question whether
Nirmohi Akhara were shebaits, and whether they have acted in a
manner prejudicial to the interests of the idol. It is to this that issue we
must now turn.                                                                  H
384             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            During the oral arguments before this court, a question was put
      to Mr Jain whether by challenging the maintainability of the idol’s suit,
      Nirmohi Akhara have set up a claim hostile to the interests of the idol.
      In response, Mr S K Jain submitted to this Court a statement
      conditionally modifying the position of the Nirmohi Akhara with respect
      to the maintainability of Suit 5 stating that the Nirmohi Akhara would
B     not press the issue of maintainability in suit 5 provided that the plaintiffs
      in Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It was
      submitted that Nirmohi Akhara can independently maintain their suits
      as shebaits.
              359. The statement by Nirmohi Akhara does not alter its claim
C     that it is the shebait of the idols of Lord Ram. It merely stipulates that,
      in the event that the plaintiffs in Suit 5 choose to recognise Nirmohi
      Akhara as the shebait of the idols, it will no longer challenge the
      maintainability of Suit 5. Such a position is untenable in a court of law.
      Nirmohi Akhara has consistently taken the stand that the Nirmohis are
D     shebaits of the idols of Lord Ram. If this Court finds that they are the
      shebait of the idols, they alone can sue on behalf of the idols and Suit
      5 instituted by a next friend would not be maintainable, absent an
      adjudication by this Court that the Nirmohis have acted contrary to the
      interests of the idol.
             360. The present case does not concern an express deed of
E
      dedication identifying a shebait. Rather, it is the submission of Nirmohi
      Akhara that by virtue of their long-standing presence at the disputed
      site, and their exercise of certain actions with respect to the idol, they
      are shebaits de facto. Further, the unique nature of the present
      proceedings is that the suit instituted by the next friend, thirty years
F     after the suit by Nirmohi Akhara, is being adjudicated upon along-side
      with the suit filed by the alleged shebait, Nirmohi Akhara. The
      consequence of this is that when the suit of the next friend was instituted
      in 1989, no determination had yet been made that Nirmohi Akhara was
      a shebait.
G            361. The present proceedings are of a composite nature, hence
      the question of the maintainability of Suit 5 must be answered in a
      staggered manner. The first question is whether the Nirmohi Akahara
      are the de facto shebaits of the idols of Lord Ram. If this is answered
      in the affirmative, the second question that arises is whether Nirmohi
      Akhara have acted in a manner prejudicial to the interest of the idol.
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            385


If the Nirmohi Akhara are found to be the de facto shebaits and have             A
not acted prejudicially, Suit 5 is not maintainable as it is the shebait that
enjoys the exclusive right to sue on behalf of the deity. Alternatively, if
the Nirmohi Akhara are found not to be de facto shebaits of the idols,
or are found to have acted prejudicially with respect to the idols, the
suit by the next friend is maintainable. With this, we turn to the question
                                                                                 B
whether Nirmohi Akhara are shebaits de facto.
         Rights of a de facto shebait to sue
       362. The rights of a de facto shebait to institute suits on behalf
of the deity can be traced to two early decisions of the Privy Council:
Mahant Ram Charan Das v Naurangi Lal227 and Mahadeo Prasad                       C
Singh v Karia Bharti228. In Mahant Ram Charan Das, the Mahant
of a Paliganj mutt executed a lease for 70 acres of the mutt’s land and
subsequently executed a sale deed subject to the lease. Upon his death,
another person claiming to be Mahant took possession and subsequently
surrendered all his rights by way of a registered sale deed to the plaintiff     D
who was the Mahant of another mutt (of which the Paliganj mutt was
a subordinate). The plaintiff instituted a suit claiming that there was no
necessity warranting the execution of the lease deed and the subsequent
sale deed. On the question of maintainability of the suit at the behest
of the plaintiff, the Privy Council, speaking through Lord Russell, held:
                                                                                 E
         “…Their Lordships, however are not now concerned with any
         question of title because both the Courts below have found that
         the plaintiff is the person in actual possession of the Paliganj mutt
         and as such entitled to maintain a suit to recover property not
         for his own benefit but for the benefit of the mutt.”
                                                                                 F
       363. In Mahadeo Prasad Singh, a village which formed part
of the estate annexed to a mutt was sold by the Mahant in 1914. Upon
his death in 1916, the suit in question was instituted in 1926 challenging
the alienation by a person alleging to be the Mahant of the mutt. One
objection to the suit was that the respondent was not entitled to maintain
the suit as he was neither the chela of the previous Mahant, nor was             G
he entitled to be the Mahant in any other capacity. Rejecting this
contention, the Privy Council, speaking through Sir Shadi Lal held:

227
      AIR 1933 PC 75
228
      AIR 1935 PC 44                                                             H
386               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            “There can be little doubt that Karia has been managing the
             affairs of the institutions since 1904, and has since the death of
             Rajbans been treated as its mahant by all the persons interested
             therein. The property entered in the revenue records in the name
             of Rajbans was, on his death, mutated to Karia, and it is not
             suggested that there is any person who disputes his title to the
B
             office of the mahant. In these circumstances their Lordships
             agree with the High Court that Karia was entitled to recover for
             the benefit of the math the property which belonged to the math
             and is now wrongly held by the appellants. They are in no better
             position than trespassers. As observed by this Board in 1933 PC
C            75 (1), a person in actual possession of the math is entitled to
             maintain a suit to recover property appertaining to it, not for his
             own benefit, but for the benefit of the math.”
             The Privy Council noted the following: (i) Karia was recognised
      as a mahant by the villagers; (ii) The revenue record reflected Karia’s
D     name; and (iii) It was not suggested that there existed any dispute to
      his title to the office of the Mahant. It is on the basis of these
      considerations that the Privy Council held that the rights exercised by
      Karia were in the nature of a Mahant. The considerations outlined
      above weighed with the Privy Council in its analysis of whether the
      rights exercised were in the nature of those exercised by a Mahant.
E            364. Though both the decisions of the Privy Council adverted to
      above were in the context of the right of a Mahant to bring an action
      on behalf of a mutt, the position in law that a de facto Mahant is entitled
      to institute an action on behalf of the mutt for its benefit has equally
      been applied to a de facto shebait of an idol and its properties. In
F     Panchkari Roy v Amode Lal Burman229, Ramdas Mohunt, by virtue
      of a will, dedicated property to certain idols and appointed his widow
      as the manager of the property till the attainment of the age of majority
      of their daughter, at which point, she would take over as a shebait. The
      widow sold the property as secular property and the daughter, upon
      attaining majority, alleged that though the property was secular, it
G     devolved upon her by the virtue of the will. She sold the property to
      another party. The plaintiff, claiming to be the religious preceptor of
      the debutter instituted a suit alleging that the idols were handed over to
      him. The question before the court was whether the plaintiff, who was

      229
H           (1937) 41 CWN 1349
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           387


not a member of the family or named in the will, could validly institute        A
a suit in a private endowment. The relevant question before the Calcutta
High Court was whether the plaintiff was a de facto shebait. Justice
BK Mukherjea (as he then was) held:
         “The Judicial Committee in the case of Ram Chandra v.
         Nourangi Lal (4) and again in Mahadeo Prosad Singh v. Karia            B
         Bharti (5) laid down that a person in actual possession of the
         Math is entitled to maintain a suit to recover property appertaining
         to it not for his own benefit but for the benefit of the
         Math…There may be and, in fact there is difference between a
         Math and an idol but I do not see any reason why a de facto
         shebait cannot be allowed to sue in case of family endowment           C
         or private debottar….In order to make a person a de facto
         shebait it is necessary, however, that he should be in actual
         possession of the office and the debottar estate….The de
         facto shebait would, in my opinion, be one who exercises
         all the functions of a shebait and is in possession of the
         debottar property though the legal title may be lacking.”              D

                                                       (Emphasis supplied)
       365. Where a person claims to be a shebait despite the lack of
a legal title, the relevant enquiry before the Court is whether the person
was in actual possession of the debutter property and was exercising            E
all the rights of a shebait. The paramount interest in the protection of
the debutter property underlines the recognition of a de facto shebait.
Where there is no de jure shebait, the court will not countenance a
situation where a bona fide litigant who has exercised all the
managerial rights over the debutter property cannot be recognised in
law as the protector of the property. It is only for the paramount interest     F
of the institution that the right to sue is conceded to persons acting as
managers though lacking a legal title of a manager.
       366. This rationale was outlined by the Madras High Court in
Subramania Gurukkal v Abhinava Poornapriya A Srinivasa Rao
Sahib230. The Court of Wards dismissed the ‘archaka’ in possession              G
of lands belonging to a temple on the ground that he had failed to render
services and account for certain charges made on the property. A suit
was then filed by the Jagirdar represented by his next friend the
manager of the estate under the Court of Wards as a trustee of the
230
      AIR 1940 Mad 617                                                          H
388            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     temple to recover possession. The order of dismissal was passed after
      the death of the previous Jagirdar. It is after the suit was instituted and
      before the decision in the suit that a notification was passed making
      the new Jagirdar a ward under the Act. The question arose as to
      whether the order of dismissal was validly passed. The Court held that
      where the successor of the Jagirdar took no step to assume control,
B     the Court of Wards assumed the position of a de facto trustee. Justice
      Wodsworth held:
            “It is the duty of the Court to protect trust property from
            misappropriation and diversion from the objects to which it was
            dedicated. When trust property is without a legal guardian owing
C           to defects in the machinery for the appointment of a trustee or
            owing to the unwillingness of the legal trustee to act, it would be
            a monstrous thing if any honest person recognised as being in
            charge of the institution and actively controlling its affairs in the
            interests of the trust should not be entitled, in the absence of any
D           one with a better title to take those actions which are necessary
            to safeguard the objects of the trust.”
              367. This observation of the Madras High Court merits a closer
      look for two reasons: First, the Court held that the right to bring an
      action to protect the interest of the trust vests in a person who is
E     ‘recognised as being in charge of the institution and actively controlling
      its affairs’. A single or stray act of management does not entitle a person
      to be determined as a de facto shebait. The relevance of this
      observation shall be considered shortly. Second, the de facto shebait is
      vested with a right to bring an action only in the absence of a person
      with a better title i.e. the de jure shebait. With the above conditions,
F     the Court held:
            “…I am moreover inclined to think, quite apart from these
            statutory provisions, that a de facto trustee of a Hindu temple in
            actual management of that temple and acting bona fide in the
            interests of the institution can validly pass an order dismissing a
G           temple servant or officer, provided that the dismissal is for good
            grounds and that the procedure is one to which no objection can
            be taken…There is moreover no doubt as to the capacity of a
            de facto trustee in possession and management of a temple to
            bring a suit for the recovery of temple lands.”
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            389


       In this view, a person in actual management and acting bona               A
fide for the interests of the institution can bring a claim for the recovery
of temple property as a de facto shebait.
       368. It is relevant here to advert in some detail to the Full Bench
judgment of the Madras High Court in Sankarnarayanan Iyer v Sri
Poovananathaswami Temple 231. In this case, the de jure trustee                  B
alienated the properties of a temple and his whereabouts were not
known. The succeeding trustee appointed under a compromise decree
passed by the court instituted a suit for the recovery of possession of
the suit property as the property of the temple. It was contended that
independent of the compromise decree, he was vested with the right
to institute a suit for the protection of the debutter properties as the de      C
facto manager. Chief Justice P V Rajamannar held:
         “In the case of these endowments the so-called trustee is not
         really a trustee, in the technical sense, in whom the property is
         vested. He is really a manager (even in cases where he also
         has a beneficial interest in the usufruct) and the title always is      D
         vested in the idol or the institution. In either case, the analogy is
         to that of an individual having a manager to carry on the
         administration of his affairs and properties. Viewed in this light,
         the position reduces itself to this. In some cases, the manager
         has a rightful claim to the office of manager, in other cases, his      E
         only claim is that he is in actual possession of the office. “De
         facto” means, “by the title of possession”, in antithesis to
         “de jure” i.e., “by the title of right”. So long as the action is
         for the benefit of the real owner, namely, the idol or the mutt,
         and the person bringing the action is the only person who
         is in management of the affairs of the idol or the mutt for             F
         the time being, there is no reason why such person should not
         be allowed to maintain the action on behalf of the idol or the
         mutt.”
                                                        (Emphasis supplied)
                                                                                 G
       The above observations clarify that a person claiming to be de
facto shebait must be in exclusive possession of the debutter property
and must be the only person in management of the property.

231
      AIR 1949 Mad 721                                                           H
390            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           369. In his separate opinion, Justice Viswanatha Sastri clarified
      the grounds of challenge to the exercise of the power of management
      by a de facto shebait in the following terms:
            “…If a de facto trustee is guilty of any breach of trust, he can
            be removed like a de jure trustee. The law fixes him with the
B           responsibility for the proper administration of the trust and also
            gives him the power to act on behalf of and in the interests of
            the trust, until a lawful trustee emerges...A person who asserts
            his own title to the property of a religious endowment, who does
            not sue as a trustee or manager of the endowment and who
C           claims to recover the property for himself and not for the trust,
            can never be allowed to sue as a de facto trustee. He is entirely
            in the position of a trespasser so far as the trust is concerned
            and cannot be considered to be one who has taken upon himself
            the duties and obligations of a trustee.”232

D            Consistent with the jurisprudence on the rights of a shebait with
      respect to the properties of an endowment, a de facto shebait is
      entrusted with the power and the duty to carry out the purpose of the
      debutter in respect of the idol and its properties. Though the shebait
      may have an interest in the usufruct of the debutter property, the de
      facto shebait is not vested with an independent right of title over the
E     debutter property. Thus, where a de facto shebait raises an independent
      claim to the debutter property to the idol, it assumes the position of a
      trespasser and no action at its behest is maintainable. A claim raised
      by a shebait adverse to the idol defeats the very purpose for which
      shebaits are vested with the right to manage the idol and its properties.
F            370. It is of crucial importance to advert to the standard laid by
      the learned judges in their separate opinions as to when a person may
      be deemed to be a de facto shebait. Justice Viswanatha Sastri held:
            “A fugitive or isolated act of a person with regard to the
            property of a religious endowment would not make him a
G           de facto trustee. One swallow does not make a summer.
            There must be a continuous course of conduct, the length
            of the same depending on the facts and circumstances of

      232
          Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra
H     Vasudeo Kittur AIR 1956 Bom 615
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            391


        the case. The possession of the office or the institution which          A
        is the object of the trust and the exercise of the rights pertaining
        to the office, would be important indicia of a de facto
        trusteeship.”
                                                       (Emphasis supplied)
        Similarly, Justice Raghava Rao held:                                     B

        “I must confess, however, that I should have experienced greater
        difficulty in the determination of the point in controversy…
        whence comes the right of the de facto manager to sue? There
        again, where and how are we to draw a line between a manager
        de facto and a manager ad hoc exercising isolated acts on                C
        particular occasion? I respectfully agree with my learned brother
        Viswanatha Sastri, J. in his picturesque observation that one
        swallow does not make a summer; but the practical question still
        remains, how many do?...how best to make sure that the person
        suing on behalf of the institution does not enter into improper          D
        agreements or compromises pre-decretal and post-decretal. Or
        walk away with the monies representing the fruits of a particular
        decree obtained on behalf of the institution? If that is not possible,
        is it any consolation that at the hands of a de jure manager too
        the institution may sustain sometimes a similar detriment?”
                                                                                 E
      371. All the above observations are of crucial importance. For,
in Sankarnarayanan Iyer and in the consistent jurisprudence of our
courts thereafter,233 it has been held that a stray act or intermittent acts
of management do not vest a person with the rights of a de facto
shebait. Absent a deed of dedication, the contention urged by Nirmohi
Akhara that they have been in management and charge of the disputed              F
property is a claim in law, for the rights of management as de facto
shebaits. Both Justices Viswanatha Sastri and Raghava Rao in
Sankarnarayanan Iyer unequivocally held that isolated acts do not vest
a person with the rights of a de facto shebait. The conduct in question,
233
  Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen
                                                                                 G
Khan v Ganikhan AIR 1956 AP 19; Vankamamidi Balakrishnamurthi v
Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu Religious
and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23;
Lalji Dharamsey v Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri
Parshvanath Jain Temple v L.R.s of Prem Dass (2009) 1 RLW (Rev) 523              H
392             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     must be of a continuous nature to show that the person has exercised
      all the rights of a shebait consistently over a long period of time. The
      duration of time that would satisfy this requirement would, by necessity,
      be based on the facts and circumstances of each case. Justice Raghava
      Rao endorsed the view of Justice Viswanatha Sastri but went a step
      further to outline the practical difficulties in laying down a standard
B
      against which the acts of a person claiming to be a de facto shebait
      must be tested. The caution against adopting a low legal threshold to
      confer on a person who merely has possession of the debutter property
      and exercises intermittent managerial rights the position of a de facto
      trustee is well founded.
C            372. A de facto shebait is vested with the right to manage the
      debutter property and bring actions on behalf of the idol. A bona fide
      action for the benefit of the idol binds it and its properties. As compared
      to a de jure shebait whose rights can legally be traced to a deed of
      endowment, a de facto shebait is vested with the right by mere
D     possession and exercise of management rights. The protection of the
      idol’s properties is at the heart of this extraordinary conferral of rights.
      If courts were to adopt a standard that is easily satisfied, large tracts
      of debutter property may be left at the mercy of persons claiming to
      be in possession of and managing such properties. It is the duty of the
      court in every case to assess whether there has been not just exclusive
E     possession but a continuous and uninterrupted exercise of all
      management rights which are recognised by the beneficiaries of the
      trust property before conferring on a person a right to which they have
      no legal title.
             373. The duties that bind the exercise of powers of a de jure
F     shebait apply equally to a de facto shebait. Thus, no action can be
      brought by the de facto shebait which is not in the beneficial interest
      of the idol or its properties. However, the position of a de facto shebait
      and a de jure shebait is not the same in all respects. In
      Sankaranarayanan Iyer, Justice Viswanatha Sastri held:
G           “It should be observed that the rights of a de facto trustee are
            not in all respects identical with those of a de jure trustee. A de
            jure trustee of a public religious endowment can be removed only
            for misconduct and that only in a suit instituted with the sanction
            prescribed by Section 92, Civil Procedure Code or section 73 of
            Madras Act II of 1927. Where, however, there is only a de facto
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           393


         shebait functioning as such, it is open to persons interested in       A
         the trust to bring a suit under the above provisions alleging a
         vacancy in the office and requiring that it should be filled up by
         the appointment of a trustee by the court. This would entail the
         removal of the de facto trustee without any misconduct on his
         part…The de facto trustee so long as he is functioning as such,
         has, from the necessities of the situation, the right to bring suits   B
         on behalf of and in the interests of the trust for evicting
         trespassers claiming adversely to the trust. In this respect and
         for this purpose, his rights and powers are the same as that of a
         de jure trustee…”
       A de jure shebait can be removed from office only on the                 C
grounds of mismanagement or claiming an interest adverse to the idol.
However, no such averment is required to remove a de facto shebait.
A de jure shebait may, unless the right of the de facto shebait has
been perfected by adverse possession, displace a de facto shebait from
office and assume management of the idol at any point. Further, where           D
there is a de facto shebait, a suit may be instituted under Section 92 of
the Civil Procedure Code 1908 requiring the court to fill up the vacancy
by the settling of a scheme. It is for the limited purpose of bringing an
action for the protection of the idol that the rights and powers of the
de facto shebait are the same as that of the de jure shebait.
                                                                                E
       374. The position of law that a person in continuous and exclusive
possession of the debutter property who exercises management rights
in the interests of the idol can bring actions on its behalf has found
recognition by this Court in Vikrama Das Mahant v Daulat Ram
Asthana234. The appellant was confirmed as a manager by virtue of a
judgment of the Privy Council (on the ground that the previous Mahant           F
had transferred the property to him). Prior to the date of the judgment
of the Privy Council, another compromise decree was entered into by
the then Mahant with certain persons who instituted a proceeding to
have him removed. While some of the persons who brought the actions
took over as trustees under the terms of the compromise, one of them
                                                                                G
took over as the Mahant and entered into possession of the property.
Three of the trustees and the successor of the previous mahant filed a
suit against the appellant. Both lower courts held against the appellant.
The High Court held that even if the compromise decree is set aside,
234
      AIR 1956 SC 382                                                           H
394                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     the plaintiffs are entitled to maintain the suit by virtue of being de facto
      trustees whose possession has been clear and undisputed. Both courts
      below recorded that pursuant to the compromise decree, the plaintiffs
      and the appointed Mahant entered into possession and the properties
      were mutated in the name of the Mahant, and had been in possession
      since then. Justice B Jagannadhadas, speaking for a Constitution Bench
B
      of this Court held:
             “33…the question before us is whether a person who has been
             in de facto possession and management of the Asthan and its
             properties from 1934 to 1941 (and thereafter up-to-date) claiming
             to be its trustee under the decree of a court, valid or invalid has
C            not sufficient interest to maintain proceedings for the warding
             off of a cloud cast by the defendant’s actions against the interests
             of the Asthan…”
             “34..where public trusts are concerned, courts have a duty to
             see that their interests and the interests for whose benefit they
D            exist are safeguarded…We consider that, in view of Ram Sarup
             Das’s long management and possession as Mahant and in view
             of the fact that he is purporting to act on its behalf and for its
             interest, it is proper that he should be allowed to continue to act
             on behalf of the trust until his title in investigated in appropriate
             proceedings and that this Court should grant a decree in his favour
E
             in these proceedings for the benefit of the trust.”
             The Court affirmed that it is only for the paramount interest of
      the institution that the right of suit is conceded to persons acting as
      managers though lacking a legal title of a manager. The long
      management and possession of the claimant in the case vested in him
F     a right to act on behalf of the deity to protect its interests.
             375. In Sree Sree Kalimata Thakurani of Kalighat v
      Jibandhan Mukherjee235, a suit was instituted under Section 92 of
      the Code of Civil Procedure 1908 for the framing of a scheme for the
      proper management of the seva-puja of the Sree Kali Mata Thakurani
G     and her associated deities and for the proper management of the vested
      properties. A scheme was framed and subsequently challenged on the
      ground that the inclusion of de facto shebaits in the management
      committee in the scheme was impermissible. Justice JR Mudholkar,

      235
H           AIR 1962 SC 1329
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              395


speaking for a Constitution Bench of this Court rejected this contention       A
and held:
      “Whatever that may be, we cannot ignore the fact that the
      present predecessors have been functioning as shebaits for a very
      long period and their rights in that regard have not been called
      into question ever before. In these circumstances we cannot              B
      accept the contention of the learned counsel that they should be
      completely excluded from the management of the temple.”
       In crafting the relief, the Court was mindful of the long exercise
of rights by those acting as shebaits. The initial scheme framed by the
High Court comprised eighteen members on the managerial board of               C
which twelve were shebaits. The Court modified this to a Board of
eleven members, with five shebaits and a majority of Hindus who were
not shebaits.
        376. The protection of the trust property is of paramount
importance. It is for this reason that the right to institute proceedings is   D
conceded to persons acting as managers though lacking a legal title of
a manager. A person claiming to be a de facto shebait can never set
up a claim adverse to that of the idol and claim a proprietary interest
in the debutter property. Where a person claims to be the de facto
shebait, the right is premised on the absence of a person with a better
title i.e. a de jure manager. It must be shown that the de facto manager       E
is in exclusive possession of the trust property and exercises complete
control over the right of management of the properties without any
hindrance from any quarters. The person is, for all practical purposes,
recognised as the person in charge of the trust properties. Recognition
in public records as the manager would furnish evidence of being               F
recognised as a manager.
       377. Significantly, a single or stray act of management does not
vest a person with the rights of a de facto shebait. The person must
demonstrate long, uninterrupted and exclusive possession and
management of the property. What period constitutes a sufficient               G
amount is determined on a case to case basis. The performance of
religious worship as a pujari is not the same as the exercise of the rights
of management. A manager may appoint one or several pujaris to
conduct the necessary ceremonies. In the ultimate analysis, the right
of a person other than a de jure trustee to maintain a suit for possession
                                                                               H
396                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     of trust properties cannot be decided in the abstract and depends upon
      the facts of each case. The acts which form the basis of the rights
      claimed as a shebait must be the same as exercised by a de jure
      shebait. A de facto shebait is vested with the right to institute suits on
      behalf of the deity and bind its estate provided this right is exercised in
      a bona fide manner. For this reason, the court must carefully assess
B
      whether the acts of management are exclusive, uninterrupted and
      continuous over a sufficient period of time.
                Duration of time
            378. A final question that is relevant for our present enquiry is
C     whether a de facto shebait can claim a right to continue indefinitely in
      office. As seen earlier, a de jure shebait and a de facto shebait
      exercise similar rights in the limited sense of acting for the benefit of
      the idol. Even absent an averment of mismanagement by the shebait,
      a person may institute proceedings under Section 92 of the Code of
      Civil Procedure 1908 against a de facto shebait for the settling of a
D     scheme. In this view, legal certainty and the sustained interest of the
      deity would be served by circumscribing the claim of a de facto shebait
      to continue, as a matter of right, in perpetuity.
             379. In Gopal Krishnaji Ketkar v Mahomed Jaffar
      Mohamed Hussein236 the plaintiffs instituted a suit praying for a
E     declaration that the second plaintiff is the guardian and ‘vahivatdar’ of
      the Darga. The defendant claimed to be its rightful manager and
      Mutawalli. The plaintiffs’ family were managers since 1817. Since 1902-
      03, the defendant was given the right to manage prayers during a
      certain period every year in the temple and collect the offerings for his
F     upkeep. Upon alleged interference with the plaintiffs’ right to manage
      and collect offerings, the suit was instituted. The Court found that the
      plaintiffs and their family had been managing from at least the year
      1886. The Court held that as the right claimed by the defendant was
      not that of a hereditary trustee, the right dies with him and the only
      question was whether or not the plaintiffs were entitled to management
G     and the offerings. Justice Vivan Bose, speaking for a three-judge Bench
      of this Court held:
                “30. Now a ‘de facto manager or a trustee de son tort’ has certain
                rights. He can sue on behalf of the trust and for its benefit to
      236
            AIR 1954 SC 5
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             397


      recover properties and moneys in the ordinary course of                 A
      management. It is however one thing to say that because a
      person is a ‘de facto’ manager he is entitled to recover a particular
      property or a particular sum of money which would otherwise
      be lost to the trust, for and on its behalf and for its benefit, in
      the ordinary course of management; it is quite another to say
      that he has the right to continue in ‘de facto’ management              B
      indefinitely without any vestige of title, which is what a
      declaration of this kind would import. We hesitate to make
      any such sweeping declaration… That being so, we think
      it undesirable that things should be allowed to drift in this
      uncertain way, no one knowing where the legal rights of                 C
      management lie or of what they consist; no one knowing
      how the rights are to devolve or how the large charitable
      offerings which are collected are to be distributed and
      used.”
                                                     (Emphasis supplied)
                                                                              D
       380. The Court drew a distinction between a claim in law to be
vested with the right to bring an action on behalf of the deities and a
claim to continue indefinitely as a de facto shebait which, for all
purposes, would be equating a de facto shebait with a de jure shebait
and conferring upon the former a legal title where it has always been
absent. Legal certainty and the ultimate protection of the trust properties   E
underlie Section 92 of the Code of Civil Procedure 1908. Under this
provision, the Court is, upon an application by the Advocate-General
or two or more persons having an interest in the trust and having
obtained the leave of the court, vested with wide powers to replace
trustees and settle a scheme with respect to the trust property. Keeping      F
this in mind, the Court framed directions in accordance with the above
observations:
      “32. We are told by the learned Solicitor-General that a suit under
      Section 92, Civil P.C. is under contemplation. Without in any way
      prejudicing matters which will arise there, we make the following
                                                                              G
      order. We direct-
             1. That the present arrangement regarding the collection
                and disposal of the offerings continue for a period of
                six months from the date of this judgment.
                                                                              H
398            SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A                 2. That in the interval the offerings so collected, as well
                     as those already in deposit, he not handed over to the
                     second plaintiff except to the extent necessary for
                     meeting the expenses. The legal representatives of the
                     defendant have no right at all to those offerings.
B                 3. If such a suit is instituted within the said period, then
                     the said offerings and collections be disposed of in
                     accordance with such scheme as may then be framed,
                     and in accordance with such directions as may be given
                     in that suit.
C                 4. If no such suit is instituted within the said six months,
                     then the second plaintiff, as the person in ‘de facto’
                     management of the Darga from 13-11-1938, the date
                     of his adoption, till the date of suit, 7-10-1946, will be
                     entitled to receive the offerings now lying in deposit in
                     the Treasury for and on behalf of the Darga and for its
D                    benefit and in future to collect all the offerings all the
                     year round for and on behalf of the Darga and for its
                     benefit until he is displaced by a person with better title
                     or authority derived from the Courts.”
              381. In Vikrama Das Mahant v Daulat Ram Asthana237, the
E     compromise decree on the basis of which the Mahant claimed a right
      and entered into possession was not given effect. The decree of the
      trial court giving effect to the compromise decree was set aside. Though
      the court sustained the rights of the Mahant to continue as a de facto
      manager, the Court held:
F           “19. But this is only a stop gap expedient. We cannot shut our
            eyes to the fact that we have before us a public trust of which,
            on the facts now before us, an alleged intermeddler claiming
            under a decree said to be void is in possession and management.
            It may be, when proper proceedings are instituted to determine
G           the matter, that it will be found that he is not without legal authority
            or it may be proper to invest him with that authority if he has
            not already got it, or again it may be better to have another person
            or body.

      237
H       AIR 1956 SC 382
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                399


       But those are not matters we need decide in these proceedings.            A
       All we need do is to bring the present state of facts to the notice
       of the Advocate General of Uttar Pradesh and leave him to
       consider whether he should not, of his own motion, institute
       proceedings under S. 92, Civil P. C., or take other appropriate
       steps. Let a copy of this judgment be sent to him.”
                                                                                 B
       382. The decisions of this Court in Gopal Krishnaji Ketkar
and Vikrama Das affirm that the interest of protecting the trust
properties was the basis of conferring upon a de facto shebait the limited
right of instituting bona fide suits on behalf of the idol. Where there
was no de jure shebait, the law recognised the person managing the
property as a shebait to the extent of protecting the idol and its properties.   C
However, this limited recognition did not confer upon de facto shebaits
the right to continue in perpetuity.
       The Nirmohi Claim
       383. Having adverted to the legal standard that must be satisfied         D
for a court to recognise a de facto shebait, the stage has been reached
to adjudicate upon the contention urged by the Nirmohi Akhara that it
is the shebait of the idols at the disputed site. Nirmohi Akhara is a
Panchayati Math of the Ramanandi sect of Bairagis which is a religious
denomination. The customs of Nirmohi Akhara purport to have been
reduced to writing by a registered deed dated 19 March 1949. It was              E
contended that the disputed structure is a temple building which has
been in the possession of Nirmohi Akhara and only the Hindus have
been allowed to enter the temple and make offerings. Nirmohi Akhara
claims that it has been receiving the offerings through its pujaris. The
averments contained in the plaint as well as the reliefs which have been         F
claimed by Nirmohi Akhara indicate that the claim is to a right to manage
and have charge of the temple. Nirmohi Akhara contended that it has
been in possession of the property and has exercised management rights
which amounts to a conferral on them of the status of a de facto shebait.
        384. At the outset, it was contended by Nirmohi Akhara that              G
absent an averment in the plaint in Suit 5 disputing its status as the
shebait of the idols of Lord Ram, their status as shebaits cannot be
disputed. It was further contended that no rival claim to the rights of
the shebait have been set up in any suit. Consequently, it was urged
that it must be held that the Nirmohis are the shebaits of the idols of
                                                                                 H
400            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     Lord Ram. This contention cannot be accepted. If Nirmohi Akhara were
      to be recognised as a de facto shebait, this would confer on it a
      substantive right in law to bring actions on behalf of the idol to the
      exclusion of all other persons. The actions of a shebait bind the idol
      and its properties. Absent an express deed of dedication conferring
      shebaiti rights on Nirmohi Akhara, there is a positive burden on it to
B
      demonstrate that it was in fact a shebait of the idols. For this reason,
      the Nirmohi Akhara must establish, on the basis of oral and documentary
      evidence, that they have exercised all the rights required to be
      recognised as de facto shebaits.
             385. Nirmohi Akhara denies the incident of 22/23 December
C     1949 during which the idols were surreptitiously introduced into the inner
      sanctum of the disputed structure. The claim that Nirmohi Akhara were
      in possession of the inner courtyard on the basis of the evidence on
      record has already been rejected. Nirmohi Akhara has failed to prove
      that at the material time, the disputed structure was a temple which
D     was in its possession and that no incident had taken place on 22/23
      December 1949. Absent exclusive possession of the inner courtyard,
      the claim that Nirmohi Akhara was managing the inner courtyard as
      shebaits does not arise. It was in this context that Justice Sudhir
      Agarwal held:
E           “2994. Now coming to Issue No. 3 (suit-3), it has to be kept in
            mind that this suit is also confined to the premises within the inner
            Courtyard and not the entire premises, i.e., the outer and the inner
            Courtyard including the building. This is what is stated by the
            counsel for Nirmohi Akhara in his statement made on 17.5.1963
            under Order X Rule 1 CPC.
F
            4537. In these particular facts and circumstances and the stand
            of Nirmohi Akhara, we have no option but to hold that so far as
            the idols of Bhagwan Sri Ram installed in the disputed structure
            i.e. within the inner courtyard is concerned, the defendant
            Nirmohi Akhara cannot be said to be a Shebait thereof.”
G
             386. In the written submissions of Nirmohi Akhara it has been
      contended that the inner and outer courtyard form a composite whole
      and Suit 3 was only filed with respect to the inner courtyard as only
      the inner courtyard was the subject of the attachment proceedings.
      Nirmohi Akhara submits that the attachment order made an arbitrary
H     distinction between the inner and outer courtyard and a finding with
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           401


respect to the inner courtyard does not undermine their claim to            A
shebaitship of the entire premises. Even if this argument is accepted,
apart from the determination that Nirmohi Akahra was not in possession
of the inner courtyard, the independent question that arises for our
determination is whether Nirmohi Akhara consistently exercised
management rights over the idols in the outer courtyard to claim a right
                                                                            B
in law as a de facto shebait of the idols of Lord Ram. To support their
contention, Nirmohi Akhara has relied on the oral evidence of witnesses
in Suits 3 and 5 and also submitted certain additional documents to
establish its status as shebait.
       387. Mr S K Jain, learned Senior Counsel appearing on behalf
of the plaintiff in Suit 3 placed reliance on the witness statements of     C
Mahant Bhaskar Das (DW 3/1) and Raja Ram Pandey (DW 3/2) in
Suit 3 to contend that it was admitted that the Nirmohi Akhara had been
exercising the rights of a shebait since time immemorial. The oral
evidence submitted by Nirmohi Akhara has already been analysed in
the course of this judgement. The statements by their witnesses cannot      D
be relied on to establish a cogent account of the activities undertaken
by Nirmohi Akhara at the disputed site. Numerous witnesses admitted
to not having read their own affidavits in lieu of their Examination-in-
Chief. The witnesses merely signed the relevant documents without
understanding the testimony contained therein. Further, under cross-
examination, a number of the witnesses expressly contradicted their own     E
statements. Several witnesses admitted to not having even entered the
disputed structure or rescinded earlier statements about their visits to
the disputed structure. In light of these observations, the oral evidence
relied upon by Nirmohi Akhara to establish their position as shebaits
cannot be accepted. However, for the sake of completeness, the              F
relevant extracts are examined below.
      388. Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi
Akhara since 1950 and was at the material time the Sarpanch. In his
affidavit, it was stated:
      “81. Lord Ram Lalla is seated in the inner part even before 1934      G
      and it had been in the possession of Nirmohi Akhara
      continuously since 1934. The Muslims are not ignorant about
      it. The Lord is seated there. His worship, royal offering all is
      done on behalf of Nirmohi Akhara. On the day of the attachment
      (viz 29.12.1949) of the inner part also it was in possession of       H
402            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           the Akhara. The ownership got ordained in Nirmohi Akhara due
            to its being a religious trust.”
             It has been held, in the course of this judgement, on an analysis
      of the evidence on record, that the idols were shifted under the central
      dome on in the intervening night of 22/23 December 1950. The affidavit
B     of this witness contains references to the existence of Nirmohi Akhara
      in Ayodhya for 200 years and in the disputed site. However, with regard
      to the exercise of shebaiti rights, the witness states:
            “35. An annual contract was given to provide flowers, fruits,
            batasha, etc., to the visitors of the eastern door temple of Sri
C           Ram Janambhomi. This was being done since ancient time by
            the previous Mahants of Nirmohi Akhara and an agreement was
            executed for it. The Brahmins were given the contract to provide
            holy and fresh water from the Sita Koop to the visitors/devotees.
            The tax was paid to the Mahant of the Akhara. I have submitted
            all the available agreements with me and many documents were
D           plundered. The report was lodged for the same.”
            In the cross examination of this witness by Mr Zafaryab Jilani,
      learned Senior Counsel appearing for the Sunni Central Waqf Board,
      on 11 September 2003, the witness replied:

E           “After the attachment the offerings which were made on the idols
            places in the disputed building were not a part of any contract
            by Niromohi Akhara. There is a mention of agreement about the
            contract in para 36 of my affidavit but I do not remember how
            many such agreements were submitted in this court on
            behalf of Nirmohi akhara. I do not remember this time the
F           names of those people who were made to write the
            aforesaid so called agreement by Nirmohi Akhara. I do not
            remember any name this time. I have written in para 35 of
            my affidavit about submitting such agreement in the court and
            Bindeshwari Dubey was one of them who wrote the agreement
G           and it is submitted in the them who wrote the agreement and it
            is submitted in the court. Which is the Document No. 39 C-
            1/39, I cannot tell it by the number but the paper is titled.”
                                                         (Emphasis supplied)
           Though the witness makes reference to the presence of the
H     Nirmohi Akhara in the disputed site, the witness is unable to recall any
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            403


of the documents mentioned to have been submitted by him as evidence         A
that the Nirmohi Akhara were exercising management rights as the
shebait. It is also important to note the answer of this witness to the
question put by Mr Jilani in the cross-examination dated 17 September
2003:
      “Question: - Shall I take it that most of the part of this affidavit   B
      was drafted by your advocate on the basis of his knowledge?
      Answer:- It is wrong to say so. Some parts of this affidavit is
      based on the knowledge of my advocate but I do not
      remember which is that part and I will not be able to tell
      it.”                                                                   C
                                                    (Emphasis supplied)
      The statements of DW 3/1 demonstrate that the witness was
completely unaware of the documents alleged to have been submitted
by him as evidence. The statements do not inspire confidence that the
                                                                             D
Nirmohi Akhara was exercising management rights as the shebait.
       389. Mr S K Jain then relied on the Examination-in-Chief by way
of affidavit of Raja Ram Pandey (DW 3/2) wherein it was stated:
      “14. …Before attachment of Garb Grah and till the taking over
      of its charge by the receiver, I have seen the Priest and the          E
      Assistant Priest of Nirmohi Akhara reciting Aarty, offering
      deferential situations and giving ‘prasad’ and ‘Charanamrit’ and
      similarly I have seen upto February, 1982 the Priest, The Assistant
      Priest the Panch of Nirmohi Akhara reciting Aarti and performing
      ‘pooja’ (worship) in ‘Chabootra Mandir and “Chhati Poojan
                                                                             F
      sthal”.”
       As noted above, a pujari who conducts worship at a temple is
not elevated to the status of a shebait. A pujari gains no independent
right despite having conducted the ceremonies for a long period of time.
Thus, the mere presence of pujaris does not vest in them any right to
                                                                             G
be shebaits. The mere performance of the work of a pujari does not in
and of itself render a person a shebait. The statement of DW 3/2
establishes at the highest that some priests of Nirmohi Akhara were
acting as pujaris, but does not evidence the exercise of management
rights for the recognition of their status as a shebait.
                                                                             H
404             SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            390. Mr S K Jain also placed reliance on the testimony of Sri
      Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3
      to contend that Nirmohi Akhara had been exercising management rights
      over the disputed site, including the performance of pujas. DW 3/18
      was an intermittent resident of Ramkot, Ayodhya since 1930 and claimed
      to have lived at various temples and religious shrines in close proximity
B
      to the disputed site. During his Examination-in-Chief, DW 3/18 states:
            “In 1930 I went for darshan of Shri Ram Janam Bhoomi Mandir
            about which the suit is subjudice. At that time too Bhagwan Ram
            Lalla was sitting there, I took darshan and also took prasad, Aarti
            and charnamrit (sacred water). I had been receiving prasad,
C           Aarti and Charnamrit from the Priest and Sadhus of
            Nirmohi Akhara living in the outer part i.e. in the Sant Niwas
            and store rooms situated in the north of main eastern gate, called
            Hanumatha dwar, in the north of Ram Chabutra.”
                                                          (Emphasis supplied)
D
             The witness stated that the priests in charge of the puja were
      priests of Nirmohi Akhara. However, under cross-examination by
      learned Senior Counsel Mr Jilani, the witness stated:
            “…First of all, I have darshan of Ramchabutra, then Ramlalla,
E           Sita Kitchen and to Shankar Chabutra and from there I used to
            come back. Sometime I used to offer prasada while having
            darshan to Pujari (Priest) for offering in the inner side. I do not
            remember the name of Priest. Priest kept on changing. He
            himself said that Mahant of Hanumangarhi Faizabad
            remained the Priest for long time. I do not remember his
F           name at present. On being reminded by learned cross-
            examiner advocate, he said priest name was Bhaskar Das.
            …
            Bhaskar Dasji remained the priest of the disputed site for
            years but he was not a Mahant of Nirmohi Akhara ever.
G
            He was a priest of Hanumangarhi, Faizabad. At present he
            is neither a Mahant of Nirmohi Akhara nor a priest. He is
            a member of the committee. I do not know how many members
            are there in a committee.”
                                                         (Emphasis supplied)
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              405


      Despite the initial statement that it was Nirmohi Akhara that            A
performed the puja at the disputed site, the witness contradicts this
statement under cross examination. The witness stated that it was one
Bhaskar Das who performed puja. Bhaskar Das, according to the
witness himself, was not associated with the Nirmohi Akhara. The
contradictory stance of the witness cannot be relied upon to establish
                                                                               B
that Nirmohi Akhara were exercising management rights or even
conducting the performance of the puja at the disputed site prior to 1949.
       391. The testimony of several of the witnesses relied upon by
the plaintiffs in Suit 3 is riddled with inconsistencies and contradictions.
The testimony of DW 3/18 is no different. During his testimony he
stated:                                                                        C

      “…The size of chabutra was about three-four feet, three feet in
      width and at one and half feet high from the ground level. This
      chabutra was just below the mid dome and is made of
      cement and bricks. This chabutra was at distance of two feet
      from western wall and was in the east…                                   D

      …
      It is not correct to say that 5-6 thousand Hindus have kept the
      idols there on the night of 22/23.12.49, by making forceful entry
      into. It is also not correct to say these people have desecrated         E
      the Masjid. It is also not correct to say that idols were kept
      there in the night because idols have already been there.
      The point reported in the F.I.R. that idols were kept on the night
      of 22.12.1949, was incorrect….”
                                                      (Emphasis supplied)      F
       During the course of this judgement a wealth of evidence has
been produced by the parties. There is no evidence to suggest that the
Ramchabutra was ever under the central dome of the mosque or that
the idols existed inside the mosque prior to December 1949. The witness
further goes on to state:
                                                                               G
       “Telling a lie have been described as a sin in the dharmshastras.
      But if by telling a lie, proves a savior then there is no harm in
      telling a lie. Similarly there is no harm in telling a lie by a person
      who is dying of hunger. If there is a religious place and if
      somebody is acquiring it through wrong means or forcibly
                                                                               H
406            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           occupying them, there is no harm in telling a lie. If the
            religious place is taken away forcibly by others by telling a lie
            then it is correct.”
                                                          (Emphasis supplied)
            In light of these statements by the witness no reliance can be
B     placed on his testimony.
            392. Mr S K Jain has relied on the statement of Mr Jilani
      recorded on 22 April 2009 under Order X Rule 2 of the Code of Civil
      Procedure where it was stated:

C           “…the existence of Nirmohi Akhara from the second half of
            nineteenth century onwards is also not disputed. It is however
            denied and disputed that Nirmohi Akhara was in existence and
            special in Ayodhya in 16th century AD or in 1528 AD and it also
            denied that any idols were there in the building of the Babri Masjid
            up to 22nd December, 1949.”
D
             There is a distinction between the mere presence of Nirmohi
      Akhara at Ayodhya or around the disputed site and the actual possession
      and management of the disputed site. A mere presence within an area
      or possession of an area is not sufficient to be vested with the powers
      of a shebait. Nothing in Mr Jilani’s statement demonstrates or concedes
E     management or even possession by Nirmohi Akhara.
             393. Reliance was then placed on the oral testimony of plaintiff
      witnesses in Suit 5. Mr S K Jain urged that these witnesses have
      admitted that it was the priests of the Nirmohi Akhara who were
      managing the idols at the disputed structure, before and after
F     attachment. It was submitted that as the witnesses in Suit 5 had admitted
      the status of the Nirmohi Akhara as shebaits, no more evidence was
      required to be placed before this Court to establish that the Nirmohis
      are the shebaits. The relevant portions of these witness statements are
      as follows:
G            (i) Sri Mahant Paramhans Ram Charan Das (OPW-1)
                 “... Before attachment, Hindus had been going to Garba
                 Griha without any restrictions for having Darshan. Idols of
                 Lord Saligram, Hanumanji and Ramlalla were installed
                 there. People Belonging to the Nirmohi Akhara never
H                obstructed any Hindu from going to the Garba Griha.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           407


           Members of the Nirmohi Akhara used to manage Garbha              A
           Griha before attachment…”
      (ii) Deoki Nandan Agarwal (OPW-2)
           “…Bairagis of Nirmohi Akhara who used to worship at the
           Ram Chabutra did not allow muslims to enter inside.
           Therefore Namaz could never be performed in this place           B
           in spite of efforts made constantly”
           “…Worship of idols which existed earlier on Ram Chabutra
           and of the idol installed after 1949 was got done only by
           the two people of the Nirmohi Akhara till a quarrel arose
           with Dharamdasji”                                                C

      (iii) Shri Ram Nath Panda @ Bansari Panda (OPW-5)
           “In the Barred wall, there were two doors which used to
           remain locked and those doors were opened and closed by
           the Pujaris of the Nirmohi Akhara. The same very pujari          D
           used to offer prayers and perform Arti at Ram Chandra and
           Sita Rasoi Etc. We used to arrange Darshan of the Garbh
           Griha for the pilgrims from the railing itself. A Donation box
           was also kept there. On the main gates were the shops of
           Batasha and flowed/garlands. One of those belong to
           Sehdev mali.”                                                    E
           “…The key of the lock used to be in the possession of
           people of Nirmohi Akhara and whose pujari would open the
           lock, close the lock, and perform Arti puja and sounded bells
           and bugles...”
                                                                            F
           “…from 1949 to 1970, I used to go to Ram Janm Bhumi
           Temple regularly. After the attachment of 1949, the receiver
           of Garbh Girha-Babu Priya Dutt Ram became the chairman
           of the Municipality Faizabad and at places like Ram
           Chabutra Temple, Chhathi Puja Sthal, Bhandar Sthal and
           Shiv Darbar Puja continued to be performed in the same           G
           way as before and was performed by the same people who
           used to perform it before...”
       The testimony of the plaintiff witnesses in Suit 5 have been
selectively extracted and do not bear out the conclusion that Nirmohi
Akhara was a shebait. The statements of OPW – 1 that Nirmohi                H
408            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     Akhara managed the inner courtyard are not supported by the evidence
      adduced, on which findings are recorded elsewhere in this judgement.
      Similarly, the isolated statement by OPW – 5 that the Nirmohis
      possessed the key to the outer courtyard is not corroborated by any
      other statements. If the Nirmohis possessed the key to the outer
      courtyard, every visitor to the disputed site, whether Hindu or Muslim,
B
      would have required the permission of the Nirmohis to enter. If true,
      such a state of affairs would have surely been recorded by other
      witnesses in their testimony. The statement of OPW – 2 once again
      merely indicates the presence of the Nirmohis in and around the disputed
      site. It indicates a disagreement between the Nirmohis and Dharam
C     Das about the movement of the idols to the inner courtyard in 1949.
      This statement undermines the claim of the Nirmohis as exclusive
      managers of the deity as it evidences disagreement about the placement
      of the idols. The continued disavowal of the events of 22/23 December
      by the Nirmohi Akhara lends credence to this observation.
D            394. The oral testimony relied on by Nirmohi Akhara establishes,
      at best, that they were present in and around the disputed site. However,
      the presence of the Nirmohis around the disputed site does not amount
      to the exercise of management rights which entitle them in law to the
      status of a de facto shebait. The oral evidence in Suit 3 upon which
      reliance was placed is riddled with inconsistencies and does not bear
E     out the conclusion that Nirmohi Akhara exercised management rights
      on behalf of the idols of Lord Ram. The oral evidence of the three
      witnesses in Suit 5 has been selectively extracted and the statements
      therein are not corroborated by the testimony of any other witness.
      Independent of the oral testimonies, Nirmohi Akhara has placed reliance
F     upon documentary evidence to establish its status as shebait of the idols
      at the disputed site. These documents are as follows:
             (i) The complaint dated 25 September 1866 by Meer Rajab Ali
                 Khateeb against Tulsidas regarding the “Kothri” constructed
                 by certain bairagis inside the compound of the mosque;
G            (ii) Exhibit 30 – Suit 1: The appeal dated 13 December 1877
                  by Mohd. Asghar against Mahant Khem Das with respect
                  to the order permitting the construction of a new gate on
                  the northern side;
            (iii) Exhibit 7 – Suit 5: Gazetteer of the Province of Oudh
H                 (1877-78);
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           409


      (iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882            A
           in the suit instituted by Syed Mohd. Asghar against Mahant
           Raghubar Das seeking rent for the use of the Chabutra;
      (v) Exhibit 28 – Suit 1: The complaint dated 27 June 1884
          by Mahant Raghubar Das seeking spot inspection in view
          of the work being carried out by Syed Mohd. Asghar for            B
          painting the mosque;
      (vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filed
           by Mahant Raghubar Das seeking permission for the
           construction of a temple on the site of the Ramchabutra;
     (vii) Exhibit 8 – Suit 3: Copy of agreement dated 11 June 1900         C
           permitting Jhingoo (son of Gaya) to provide drinking water
           to the pilgrims visiting Ram Janmabhumi site at Ayodhya;
     (viii) H R Nevill’s “The Gazetteer of the United Provinces of
            Agra and Oudh” (1905) stating that the Nirmohi Akhara sect
            formerly held the Janmasthan temple in Ramkot, the remains      D
            of which still belong to them;
      (ix) Exhibit 9 – Suit 3: Copy of agreement dated 13 October
           1942 regarding the Theka Shop of Janmabhumi Ram Kot
           Ayodhya executed by Narottam Das in favour of Gopal (son
           of Babu);                                                        E
      (x) Exhibit 10 – Suit 3: Agreement dated 29 October 1945
          executed in respect of a shop by Mahant Raghunath Das;
      (xi) Exhibit 49 – Suit 4: Mutation entry in favour of the
           Mahant Raghunath Das; and
     (xii) Statement by DW – 10 by Umesh Chandra Pandey.                    F
       It was further contended that while the Supurdaginama, by which
the Receiver took possession does not record from whom possession
was taken, the document indicates the presence of the Nirmohi Akhara
in the outer courtyard. Lastly, it was urged that after the interim order
was passed in the Section 145 proceedings, the seva-puja continued          G
“as before” and was conducted by the priests of the Nirmohi Akhara.
       395. Nirmohi Akhara urged that the presence of numerous
Bairagis of the Nirmohi Akhara at the disputed site evidences the
exercise of management rights. To support this, Nirmohi Akhara relied
on the following:                                                           H
410            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            (i) Edward Thornton (1854, Gazetteer of the territories under
                 the Government of East India Company) refers to the
                 presence of about 500 Bairagis;
             (ii) Letter dated 29 November 1949: Kripal Singh, the then
                  Superintendent of Police at Faizabad addressed a letter to
B                 K K Nayar, the Deputy Commissioner mentioning that
                  “several thousand Hindus, Bairagis and Sadhus” are to
                  participate in the performance of the proposed Kirtan;
            (iii) Letter dated 16 December 1949: K K Nayar (the Deputy
                  Commissioner and District Magistrate, Faizabad) addressed
C                 a communication to Govind Narayan stating that “some time
                  this year probably in October or November some grave-
                  mounds were partially destroyed apparently by Bairagis who
                  very keenly resent Muslim associations with this shrine”;
                  and
D           (iv) Reference is also made to the presence of the Bairagis in
                 the report of Waqf Inspector dated 23 December 1949
                 marked as Exhibit A-64 in Suit 1.
            The evidence relied on by the Nirmohi Akhara in this regard,
      evidences at best the presence of the Bairagis of the Nirmohi Akhara
E     at the disputed site. No other credible documents or evidence was
      produced to show that these Bairagis in fact exercised the rights of
      management of a shebait.
             396. The complaint of 25 September 1866 filed by Meer Rajab
      Ali Khateeb states that it is filed against one ‘Tulsidas’. Nirmohi Akhara
F     sought to rely on oral evidence to prove that Tulsidas was in fact a
      Mahant of the Nirmohis and that it was Nirmohi Akhara who
      constructed the “Kothri”. It has already been held that the oral evidence
      relied on by the Nimohis to substantiate their claim is not reliable. The
      document itself does not prove that Tulsidas was a Mahant of the
      Nirmohis nor that the construction was carried out by the Nirmohis. It
G     is not corroborated by any other documentary evidence ordinarily
      associated with such a construction at the time and does not evidence
      the exercise of rights as a shebait.
             397. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohis
      were providing various services to the pilgrims visiting the disputed
H     structure. However, all three exhibits pertain to the grant of permission
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           411


to provide these services outside the disputed structure. At its highest,   A
these exhibits show that the Nirmohis were present in and around the
disputed structure and assisted the pilgrims. It does not however
evidence any management over the idols or the disputed site itself.
       398. Significant reliance was placed on the role of Mahant
Rahubar Das as a Mahant of the Nirmohi Akhara. Reliance in this             B
regard was placed on Exhibits 24 (suit dated 8 November 1882 filed
for the collection of rent), Exhibit 28 (complaint dated 27 June 1884
seeking plot inspection) and Exhibit A-22 (1885 suit filed for the
construction of a temple on the Ramchabutra) in Suit 1 adverted to
above. It was contended that Mahant Raghubar Das filed the above
suits as a Mahant of the Nirmohi Akhara. On this basis, it was              C
contended that the management and charge of the deity was taken care
of by the Nirmohi Akhara. A closer analysis reveals the numerous
contradictions in the stand of the Nirmohi Akhara with respect to
Mahant Raghubar Das. In the Suit of 1885, Mahant Raghubar Das
claimed to be the “Mahant, Janmasthan, Ayodhya”. In the written             D
submissions filed by Nirmohi Akhara it was stated that Mahant
Raghubar Das filed the Suit of 1885 in a personal capacity:
      “…the said suit [1885] was filed by Mahant Raghbar Das in
      his personal capacity without even mentioning the name
      of Nirmohi Akhara and in any case the subject property in the         E
      said suit – (Chabutra in Outer Courtyard) was different from the
      suit-property (Inner Courtyard) which is the subject matter of
      OOS No. 3”.
                                                    (Emphasis supplied)
      However, in the same written submissions, while speaking of the       F
report of the Waqf Inspector dated 23 December 1949, it was said:
      “He mentions the name of Mahant Raghubar Das along with
      others who invited the Muslims for talks. Mahant Raghubar
      Das is the Mahant of Nirmohi Akhara.”
                                                    (Emphasis supplied)     G
      In the replication, Nirmohi Akhara disavowed any awareness
about the suit by Mahant Raghubar Das:
      “…The plaintiffs are not aware of the said suit, if any, filed by
      any person known as Mahant Raghubar Das as Mahant of
      Janma Asthan.”                                                        H
412            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            In the Written Statement filed on the behalf of Nirmohi Akhara
      in Suit 4, it was stated:
            “…The answering defendants are not aware of any suit having
            been filed by any person known as Mahant Raghubar Dass
            styling himself to be the Mahant of Janam Asthan…”
B           In the suit of 1885, Mahant Raghubar Das claimed to be the
      Mahant, Janmasthan, Ayodhya. In the oral hearings before this Court
      as well as the hearings before the High Court, Nirmohi Akhara claimed
      that Mahant Raghubar Das was a Mahant of Nirmohi Akhara. Justice
      Sudhir Agarwal makes the following observation:
C           “964. What we have already noticed, it has not been disputed
            by Nirmohi Akhara that in 1885 Raghubar Das was Mahant of
            Nirmohi Akhara…”
             It is clear from the above extracts that Nirmohi Akhara sought
      to espouse Mahant Raghubar Das as a Mahant of the Nirmohi Akhara
D     to establish that they have acted as shebaits since the 1800s. Yet they
      distance themselves from the Mahant when dealing with the question
      of res judicata. Nirmohi Akhara even stated that it was unaware of
      the Suit of 1885. The inconsistent stance of the Nirmohi Akhara with
      respect to Mahant Raghubar Das leads to an adverse inference against
E     them.
             399. The documentary evidence which has been produced by
      Nirmohi Akhara does not show that it was managing the property in
      question. Apart from the documentary evidence analysed above which
      does not further the case of Nirmohi Akhara, no evidence has been
F     produced to show the exercise of management rights by Nirmohi
      Akhara. Stray acts do not constitute sufficient evidence to establish
      continuous, exclusive and uninterrupted exercise by Nirmohi Akhara of
      the rights and duties of a de facto shebait. No document that evidences
      repairs, construction, appointment of pujaris, or other activities has been
      produced before this Court. Significantly, apart from a stray reference
G     in the account of the travellers, no document of Nirmohi Akhara has
      been put on record to show the exercise of management rights. The
      customs of Nirmohi Akhara were reduced to writing by a registered
      deed only on 19 March 1949.
            400. When a question was put to Mr S K Jain to produce the
H     original documents that establish the claim of the Nirmohi Akhara as
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              413


shebaits, it was contended that an alleged dacoity had led to loss of          A
the documents necessary to substantiate the claim. To substantiate this
claim, it was contended that an FIR was filed on 18 February 1982
against Dharam Das. However, in the written submission submitted by
the Nirmohis, it is stated that though Dharam Das remained in jail for
two months, the case was subsequently quashed on the basis of a
                                                                               B
compromise. No documents have been adduced to substantiate this
claim other than a reliance on the statement of a single witness – Raja
Ramachandracharya (DW 3/20). This argument is an attempt to gloss
over the glaring absence of any substantial proof of the exercise of
management rights by the Nirmohis to confer on them the status of a
shebait. The position of a shebait in law is of crucial significance. The      C
shebait is the human ministrant and custodian of the idol and acts as
its authorised representative. The shebait is vested with the right to bring
an action on behalf of the deity and bind it. In this view, the claim of
Nirmohi Akhara that it is a de facto shebait on the basis of the oral
and documentary evidence on record has been analysed and it has been
                                                                               D
found that the claim has not ripened into shebait rights.
        401. A claim of rights as a de facto shebait must be substantiated
with proof that person is in exclusive possession of the trust property
and exercises complete control over the right of management of the
properties without any let or hindrance from any quarters whatsoever.
For all practical purposes, this person is recognised as the person in         E
charge of the trust properties. Though it cannot and has not been denied
in the present proceedings that Nirmohi Akhara existed at the disputed
site, the claim of Nirmohi Akhara, taken at the highest is that of an
intermittent exercise of certain management rights. Their rights were
peripheral, usually involving the assistance of pilgrims, and were             F
constantly contested. As held above, a stray or intermittent exercise of
management rights does not confer upon a claimant the position in law
of a de facto shebait. It cannot be said that the acts of Nirmohi Akhara
satisfy the legal standard of management and charge that is exclusive,
uninterrupted and continuous over a sufficient period of time. Despite
their undisputed presence at the disputed site, for the reasons outlined       G
above, Nirmohi Akhara is not a shebait.
       402. In light of the holding that Nirmohi Akhara is not the shebait
for the idols of Lord Ram at the disputed site, it was open for an
interested worshipper to sue on behalf of the deity. There existed no
                                                                               H
414             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     recognised shebait in law. In such a situation the idol’s independent right
      to sue was exercised through its next friend, a worshipper interested
      in the protection of the idol and its interests. Suit 5 is maintainable as a
      suit instituted by a next friend on behalf of the first and second plaintiffs
      in the absence of a lawfully recognised shebait.
B            403. Mr Jaideep Gupta, learned Senior Counsel appearing on
      behalf of Mahant Shri Dharam Das, respondent 12 in the present appeal
      urged that he is the successor (Chela) of Late Baba Abhiram Das, who
      was the priest of the Ram Janmabhumi temple before 1949. The present
      respondent is the Mahant of Akhil Bhartiya Sri Panch Nirvani Ani
      Akhara and Mahanth of Hanuman Garhi, Ayodhya. Late Baba Abhiram
C     Das was defendant no 13/1 in Suit 4 and Defendant no 14 in Suit 5
      and upon his death, the present respondent was substituted as defendant
      in the said suits. It is submitted that Late Baba Abhiram Das was the
      pujari of Janmasthan temple and played an instrumental role in its
      affairs. It has been submitted that prior to 1949, Late Baba Abhiram
D     Das conducted the puja and even after the idol was placed inside the
      disputed structure, he continued to perform puja till 5 January 1950 when
      the receiver took charge. It is submitted that the present defendant being
      the chela of Late Baba Abhiram Das, is entitled to perform sewa-puja
      and bhog at the disputed structure as the shebait. In support of the above,
      the following submissions have been urged:
E
              (i) The idol of Lord Ram was placed at the disputed structure
                  in the intervening night of 22-23 December 1949. The deity
                  after being placed inside the three domed structure
                  (pratishthit) and the Ramjanmabhumi (swayambhu) are
                  juristic persons and have the right and title over the disputed
F                 structure;
             (ii) Nirmohi Akhara cannot claim to be the shebait with respect
                  to the juristic entities after having denied their existence in
                  their pleadings. When the incident took place in the
                  intervening night of 22-23 December, no individual of
G                 Nirmohi Akhara was present there and no members of the
                  Nirmohi Akhara were named as accused persons in the
                  proceedings;
             (iii) The respondent is the only person who can claim to be a
                   shebait of the shrine of Ram Lalla and Janmabhumi.
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           415


       Respondent’s Guru Late Baba Abhiram Das along with                 A
       several others resolved to restore the sacred Janmasthan
       to its pristine glory by taking a collective vow on the occasion
       of Vijayadashmi at a public meeting held on 2 October 1949,
       pursuant to which the surrounding area around the disputed
       site was sanitised. This was followed by Navahana pathas,
                                                                          B
       Japa and Sankirthan both inside and outside the three domed
       structure;
  (iv) As long there exists a shebait, the management of the deity
       cannot be handed over to the next friend or the Ram
       Janmabhumi Nyas in Suit 5. Both Suit 1 and Suit 5 have
       been filed in a personal capacity and no management or             C
       possession can be handed over to them; and
   (v) The fact that Late Baba Abhiram Das was the pujari/priest/
       shebait of the deity has been established from the following
       facts and records:
                                                                          D
       (a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who was
           the Sarpanch of Nirmohi Akhara in his cross examination
           stated and confirmed that Late Baba Abhiram Das was
           the priest of the disputed structure and not the priest of
           Nirmohi Akhara;
                                                                          E
       (b) In his statement dated 29 December 1950 given before
           the Magistrate under Section 145, Late Baba Abhiram
           Das had categorically stated that he and his other co-
           pujaris had been maintaining and managing the
           Janmabhumi temple and the surrounding land since
           1934;                                                          F
       (c) The respondent stated before the High Court that various
           religious functions at the disputed premises were
           organised under the supervision of his Guru, Late Baba
           Abhiram Das and electricity connections were also in
           his name;                                                      G
       (d) Mohd Hashim, who is plaintiff no 7 in Suit 4 and
           defendant no 3 in Suit 5 stated in his cross examination
           that the idols were placed inside the mosque by Abhiram
           Das, Dharam Das and others;
                                                                          H
416            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                (e) On 30 April 1992, Late Deoki Nandan Agarwal, plaintiff
                     3 in Suit 5 had stated that the idol was placed inside
                     the central dome on 22-23 December 1949 by Shri
                     Paramhans Ramchandra and Late Baba Abhiram Das
                     along with others;
B                (f) Late Baba Abhiram Das has been named as accused
                     no 1 in both the FIR dated 23 December 1949 and
                     chargesheet dated 1 February 1950 for placing the idol
                     inside the disputed structure. Late Baba Abhiram Das
                     has submitted that he is the pujari of the Ram
                     Janmabhumi in the bail bond dated 1 February 1950;
C
                 (g) The District Magistrate, Faizabad in his report dated 23
                     December 1949 observed that the crowd was controlled
                     by permitting two or three persons including Abhiram
                     Das, Ram Shukal Das and Sudarshan Das to offer bhog
                     to the idol inside the disputed structure; and
D
                 (h) By an application dated 21 December 1962, Late Baba
                     Abhiram Das applied for permission before the receiver
                     for organising the program of 62 jayanti Samaroh. It is
                     stated that the said Samaroh had been held each year
                     and organised by Late Baba Abhiram Das and Janam
E                    Bhoomi Sewa Samiti.
             404. The dispute inter se between Nirmohi Akhara and Nirvani
      Ani Akhara is not the subject matter of the existing dispute. Nirvani
      Ani Akhara has not pursued any proceedings of its own to establish its
      claim. The claim that Nirmohi Akhara was a shebait has been rejected.
F     In discussing Nirmohi Akhara’s claim, it has been held that to establish
      a claim as a shebait or even as a de facto shebait, one needs to rely
      on evidence that indicates more than a mere act of performing the
      functions of a priest. A pujari is merely a servant or appointee of a
      shebait and gains no independent right as a shebait despite having
G     conducted ceremonies over a period of time. All the evidence relied
      upon to support the claim of Late Baba Abhiram Das is restricted to
      his having performed puja at the disputed premises and does not confer
      any shebaiti rights.
            N. 7 Limitation in Suit 5
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             417


       405. The cause of action leading to the institution of Suit 5 has      A
been pleaded in paragraphs 14, 18, 30 and 36 of the plaint which read
as follows:
      “14.That the plaintiff Deities and their devotees are extremely
      unhappy with the prolonged delay in the hearing and disposal of
      the said suits and the deteriorating management of the affairs of       B
      the Temple, particularly the way the money offered by the
      worshippers, who come in great numbers, is being
      misappropriated by the Pujaries and other Temple staff, and the
      receiver has not controlled this evil. Further devotees of the
      Plaintiff Deities are desirous of having a new Temple constructed,
      befitting their pristine glory, after removing the old structure at     C
      Sri Rama Janam Bhumi, Ayodhya.
      ...
      18. That although the aforesaid suits have been pending trial for
      such an extraordinarily long number of years, they are inadequate       D
      and cannot result in a settlement of the dispute which led to their
      institution or the problems arising there from, in as much as neither
      the presiding Deity of Bhagwan Sri Rama Virajman nor the
      Asthan Sri Rama Janma Bhumi, the Plaintiffs Nos. 1 and 2
      herein, who are both juridical persons, were impleaded therein,
      although they have a distinct personality of their own, separate        E
      from their worshippers and sewaks, and some of the actual
      parties thereto, who are worshippers, are to some extent involved
      in seeking to gratify their personal interests to be served by
      obtaining a control of the worship of the Plaintiff Deities.
      Moreover, the events which have occurred during these four              F
      decades, and many material facts and points of law require to
      be pleaded from the view point of the Plaintiff Deities, for a just
      determination of the dispute relating to Sri Rama Janma Bhumi,
      Ayodhya, and the land and buildings and other things appurtenant
      thereto. The Plaintiffs have been accordingly advised to file a
      fresh suit of their own.                                                G
      …
      30. That the Hindu Public and the devotees of the Plaintiff Deities,
      who had dreamed of establishing Ram-Rajya in Free India, that
      is, the rule of Dharma and righteousness, of which Maryada
                                                                              H
418            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          Purushottam Sri Ramchandra Ji Maharaj was the epitome, have
           been keenly desirous of restoring his Janamsthan to its pristine
           glory, as a first step towards that national aspiration given to us
           by Mahatma Gandhi. For achieving this, they are publicly agitating
           for the construction of a grand Temple in the Nagar style. Plans
           and a model of the proposed Temple have already been prepared
B
           by the same family of architects who built the Somnath Temple.
           The active movement is planned to commence from September
           30, 1989, and foundation stone of the new Temple building, it has
           been declared, shall be laid on November, 9, 1989.
           …
C
           36. That the cause of action for this suit has been accruing
           from day to day, particularly since recently when the plans
           of Temple reconstruction are being sought to be
           obstructed by violent action from the side of certain
           Muslim Communalists.”                     (Emphasis supplied)
D
            The above averments of the cause of action comprise of the
      following components:
            (i) A prolonged delay in the hearing and disposal of Suits 1, 3
                and 4;
E           (ii) Deterioration in the management of the affairs of the temple
                 and the failure of the receiver to control it;
           (iii) Offerings by the worshippers have been misappropriated by
                 the pujaris and temple staff;
           (iv) The first and second plaintiffs who are claimed to be juridical
F
                persons were not impleaded as parties to the earlier suits;
            (v) The worshippers and sevaks and some of the parties to the
                suits are seeking to pursue their own personal interest in
                seeking control of the worship of the deities;
G          (vi) Hindu devotees have been agitating for the construction of
                a new temple for which plans have been prepared; and
           (vii) Plans for reconstruction are sought to be obstructed “by
                 violent action from the side of certain Muslim
                 communalists”.
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          419


       406. Suit 5 was instituted for “a declaration that the entire           A
premises of Sri Ram Janmabhumi at Ayodhya, as described and
delineated in Annexures I, II and III belong to the plaintiff deities” and
for a consequential perpetual injunction. Annexures I, II and III were
described in paragraph 2 of the plaint as “two site plans of the building
premises and of the adjacent area known as Sri Rama Janma Bhumi,
prepared by Shiv Shankar Lal Pleader … along with his Report dated             B
25.05.1950.” After the decision of the Constitution Bench of this Court
in Dr M Ismail Faruqui v Union of India238, the dispute has been
circumscribed to the area comprised in the inner and outer courtyards.
      Suit 5 was instituted on 1 July 1989, on which date, the Limitation
Act 1963 was in force.                                                         C
          Submissions
      407. Setting up the bar of limitation, Dr Rajeev Dhavan, learned
Senior Counsel appearing on behalf of the Sunni Central Waqf Board,
canvassed the following propositions:
                                                                               D
          (a) Section 10 of the Limitation Act 1963 has no application to
              the present case since the provision applies to a suit against
              a person in whom property has become vested in trust for
              any specific purpose, or his legal representative or assigns
              (other than for lawful consideration) for following in his or
              their hands the property or the proceeds thereof or for an       E
              account of the property or proceeds;
          (b) The suit could not have been instituted when the deity was
              being “well represented” through its shebait – the Nirmohi
              Akhara - and no removal of the shebait has been sought
              on account of a grievance bearing on misconduct;                 F
          (c) The defence that a deity is a perpetual minor will not aid
              the plaintiffs in Suit 5 for the reason that the deity was
              represented by the shebait and a suit can be instituted by a
              worshipper as a next friend only when the shebait is found
              to have acted adversely to the interest of the deity.            G
              However, no allegation has been made by the next friend
              against the shebait;


238
      (1994) 6 SCC 360                                                         H
420              SUPREME COURT REPORTS                                [2019] 18 S.C.R.


A             (d) It is a settled principle of law that limitation runs against a
                  perpetual minor; and
              (e) Suit 5 is not maintainable as there was no cause of action
                  for instituting it. Even otherwise, whichever provisions of
                  the Limitation Act are applicable, Suit 5 would be barred
B                 by limitation.
             On 23 September 2019, Dr Dhavan during the course of his oral
      submissions responded to the submissions of Mr Parasaran on limitation.
      While doing so, Dr Dhavan proceeded on the basis that Mr Parasaran
      had sought the benefit of Section 10 of the Limitation Act in submitting
C     that the suit was within limitation. Subsequently, on 24 September 2019,
      in the fair tradition of the Bar of this Court, Dr Dhavan clarified that
      he was informed by Mr Parasaran that he was not taking the benefit
      of Section 10 and did not make a submission seeking the benefit of
      that provision. Dr Dhavan hence urged that the submissions under
      Section 10 be read as submissions urged by him.
D
             408. Mr Parasaran urged that the contentions of Dr Dhavan,
      appearing for the Defendant-Sunni Waqf Board proceed on the footing
      that the plaintiffs are not juridical persons and that the Mahant of
      Nirmohi Akhara is a valid shebait both for the first and second plaintiffs.
      On the issue of limitation, the three judges of the Allahabad High Court
E     unanimously held in favour of the plaintiffs (except that Justice S U
      Khan did not determine as to whether the second plaintiff is a juristic
      person). Hence, Mr Parasaran urged that the issue of limitation would
      depend upon the findings of this Court on issues 1,6 and 8 239 in Suit 5
      and in the event that these issues are held in favour of the plaintiffs in
      Suit 5, the attack of the defendants to the suit being barred by limitation
F
      would, in consequence, fail.
            409. At the outset, it is necessary to record that in the course of
      the present judgment, it has been held that:
               (i) Nirmohi Akhara has failed to establish its case of being a
G                  shebait;

      239
          Issue 1: Whether the first and second plaintiffs are juridical persons.
      Issue 6: Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their next
      friend and is the suit not competent on this account.
      Issue 8: Is the defendant Nirmohi Akhara the “Shebait” of Bhagwan Sri Ram installed
H     in the disputed structure.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             421


          (ii) As a consequence of (i), the challenge to the maintainability      A
               of Suit 5 on the ground that it was only Nirmohi Akhara as
               shebait which could have instituted the Suit must fail; and
         (iii) The first plaintiff in Suit 5 is a juristic person.
       The issue of limitation would hence be addressed on the basis
of the above position.                                                            B

      Essentially, the Sunni Central Waqf Board in the course of its
submissions sought to assail the findings of the High Court on limitation
on three broad grounds:
          (i) Suit 5 could not have been instituted when the deity was            C
              being ‘well represented’ through its shebait against whose
              conduct there is no grievance and since the removal of the
              shebait has not been sought;
          (ii) The defence of the deity being a perpetual minor cannot
               aid the plaintiffs since the deity was being represented by        D
               a shebait and a suit by a next friend can lie only when the
               shebait has acted adverse to the interest of the deity; and
         (iii) It is a settled principle of law that a deity is not a minor for
               the purpose of limitation.
       The first and the second grounds noted above now stand                     E
concluded by the finding that Nirmohi Akhara was not a shebait and
hence Suit 5 has been held to be maintainable at the behest of the next
friend.
       The issue which then falls for consideration at this stage, is as to
whether Suit 5 can be held to be within limitation on the ground that a           F
deity is a perpetual minor. This submission of Mr C S Vaidyanathan,
learned Senior Counsel appearing on behalf of the plaintiff in Suit 5, it is
again necessary to reiterate would govern the first plaintiff alone which
has been held to be a juristic person.
          A statute of repose                                                     G
      410. The law of limitation is embodied in a statute which is based
on the principles of repose or peace, as held by this Court in Pundlik
Jalam Patil v Executive Engineer, Jalgoan Medium Project240:

240
      (2008) 17 SCC 448                                                           H
422            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           “An unlimited and perpetual threat of limitation creates insecurity
            and uncertainty; some kind of limitation is essential for public
            order...”
            The applicability of the provisions of the Limitation Act cannot
      be extended by analogy or implication. The right to claim in perpetuity
B     is embodied in a specific situation which is referred to in Section 10
      and the ambit of the provision cannot be extended as a matter of
      implication. Before 1929, Section 10 was cast in the following terms:
            “10. Suits against trustees and their representatives. –
            Notwithstanding anything contained in the foregoing provions of
            this Act, no suit against a person in whom property has become
C           vested in trust for any specific purpose, or against his legal
            representatives or assigns (not being assigns for valuable
            consideration), for the purpose of following in his or their hands
            such property, or the proceeds thereof or for an account of such
            property or proceeds, shall be barred by any length of time.”
D           Section 10 was amended by the introduction of an explanation
      by the Indian Limitation (Amendment) Act 1929 (1 of 1929). As
      amended, the provision came to read as follows:
            “10. Suits against express trustees and their representatives. –
            Notwithstanding anything hereinbefore contained, no suit against
E           a person in whom property has become vested in trust for any
            specific purpose, or against his legal representatives or assigns
            (not being assigns for valuable consideration), for the purpose
            of following in his or their hands such property, or the proceeds
            thereof or for an account of such property or proceeds, shall be
            barred by any length of time.
F
            Explanation : For the purposes of this section any property
            comprised in Hindu, Mohammedan, Buddhist religious or
            charitable endowment shall be deemed to be property vested in
            trust for a specific purpose, and the manager of any such
            property shall be deemed to be the trustee thereof.”
G           411. The background of the amendment is understood by
      considering the decision of the Privy Council in Vidya Varuthi Thirtha
      v Balusami Ayyar241. Dealing with the alienation of property, the


      241
H       AIR 1922 PC 123
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             423


decision had wider implications which led to the statutory changes which      A
were brought in 1929. The Privy Council held:
      “From the above review of the general law relating to Hindu and
      Mahommedan pious institutions it would prima facie follow that
      an alienation by a manager or superior by whatever name
      called cannot be treated as the act of a “trustee” to whom              B
      property has been “conveyed in trust” and who by virtue
      thereof has the capacity vested in him which is possessed
      by a “trustee” in the English law. Of course, a Hindu or a
      Mahommedan may “convey in trust” a specific property to a
      particular individual for a specific and definite purpose, and place
      himself expressly under the English law when the person to whom         C
      the legal ownership is transferred would become a trustee in the
      specific sense of the term.”
                                                     (Emphasis supplied)
       Alienation by a manager was held not to constitute an act of a         D
trustee to whom property had been conveyed in trust in the same sense
in which the expression was used in English law. As a result of the
amendment of 1929, a deeming fiction was introduced consequent upon
which property comprised in a Hindu, Mohammedan or Buddhist
religious or charitable endowments was deemed to be property vested
in trust for a specific purpose.                                              E

      Section 10 applies to suits filed against:
       (i) A person in whom property has become vested in trust for
           a specific purpose; and
       (ii) Legal representatives and assigns of such a trustee.              F
      However, it does not cover assigns of such a trustee for valuable
consideration. The suit can be filed for the purpose of:
       (i) Following in the hands of the trustee such property;
       (ii) Following in the hands of the trustee the proceeds of such        G
            property; and
      (iii) For an account of such property or proceeds.
       Significant in the opening words of Section 10 is the absence of
the words “by or against”. The Section, in other words, does not apply
to suits by a trustee against third parties. (See also in this context, the   H
424               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     decision of a Division Bench of the Madras High Court in Palaniandi
      Gramani Manickammal v V Murugappa Gramani242). Section 10
      has no application to Suit 5.
               The argument of perpetual minority
             412. Mr C S Vaidyanathan, learned Senior Counsel, urged that
B     the idol is a minor by legal fiction. Hence, no adverse title can be
      acquired against a minor. Dr Rajeev Dhavan, learned Senior Counsel,
      submitted that although a deity is treated as a minor because of its
      inability to sue except through a human agency, a deity is not a minor
      for the purposes of limitation. He submitted that the dictum in
C     Bishwanath v Sri Thakur Radha Ballabhji 243 that a deity is a
      perpetual minor was not made in the context of limitation.
             413. In Bishwanath, this Court was tasked with deciding whether
      a worshipper can maintain a suit for eviction on behalf of the idol if
      the shebait acts adversely to the interest of the idol. Chief Justice Subba
D     Rao, speaking for a two-judge bench of this Court, held thus:
               “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
E              is in the position of a minor 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
F              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
G              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
      242
            AIR 1935 Mad 483
      243
H           (1967) 2 SCR 618
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                 425


        suffer. That is why decisions have permitted a worshipper                     A
        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…”
                                                           (Emphasis supplied)        B
       414. The suit in that case was instituted by Shri Thakur Radha
Ballabhji, the deity represented by a next friend for possession of
immoveable property and for mesne profits. The case of the plaintiff
was that the second defendant, who was the Sarvarakar and manager,
had alienated the property to the first defendant and the sale not being              C
for necessity or for the benefit of the idol was not binding on the deity.
Both the trial court and on appeal, the High Court held that the sale
was not for the benefit of the deity and the consideration was not
adequate. But it was urged that the suit for possession could only have
been filed by the shebait and none else could represent the deity. It
was in that context, that this Court held that on principle there was no              D
reason to deny to a worshipper a locus to institute a suit challenging
the alienation when the shebait had acted adversely to the interest of
the deity. The observation that the idol is in the position of a minor was
not made in the context of the provisions of the Limitation Act. The
observation was in the context of deciding whether a suit by a
                                                                                      E
worshipper was maintainable when the manager had dealt with the
property adverse to the interest of the deity. The dictum that the idol is
in the position of a minor cannot be construed to mean that the idol is
exempt from the application of the Limitation Act 1963.
     415. In B K Mukherjea’s “The Hindu Law of Religious and
Charitable Trust”244, the position of law has been thus summarised:                   F
        “A Hindu Idol is sometimes spoken of as a perpetual infant, but
        the analogy is not only incorrect but is positively misleading. There
        is no warrant for such doctrine in the rules of Hindu law and as
        was observed by Rankin, C.J. In Surendra V. Sri Sri
        Bhubaneswari, it is an extravagant doctrine contrary to the                   G
        decision of the Judicial Committee in such cases as Damodar
        Das Vs. Lakhan Das. It is true that the deity like an infant suffers
        from legal disability and has got to act through some agent and
244
  B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern
Law House, (1983) at pages 256-257                                                    H
426                SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A               there is a similarity also between the powers of the shebait of a
                deity and those of the guardian of an infant. But the analogy really
                ends there. For purposes of Limitation Act the idol does
                not enjoy any privilege and regarding contractual rights
                also the position of the idol is the same as that of any other
                artificial person. The provisions of the Civil Procedure
B               Code relating to suits by minors or persons of unsound
                mind do not in terms at least apply to an idol; and to build
                up a law of procedure upon the fiction that the idol is an
                infant would lead to manifestly undesirable and anomalous
                consequences.” 245                            (Emphasis supplied)
C           These are prescient words of a visionary judge. Over the years,
      Courts have elucidated on the juristic character of the idol as a minor
      and the consequences of this legal fiction.
             416. In 1903-4, the Privy Council in Maharaja Jagadindra Nath
      Roy Bahadur v Rani Hemanta Kumari Debi246 dealt with a case
D     where the plaintiff, in his capacity as the shebait of an idol, had instituted
      suits for proprietary rights in certain property. The High Court held that
      the idol being a juridical person capable of holding property, limitation
      started running against him from the date of the transfer and hence
      the suit by the shebait was barred by limitation.
E            The Privy Council concurred with the judges of the High Court
      that being a juridical person, the idol was capable of holding property.
      However, limitation was saved because when the cause of action arose,
      the shebait to whom the possession and management of the dedicated
      property belonged, was a minor. Hence, the Privy Council held that the
      right to institute a suit for the protection of the property vested in the
F     idol could be brought within three years of the attainment of majority
      of the shebait. Sir Arthur Wilson observed:
                “But assuming the religious dedication to have been of the strictest
                character, it still remains that the possession and management
                of the dedicated property belong to the sebait. And this carries
G               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 sebait, not in the idol. And in the present case the right to
                sue accrued to the plaintiff when he was under age. The case
      245
            Ashim Kumar v. Narendra Nath 76 CWN 1016
H     246
            (1903-04) 31 IA 203
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            427


          therefore falls within the clear language of s. 7 of the Limitation    A
          Act, which says that, “If a person entitled to institute a suit...
          be, at the time from which the period of limitation is to be
          reckoned, a minor,” he may institute the suit after coming of age
          within a time which in the present case would be three years.”
                                                       (Emphasis supplied)       B
       The basis for holding that suit to be within limitation was not
that the idol was not subject to the law of limitation but that the shebait
was a minor on the date of the accrual of the course of action. The
suit could be instituted within three years of the shebait attaining majority.
       417. In 1909-10 a judgment was rendered by the Privy Council              C
in Mahant Damodar Das v Adhikari Lakhan Das247 where there
was a dispute between the senior chela and junior chela of a Mutt with
regard to succession after the Mahant passed away. This was settled
by an ikrarnama dated 3 November 1874. Under the ikrarnama, a
math at Bhadrak was allotted in perpetuity to the senior chela and his           D
successors, while a math at Bibisarai and the properties annexed to it
were allotted to the junior chela in the capacity of an ‘adhikari’, subject
to an annual payment of Rs. 15 towards the expenses of the Bhadrak
math. After the death of the senior chela, a suit was instituted by his
successor for possession of the math at Bibisarai. It was contended
that the property was dedicated to the worship and service of the                E
plaintiff’s idol and was held by the junior chela in the capacity of an
adhikari. The respondent set up limitation as a defence claiming that
neither the plaintiff nor his predecessors had been in possession of the
disputed property within twelve years prior to the institution of the suit.
The trial court held that the suit was not barred by limitation, but the         F
High Court reversed the decree on the ground that the respondent had
held the disputed mutt adversely for more than twelve years. The Privy
Council rejected the plea of the senior chela that the cause of action
arose on the death of the senior chela and affirmed the ruling of the
High Court that the suit was barred by limitation, having been instituted
                                                                                 G
within twelve years of the death of the senior chela, but twenty seven
years after the ikrarnama. Sir Arthur Wilson held thus:
       “The learned Judges of the High Court have rightly held that in
       point of law the property dealt with by the ekrarnama was prior
247
      (1909-10) 37 IA 147                                                        H
428                 SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A               to its date to be regarded as vested not in the Mohant, but in the
                legal entity, the idol, the Mohant being only his representative and
                manager. And it follows from this that the learned Judges
                were further right in holding that from the date of the
                ekrarnama the possession of the junior chela, by virtue of
                the terms of that ekrarnama, was adverse to the right of
B
                the idol and of the senior chela, as representing that idol,
                and that, therefore, the present suit was barred by
                limitation.”
                                                               (Emphasis supplied)
             Though the above observations did not specifically deal with
C
      whether an idol could be regarded as a perpetual minor, the Privy Council
      held in clear terms that the plea of adverse possession as against the
      right of the idol was available and that therefore the suit was barred
      by limitation.
             418. In Chttar Mal v Panchu Lal248, a Division Bench of the
D
      Allahabad High Court considered whether an idol suffers a disability
      of being a perpetual minor and hence a suit by an idol at any period of
      time after the date of the transfer would be saved from the bar of
      limitation under Section 7 of the Limitation Act. The argument was
      premised on the following opinion put forth in the fifth edition of Sastri’s
E     “Hindu Law”249:
                “As regards limitation it should be considered whether section 7
                of the Limitation Act is not applicable to a suit to set aside an
                improper alienation by a sebait of the property belonging to a
                Hindu god. As the god is incapable of managing his property he
F               should be deemed a perpetual minor for the purpose of limitation.”
                The Division Bench, however, held:
                “…With respect, it may be pointed out that in a transfer by a
                minor the question of a proper or improper alienation would not
                arise. Under the Contract Act a transfer by a minor would be
G               void and not only voidable: Mohori Bibee v. Dharmodas Ghose
                [(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced the
                property of a god would not fetch any money in the market when

      248
            AIR 1926 All 392
      249
H           Chapter XIV, 5th edition at page 726.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         429


         need arose to transfer it for the benefit of the temple where the    A
         idol may be installed…We have clear authority, therefore, in
         refusing to accept the plaintiff’s argument.”
      In adopting this view, the Division Bench of the High Court relied
on the decisions of the Privy Council in Maharaja Jagadindra Nath
and in Damodar Das.                                                           B
       419. The fiction of perpetual minority was adopted by a Division
Bench of the Madras High Court in Rama Reddy v Rangadasan250.
In that case, the plaintiff had instituted a suit in 1918 as the pujari and
trustee of the suit temple to recover possession of property granted to
an ancestor of the plaintiff as manager of the temple. The disputed           C
property had been sold by defendant nos 1 and 2 (the father and uncle
of the plaintiff) to defendant no 3 in 1893. It was the contention of the
plaintiff that the property had been granted as service inam to their
family for rendering service as a pujari and the alienation was not valid.
The District Munsif dismissed the suit as barred by limitation and on
appeal, the Subordinate Judge reversed and remanded the suit. The             D
District Munsif again dismissed the suit and on appeal, the District Judge
confirmed the decree. The lower appellate court found that the plaintiff
was the pujari or trustee of the suit property and held that the suit
property was attached to the temple. The plaintiff preferred a second
appeal, which was heard by a Single Judge, who held that the suit was         E
not barred by limitation. In a Letters Patent Appeal preferred against
the decree of the Single Judge, the Division Bench was to determine
whether the suit was barred by Article 134 or 144 of the Limitation
Act.
       420. The High Court noted the decision in Vidya Varuthi Thirtha        F
v Balusami Ayyar251 where the Privy Council held that a permanent
lease of mutt property could not create any interest in the property to
subsist beyond the life of the grantor and consequently, Article 134 would
not apply to a suit brought by the successor of the grantor for the
recovery of the property. The High Court held that a trustee cannot
convey a valid title to the transferee, hence Article 134 would not apply.    G
The High Court noted that the principle of adverse possession would
apply to cases where a person who could assert his title does not do

250
      AIR 1926 Mad 769
251
      AIR 1922 PC 123                                                         H
430             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     so within the period stipulated under Article 144 of the Limitation Act.
      With respect to the property of an idol, Justice Devadoss held thus:
             “The legal fiction is that an idol is a minor for all time and it has
             to be under perpetual tutelage and that being so, it cannot be said
             that the idol can ever acquire majority, and a person who acquires
B            title from a trustee of a temple cannot acquire any title adverse
             to the idol, for the idol is an infant for all time and the succeeding
             trustee could recover the property for the idol for any time.”
              The High Court held that the manager cannot set up an adverse
      title to the property of the idol. It was concluded that in consequence,
C     the manager by his act cannot allow a person who derives title from
      him to assert an adverse title.
             In Surendrakrishna Roy v Shree Shree Ishwar
      Bhubaneshwari Thakurani252, a Division Bench of the Calcutta High
      Court held that when the property dedicated to an idol has been held
D     adversely to another and there is no fiduciary relationship with the idol,
      limitation would run and be governed by Article 144 of the Act. Chief
      Justice Rankin, on the issue of perpetual minority, held thus:
             “21. The doctrine that an idol is a perpetual minor is, in
             my judgment an extravagant doctrine contrary to the
E            decision of the Judicial Committee in such cases as
             Damodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA
             5147 : 7 IC 240 (PC).] . It is open to shebaits or any person
             interested in an endowment to bring a suit to recover the idol’s
             property for debuttar purposes…”

F                                                           (Emphasis supplied)
            The decision of the High Court was affirmed by the Privy Council
      in Sri Sri Iswari Bhubaneshwari Thakurani v Brojonath Dey.253
            421. In The Mosque, Masjid Shahid Ganj v Shiromani
      Gurdwara Parbandhak Committee, Amritsar254, the Privy Council
G     considered whether a mosque can be considered a juristic person and
      can be subject to adverse possession. Sir George Rankin observed:


      252
          AIR 1933 Cal 295
      253
          (1936-37) 64 IA 203
      254
H         AIR 1940 PC 116
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          431


  “That there should be any supposed analogy between the position        A
  in law of a building dedicated as a place of prayer for Muslims
  and the individual deities of the Hindu religion is a matter of some
  surprise to their Lordships. The question whether a British Indian
  Court will recognise a mosque as having a locus standi in
  judicio is a question of procedure. In British India the Courts
                                                                         B
  do not follow the Mahomedan law in matters of procedure [cf.
  Jafri Begum v. Amir Muhammad Khan [I.L.R. 7 All. 822 at
  pp. 841, 842 (1885).] , per Mahmood, J.] any more than they
  apply the Mahomedan criminal law of the ancient Mahomedan
  rules of evidence. At the same time the procedure of the Courts
  in applying Hindu or Mahomedan law has to be appropriate to            C
  the laws which mg., that an idol may be the owner of property.
  The procedure of our Courts allows for a suit in the name
  of an idol or deity though the right of suit is really in the
  sebait [Jagadindranath v. Hemmta Kumari [L.R. 31 I.A. 203
  : s.c. 8 C.W.N. 609 (1605).] ]. Very considerable difficulties
                                                                         D
  attend these doctrines—in particular as regards the
  distinction, if any, proper to be made between the deity and
  the image [cf. Bhupati Nath v. Ram Lal [I.L.R. 37 Cal. 128,
  153: s.c. 14 C.W.N. 18 (1910).] , Golapchandra Sarkar,
  Sastri’s “Hindu Law,” 7th Ed., pp. 865 et seq.]. But there
  has never been any doubt that the property of a Hindu                  E
  religious endowment—including a thakurbari—is subject
  to the law of limitation [Damodar Das v. Lakhan Das [L.R.
  37 I.A. 147 : s.c. 14 C.W.N. 889 (1810).] and Sri Sri Iswari
  Bhubaneshwari Thakurani v. Brojo Nath Dey [L.R. 64 I.A.
  203 : s.c. 41 C.W.N. 968 (1937).] ]. From these
                                                                         F
  considerations special to Hindu law no general licence can
  be derived for the invention of fictitious persons…”
                                                (Emphasis supplied)
  It was concluded thus:
  “The property now in question having been possessed by Sikhs           G
  adversely to the waqf and to all interests thereunder for more
  than 12 years, the right of the mutawali to possession for the
  purposes of the waqf came to an end under Art. 144 of the
  Limitation Act and the title derived under the dedication from the
  settlor or wakif became extinct under sec. 28. The property was        H
432                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               no longer, for any of the purposes of British Indian Courts, “a
                property of God by the advantage of it resulting to his
                creatures…”
            In a decision of a Division Bench of the Calcutta High Court in
      Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila
B     Thakur255, Nasim Ali J noted the similarities and points of distinction
      between the position of a minor and an idol in Hindu Law:
                “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
C               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.
D
                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
E               (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 the bar of limitation but this
                protection has not been extended to a Hindu idol.
F
                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.”
                                                             (Emphasis supplied)
G            Before the Orissa High Court in Radhakrishna Das v
      Radharamana Swami256, a suit had been instituted by the next friend
      of the deity for a decree directing the restoration of the plaintiff deity
      to its original place of consecration. The Division Bench of the High
      255
            AIR 1942 Cal 99
      256
H           AIR 1949 Orissa 1
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            433


Court held that an idol cannot be regarded a perpetual minor for the             A
purposes of limitation and rejected the contention of the plaintiff that
the deity’s right to be located at its temple is a continuing right on account
of the incapacity of the deity to act on its behalf. The Division Bench
held:
          “…An idol is no doubt in the position of an infant as it can act       B
          only through a sebayat or a manager. But no authority has been
          cited to us for the proposition that he is to be regarded as a
          perpetual infant, so that transactions by or against him will not
          by governed by the Limitation Act.
          The doctrine that an idol is a perpetual minor is an extravagant       C
          doctrine as it is open to the sebayat, or any person in an
          endowment, to bring a suit to recover the idol’s property for
          devottar purposes. An idol, therefore, 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. An idol cannot,            D
          therefore, claim exemption from the law of limitation.”
      The legal fiction of a deity as a minor has been evolved to obviate
the inability of the deity to institute legal proceedings on its own. A
human agent must institute legal proceedings on behalf of the deity to
overcome the disability. However, the fiction has not been extended to           E
exempt the deity from the applicability of the law of limitation.
        422. In the present case, it has been established that there was
no de-facto or de-jure shebait acting on behalf of the deity. Therefore,
it is appropriate to refer to judgements of this Court regarding the “right
of suit” as vested in the shebait and the consequence of the absence             F
of a shebait on the application of the Limitation Act to the adverse
possession of debutter property. “In Rai Sahib Dr Gurdittamal Kapur
v Mahant Amar Das Chela Mahant Ram Saran257, this Court dealt
with a case where a suit was filed in 1957 by the first respondent, who
was a newly appointed Mahant of Akhara Nirbansar of Sultanwind Gate,             G
Amritsar. The second respondent was removed as a Mahant in
proceedings under Section 92 of the Civil Procedure Code and the first
respondent was subsequently appointed in his place. It was alleged that
the alienation of property by the second respondent was unauthorised
257
      AIR 1965 SC 1966                                                           H
434            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     as the transfer was not for legal necessity or for the benefit of the
      estate. Moreover, it was contended that the fact that the appellant was
      in possession of the land for more than twelve years made no difference
      and since the land was trust property, a suit for its recovery could be
      brought within twelve years from the date of death, resignation or
      removal of the manager of such a property. A three judge Bench of
B
      this Court held that the suit filed by the first respondent was liable to
      be dismissed since the appellant had been in adverse possession for
      more than twelve years. Speaking for this Court, Justice J R Mudholkar
      held that for the purposes of Section 144 of the Act, adverse possession
      is to be computed from the “effective possession” of the appellant as
C     a result of the sale:
            “12…The law on the subject has been stated very clearly at pp.
            274 and 275 in Mukherjea’s Hindu Law of Religious and
            Charitable Trust, 2nd Edn. It is pointed out that in the case
            of an execution sale of debutter property it is not the date
D           of death of the incumbent of the Mutt but the date of
            effective possession as a result of the sale from which the
            commencement of the adverse possession of the
            purchaser is to be computed for the purposes of Article
            144 of the Limitation Act... Thus if Respondent 2 could be
E           said to have represented the Akhara in the two earlier suits,
            decrees made in them would bind Respondent 1 as he is
            successor in office of Respondent 2. On the other hand if
            Respondent 2 did not represent the Akhara, the possession of
            the appellant under the decree passed in these suits would clearly
            be adverse to the Akhara upon the view taken in the two
F
            decisions of the Privy Council just referred to. The first
            respondent’s suit having been instituted after the appellant has
            completed more than 12 years of adverse possession must,
            therefore be held to be barred by time. For these reasons
            disagreeing with the courts below we set aside the decrees of
G           the courts below and instead dismiss the suit of Respondent 1
            with costs in all the courts.”
                                                          (Emphasis supplied)
           423. In a subsequent decision of this Court in Sarangadeva
H     Periya Matam v Ramaswami Goundar(Dead) by Legal
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           435


Representatives258, the Mathadhipathi had granted a perpetual lease             A
of a portion of the disputed property to the grandfather of the plaintiffs
on annual rent. Since 1883 when the lease was granted and until
January 1950, the respondents were in uninterrupted possession of the
property. In 1915, the Mathadhipathi died without a successor and the
plaintiffs did not pay any rent. Between 1915 and 1939, there was no
                                                                                B
Mathadhipathi and some person was in management of the Math for
twenty years. A Mathadhipathi was elected in 1939. In 1928, the
Collector of Madurai passed an order to resume the Inam lands, and
directed full assessment of the lands and payment of the assessment
to the Math for its upkeep. After resumption, a joint patta was issued
in the name of the plaintiff and other persons in possession of the lands.      C
The respondents continued to possess the suit lands until January 1950
when the Math obtained possession. On 18 February 1954, the
respondents instituted the suit against the Math represented by its then
Mathadhipathi and an agent of the math claiming recovery of possession
of the suit lands. The Trial Court decreed the suit. In appeal, the District    D
Judge set aside the decree and dismissed the suit. In second appeal,
the High Court of Madras restored the decree of the Trial Court. The
respondent contended that he had acquired title to the lands by adverse
possession and by the issue of a ryotwari patta in his favour on the
resumption of the Inam. The appellant contended that the right to sue
for the recovery of the Math properties vests in the legally appointed          E
Mathadhipathi and adverse possession against him would not run until
his appointment. A three judge Bench of this Court noted that like an
idol, a Math is a juristic person which must act through a human agency
and a claim of adverse possession was maintainable against it:
          “6. We are inclined to accept the respondents’ contention. Under      F
          Article 144 Indian Limitation Act, 1908, limitation for a suit by a
          math or by any person representing it for possession of
          immovable properties belonging to it runs from the time when
          the possession of the defendant becomes adverse to the plaintiff.
          The math is the owner of the endowed property. Like an idol,          G
          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
258
      AIR 1966 SC 1603                                                          H
436            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           human agency... It may acquire property by prescription
            and may likewise lose property by adverse possession. If
            the math while in possession of its property is dispossessed or if
            the possession of a stranger becomes adverse, it suffers an injury
            and has the right to sue for the recovery of the property. If there
            is a legally appointed mathadhipathi, he may institute the suit on
B
            its behalf; if not, the de facto mathadhipathi may do so, see
            Mahaleo Prasad Singh v. Koria Bharti [(1934) LR 62 IA 47,
            50] ; and where, necessary, a disciple or other beneficiary of the
            math may take steps for vindicating its legal rights by the
            appointment of a receiver having authority to sue on its behalf,
C           or by the institution of a suit in its name by a next friend appointed
            by the Court. With due diligence, the math or those interested in
            it may avoid the running of time. The running of limitation
            against the math under Article 144 is not suspended by
            the absence of a legally appointed mathadhipathi; clearly,
            limitation would run against it where it is managed by a
D
            de facto mathadhipathi. See Vithalbowa v. Narayan Daji
            Thite [(1893) ILR 18 Bom 507, 511] , and we think it would
            run equally if there is neither a de jure nor a de facto
            mathadhipathi.”                                  (Emphasis supplied)
             Justice R S Bachawat held that when possession of the property
E     became adverse, limitation against the Math would run even in the
      absence of a de jure or de facto Mathadhipathi. While noting the
      decision of the Privy Council in Maharaja Jagadindra Nath, this Court
      declined to extend the principle that the “right to sue for possession” is
      to be divorced from the “proprietary right” to the property which is
F     vested in the idol:
            “8… in giving the benefit of Section 7 of the Indian Limitation
            Act, 1877 to the shebait, the Privy Council proceeded on the
            footing that the right to sue for possession is to be divorced from
            the proprietary right to the property which is vested in the idol.
G           We do not express any opinion one way or the other on the
            correctness of Jagadindra Nath Roy case [ILR 32 cal 129, 141]
            . For the purposes of this case, it is sufficient to say that we are
            not inclined to extend the principle of that case. In that case, at
            the commencement of the period of limitation there was a shebait
            in existence entitled to sue on behalf of the idol, and on the
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           437


          institution of the suit he successfully claimed that as the person    A
          entitled to institute the suit at the time from which the period is
          to be reckoned, he should get the benefit of Section 7 of the
          Indian Limitation Act, 1877. In the present case, there was no
          mathadhipathi in existence in 1915 when limitation commenced
          to run. Nor is there any question of the minority of a
                                                                                B
          mathadhipathi entitled to sue in 1915 or of applying Section 6 of
          the Indian Limitation Act, 1908.”
          Decision of the High Court
       424. On the aspect of whether a deity can be regarded as a
perpetual minor, Justice S U Khan held that an idol of a deity is not a         C
perpetual minor for the purpose of limitation and debutter property can
be lost through adverse possession. The view of the learned Judge was
that the observation in Bishwanath v Sri Thakur Radha Ballabhji259
that an idol is in the position of a minor was not in the context of the
law of limitation. On the contrary, in the view of the learned Judge, the       D
decisions in Dr Gurdittamal Kapur and Sarangadevi Periya Matam
were of three judge Benches (Bishwanath, being decided by a Bench
of two judges). Both the three judge Bench decisions supported the
view that the law of limitation would be applicable. Moreover, the Privy
Council in Masjid Shahidganj v Shiromani Gurdwara Prabandhak
Committee, Amritsar260 had noted that there had never been any                  E
doubt that the property of a Hindu religious endowment is subject to
the law of limitation.
       Justice Sudhir Agarwal, on the other hand was of the view that
though the suit as it was earlier filed, pertained to a wider area, the
extent of the dispute (following the judgment of this Court in Ismail           F
Faruqui) was confined to the inner and outer courtyards. In the view
of Justice Agarwal, this being the birth-place of Lord Ram which Hindus
had been visiting since time immemorial and the deity being “in the form
of a place” it “can never be destroyed nor could be destructed”. Hence,
if the deity claims a declaration from the court, the plea of limitation        G
would not be applicable and there was no reason to take recourse to
Section 6 or Section 7 of the Limitation Act.

259
      (1967) 2 SCR 618
260
      AIR 1940 PC 116                                                           H
438             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            Justice D V Sharma relied upon the decision in Bishwanath and
      came to the conclusion that a deity is a minor for the purposes of Section
      6 of the Limitation Act and extending the benefit available to a minor
      to a deity would do no injustice to the world at large.
             425. The analysis of the legal position on the applicability of the
B     law on perpetual minority by Justice S U Khan commends itself. Based
      on the judicial precedents analysed above, it is an established position
      that a deity cannot on the ground of being a perpetual minor stand
      exempted from the application of the Limitation Act. The submission
      which was urged by Mr C S Vaidyanathan is contrary to the
      jurisprudence of close to a century on the issue. We follow the line of
C     precedents emanating from the Privy Council, this Court and several
      High Courts noted earlier. The applicability of the law of limitation
      cannot be ruled out on the basis of the theory of perpetual minority.
             For the reasons which we have been already been adduced
      above, the reasons which weighed with Justice Sudhir Agarwal and
D     Justice DV Sharma while construing the applicability of the Limitation
      Act are incorrect. The decision of the two judge Bench in Bishwanath
      did not deal with the issue of the applicability of the Limitation Act and
      the observations that a deity is a minor cannot be extended by
      implication to create an exemption to the applicability of the law of
E     limitation. Such an extension would be contrary to the consistent
      precedents emanating from the Privy Council as well as in the decisions
      of this Court and the High Courts. Justice D V Sharma has read into
      the provisions of Section 6 of the Limitation Act that the same principle
      which applies to a minor also applies to a deity. Such an extension
      cannot be arrived at by implication or by interpretation.
F
            Limitation in Suit 5
             426. Each of the three judges of the Allahabad High Court
      furnished reasons of their own in holding that Suit 5 was within limitation.
      Justice S U Khan dealt with limitation in one consolidated analysis and
G     furnished five reasons of which the first and the fifth were held to be
      applicable to Suit 5. According to the learned Judge:
              (i) The Magistrate by keeping the proceedings under Section
                  145 pending indefinitely, acted in excess of jurisdiction.
                  Consequently, no final order was passed in the Section 145
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            439


           proceedings. By not doing so, it was held that the bar of         A
           limitation would not arise; and
      (ii) The court in any event was required to return a finding
           under Order XIV on all issues.
      Justice Sudhir Agarwal held that the plea of limitation in Suit 5
must be understood in the context of the following facts:                    B

       (i) The place in dispute is believed by Hindus to be the birth-
           place of Lord Ram and has been worshipped as such since
           time immemorial;
      (ii) A non-Hindu structure in the nature of a mosque was raised        C
           at the command of the Muslim ruler before the visit of
           Tieffenthaler (1766-71);
      (iii) Despite the above construction, Hindus continued to visit it
            and offer worship according to their belief that it was the
            birth-place of Lord Ram;                                         D
      (iv) Though the structure of the building was treated as a mosque
           it did not impact the beliefs of the Hindus;
      (v) Within the premises of the undivided mosque, there was a
          non-Islamic structure of a Bedi which was noticed by
          Tieffenthaler in his account;                                      E
      (vi) Other Hindu structures were added with the passage of time
           including Sita Rasoi, Ramchabutra and Bhandar;
     (vii) These structures were noticed in 1858, 1873, 1885, 1949 and
           1950 and continued until the demolition of the entire structure
           on 6 December 1992;                                               F

     (viii) Though the entire disputed structure was called a mosque,
            the British Government recognised the rival claims of both
            the communities by dividing the disputed area in two parts
            within which each community could separately offer prayer
            and worship;                                                     G

      (ix) Despite this division, Hindus not only kept possession of the
           outer courtyard but continued to enter the inner courtyard
           in spite of repeated complaints and removal orders fortified
           by the record between 1858 to 1885;
                                                                             H
440            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            (x) Treating the disputed structure as a mosque, the British
                 Government allowed a Nankar grant to two Muslims in
                 pursuance of which they claimed to have incurred expenses
                 on the maintenance of the building;
            (xi) On 22/23 December 1949, idols of Lord Ram were placed
B                by Hindus in the inner courtyard;
            (xii) On 29 December 1949, the inner courtyard was attached
                  under Section 145 in spite of which the Magistrate ensured
                  that worship of the idols placed under the central dome
                  continued after which the civil court passed an order of
C                 injunction on 16 January 1950, which was clarified on 19
                  January 1950, confirmed on 3 March 1951 and which
                  attained finality on 26 April 1955;
           (xiii) Since 23 December 1949, worship had continued by the
                  Hindus while on the other hand, no Muslim had entered the
D                 premises or offered namaz;
           (xiv) Since 29 December 1949, worship by Hindus continued from
                 the iron grill door of the dividing wall and only priests were
                 allowed to enter the premises for worship; and
           (xv) The District Judge, by an order dated 1 February 1986,
E               directed the removal of locks and the opening of doors to
                permit the Hindus to pray to the idols in the inner courtyard.
             On the basis of the above facts, Justice Sudhir Agarwal held that
      worship of the deities had continued and there was no action or inaction
      in respect of which the plaintiffs could claim a right to sue governed
F     by a particular period of limitation. The learned judge held that in the
      preceding few hundred years, the only action which may have arisen
      to adversely affect the interest of the plaintiffs was the raising of the
      disputed structure. In spite of this, the place in dispute continued to be
      used by the Hindus for the purposes of worship. On the other hand,
      there is no mention of any Muslim having offered namaz from the date
G
      of the construction until 1856-57. In view of the above facts, there was
      no action for the Hindus to be aggrieved on a particular date, giving
      rise to a right to sue for the purposes of limitation. Consequently, the
      judge held that Suit 5 could not be held to be barred by limitation.

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             441


      Justice DV Sharma held that the deity is a minor for the purpose        A
of Section 6 of the Limitation Act and came to the conclusion that Suit
5 was within limitation.
       427. It now becomes necessary to address the fundamental issue
as to whether Suit 5 is barred by limitation. In assessing whether Suit
5 is within or beyond limitation regard must be had to the position that      B
in the remaining suits which were initiated before the Allahabad High
Court (Suits 1, 3 and 4), neither of the plaintiffs in Suit 5 were
impleaded. The averment in Suit 5 is that both the first and second
plaintiffs have a distinct juridical personality of their own. The first
plaintiff has a distinct juridical personality independent of the
worshippers. In paragraph 18 of the plaint, the plaintiffs aver that some     C
of the parties to the earlier suits who are worshippers are to some
extent “involved” in seeking to gratify their personal interests to be
served by obtaining control over the worship of the plaintiff deities.
       428. Significantly, even after the attachment of the disputed
property on 29 December 1949 the sewa-puja of the plaintiff deities           D
continued. Therefore, it cannot be contended that the cause of action
in Suit 5 arose on 29 December 1949 and pertains to the obstruction
of worship and prayer or the attachment of the disputed property. The
pleadings in Suit 5 refers to all the previous suits filed with respect to
the disputed property. The defendants in Suit 5 include the plaintiff in      E
Suits 1, 3 and 4, besides Muslim and Hindu parties and the State and
its officials. Suit 5 is founded on the plea that as a matter of fact, the
interest of the deities was not being safeguarded by the persons or
entities who were pursuing the earlier proceedings. When Suit 5 was
instituted, the legal personality of the first and second plaintiff had not
been adjudicated upon. Upon the institution of Suit 5, the plaintiffs in      F
Suit 3 and Suit 4 expressly denied that the second plaintiff was an
independent object of worship and a legal person. Further, the
apprehension of the plaintiffs in regard to the interest of the deity of
Lord Ram not being protected was abundantly established in the stance
which was taken by Nirmohi Akhara in its written statement filed on           G
14 August 1989. Nirmohi Akhara denied that the plaintiffs were entitled
to any relief and set up the plea that the premises mentioned by the
plaintiffs belong to Nirmohi Akhara and that the plaintiffs have no right
to seek a declaration “against the right and titles of the Nirmohi
Akhara”. Indeed, the Nirmohi Akhara construed the suit as “the threat
                                                                              H
442            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     to demolish the temple of the Nirmohi Akhara for which the suit of the
      Akhara is pending”. Nirmohi Akhara set up the plea that the idol of
      Lord Ram is installed not at Ram Janmabhumi at Ayodhya but in the
      temple known as Ram Janmabhumi temple, for whose delivery of
      charge and management Nirmohi Akhara had filed its suit. In response
      to the injunctive relief sought by the plaintiffs, Nirmohi Akhara set up
B
      the plea that it alone has a right to control, supervise and repair or even
      to reconstruct the temple if necessary. Nirmohi Akhara set up the plea
      that the trust which has been set up in 1985 was with an “obvious design”
      to damage the title and interest of the Nirmohi Akhara. On the
      maintainability of Suit 5, both the Sunni Central Waqf Board and the
C     Nirmohi Akhara raised similar objections, which have been re-affirmed
      by their stand taken in the course of the present proceedings. Dr Rajeev
      Dhavan, leading the arguments for the Sunni Central Waqf Board
      submitted that though Suit 3 is barred by limitation, that does not
      extinguish the right of Nirmohi Akhara to pursue its claim as a shebait.
      It was urged that Nirmohi Akhara being the shebait, Suit 5 is not
D
      maintainable. The case of the plaintiffs that the institution of the Suit 5
      was necessitated as a result of the deity not being a party to the earlier
      suits and based on the apprehension that in the existing suits, the
      personal interests of the leading parties were being pursued without
      protecting the independent needs and concerns of the deity of Lord
E     Ram, is well and truly borne out by the proceedings as they unfolded
      in the proceedings before this Court. The cause of action in Suit 5
      cannot be considered to be barred by limitation on a proper construction
      of the basis of the cause of action for the institution of the suit.
             The Suit by Nirmohi Akhara (Suit 3) was for management and
F     charge of what it described as the Ram Janmabhumi temple. Its claim
      of being a shebait had not, as of the date of the institution of Suit 3,
      been adjudicated. It was not a de-jure shebait (there being no deed of
      dedication) and its claim of being a de facto shebait had to be
      established on evidence. Suit 5 is founded on the plea that the needs
      and concerns of the deity of Lord Ram were not being protected and
G     that the parties to the earlier suits were pursuing their own interests.
      This apprehension as the basis of Suit 5 is not without substance. For,
      Nirmohi Akhara in its defence travelled beyond the claim of
      management and charge, seeking to place reliance on its alleged “right
      and titles” and its “title and interest” as noted above. The Sunni Central
H     Waqf Board made joint cause with Nirmohi Akhara by supporting the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              443


cause of Nirmohi Akhara as a shebait, to buttress its challenge to the         A
entitlement of the deity to protect its interests through a next friend.
Nirmohi Akhara has an interest hostile to the deity when it speaks of
its own ‘title and interest’. In this backdrop, the cause pleaded in Suit
5 at the behest of the deity of Lord Ram cannot be held to be beyond
limitation.
                                                                               B
        429. Mr Parasaran submitted that Suit 5 essentially looks to the
future and for the need to construct a temple dedicated to Lord Ram
on the site of Ram Janmabhumi. Dr Dhavan criticised this as well as
the constitution of the trust of 1985 and the Nyas as part of a wider
agenda which led to the event of 1992. This criticism in our view cannot
be factored in while determining whether as a matter of law, Suit 5 is         C
barred by limitation. Simply put, Suit 5 contains a plea that by virtue of
the deity not being a party to the earlier suits, its interests and concerns
were not being adequately protected in the earlier suits including those
instituted by the Hindu parties. The reasons which weighed with Justice
Agarwal in holding Suit 5 to be within limitation, to the extent summarised    D
above, commend themselves for acceptance. On the basis of the above
discussion, it must be held that Suit 5 is instituted within the period of
limitation.
      N.8 The Suit of 1885 and Res Judicata
      Issues                                                                   E

       182. The plea of res judicata hinges on the content and outcome
of a suit which was instituted in 1885 by Mahant Raghubar Das seeking
a decree for the construction of a temple at Ramchabutra. Specific
issues on whether the doctrine of res judicata is attracted were drawn
up in Suits 1, 4 and 5, thus:                                                  F
      Suit 1
      Issue 5(a):- Was the property in suit involved in Original Suit
No. 61/280 of 1885 in the Court of Sub-Judge, Faizabad, Raghubar Das
Mahant v Secretary of State for India and others.
                                                                               G
      Issue 5(b):- Was it decided against the plaintiff.
      Issue 5(c):- Was the suit within the knowledge of Hindus in
general and were all Hindus interested in the same.
      Issue 5(d):- Does the decision bar the present suit by principles
of res judicata and in any other way.                                          H
444             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            Suit 4
             Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of Suit
      No. 61/280 of 1885 had sued on behalf of Janmasthan and whole body
      of persons interested in Janmasthan.
             Issue 7(b):- Whether Mohammad Asghar was the Mutawalli of
B     alleged Babri Masjid and did he contest the suit for and on behalf of
      any such mosque.
             Issue 7(c):- Whether in view of the judgment in the said suit,
      the members of the Hindu community, including the contesting
      defendants, are estopped from denying the title of the Muslim
C     community, including the plaintiffs of the present suit, to the property
      in dispute; if so, its effect.
             Issue 7(d):- Whether in the aforesaid suit, title of the Muslims
      to the property in dispute or any portion thereof was admitted by plaintiff
      of the that suit; if so, its effect.
             Issue 8 - Does the judgment of case No. 6/280 of 1885, Mahant
D
      Raghubar Dass v Secretary of State and others, operate as res
      judicata against the defendants in suit.
             Suit 5
             Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filed
      by Mahant Raghubar Das in the Court of Special Judge, Faizabad is
E
      binding upon the plaintiffs by application of the principles of estoppel
      and res judicata as alleged by the defendants 4 and 5.
             The plaint of 1885
             431. The Suit of 1885 was instituted by Mahant Raghubar Das,
      describing himself as “Mahant Janamsthan situated at Ayodhya”. The
F     suit was initially instituted only against the Secretary of State for India.
      The plaint in the suit of 1885 is as under:
             “IN THE COURT OF MUNSIF SAHIB BAHADUR
             Mahant Raghubar Das
             Mahant Janmsthan
G            Situated at Ayodhya                          Plaintiff
                                        versus
             Secretary of State for India
             in the Session of Council                                Defendant

H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              445


  The plaintiff abovenamed Submit as under:                                  A
  Suit for grant of permission for construction of Mandir, i.e.,
  prohibition to the defendant that plaintiff should not be restrained
  from construction of Mandir on chabootra-Janmashtan situated
  at Ayodhya, North 17 feet, East 21 feet, South 17 feet, West 21
  feet and the value of the suit cannot be fixed as per market rate          B
  therefore as per Item No. 17, paragraph 6, Appendix-II, Act,
  1870, court fee was affixed and the position of the site can be
  known very well from the attached map/sketch.
  Section 1: That the place of janmsthan situated at Ayodhya City,
  Faizabad is a very old and sacred place of worship of Hindus               C
  and plaintiff is the Mahant of this place of worship.
  Section 2: That the chabootra janmasthan is East-West 41 feet
  and North-South 17 feet. Charan Paaduka is fixed on it and small
  temple is also placed which is worshipped.
  Section 3: That the said chabootra is in the possession of the             D
  plaintiff. There being no building on it, the plaintiff and other faqirs
  are put to great hard ship in summer from heat, in the monsoon
  from rain and in the winter from extreme cold. Construction of
  temple on the chabootra will cause no harm to anyone. But the
  construction of temple will give relief to the plaintiff and other         E
  faqirs and pilgrims.
  Section 4: That the Deputy Commissioner Bahadur of Faizabad
  from March or April 83, because of the objection of a few
  Muslims opposed the construction of the mandir, this petitioner
  sent a petition to the local government regarding this matter where        F
  no reply received about this petition. Then the plaintiff sent a
  notice as required under Section-444 of the Code (of Civil
  Procedure) on 18th August, 1883 to the office of Secretary, Local
  Government but this too remained un-replied. Hence the cause
  for the suit arise from the date of prohibition at Ayodhya under
  the jurisdiction of the Court.                                             G
  Section 5: That a well-wishing subject has a right to construct
  any type of building which it wishes as the land possessed and
  owned by it. It is the duty of fair and just government to protect
  its subjects and provide assistance to them in availing their rights
  and making suitable bandobast for maintenance of law and order.            H
446            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           Therefore the plaintiff prays for issue of the decree for
            construction of temple on chabootra – Janmasthan situated
            at Ayodhya North 17 feet, East 41 feet, South 17 feet and
            West 41 feet and also to see that the defendant does not
            prohibit and obstruct the construction of mandir and the
            cost of the suit should be ordered to be borne by the
B
            defendant.
            I Raghubar Das Mahant Janmasthan, Ayodhya Certify that the
            contents of the plaint and all five points are true and correct to
            the best of my knowledge and belief.
C                                          Signature of Mahant Raghubardas
                                                            in Hindi script.”
                                                          (Emphasis supplied)
            The plaintiff averred that the place of the Janmabhumi is ancient
            and sacred and is a place of worship for the Hindus. The plaintiff
D           claimed to be the Mahant of this place of worship. The
            “chabootra janamsthan” was described as admeasuring “East-
            West 41 feet and North-South 17 feet.”
             It was pleaded that there was a Charan Paduka fixed on it and
      that there was a small temple which was worshipped. The plaintiff
E     claimed to be in possession of the Chabutra. The plaintiff averred that
      he and other faqirs were inconvenienced in inclement weather and that
      the construction of a temple “on the Chabutra” would not cause harm
      to anyone else. However, it was stated that the Deputy Commissioner
      of Faizabad had opposed the construction of the temple and despite a
F     notice under the Code of Civil Procedure dated 18 August 1883, the
      government had not taken any action. The basis of the claim was that
      a “subject” has a right to construct a building on land which is possessed
      and owned by him.
            The defence in 1885
G            432. Though the Muslims were originally not impleaded as parties
      to the suit, Mohd Asghar, in his capacity as a Mutawalli applied to be
      impleaded and was made a party to the suit. In his written statement,
      Mohd Asghar set up a plea that the mosque was constructed by Babur.
      He stated that ownership could not be claimed by the plaintiff who had
      not produced any material originating in the emperor or the ruler of the
H     time in support of the plea. Essentially, the defence was that:
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           447


       (i) The plaintiff had no title to the Chabutra;                      A
       (ii) Ingress and egress for the purposes of worship does not
            prove ownership;
      (iii) The Chabutra came up in 1857; and
      (iv) The construction of the Chabutra did not confer any right        B
           of ownership and new construction on it had been restrained
           by the government as a result of which a hut which was
           set up by a faqir had been demolished.
     It was argued that the spot was disputed between the Hindus
and Muslims resulting in a communal incident.                               C
      Findings
       433. In his judgment dated 24 December 1885, the Sub-Judge
at Faizabad accepted the possession and ownership of the Hindus of
the area surrounding the wall of the Masjid. However, the Sub-Judge
held that if permission for the construction of the temple were granted,    D
a serious situation endangering law and order would arise between the
two communities. The Sub-Judge held:
      “Over and above this, on the temple situated on the chabootra
      an idol of Thakurji is kept which is being worshipped. The
      chabootra is in the possession of the plaintiff and whatever is       E
      offered on it is taken by the plaintiff.
      The possession of plaintiff is proved by the witnesses of the
      plaintiff and railing wall separating the boundary of Hindus and
      Muslims exists from a long period...
      In the year 1855, after the quarrel between Hindus and Muslims        F
      a wall in the form of the railing was erected to avoid controversy.
      So that Muslims may worship inside it and Hindus may worship
      outside it. So the outside land with chabootra which is in the
      possession of the plaintiff belongs to Hindus.
      Though the place where Hindus worship they hold its possession        G
      since old because of which there cannot be objection to their
      ownership and the area surrounding around the wall of the Masjid
      and on the outer door word Allah is engraved.”
      Despite the above findings on possession by and ownership of
the Hindus, the suit was dismissed because a serious breach of law          H
448            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     and order was apprehended. In appeal, the judgment of the trial court
      dismissing the suit was affirmed by the District Judge, Faizabad on 18/
      26 March 1886. The District Judge held that while it was unfortunate
      that a mosque had been constructed on land held sacred by the Hindus,
      an event which had occurred over three centuries earlier could not be
      remedied:
B
            “It is most unfortunate that a Masjid should have been built on
            land specially held sacred by the Hindu, but as that event
            occurred 356 years ago it is too late to remedy the grievance all
            that can be done is to maintain that parties in status quo.”
C            The District Judge noted on a site inspection that the Chabutra
      had been occupied by the Hindus on which there was “a small
      superstructure of wood, in the form of tent”. The Chabutra was said
      to indicate the birth-place of Lord Ram. While maintaining the dismissal
      of the Suit, the District Judge came to the conclusion that the
      observations on possession and ownership in the judgment of the trial
D     judge were redundant and were hence to be struck off. The judgment
      of the first appellate court was carried before the Judicial
      Commissioner, Oudh in a second appeal, who affirmed the dismissal
      of the suit on 2 November 1886. The Judicial Commissioner observed:
            “The matter is simply that the Hindus of Ajudhia want to erect
E           a new temple of marble … over the supposed holy spot in
            Ajudhia said to be the birthplace of Sri Ram Chandar. Now this
            spot is situate within the precincts of the grounds surrounding a
            mosque constructed some 350 years ago owing to the bigotry
            and tyranny of the Emperor Baber-who purposely chose this holy
F           spot according to Hindu legend- as the site of his mosque.
            The Hindus seem to have got very limited rights of access to
            certain spots within the precincts adjoining the mosque and they
            have for a series of years been persistently trying to increase
            their rights and to erect building over two spots in the enclosure.
G           (1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi.
            The executive authorities have persistently repressed these
            encroachments and absolutely forbid any alteration of the ‘status
            quo’.

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           449


      I think this a very wise and proper procedure on their part and       A
      I am further of opinion that Civil Courts have properly dismissed
      the plaintiff’s claim.
      The pleas on appeal to this … are wholly unsupported by facts
      in the case or by any document that appears to me … some of
      the reasoning of the Lower Appellant Court as to the limitations      B
      of the Civil Court jurisdiction. However I approve of their final
      conclusion to which it has come – and I see no reason to interfere
      with its order modifying the wording of part of the judgment of
      the Court of First Instance. There is nothing whatever on the
      record to show that plaintiff is in any sense the proprietor of the
      land in question. This appeal is dismissed with costs of all          C
      Courts.”
      Submissions
     434. Relying on the above observations of the Judicial
Commissioner, Mr Shekhar Naphade, learned Senior Counsel                    D
emphasised five facets from the decision:
       (i) The existence of the mosque;
       (ii) The construction of a Chabutra in close-proximity;
      (iii) The availability of a limited right of access to the Hindus;
                                                                            E
      (iv) The restraint imposed by the executive on attempted
           encroachments by the Hindus; and
      (v) The rejection of the claim of the Hindus to ownership and
          possession.
      435. All the three Judges of the Allahabad High Court rejected        F
the plea of res judicata. Justice S U Khan held that the only thing
which had been decided in the Suit of 1885 was that the status quo
should be maintained in order to obviate the likelihood of riots between
the two communities. In his view:
      “Refusal to decide the controversy is the actual decision in the      G
      said suit”.
      Assailing the above finding, Mr Naphade urged that there was
an error on the part of the learned Judge in coming to the conclusion
that nothing substantial had been decided in the Suit of 1885. He
                                                                            H
450                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     submitted that the judgment of the Judicial Commissioner indicated that
      Hindus had a limited right of access and that their claim of possession
      and ownership stood rejected.
             436. Justice Sudhir Agarwal held that in the Suit of 1885, the
      only dispute was in regard to the construction sought to be made on
B     the Chabutra. Hence, the suit did not relate to the entirety of the disputed
      site or building and the right of ownership or possession in respect of
      any part of the land in dispute was not involved. Justice Sudhir Agarwal
      held that unlike the suits which the High Court was adjudicating upon,
      only a portion of the property was involved in the Suit of 1885.

C               437. Assailing these findings, Mr Naphade urged that:
                 (i) Justice Sudhir Agarwal failed to notice the observations of
                     the Judicial Commissioner in the earlier suit to the effect
                     that the Hindus had a limited right of access and no right
                     of possession or ownership;
D               (ii) The finding on the point of res judicata is contrary to the
                     decision of this Court in K Ethirajan v Lakshmi261, where
                     it has been held that the principle of res judicata would be
                     attracted even in a situation where in the previous suit only
                     a portion of the property was in dispute, whereas in a latter
                     suit the whole of the property forms the subject matter of
E                    the claim; and
                (iii) Justice Agarwal also held that there was nothing to show
                      that the Hindus at large were aware of the previous suit.
                      There was a serious situation of law and order which gave
                      rise to a dispute between the two communities at or about
F                     the time when the Suit of 1885 was instituted. Therefore,
                      an inference can be drawn under Section 114 of the
                      Evidence Act that the Hindus were aware of the suit. A
                      reasonable inference can be drawn from primary facts even
                      if there is no direct evidence of the awareness of the Hindus
G                     of the institution of the earlier suit.
             Justice D V Sharma, while coming to the conclusion that the bar
      of res judicata was not attracted, held that the earlier suit was not of
      a representative character since the requirements of public notice under
      Section 539 of the Code of Civil Procedure 1882 were not complied
      261
H           (2003) 10 SCC 578
   M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                        451


with. The learned Judge observed that neither were the parties to the                     A
earlier suit the same as those in the present proceedings, nor was the
subject matter identical since the earlier suit only related to the
Chabutra. Assailing these findings, Mr Naphade urged that the plaint
in the earlier suit was for the benefit of the Hindus; the Secretary of
State in Council represented all segments of the community and, in any
                                                                                          B
event, the absence of a public notice under Section 539 would not obviate
the bar of res judicata. In his submission, the application of Explanation
VI to Section 11 of the CPC262 is not subject to Order 1 Rule 8.
       438. Apart from assailing the findings which have been recorded
by each of the three judges of the Allahabad High Court on the plea of
res judicata, Mr Naphade has urged that the provisions contained in                       C
Section 11 of the CPC 1908 stand attracted for the following reasons:
         (i) The matter has been directly and substantially in issue in
             the former suit between the parties since:
             (a) the claim of ownership of possession of the Hindus was                   D
                 rejected by the Judicial Commissioner in the Suit of
                 1885; and
             (b) there was no challenge to the existence of the mosque
                 in the previous suit as a consequence of which there is
                 an implicit acceptance of the title and right of the                     E
                 Muslims;
        (ii) The plaintiff in the earlier suit who described himself as a
             Mahant of the Janmasthan essentially represented the cause
             of the Hindus and hence, res judicata would apply. The
             earlier suit was “between the same parties or between                        F
             parties under whom they or any of them claim litigating under
             the same title”; and
       (iii) The cause of action in the former suit is the same as that
             in the present batch of cases. The title to the property
             claimed by the Hindus is the same in both the suits and the
                                                                                          G
             cause of action is based on the right to construct the temple.
262
    Section 11 provides thus :
Explanation VI – Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemd to claim under the persons
so litigating.                                                                            H
452            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            On these grounds, Mr Naphade submitted that the bar of res
      judicata is attracted under Section 11 read with Explanation VI of the
      CPC. He urged that the failure to follow the provisions of Section 30
      of the Code of 1882 (akin to Order 1 Rule 8 of the CPC 1908) should
      make no difference since the provisions of Section 11 are not subject
      to Order 1 Rule 8.
B
            Mr Naphade also urged that the principle of constructive res
      judicata under Explanation IV to Section 11 is attracted. Finally, he
      submitted that the earlier findings in the Suit of 1885 would operate as
      issue estoppel and since the order in the earlier suit was in rem; all
      Hindus would stand bound by the conclusion. He urged that the plan,
C     which was annexed to the Suit of 1885, was essentially the same and
      hence the principle of estoppel by record would stand attracted.
             Controverting the submissions, Mr K Parasaran, learned Senior
      Counsel appearing on behalf of the plaintiffs in Suit 5 submitted that
      the principles of res judicata are not attracted for the following reasons:
D
             A. Parties are different:
                  (i) Neither the deities (the plaintiffs in Suit 5) nor the Sunni
                      Central Waqf Board (the plaintiff in Suit 4) were parties
                      to the Suit of 1885; and
E                 (ii) The Suit of 1885 was not instituted by Mahant Raghubar
                       Das in a representative capacity.
             B. The suit was for asserting a personal right to construct a
                temple on the Chabutra:
                  (i) No application under Section 30 of the CPC 1882 which
F
                      was in force when the earlier suit was instituted,
                      corresponding to Order I Rule 8 of the CPC 1908 was
                      filed;
                  (ii) Neither the deities nor the Hindu public claimed any right
                       through Mahant Raghubar Das in 1885;
G
                 (iii) In Suit 4, an order was passed on 8 August 1962 under
                       which the plaintiffs sued in their representative capacity
                       on behalf of the Muslims and defendant nos 1 to 4 were
                       permitted to be sued on behalf of the Hindus; and

H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              453


               (iv) Even assuming that the earlier suit was filed on behalf        A
                    of all Hindus, the plaintiff-deities in Suit 5 are not bound
                    by its outcome in view of the decision of this Court in
                    Narayan Bhagwantrao Gosavi Balajiwale v Gopal
                    Vinayak Gosavi263.
           C. Issues and reliefs sought in the earlier suit are different:         B
                (i) The Suit of 1885 was against the Secretary of State for
                    India, for permission to construct a temple;
               (ii) The present proceedings pertain to the character of the
                    property-whether it is a public mosque or a place of           C
                    public worship for Hindus; and
               (iii) In Suit 5, the issue as to whether ‘Asthan Ram
                     Janmabhumi’ is a juridical personality is an issue, which
                     goes beyond the relief of the construction of a temple
                     sought in the Suit of 1885.                                   D
           D. The suit properties are distinct:
                (i) In the Suit of 1885, the subject matter was only the
                    Chabutra measuring 17x21 feet; and
               (ii) In the present proceedings, the suit property in both Suits    E
                    4 and 5 comprises of the inner and outer courtyard.
            E The Suit of 1885 was instituted when the CPC 1882 was
              in force. Section 13 of the CPC 1882 dealt with res
              judicata. Explanation V as it stood only covered persons
              who were litigating in respect of a private right claimed in         F
              common for themselves and others. In the CPC 1908, the
              expression “public right” was added to Explanation VI in
              view of the provisions of Section 91. The provisions of the
              CPC are both procedural and substantive. In the Suit of
              1885 only a private right was sought to be enforced,                 G
              whereas in the present proceedings a public right to worship
              is sought to be enforced. Even if the CPC 1882 was to be
              applied, which law prevailed as on the date of the filing of
              the Suit of 1885, the findings in that suit (which sought to
263
      1960 (1) SCR 773                                                             H
454              SUPREME COURT REPORTS                                  [2019] 18 S.C.R.


A                   enforce only a private right) would not operate as res
                    judicata.
              Analysis
            439. The applicability of Section 11 is premised on certain
      governing principles. These are:
B
               (i) The matter directly and substantially in issue in the suit should
                   have been directly and substantially in issue in a former suit;
              (ii) The former suit should be either between the same parties
                   as in the latter suit or between parties under whom they or
C                  any of them claim litigating under the same title;
              (iii) The court which decided the former suit should have been
                    competent to try the subsequent suit or the suit in which
                    the issue has been subsequently raised; and
             (iv) The issue should have been heard and finally decided by
D                 the court in the former suit.
             Explanation VI to Section 11 is in the nature of a deeming
      provision which extends the ambit of the expression “between parties
      under whom they or any of them claim, litigating under the same title”.
      Under Explanation VI, where persons litigate bona fide in respect of
E     a public right or a private right which they claim in common for
      themselves and others, all persons interested in such a right, shall be
      deemed to claim under the persons so litigating. In other words, to attract
      Explanation VI, it is necessary that there must be a bona fide litigation
      in which there is a claim in respect of a public right or a private right
      claimed in common together with others. It is only then that all persons
F     who are interested in such a right would be deemed, for the purpose
      of the Section, to claim under the persons so litigating.
             Order 1 Rue 8264 contains provisions under which one person
      may sue or defend a suit on behalf or for the benefit of all persons
      interested.
G
      264
         Order 1 Rule 8 provides thus :
      One person may sue or defend on behalf of all in same interest—
      (1) Where there are numerous persons having the same interest in one suit,—
      (a) one or more of such persons may, with the permission of the Court, sue or be sued,
      or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
      (b) the Court may direct that one or more of such persons may sue or be sued, or may
H     defend such suit, on behalf of, or for the benefit of, all persons so interested.
   M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                                455


       440. The Suit of 1885 was instituted when the CPC 1882 was                                 A
in force. Section 13 contained a provision in regard to res judicata.
Section 13 corresponds to Section 11 of the CPC 1908, with certain
material differences. Explanation V to Section 13 contained a deeming
provision stating when persons would be deemed to claim, litigating
under the same title. However, Explanation V to Section 13 covered
only persons litigating in respect of a private right claimed in common                           B
for themselves and others. In contrast, Explanation VI to Section 11 of
the CPC 1908 covers persons litigating in respect of a public right or a
private right in common for themselves and others. This distinction
between Explanation V of Section 13 in the CPC 1882 and Explanation
VI to Section 11 of the CPC 1908 is brought out in the following table                            C
containing the two provisions:

           Section 13 CPC 1882                           Section 11 CPC 1908
    Explanation V – Where persons                Explanation VI – Where persons
    litigate bonafide in respect of a            litigate bonafide in respect of a
    private right c la imed in common            public right or of a private right               D
    for themselves and others, all               claimed in common for themselves
    persons interested in such right             and others, all persons interested in
    shall, for the purpose of this               such right shall, for the purpose of
    section, be deemed to cla im under           this section, be deemed to claim
    the persons so litigating.                   under the persons so litigating.

(2) The Court shall, in every case where a permission or direction is given under sub-            E
rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons
so interested either by personal service, or, where, by reason of the number of persons
or any other cause, such service is not reasonably practicable, by public advertisement,
as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended,
under sub-rule (1), may apply to the Court to be made a party to such suit.
                                                                                                  F
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no
such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no
agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of
that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons
so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due
diligence in the suit or defence, the Court may substitute in his place any other person          G
having the same interest in the suit. (6) A decree passed in a suit under this rule shall be
binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or
defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are
sued, or defend, have the same interest in one suit, it is not necessary to establish that
such persons have the same cause of action as the person on whom behalf, or for whose
benefit, they sue or are sued, or defend the suit, as the case may be.                            H
456                SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A            It may be noted at this stage that Section 92 of the CPC 1908
      contains a provision corresponding to Section 539 of the CPC 1882.
      However, the CPC 1908 introduced Section 91 to deal with public
      nuisances and other wrongful acts affecting the public. The words “of
      public right” were introduced in Explanation VI of Section 11 of the
      CPC 1908 in order to give due effect to suits relating to public nuisances
B
      incorporated in Section 91. Thus, the deeming provision contained in
      Explanation V to Section 13 of the CPC 1882 was expanded in the
      corresponding provision contained in Explanation VI to Section 11 of
      the CPC 1908 to cover a case where persons litigate bona fide in
      respect of a private right or a public right claimed in common with
C     others. When the earlier Suit of 1885 was instituted, Explanation V had
      no application to a situation where persons were litigating in respect of
      a public right as distinct from a private right.
             441. Mr K Parasaran, learned Senior Counsel argued that the
      provisions of the CPC contain provisions some of which relate to matters
D     of procedure while others deal with matters of substance (See Durgesh
      Sharma v Jayshree265). For instance, it has been held that the right to
      file an appeal from a judgment and decree in a suit is a substantive
      right and this right is governed by the law which prevailed on the date
      of the institution of the suit. Hence, in Garikapati Veeraya v N
      Subbiah Choudhry266, a Constitution Bench of this Court held:
E
                “23... (iii) The institution of the suit carries with it the implication
                that all rights of appeal then in force are preserved to the parties
                thereto till the rest of the career of the suit.
                (iv) The right of appeal is a vested right and such a right to enter
                the superior court accrues to the litigant and exists as on and
F               from the date the lis commences and although it may be actually
                exercised when the adverse judgment is pronounced such right
                is to be governed by the law prevailing at the date of the institution
                of the suit or proceeding and not by the law that prevails at the
                date of its decision or at the date of the filing of the appeal.
G               (v) This vested right of appeal can be taken away only by a
                subsequent enactment, if it so provides expressly or by necessary
                intendment and not otherwise.”

      265
            (2008) 9 SCC 648
      266
H           1957 SCR 488
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             457


      Mr K Parasaran urged that Explanation V to Section 13 of the            A
CPC 1882 excluded the application of res judicata where the earlier
suit was for litigating a public right claimed in common with others.


       Justice Sudhir Agarwal rejected the submission that it was the
CPC 1882 that should be applied while analysing the application of the        B
principles of res judicata. However, even on the basis that it was the
CPC 1908 which would apply, the learned Judge came to the conclusion
that the Suit of 1885 and the findings which were recorded by the Judicial
Commissioner would not operate as res judicata.
       Mr K Parasaran’s submissions essentially boil down to this:            C
according to him Explanation V to Section 13 of the CPC 1882 (which
held the field when the Suit of 1885 was instituted) applied when the
earlier suit was being litigated on the basis of a private right claimed in
common with others. Hence, a subsequent suit for agitating a public
right claimed in common with others is not barred by the principles of        D
res judicata as embodied in Explanation V. The ambit of the explanation
was expanded in the CPC 1908 while introducing Explanation VI to
Section 11 to cover a claim based on a public as well as a private right
asserted in common with others. Mr K Parasaran urges that this
provision which is introduced in Explanation VI cannot be construed to
bar a suit instituted after the enforcement of the CPC 1908 on the basis      E
of an adjudication made in a suit which was instituted in 1885 when
the CPC 1882 held the field. This, in his submission would not be a
matter of procedure but would take away a substantive right accruing
to a party if the bar of res judicata would apply. Consequently, unless
there was an explicit stipulation in the CPC 1908 providing for the           F
principle of res judicata to apply to suits agitating a public right
retrospectively, the suit instituted in 1885 cannot fall within the ambit
of the bar within Explanation VI of the CPC 1908.
      For the purposes of the present proceedings, it is not really
necessary to analyse in any great detail this submission by Mr K
                                                                              G
Parasaran for, in any view of the matter, it is evident that the Suit of
1885 would not operate as res judicata either on the application of
the provisions of Section 13 of the Code of 1882 or on the application
of Section 11 of the Code of 1908. The pleadings and the findings in
the earlier Suit of 1885 show that Mahant Raghubar Das was only
                                                                              H
458                SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     asserting a right that was personal to him. The earlier suit was not
      instituted in a representative capacity; the issues framed, and reliefs
      sought were distinct and so were the suit properties.
             442. Before a suit can be prosecuted or defended under Order
      I Rule 8, it is essential that there must be numerous persons having the
B     same interest in a suit. Before a person can be allowed to either
      prosecute or defend the suit on behalf of others interested, specific
      permission of the court is mandated. Sub-rule 2 of Order I Rule 8
      requires notice of the institution of the suit to all persons interested, in
      the manner as directed or by public advertisement. A person on whose
      behalf or for whose benefit a suit has been instituted or is being defended
C     may apply to be impleaded as a party to the suit. Under sub-rule 4, no
      part of the claim in the suit can be abandoned and the suit cannot be
      withdrawn nor can a compromise agreement or satisfaction be recorded
      unless notice has been furnished to all persons interested. Subject to
      compliance with the provisions contained in Order I Rule 8, a decree
D     in such a suit is binding on all persons on whose behalf or for whose
      benefit the suit is instituted or defended.
            In Kumaravelu Chettiar v T P Ramaswami Ayyar 267, the
      Privy Council held:
                “Explanation 6 is not confined to cases covered by Order 1, Rule
E               8 but extends to include any litigation in which, apart from the
                Rule altogether, parties are entitled to represent interested persons
                other than themselves.”
             The above principle was followed in a decision of three judges
      of this Court in Narayana Prabhu Venketeswara Prabhu v Narayana
F     Prabhu Krishna Prabhu268. This Court held that in a partition suit,
      each party claiming that the property is joint, asserts a right and litigates
      under a title which is common to others who make identical claims.
      Hence:
                “20…In a partition suit each party claiming that the property is
G               joint, asserts a right and litigates under a title which is common
                to others who make identical claims. If that very issue is litigated
                in another suit and decided we do not see why the others making

      267
            AIR 1933 PC 183
      268
H           (1977) 2 SCC 181
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              459


          the same claim cannot be held to be claiming a right “in common          A
          for themselves and others”. Each of them can be deemed, by
          reason of Explanation VI, to represent all those the nature of
          whose claims and interests are common or identical. If we were
          to hold otherwise, it would necessarily mean that there would
          be two inconsistent decrees. One of the tests in deciding whether
                                                                                   B
          the doctrine of res judicata applies to a particular case or not is
          to determine whether two inconsistent decrees will come into
          existence if it is not applied. We think this will be the case here.”
      443. In Gurushiddappa Gurubasappa Bhusanur v
Gurushiddappa Chenavirappa Chetni269, a learned Single Judge of
the Bombay High Court (Justice Rangnekar) held:                                    C

          “Order 1, rule 8, is exhaustive of what it says, and it is clear
          from it that it is only when the parties are numerous that a suit
          can be brought under the provisions of Order I, rule 8. That it is
          possible for a suit to be a representative suit within the meaning
          of Explanation VI, although it need not come under Order I, rule         D
          8, and, therefore, need not be brought under the provisions of
          that Order, has been held from very earliest times in this
          country…
          Explanation VI, therefore, is not confined to cases covered by
          Order I, rule 8, but would include any litigation in which, apart        E
          from the rule altogether, parties are entitled to represent interested
          persons other than themselves.”
       Hence, for the purpose of considering Mr Naphade’s arguments,
we proceed on the principle that the provisions of Order I Rule 8 do
not control the applicability of Explanation VI to Section 11 of CPC               F
1908. The applicability of the principles of res judicata in the facts of
the present case needs to be analysed. The position which emerges on
the touchstone of the principles contained in Section 11 is as follows:
           (i) The first point to be considered is whether the parties to
               the subsequent suit are the same as the parties to the earlier      G
               suit or whether they litigate under the same title. The earlier
               suit was instituted by Mahant Raghubar Das describing
               himself as the Mahant of the Janmasthan situated at
               Ayodhya. The suit was not instituted by Raghubar Das as
269
      AIR 1937 Bombay 238                                                          H
460      SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          the Mahant of Nirmohi Akhara. Conspicuously absent in the
           Suit of 1885 is any reference to Nirmohi Akhara. Hence,
           the primary requirement for the applicability of Explanation
           VI to Section 11 is not attracted. The Suit of 1885 was a
           suit instituted by Mahant Raghubar Das in his personal
           capacity. It was not a suit either in his capacity as the
B
           Mahant of Nirmohi Akhara or a suit instituted jointly on
           behalf of the Hindus;
      (ii) Neither the deities who are the first and second plaintiffs
           to Suit 5 nor the Sunni Central Waqf Board which is the
           plaintiff in Suit 4 were parties to the Suit of 1885. Mahant
C          Raghubar Das instituted the earlier suit initially impleading
           only the Secretary of State for Council in India. Later, Mohd
           Asghar was impleaded in his capacity as a Mutawalli. The
           parties to the earlier proceedings were distinct;
      (iii) The relief that was sought in the earlier suit was permission
D           to construct a temple on Ramchabutra. In the present
            proceedings, the reliefs, which have been sought, require,
            inter alia an adjudication in regard to the character of the
            disputed property namely whether it is a mosque which is
            dedicated for the public or whether it is a place of worship
E           for the Hindus; and
      (iv) The Suit of 1885, only dealt with the Chabutra at the
           Janmasthan admeasuring 17 x 21 feet, which was claimed
           to be in the possession of the plaintiff. The map showing
           the subject matter of that suit has been annexed to the
F          proceedings. On the other hand, the suit property in Suits 4
           and 5 comprises of both the inner and the outer courtyard.
           In Suit 5, the relief which has been claimed is:
               “a declaration that the entire premises of Sri Ram Janma
               Bhumi at Ayodhya, as described and delineated in
G              Annexures I, II and III belong to the plaintiff deities.”
      Paragraph 2 of the plaint describes annexures I, II and III:
      “two site plans of the building premises and of the adjacent area
      known as Sri Rama Janma Bhumi, prepared by Shiv Shankar Lal
      pleader… along with his Report dated 25.05.1950, are being
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            461


          annexed to this plaint and made part of it as Annexures I, II and      A
          III, respectively.”
       After the decision of the Constitution Bench in Dr M Ismail
Faruqui v Union of India270, the dispute now stands restricted only
to the inner and outer courtyards, described in Annexure I to the plaint
in Suit 5. The High Court adjudicated on this dispute as circumscribed           B
by the directions of this Court. The suit property in suits 4 and 5 is
larger than the Chabutra admeasuring 17 x 21 feet which formed the
subject matter of the earlier Suit of 1885 though, undoubtedly the
Chabutra also forms a part of the suit property.
        444. In V Rajeshwari (Smt) v T C Saravanabava 271, the                   C
appellant instituted a suit in 1984 for seeking a declaration of title and
for recovery of possession of property admeasuring 1817 sq feet. Earlier
in 1965, one of her predecessors-in-title had instituted a suit for
declaration of title and for possession of an area of over 240 sq feet
situated on the upper floor of the building standing on the property
against the respondent. The High Court held that the issue of title and          D
possession had been decided in the suit instituted by the predecessor-
in-title of the appellant and the subsequent suit was barred by res
judicata. While reversing the decision of the High Court, this Court
held:
          “15. Reverting back to the facts of the present case, admittedly,      E
          the plea as to res judicata was not taken in the trial court and
          the first appellate court by raising necessary pleadings. In the
          first appellate court the plaintiff sought to bring on record the
          judgment and decree in the previous suit, wherein his
          predecessor-in-title was a party, as a piece of evidence. He
          wanted to urge that not only he had succeeded in proving his           F
          title to the suit property by the series of documents but the
          previous judgment which related to a part of this very suit property
          had also upheld his predecessor’s title which emboldened his case.
          The respondent thereat, apprised of the documents, still did not
          choose to raise the plea of res judicata. The High Court should        G
          not have entered into the misadventure of speculating what was
          the matter in issue and what was heard and decided in the
          previous suit. The fact remains that the earlier suit was

270
      (1994) 6 SCC 360
271
      (2004) 1 SCC 551                                                           H
462             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A            confined to a small portion of the entire property now in
             suit and a decision as to a specified part of the property
             could not have necessarily constituted res judicata for the
             entire property, which was now the subject-matter of
             litigation.”
B                                                             (Emphasis supplied)
             445. Mr Naphade relied upon a decision of a two judge Bench
      in K Ethirajan v Lakshmi272, in support of the proposition that the
      principle of res judicata under Section 11 is attracted where the issues
      directly and substantially involved between the same parties in the
      previous and subsequent suits are the same, even though in a previous
C     suit, only a part of the property was involved while in the subsequent
      suit, the whole of the property was the subject matter of the dispute.
      The difficulty in accepting the plea of res judicata which has been
      urged by Mr Naphade is simply this:
                (i) The earlier suit by Mahant Raghubar Das in 1885 was not
D                   in a representative capacity. Mahant Raghubar Das claimed
                    himself to be the Mahant of the Janmasthan. He did not
                    set up any plea as the Mahant of Nirmohi Akhara. The claim
                    was personal to him;
               (ii) Neither the plaintiff in Suit 4 nor the plaintiff deities in Suit
E                   5 were parties to the earlier proceedings. The Suit of 1885
                    was not instituted in a representative capacity for and on
                    behalf of the Hindus nor was there any pleading to that
                    effect. Mahant Raghubar Das did not set up any claim to
                    shebaiti rights nor did the adjudication deal with any claim
                    of a shebaiti character. On the other hand, this forms the
F                   very basis of the claim in Suit 3 and of the defence to the
                    maintainability of Suit 5 raised on behalf of Nirmohi Akhara;
              (iii) The Trial Court while dismissing the Suit of 1885 had entered
                    a finding that possession and ownership of the Chabutra
                    vested in the Hindus. The suit was however dismissed on
G                   the ground that the grant of permission to raise a temple
                    would involve a serious breach of law and order. The
                    dismissal of the suit on this ground was affirmed in appeal
                    by the District Judge. However, the finding in regard to
                    possession and ownership of the Chabutra was rendered
      272
H       (2003) 10 SCC 578
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                      463


            redundant and was accordingly directed to be struck off.                       A
            The Judicial Commissioner confirmed the dismissal of the
            suit. Though, the Judicial Commissioner held that the Hindus
            seem to have a limited right of access to certain spots within
            the precincts of the adjoining mosque, he observed that there
            was nothing to establish that the plaintiff (Mahant Raghubar
                                                                                           B
            Das) is the proprietor of the land in question. This finding
            rendered in a suit to which neither the plaintiff-deities nor
            Nirmohi Akhara were parties cannot operate as res
            judicata against them;
      (iv) The doctrine of res judicata seeks to prevent a person being
            vexed twice over in respect of a dispute founded on the                        C
            same cause of action. The cause of action for the Suit of
            1885 was, as seen earlier entirely, distinct; and
       (v) The decision in the Suit of 1885 was in personam, based
            on the claim made by the plaintiff in that suit. Any
            observations in the judgment of the Judicial Commissioner                      D
            will neither bind the deities (plaintiffs in Suit 5) who were
            not parties to the earlier proceedings nor the Hindus.
            Moreover, there was no adjudication in the Suit of 1885 in
            respect of the claim of title made by the Muslims in Suit 4.
       446. There is absolutely no merit in the contention that the                        E
principles of constructive res judicata will bar the subsequent suits.
The parties were distinct. The claim in the earlier suit was distinct. The
basis of the claim was indeed not that which forms the subject matter
of the subsequent suits. Similarly, there is no merit in the submission
based on the doctrine of issue estoppel or estoppel by record which
has been faintly urged. Consequently, and for the above reasons, there                     F
is no merit in the submissions which have been urged by Mr Naphade,
learned Senior Counsel objecting to the maintainability of Suit 5 on the
ground of res judicata.
       N.9 Archaeological report
       447. Both in the suit instituted by the Sunni Central Waqf Board273                 G
and in the suit instituted by the deities274, an issue was framed on
273
    Issue 1(b) in OOS No. 4 of 1989 as follows : ―Whether the building had been
constructed on the site of an alleged Hindu Temple after demolishing the same as alleged
by defendant no. 13? If so, its effect?
274
    Issue No. 14 in OOS No. 5 of 1989 reads as follows : ―Whether the disputed
structure claimed to be Babri Masjid was erected after demolishing Janma Sthan Temple      H
at its Site?
464                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     whether the disputed structure of a mosque has been erected after
      demolishing a temple which existed at the site.
             448. On 1 August 2002, the High Court proposed that an
      excavation be carried out by the Archaeological Survey of India275. The
      High Court proposed that before excavation, ASI will survey the
B     disputed site using Ground Penetrating Radar276 or Geo-Radiology
      System. After objections to the proposed directions were heard, they
      were rejected by the High Court on 23 October 2002. The ASI had a
      GPR survey conducted by a corporate entity which submitted its report
      to the High Court on 17 February 2003.The report found the presence
      of “anomaly alignments across the main platform north and south of
C
      the sanctum sanctorum corresponding to the Ramchabutra area”. The
      anomalies suggested the following position:
              “…in their cross-section appearance and their areal pattern, the
              “anomaly alignments” may correspond to a wall foundation of
              some sort. In the Ram Chabutra area, the crossing patterns of
D
              those alignments and the different stratigraphic units from where
              they (emerge) suggest that they belong to successive construction
              periods rather than being contemporary to one another.”
             The report also found that the sequence in the southern portion
E     of the Ramchabutra area “may be indicative of a flooring structure of
      some sort, possibly stone slabs if its origin is ancient.” Besides, the report
      indicated:
              “A third type of buried structures covers the entire eastern
              boundary of the site. It consists of buried mound structures with
F             some internal texture or structure indicative of collapsed material.
              Similar types of anomalies have been detected to the south-west
              area just before the terrain slopes down.”
             In conclusion, the GPR survey reflected a variety of anomalies
      ranging from 0.5 to 5.5 meters in depth “that could be associated with
G     ancient and contemporaneous structures such as pillars, foundations,
      walls slabs, flooring extending over a large portion of a site”. However,
      the survey indicated that the exact nature of these anomalies could be
      determined on the basis of archaeological trenching. Upon receiving

      275
            ―ASI
      276
H           ―GPR
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            465


this report, the High Court directed ASI to conduct an excavation at         A
the disputed site to the following extent:
      “The area shown in the report of the Commissioner submitted
      in Suit No. 2 of 1950 (OOS No. 1 of 1989) covering an area of
      approximately 100x100 shown in the map plan No. 1 referred to
      by letters A,B,C,D,E,F and thereafter northern portion up to the       B
      end of the raised platform and further to the west, south and east
      to the said site to the extent of 50 feet.”
       449. The archaeologists were directed not to disturb the area
where the idol of Lord Ram was installed and an area around the idol
to the extent of 10 feet. ASI was asked not to prevent worship at the        C
site. Following this order, the High Court issued further directions on
26 March 2003 for recording the nature of the excavations found at
the site and the sealing of the artefacts found in the presence of the
parties and their counsel. The ASI team was directed to maintain a
record of the depth of the trenches where the artefacts were found as
well as the layer of the strata. Photographs of the findings were            D
permitted to be taken. In order to bring objectivity to the process and
sub-serve the confidence of the parties, the High Court ensured that
adequate representation to both the communities be maintained “in
respect of the functioning of the ASI team and the engagement of the
labourers”. During the course of the process, the High Court considered      E
various objections filed by parties with respect to the excavation. The
ASI submitted its final report on 22 August 2003 to which objections
were addressed by the Sunni Central Waqf Board and other parties.
These objections were dealt with by the High Court.
       450. A wealth of arguments have been urged on the                     F
archaeological evidence in the present dispute. The arguments touch
upon diverse issues such as the findings in the report, the inferences
which have been drawn from them, archaeology as an inferential
science as well as the value of archaeological evidence in disputes such
as the present. This Court must address, inter alia: (i) the findings of
the report and the methodology adopted; (ii) the objections raised against   G
the findings of the report; (iii) the scope of the enquiry at the present
stage, including the degree of judicial deference to expert evidence; (iv)
The challenge to archaeological evidence as purely inferential and
subjective in nature; (v) the standard of proof and (vi) the remit of the
report and questions left unanswered. Finally, an enquiry relevant to        H
466            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     the present controversy is the probative value of archaeological evidence
      in the determination of title which shall be adverted to in the course of
      the judgment.
             451. The ASI report has indicated its objectives and methodology
      at the commencement of the report. The manner in which trenches
B     were planned for excavation is indicated thus:
            “In planning the excavation, it was decided to adopt the latest
            technique of layout of trenches where limited spaces are
            available and therefore in place of general practice of lay out of
            10x10 m. squares divided into four quadrants of 4.25x4.25 m.
C           separated by 0.50 m. baulk all-round, the change in the practice
            was made by fixing pegs at a distance of every 5 m in both north-
            south and east-west directions with cutting area of 4x4 m in
            leaving 0.5 m baulk all around which in contiguous trenches
            effectively left a space of 1.0 m in between two cuttings for the
            easy movement of archaeologists and labourers. One meter wide
D           baulk was specially provided, considering the fact that due to
            modern fillings and debris the trench may not collapse due to
            earth pressure in a most sensitive area.”
             The team laid trenches throughout the disputed area except for
      the place where the deity has been installed and collected samples for
E     scientific study:
            “Samples of plaster, floors, bones, charcoal, palaeo-botanical
            remains were also collected for scientific studies and analysis.
            Trenches were also laid in the entire disputed area on all sides
            excepting the area of the makeshift structure where Ram Lala
F           is enshrined along with its periphery at a distance of 10 feet from
            Ram Lala as specified by the High Court. The excavation work
            was planned in phased manner in particular areas as per
            significant signals for anomalies pointed out by the GPR Survey.”
              The work of excavation and its findings were documented by
G     still and video footage. ASI has excavated ninety trenches in a period
      of five months and submitted its report of excavation within fifteen days
      of the completion of excavation. The ASI team has carried out its task
      in the presence of parties and their counsel. Excavated material including
      antiquities, objects of interest, glazed pottery, tiles and bones recovered
      from the trenches were sealed in the presence of parties and their
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           467


advocates and lodged in a strong room provided by the Commissioner          A
of Faizabad Division.
      The Eastern Area
      452. The ASI team initially took up excavation in the eastern area
where the enclosure wall along with remnants of a gateway were
noticed, below which lie floors and walls of earlier phases. The central    B
part of the platform, known as the Ramchabutra was noticed in this
area constructed in five stages. The main features which have been
exposed are elucidated below:
      “The main features exposed in this area include fourteen extant
      courses of reused brickbats and calcrete stone blocks in the          C
      enclosure wall with a part of 2.12 m in the middle of the wall
      suggesting the entrance doorway which was topped by marble
      slabs and the floor levels consisting of lime and cement floors
      topped by marble dedicatory slabs of the second half of the
      twentieth century. Some elongated hearths and a furnace of late
                                                                            D
      Mughal period were found (Pl.3).”
      The Southern Area
       Twenty-three trenches were excavated towards south of the
raised platform. The excavation resulted in nearly fifty pillars bases of
an earlier period being exposed at two points, traces of earlier pillars    E
bases were also found below the pillar bases. The excavation in this
area also resulted in the finding of a brick circular shrine on its outer
part and squarish on its inner with a rectangular projection for entrance
in the east and a chute on its northern side. The relevant part of the
ASI report is extracted below:
                                                                            F
      “Parts of the northern and western walls and their foundation
      and the foundation of the southern and eastern sides built of
      calcrete stone blocks of the disputed structure were exposed
      which were found resting directly in the west over a 1.77 m wide
      brick wall of earlier period, the lower part of which has decorated
      stone blocks and calcrete stone foundation and over 50 pillar         G
      bases arranged at regular intervals connected with the lime
      plastered brick wall through a floor. The core of the wall of the
      disputed structure was filled with brickbats. The pillar bases
      comprise some courses of brick bats in squarish or circular
      formations over which two to five calcrete stone blocks are kept,
                                                                            H
468           SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A          possibly below and stone blocks as found in the northern area,
           though only one decorated sand stone block was found in this
           area. Further below the above-mentioned brick wall another brick
           wall was noticed on the top of which decorated stone blocks were
           found used. In the levels further down brick structures were
           noticed in trenches E8 and F8, though their full plan could not
B          be exposed. At two points, below the pillar bases, traces of earlier
           pillar bases were also found in trenches F8 and F9 which were
           connected with the second floor below the floor with which most
           of the other pillar bases were connected. The brick wall
           mentioned above was found badly damaged on the southern side,
C          possibly for taking out its bricks. This wall was found extending
           in the northern side of the raised platform. A brick shrine, circular
           on its outer and squarish on its inner plan with a rectangular
           projection for entrance in the east and a chute on its northern
           side was found below the levels of above-mentioned walls. Due
           to steep slope in the area further south of the trenches, it was
D          not possible to excavate there. The natural soil was reached in
           G7 at the depth of 10.84 m, which was confirmed by digging
           further upto the depth of 13.20 m. (Pl.5).”
           The Western Area
            At some places remains of a brick wall having nearly fifty
E
      courses were seen.
           The Northern Area
           The ASI team notes:
           “The massive brick wall located in the southern area was noticed
F          running in north-south direction in this area and below its level
           another wall was also found as seen earlier in the southern area.
           The top three floors and pillar bases attached with the top floor
           were exposed (Pl/10). The interesting features of the pillar bases
           in this area was that over the calcrete stone blocks these bases
G          were given proper finishing by providing squarish stone blocks
           of sand stone encased with four upright stone pieces placed on
           the four sides for giving support to the pillar at the base in order
           to avoid any movement. The stone blocks project a little above
           the floor.”

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            469


       The Raised Platform                                                   A
       After the demolition of the disputed structure and in terms of
the order of the High Court dated 5 March 2003, excavation was partly
carried out in ninety trenches. Parts of four trenches in the southern
area were under the raised platform. Here the ASI team noted brick
structures, floors and pillar bases below the floors and walls of the        B
disputed structure on the raised platform as well.
       453. Chapter III of the ASI report inter alia deals with
“Stratigraphy and Chronology”. The report indicates that excavation has
yielded a continuous cultural sequence involving a depth of 10.80 meters.
This can be divided into nine cultural periods (explained below) on the
strength of “combined and corroborative evidences of pottery sequence,       C
structural remains and other datable finds”. The report indicates that
structural activities in the excavated area had commenced from the
Kushan period and continued in the Gupta and post-Gupta periods:
       “Excavations have made it amply clear that the site had seen
       successive structural activities which began from the middle of       D
       the Kushan level at the site. The brick and stone structures that
       were raised in Kushan and the succeeding periods of Gupta and
       post-Gupta times have added heights to the mound. To build
       further structures upon the earlier debris the later people added
       a deposit of earth excavated from the periphery of the mound,
                                                                             E
       which belonged to the much earlier cultural periods. This is true
       for the rest of the structural phases also.”
       The ASI report suggested that the C14 determination of charcoal
samples from the early levels (periods I to III) provide dates
commencing from the last centuries of second millennium B.C.
       The ASI report, as stated above finds the existence of deposits       F
of nine cultural periods. These are:
        (i) Period – I
             Northern Black Polished Ware Level
       This period pertains to the sixth to third century B.C. where the
                                                                             G
earliest people to settle at the site used Northern Black Polished Ware
and other associated ware (Grey ware, Black slipped ware and Red
ware) which are diagnostic ceramics of that period. No substantial
structural activity was noticed except for reed impressions on burnt clay.
The findings of the excavation are:
                                                                             H
470             SUPREME COURT REPORTS                             [2019] 18 S.C.R.


A            “Period - I (Northern Black Polished Ware Level)
             ....Besides the pottery this level yielded broken weights, fragments
             of votive tanks, ear-studs, discs, hopscotches, a wheel made on
             disc, a broken animal figurine (all in terracotta), an iron knife
             (broken), glass beads, bone point, etc. However, the most
B            significant find from the level is a round bezel in greenish glass
             with legend ‘sidhe’ in high relief in Asokan Brahmi on the
             obverse while the reverse in plain (Rg.No.778).”
             (ii) Period – II
                  Sunga Level
C
            The Sunga Level relates to ‘circa second-first century B.C’.
      During this period, the site witnessed the first structural activities in stone
      and brick. The ASI report states:
             “...It is in this period that the site witnessed first structural activity
D            in stone and brick, as noticed in J3. The level is represented by
             terracotta objects comprising human and animal figurines, bangle
             fragment, ball, wheel and a broken sealing with only ‘sri’ letter
             in Brahmi extant (Rg No.701), a saddle quern and part of a lid
             in stone, a glass bead, a hairpin and an engraver on bone and an
             ivory dice, besides the period pottery of the level.”
E
             (iii) Period –III
                  Kushan Level
             This period which relates to circa first-third century A.D. has
      resulted in the finding of rich deposits of pottery. In one of the trenches,
F     a huge kiln was noticed at the lower levels. The findings of the
      excavation are as follows:
             “In trench G7, however, the limited area yielded animal and human
             figurines, bangle fragment and a portion of votive tank all in
             terracotta, a hairpin in bone, a bead in glass and an antimony
G            rod in copper. In trench 15, though the regular stratified deposit
             was not encountered in the operation area, the eastern section
             yielded a record of regular deposition and almost all the structural
             activity at the site. A massive brick construction, running into 22
             courses above excavated surface, is noticed at the bottom of J5-
             J6 which belongs to this period. The Kushan period certainly gave
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             471


      a spurt to construction of structures of large dimensions which         A
      attest to their public status. Besides, the same trench provided
      evidence for a stone structure, nature of which is not very clear.”
      (iv) Period –IV
            Gupta Level
                                                                              B
       This period pertains to the fourth-sixth century A.D. which is
attested by the presence of terracotta figurines and a copper coin. The
ASI report indicates:
      “Almost 2 m thick deposit, represented by layer 7 and 8 G7, by
      layers 9 and 10 in J5-J6 and layers 7 and 8 in trenches E8 and          C
      F8, above the remains of the preceding period belong to Gupta
      times (circa fourth-sixth century A.D.), the presence of which
      is attested mostly by terracotta figurines typical of the period and
      of course by a copper coin (3.75 m. layer 8, G7, Rg. No.1030)
      bearing image of king on the obverse and garuda standard in
      upper register and legend ‘sri chandra(gupta)’ in lower register        D
      on the reverse.”
       (v) Period –V
            Post Gupta – Rajput Level
       This period pertains to the seventh to tenth century A.D. The          E
excavation pertaining to the above period has resulted in the unearthing
of a circular subsidiary shrine belonging to the late level of this period:
      “The period is marked by the appearance of the knife-edge bowls
      and other types which belong to the period from seventh to tenth
      century A.D. In this period also structural activities were             F
      witnessed in numerous phases in trench E8 and F8. A circular
      subsidiary shrine belonging to the late level of this period was
      exposed in trench E8-F8 (Fig 24 and 24A). Among the pottery
      assemblage Kushan type is more frequent than the period
      pottery.”
                                                                              G
      (vi) Period VI
            Medieval –Sultanate Level
      This period pertains to the eleventh–twelfth century A.D. The
findings of the excavation are:
                                                                              H
472            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           “A thick floor made of brick-crush floor appears, on the
            circumstantial evidence, to have been attached to a wide and
            massive looking north-south oriented brick wall (No.17) markedly
            inclined to east (noticed in trenches D7 and E2-E1, F1 and ZF)
            which was the major structural activity of the period (circa
            eleventh-twelfth century A.D.). Another wall in same orientation
B
            has been noticed in G2 and ZG1 at a depth of 180 cm which is
            sealed by layer 6A in G2. The red brick-crush floor is noticed
            extending in a large area of the mound covering trenches E8,
            F8, G7, J5 & J6 with varying thickness. At the same level, in
            trench G5, calcrete stone blocks have been noticed in formation
C           which may be of large dimension.”
           (vii) Period –VII
                 Medieval Level
             This period lasted from the end of the twelfth to the beginning
D     of the sixteenth century A.D and comprises of structural activities in
      three sub-periods - A, B and C. In sub-period A, the excavation shows:
            “..In sub-Period-A, a massive wall (no.16) in north-south
            orientation was constructed, the foundation trench of which cuts
            the red brick-crush floor of the previous period. A new style of
E           construction is noticed in this period, however, in a limited area.
            Level of the mound was raised considerably by the material
            excavated from the vicinity to lay a floor of lime mixed with fine
            clay and brick-crush, over which a column-based structure was
            built (evidence of pillar bases are available in trenches F9, F8
            and G7).”
F
            For sub-period-B, the ASI report indicates:
            “There is a circular depression specially made by cutting the large
            brick pavement (Pl. 67), having the diameter of 1.05 m. with a
            rectangular projection of 0.46x0.32 m towards west. It is
            interesting to note that the circular depression comes in the centre
G
            of the pavement if the central part is calculated on the basis of
            extant length of wall 16 or wall 17 and longitudinal length of the
            alignment of pillar bases from north to south. Thus, suggesting it
            as a place of importance. Besides, the circular depression faces
            the central part of the disputed structure over which ‘Ram Lalla’
H           is enshrined. Bricks measuring 50x50x8 to 10 cm. 50x47x8 and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                473


       40x40x6 cm were used in the pavement as specially made floor              A
       tiles.”
       The above finding for sub-period B reports the existence of a
circular depression, its centrality indicating it to be a place of importance.
It is also stated that the circular depression faces the central part of
the disputed structure over which the deity is enshrined.                        B
       In sub-period C, there is a finding of foundations to support pillars
or columns:
       “In this deposit foundations to support pillars or columns were
       sunk which were overlaid with a 4-5 cm thick floor which had a
       grid of square sandstone bases for pillars projecting out, only a         C
       few still survive. Floor around most of the pillar bases is found
       broken with pillar base foundations in much disturbed condition.”
     (viii) Period –VIII
            Mughal Level                                                         D
       The report indicates:
       “The floor of the previous period (Period VII-C) is found cut by
       the stone black (mostly calcrete) foundations of the disputed
       structure (mosque). However, the north-south wall of the Period
       VII-A is retained as foundation for the back wall. Inside the             E
       foundation and in the immediate front part a layer of rammed
       earth is laid which is then overlaid with rammed deposit of grey
       coloured kankars and a thin layer of ashy deposit which contains
       riverine shells burnt white. The total deposit accounts for a
       thickness of about 20-25 cm, which acts as a soling for the first
                                                                                 F
       floor of the Mughal period inside as well as outside of the
       structure to a short distance to the east forming an apron floor.”
      (ix) Period –IX
            Late and Post Mughal Level
      In this period, two successive floors were laid, another platform          G
was added to the east forming a terrace and subsequently two
successive enclosure walls were erected. Moreover:
       “In this period to attaché a terraced platform to the east of the
       existing one, deposits of the earlier periods were excavated and
       removed, in which the floor of the period VII-C was cut and               H
474            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           destroyed from the eastern area. Slightly later, a partition wall
            was added attached to the first terrace platform along with a
            small step in the centre. And then was added another floor inside
            the structure which ran out on the now enclosed platform and
            abutted to the partition wall. Sometimes later an enclosure wall
            was added to the entire complex without any foundation which
B
            rested over the existing floor, which was provided with two gates,
            larger one to the north and a smaller one to the east. Sometimes
            around this period dead bodies were buried in the north and south
            of the disputed structure which have cut the top floors and which
            are sealed by layer 1.”
C            454. Chapter IV of the ASI report deals with structures. A
      significant aspect of this Chapter is a section titled “The Massive
      Structure Below the Disputed Structure”. The relevant findings are
      extracted below:
            “From the excavation it could be inferred that there were
D           seventeen rows of pillar bases from north to south, each
            row having five pillar bases. Due to area restriction and
            natural barrier, the pillar bases in the central part occupied
            by the make-shift structure on the raised platform could
            not be located. Out of excavated fifty pillar bases only
E           twelve were completely exposed, thirty five were partially
            exposed and three could be traced in sections only. A few
            pillar bases were noticed during earlier excavation after which
            a controversy took place about their association with different
            layers and their load bearing capacity. The present excavation
            has set aside the controversy by exposing the original form of
F           the bases having calcrete and stone blocks arranged and set in
            a proper manner over a brick foundation and their arrangements
            in row including their association with the top floor of the
            structure existing prior to the disputed structure.
            The seventeen rows of pillar bases were constructed along the
G           north-south running brick wall (wall 16) on the west. The distance
            of the first pillar base in each row from the wall ranges from
            3.60 to 3.86 m. Seventeen rows of pillars bases could be
            categorized in three different groups on the basis of north-south
            distance which varies in different groups whereas east-west
H           distance from centre to centre of each pillar base vary from 2.90
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           475


      to 3.30m. Six rows of the pillar bases on north and south were        A
      at the equidistance which ranges from 3 to 3.30 m. Central five
      rows consisting twenty five pillar bases show different equations
      – two rows on either sides of the central row were placed
      approximately at the distance of 5.25 m. whereas the other two
      rows on either side of these three rows were at the distance of
                                                                            B
      4.20-4.25 m. From this it could be easily concluded that the
      central part of the pillared structure was important and special
      treatment was given to it in architectural planning.
      In the southern area only one decorated sand stone was found
      over a pillar base while in the northern area many of the pillar
      bases were found topped by a plain sand stone block set over          C
      the brick bat foundation having calcrete blocks over them (Pl.
      36). The plain sand stone block was found in many of the cases
      having a stone encasing from all the four sides, possibly to avoid
      shifting of the pillar placed over the block (Pls 37-38). Top parts
      of stone encasings had a projection in the middle. In the northern    D
      area at a few places where the stone blocks were not found sand
      stone slabs were found over the calcrete blocks of the brick bat
      foundation of the pillar bases. The decorated octagonal sand
      stone block on pillar base 32 having floral motif on the four
      corners in trench F7 in the southern area is the unique
      example at the site (Pl. 39) which definitely belongs to the          E
      twelfth century A.D. as it is similar to those found in the
      Dharmachakrajina Vihara of Kumaradevi at Sarnath (Pl. 40)
      which belongs to the early twelfth century A.D.”
                                                   (Emphasis supplied)
                                                                            F
       The ASI report contains a detailed analysis of as many as 47
pillars bases.
      The Circular shrine
     The ASI report contains an analysis of an east facing brick shrine
which was exposed as a result of the excavation. The report notes:          G
      “A partly damaged east facing brick shrine, structure 5 (Pls
      59-60, Fig 17,24 and 24A) was noticed after removal of baulk
      between trenches E8 and F8. It is a circular structure with a
      rectangular projection in the east, the latter having been
                                                                            H
476             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           already visible before the removal of the baulk. The northern part
            of the circular part has retained its lower eight courses above
            the foundation of brick-bats while the southern half is damaged
            by constructional activity of the subsequent phase whose brick-
            bats have damaged the structure upto its working level. The
            structure was squarish from the inner side and a 0.04 m
B
            wide and 0.53 m long chute or outlet was noticed on plan
            made through the northern wall upto the end where in the
            lower course a 5.0 cm thick brick cut in ‘V’ shape was
            fixed which was found broken and which projects 3.5 cm
            outside the circular outer face as a pranala to drain out
C           the water, obviously after the abhisheka of the deity which is
            not present in the shrine now. The entrance of the structure is
            from the east in the form of a rectangular projection having a
            twelve course of bricks interlocked with the circular structure
            and having a 70x27x17 cm calcrete block fixed in it as the
            threshold. Two sizes of bricks were used in the construction of
D
            the shrine measuring 28x21xx5.5 cm and 22x18x5 cm. The
            rectangular projection of entrance is 1.32 m in length and 32.5
            cm projected towards east.”
                                                            (Emphasis supplied)
E            The report infers the existence of a pranala to drain out water,
      “obviously after the abhisheka of the deity which is not present in the
      shrine now”. The brick shrine which has been found as a result of the
      excavation is stated to be similar to the findings of the excavation carried
      out by ASI at Sravasti and at Rewa. On a comparative analysis, ASI
      has inferred that the circular shrine can be dated to circa tenth century
F     A.D.
            Summary of results
             455. A Summary of results is contained in Chapter X of the ASI
      report. The results of the excavation are extracted below:
G           “The Northern Black Polished Ware (NBPW) using people were
            the first to occupy the disputed site at Ayodhya during the first
            millennium B.C. Although no structural activities were
            encountered in the limited area probed, the material culture is
            represented by terracotta figurines of female deities showing
            archaic features, beads of terracotta and glass, wheels and
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         477


  fragments of votive tanks etc. The ceramic industry has the           A
  collection NBPW, the main diagnostic trait of the period besides
  the grey, black slipped and red wares. A round signet with legend
  in Asokan Brahmi is another important find of this level. On the
  basis of material equipment and 14 C dates this period may be
  assigned to circa 1000 B.C. to 300 B.C.
                                                                        B
  The Sunga horizon (second-first century B.C.) comes to the next
  in the order of the cultural occupation at the site. The typical
  terracotta mother goddess, human and animal figurines, beads,
  hairpin engraver etc. represent the cultural matrix of the level.
  The pottery collection includes black slipped, red and grey wares
  etc. The stone and brick structure found from the level mark the      C
  beginning of the structural activity at the site.
  The Kushan period (first to third century A.D) followed the Sunga
  occupation. Terracotta human and animal figurines, fragments of
  votive tanks, beads, antimony rod, hair pin, bangle fragments and
  ceramic industry comprising red ware represent the typical            D
  Kushan occupation at the site. Another important feature of this
  period is the creation of large sized structures as witnessed by
  the massive structure running into twenty-two courses.
  The advent of Guptas (fourth to sixth century A.D) did not bring
  any qualitative change in building activity although the period is    E
  known for its classical artistic elements. However, this aspect is
  represented by the typical terracotta figurines and a copper coin
  with the legend Sri Chandra (Gupta) and illustrative potsherds.
  During the Post-Gupta-Rajput period (seventh to tenth century
  A.D.) too the site has witnessed structural activity mainly           F
  constructed of burnt bricks. However, among the exposed
  structures, there stands a circular brick shrine which speaks of
  its functional utility for the first time. To recapitulate quickly,
  exteriorly on plan, it is circular whereas internally squarish with
  an entrance from the east. Though the structure is damaged, the       G
  northern wall still retains a provision pranala, i.e. waterchute
  which is a distinct feature of contemporary temples already
  known from the Ganga-Yamuna plain.
  Subsequently, during the early medieval period (eleventh-twelfth
  century A.D.) a huge structure nearly 50 ...north-south orientation
                                                                        H
478      SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     was constructed which seems to have been short lived, as only
      four of the fifty pillar bases exposed during the excavation belong
      to this level with a brick crush floor. On the remains of the above
      structure was constructed a massive structure with at least three
      structural phases and three successive floors attached with it.
      The architectural members of the earlier short lived massive
B
      structure with ...and other decorative motifs were reused in the
      construction of the monumental structure having a huge pillared
      hall (or two halls) which is different from residential structures,
      providing sufficient evidence of a construction of public usage
      which remained under existence for a long time during the period
C     VII (Medieval-Sultanate level - twelfth to sixteenth century
      A.D.). It was over the top of this construction during the
      early sixteenth century, the disputed structure was
      constructed directly resting over it. There is sufficient
      proof of existence of a massive and monumental structure
      having a minimum dimension of 50x30 m in north-south
D
      and east-west directions respectively just below the
      disputed structure. In course of present excavations
      nearly 50 pillar bases with brick bat foundation, below
      calcrete blocks topped by sandstone blocks were found.
      The pillar bases exposed during the present excavation
E     in northern and southern areas also give an idea of length
      of the massive wall of the earlier construction with which
      they are associated and which might have been originally
      around 60 m (of which the 50 m length is available at
      present). The centre of the central chamber of the disputed
      structure falls just over the central point of the length of
F
      the massive wall of the preceding period which could not
      be excavated due to presence of Ram Lala at the spot in
      the make-shift structure. This area is roughly 15x15m on the
      raised platform. Towards east of this central point a circular
      depression with projection on the west cut into the large sized
G     brick pavement signify the place where some important object
      was placed. Terracotta lamps from the various trenches and found
      in a group in the levels of Periods VII in trench G2 are
      associated with the structural phase.
      In the last phase of the period VII glazed ware shreds make their
H     appearance and continue in the succeeding levels of the next
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             479


      periods where they are accompanied by glazed tiles which were           A
      probably used in the original construction of the disputed structure.
      Similarly is the case of celadon and porcelain shreds recovered
      in a very less quantity they come from the secondary context.
      Animal bones have been recovered from various levels of
      different periods, but skeletal remains noticed in the trenches in
                                                                              B
      northern and southern areas belong to the Period IX as the grave
      pits have been found cut into the deposition coeval with the late
      disputed structures and are sealed by the top deposit.
      In the meanwhile to observe that the various structures exposed
      right from the Sunga to Gupta period do not speak either about
      their nature or functional utility as no evidence has come to           C
      approbate them. Another noteworthy feature is that it was only
      during and after Period IV (Gupta level) onwards upto Period
      IX (late and post Mughal level) that the regular habitational
      deposits disappear in the concerned levels and the structural
      phases are associated with either structural debris or filling          D
      material taken out from the adjoining area to level the ground
      for construction purpose. As a result of which much of the earlier
      material in the form of potter, terracottas and other objects of
      preceding periods, particularly of Period 1 (NBPW level) and
      Period III (Kushan level) are found in the deposits of later periods
      mixed along with their contemporary material. The area below            E
      the disputed site thus remained a place for public use for
      a long time till the Period VIII (Mughal level) when the
      disputed structure was built which was confined to a limited
      area and population settled around it as evidenced by the
      increase in contemporary archaeological material including              F
      pottery. The same is further attested by the conspicuous
      absence of habitational structures such as house-
      complexes, soakage pits, soakage jars, ring wells, drains,
      wells, hearths, kilns or furnaces etc from Period IV (Gupta
      level) onwards and in particular from Period VI (Early
      Medieval-Rajput level) and Period VII (Medieval-                        G
      Sultanate level).”                           (Emphasis supplied)
      In regard to the dating of the findings, the report indicates that
the earlier human activities trace back to thirteenth century B.C.:

                                                                              H
480            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           “…earliest remains may belong to the thirteenth century B.C.
            which is confirmed by two more consistent C14 FROM THE
            NBPW level (Period I), viz. 910 = 100 B.C. and 880 = 100 B.C).
            These dates are from trench G7. Four more dates from the upper
            deposit though showing presence of NBPW and associated
            pottery are determined by Radio-Carbon dating as 780=80 B.C.,
B
            710=90 B.C., 530=70 B.C. and 320=80 B.C. In the light of the
            above dates in association with the Northern Black Polished Ware
            (NBPW) which is general accepted to be between circa 600
            B.C. to 300 B.C. it can be pushed back to circa 1000 B.C. and
            even if a solitary date, three centuries earlier is not associated
C           with NBPW, the human activity at the site dates back to circa
            thirteenth century B.C. on the basis of the scientific dating method
            providing the only archaeological evidence of such an early date
            of the occupation of the site.”
            Finally, the ASI concludes by indicating that:
D           “Now, viewing in totality and taking into account the
            archaeological evidence of a massive structure just below
            the disputed structure and evidence of continuity in
            structural phases from the tenth century onwards upto the
            construction of the disputed structure along with the yield
E           of stone and decorated bricks as well as mutilated
            sculpture of divine couple and carved architectural
            members including foliage patters, amalaka, kapotapali
            doorjamb with semi-circular pilaster, broken octagonal
            shaft of black schist pillar, lotus motif, circular shrine
            having pranala (waterchute) in the north, fifty pillar bases
F           in association of the huge structure, are indicative of
            remains which are distinctive features found associated
            with the temples of north India.”
                                                          (Emphasis supplied)

G            456. Numerous objections have been urged to the ASI report and
      will be considered. The report indicates that the post Gupta period
      commencing from the seventh to the tenth century A.D. witnessed
      significant structural activity at the site. The report states that this
      activity has uncovered the existence of a circular brick shrine with a
      circular exterior with an entrance from the east. ASI has concluded
H     that the northern wall of the shrine contains a pranala, i.e. a water
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             481


chute, which it opined to be a distinctive feature of temples in the plains   A
of the Ganges – Yamuna. The report noted that excavation pertaining
to the eleventh–twelfth century A.D. has revealed the existence of “a
huge structure” with a dimension of 50 meters by 30 meters. This
activity during the early medieval period of the eleventh and twelfth
century A.D. reveals the existence of nearly fifty pillar bases. The
                                                                              B
report notes that on the remains of the above structure, there was a
massive structure constructed with at least three structural phases and
three successive floors attached with it. The architectural features of
the early structure including its decorative motifs were revised in the
construction of a “monumental structure” with a large pillared wall
indicating evidence of a construction for public use. The report notes        C
that the construction of the disputed structure during the early sixteenth
century is found to have rested directly above the earlier structure and
that the centre of the central chamber of the disputed structure is stated
to fall over the central point of the length of the massive wall of the
preceding period.
                                                                              D
      Findings of the High Court on the ASI report
       457. During the course of his judgment, Justice S U Khan did
not place any reliance on the ASI report. The learned judge offered
the following explanation:
      “Conclusions of A.S.I. Report 2003, already quoted, are not of          E
      much help in this regard for two reasons. Firstly, the conclusion
      that there is ‘evidence of continuity in structural phases from the
      tenth century onward upto the construction of the disputed
      structure’ is directly in conflict with the pleadings, gazetteers and
      history books. Neither it has been pleaded by any party nor             F
      mentioned in any gazetteer or most of the history books that after
      construction of temples by Vikramaditya in first Century B.C.
      (or third or fourth century A.D., according to some) and till the
      construction of the mosque in question around 1528 A.D. any
      construction activity was carried out at the site of the premises
      in dispute or around that. Secondly, in case some temple had            G
      been demolished for constructing the mosque then the
      superstructure material of the temple would not have gone inside
      the ground. It should have been either reused or removed. No
      learned counsel appearing for any of the Hindu parties has been
      able to explain this position.”                                         H
482            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            The first reason which weighed with Justice S U Khan was that
      it had not been pleaded by any of the parties that after the construction
      of a temple in the first century B.C. (or third or fourth centuries A.D.)
      until the construction of the mosque in the sixteenth century, any
      construction had been carried out at the site. The case of the plaintiffs
      in Suit 5 is that the disputed structure of a mosque was constructed
B
      after the demolition of a temple and that the mosque was constructed
      at the site of the demolished temple. The purpose of the excavation
      which was ordered by the High Court was to enable the court to have
      the benefit of a scientific investigation by ASI. It was on the basis of
      this excavation that the court would be apprised of the findings reached
C     by ASI. To attribute to parties an act of default in their pleadings is
      inappropriate for the reason that the archaeological evidence which
      came before the court was as a result of the excavation which was
      carried out by the ASI. Having ordered the excavation, it was necessary
      for the High Court during the course of the trial to evaluate those
      findings. Justice S U Khan did not do so. The second reason which
D
      has weighed with the learned judge proceeds on the basis of a
      conjecture. Justice S U Khan held that it is not conceivable that Babur
      or Aurangzeb would have ensured prior research to ascertain the exact
      birth-place of Lord Ram and then have a temple constructed at the
      site. The purpose of the excavation was to enable the court to determine
E     as to whether the excavation at the disputed site suggested the existence
      of prior structural activity over centuries and, if so, whether any part
      of it was of a religious nature. Justice S U Khan has omitted to assess
      both the finding of the ASI of a circular shrine and a construction
      partaking of a publicly used structure on the foundations of which the
      disputed structure rested and its probative value in the present dispute.
F
            458. Justice Sudhir Agarwal observed during the course of his
      judgment that certain undisputed facts emerge from the excavations.
      These were catalogued as follows:
            “(i) A lot of structural and construction activities existed at the
G                disputed site going back to the level of Shunga and Kushan
                 period.
             (i) The exact number of floors, pillar bases and walls (were)
                 noted by ASI though objected but the very existence of
                 several floors, walls, and pillar bases beneath the disputed
H                stricture is not disputed.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           483


       (ii) The structure below the disputed structure was sought to        A
            be explained as Kanati mosque or Idgah. There is no
            suggestion that the structure below the disputed building was
            of non-religious nature.
      (iii) Some of the constructions or artefacts are sought to relate
            to Jains or Buddhist but here also it is not the case that it   B
            was Islamic in nature or non-religious.
      (iv) Though allegations of lack of independence in professional
           style etc. is sought to be supported from the alleged
           misinterpretation or wrong interpretation or omission or
           contradictions and discrepancies in some part of the report      C
           but no one of ASI team, individual or group has been named
           or shown to have worked in a manner lacking integrity,
           independence etc. (except where two nominees of Muslim
           side i.e. Dr. Jaya Menon (PW 29) and Dr. Supriya Verma
           (PW 32) reported creation of pillar bases in Trench G2 vide
           complaints dated 21.5.2003 and 7.6.2003).”                       D

       Initially, the case of the Sunni Central Waqf Board was that the
building in dispute was constructed at a place on which there was no
existence of a Hindu religious structure and there was no evidence to
suggest that the structure was at the place which Hindus believe to be
the birth-place of Lord Ram. Justice Agarwal noted that when the            E
excavation progressed there was a marked change in the approach of
the plaintiffs in Suit 4 and a new case was sought to be set up that the
structure below the disputed structure as shown in the excavation is of
Islamic origin namely, either an ‘Idgah’ or ‘a Kanati Masjid’. Justice
Agarwal noted that this shift in stance of the Muslim parties clearly       F
excluded the possibility that the structure which was found below the
disputed structure was of an origin which is not religious. The enquiry
then narrowed down to whether the structure was Islamic or non-Islamic
in nature. The learned judge concluded that:
      “3905. It is clear from the report that floor 4 which supports the    G
      foundation of pillar bases was a floor of a Temple. It cannot be
      the floor of Idgah or Kanati Mosque because pillars are always
      absent in Idgah so that maximum persons could be accommodated
      in minimum space for offering prayer.”

                                                                            H
484            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            459. Justice Agarwal noted that the existence of a circular shrine
      with its attendant architectural features likely indicated the presence
      of a Shaivite shrine and that it was not a Muslim tomb. He observed
      that while on the one hand, the dimensions of the structure were too
      small for a tomb, a gargoyle would never find presence in a tomb but
      was an integral feature of the sanctum of a Shiva temple to drain out
B
      water poured on the Shivalingam. In that context, after analysing the
      evidence, Justice Agarwal observed that PWs 29, 31 and 32 who were
      the witnesses of the plaintiffs in Suit 4 accepted that the features which
      were found in the excavated shrine were of a non-Islamic origin. The
      evidence of PWs 29, 31 and 32, insofar as is relevant is extracted below:
C           (A) Dr Jaya Menon (PW-29)
                  “The motif of Ghat (pot) is visible on this pillar. It is true
                  that Ghat is also known to be as “Kalash”. Normally, this
                  kind of ‘Ghat’ on the pillar is not found in mosque.
D                 It is correct to say that the figurines of elephant, tortoise
                  and crocodile – all made of terracotta, were recovered
                  during the excavation. Such figurines were found in more
                  than one trench. I know that the crocodile is the seat/vehicle
                  of Hindu holy river Ganga. I agree that tortoise is the vehicle
                  of holy river Yamuna.”
E
            (B) Dr Ashok Dutta (PW 31)
                  “As I have mentioned that the Muslim people do not believe
                  in the idol worship, hence there is no question of associating
                  terracotta figurine with the Muslim culture. So far I know
F                 and my knowledge goes, the question of terracotta figurine
                  to be associated with Muslim culture does not arise”.
                  “It is true that such animal figurines are not allowed to be
                  kept in the mosque.”
                  “Makar Pranal is one of the parts of the Hindu temple
G                 architecture. I am not very sure whether Makar Pranal has
                  any association with mosque or not. I have not seen any
                  mosque having any Makar Pranal in it.”
            (C) Dr Supriya Verma (PW-32)
                  “I have heard the word ‘Kalash’. Kalash is not found in
H                 mosque…”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            485


           “Wall No. 16, according to me, was used as a wall prior to        A
           the construction of the disputed structure. In this way, Wall
           16 was wall of some other construction which was existing
           prior to the constriction of the disputed structure.”
           “However, it is true that Wall No. 17 was constructed earlier
           to Wall No. 16.”                                                  B
           “I know crocodile. It is also very important for the temples.
           It is called ‘Makar Mukh’. I have not seen Makar Mukh in
           any mosque…”
      Justice Agarwal observed:
                                                                             C
      “3979. The report of the Archaeological Survey of India, which
      is a report of an expert in excavation, contains all the details
      including details of stratigraphy, artefacts, periodisation as well
      as details of structures and walls. The pillar bases mentioned in
      the report establish beyond all doubt the existence of a huge
      structure. In addition to above, existence of circular shrine, stone   D
      slabs in walls with Hindu motifs and more particularly sign of
      Makar Pranal in wall No. 5 (wall of disputed structure), divine
      couple and other temple materials, etc., conclusively proves the
      existence of a Hindu religious structure beneath the disputed
      structure. It is generally admitted by the witnesses that the          E
      excavation was conducted as per settled norms of archaeology
      in presence of parties, experts and observers and three
      dimensional recording, photography, videography of each and
      every trench, structure, artifacts, were done by the ASI during
      excavation in presence of all concerned. Day-to-day register,
      supervisor’s diary and antiquity register were being regularly         F
      maintained.
      3980. There are some more objections which we find not much
      of worth for the reason that the experts of Muslim parties
      ultimately, realizing that structure existed underneath the disputed
      building made out a new case in their statement. However, a new        G
      stand which is not the case of the plaintiff, not pleaded is not
      permissible.”
       One of the objections before the High Court was that the ASI
report did not specifically answer whether there was any pre-existing
structure which was demolished for the construction of a mosque and          H
486            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     whether the pre-existing structure was a temple. Answering this
      objection, the High Court held:
            “3990. ASI, in our view, has rightly refrained from recording a
            categorical finding whether there was any demolition or not for
            the reason when a building is constructed over another and that
B           too hundreds of years back, it may sometimes be difficult to
            ascertain as to in what circumstances building was raised and
            whether the earlier building collapsed on its own or due to natural
            forces or for the reason attributable to some persons interested
            for its damage. Sufficient indication has been given by ASI that
            the building in dispute did not have its own foundation but it was
C           raised on the existing walls. If a building would not have been
            existing before construction of the subsequent building, the builder
            might not have been able to use foundation of the erstwhile
            building without knowing its strength and capacity of bearing the
            load of new structure. The floor of the disputed building was just
D           over the floor of earlier building. The existence of several pillar
            bases all show earlier existence of a sufficiently bigger structure,
            if not bigger than the disputed structure then not lesser than that
            also.”
      After analysing the evidence, Justice Agarwal observed:
E           “4055. The ultimate inference, which can reasonably be drawn
            by this Court from the entire discussion and material noticed
            above, is: (i) The disputed structure was not raised on a virgin,
            vacant, unoccupied, open land. (ii) There existed a structure, if
            not much bigger then at least comparable or bigger than the
F           disputed structure, at the site in dispute. (iii) The builder of the
            disputed structure knew the details of the erstwhile structure, its
            strength, capacity, the size of the walls etc. and therefore did
            not hesitate in using the walls etc. without any further
            improvement. (iv) The erstwhile structure was religious in nature
            and that too non-Islamic one. (v) The material like stone, pillars,
G           bricks etc. of the erstwhile structure was used in raising the
            disputed structure. (vi) The artefacts recovered during excavation
            are mostly such as are non-Islamic i.e pertaining to Hindu religious
            places, even if we accept that some of the items are such which
            may be used in other religions also. Simultaneously no artefacts
H           etc., which can be used only in Islamic religious place, has been
            found.”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              487


      Motifs on the Kasauti stone pillars                                      A
       460. Evidence was produced before the High Court of the motifs
on the pillars in the disputed building. Three sets of albums containing
photographs taken by the State Archaeological Department pursuant
to an order dated 10 January 1990 were produced. Dr Rakesh Tewari
(OPW-14) who was the Director of the State Archaeological                      B
Department verified the photographs. The first album contained 204
coloured photographs and was marked as paper no. 200 C1/1 -204.
The second album contained 111 black and white photographs and was
marked as paper no. 201C/1-111. The High Court annexed the
photographs as Appendices 5(A) to 5(DD) of its judgment. The
photographs contain depictions of the black Kasauti stone pillars. Several     C
of the witnesses on behalf of the plaintiff in Suit 4 deposed during the
course of their evidence in regard to these photographs. Relevant
extracts from the deposition of Farooq Ahmad (PW-3) have been re-
produced in the judgment of Justice Sudhir Agarwal. Extracts from the
testimony are quoted below:                                                    D
      Farooq Ahmad (PW-3):
      “Idols are visible in photograph no. 57, which were not present
      at that time. This photograph is also of the disputed property but
      it is possible that it may have been changed because at that time
      there were no idols over the pillars. An idol is visible in the upper    E
      part of photograph no. 58 as well. There was a black pillar at
      the gate, which did not have any idol and it is possible that it
      may have been changed subsequently...It is only after looking at
      the photograph that I am stating that the pillars may have been
      changed. These pillars have idols on their top and it is only after      F
      looking at them that I am stating that these pillars have been
      changed.”
      “In photograph no. 62 there is a pillar like structure near the grill,
      which has idols. This pillar is at the northern gate of the disputed
      property… It is visible in white color in photograph no. 64 as           G
      well, and the idols are also visible…The photograph no. 65 is of
      the main gate. However, its pillar contained idols, which are result
      of change. The photograph no. 66 is also of the eastern side but
      it has idols, which are result of change.”

                                                                               H
488            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           “The photograph no. 72 does contain black pillars but it has idols
            in upper and lower part… Similar is the position of the two pillars
            of photograph no. 71. Same is with the pillar shown in photograph
            on. 73. It also contains idols. The photograph no. 74 is also
            similar, which has idols over pillars. This pillar has been shown
            completely from all sides, which had been fixed over there.”
B
            “The photograph no. 101 is also of that place, but many changes
            have been made therein. The idols are also existing and the
            pitchers (Kalash) are also existing.”
            “It is true that all the photographs contained in this album, had
C           been taken in the presence of my counsel. All these photographs
            are of the disputed land and property.”
            There were witnesses who deposed on behalf of the contesting
      Hindu parties. They also spoke about the idols depicted in the
      photographs of the pillars. These idols include depictions of Gods and
D     Goddesses worshipped by Hindus such as Hanuman, Narsimha, Ganesh
      and Durga. The witnesses have also deposed about the images of a
      peacock, garuda and lotus. The witnesses who deposed in this regard
      on behalf of the Hindu parties were DW-3/5-1-2, 17/1, B/1-1, 17/1, 20/
      1 and 12/1.
             Coupled with the photographs is the fact that during the course
E
      of the excavation, 62 human and 131 animal figurines were found by
      the ASI. Justice Sudhir Agarwal noted that it was not in dispute that
      no Islamic religious artefacts were found during the excavation, while
      artefacts pertaining to a Hindu religious origin were found in abundance.
      Among them, as the learned Judge noted, were motifs of flowers (plates
F     nos 51 and 62); the hood of a cobra (plate no. 129) and those pertaining
      to other Gods and Goddesses in human shape (plate nos 104-112, 114-
      116, 118-123 and 125-126). The witnesses who supported the findings
      and report of the ASI were Dr R Nagaswami (OPW- 17), Arun Kumar
      (OPW – 18) and Rakesh Dutt Trivedi (OPW-19).
G           Objections to the ASI report
             461. Ms Meenakshi Arora, learned Senior Counsel has prefaced
      her submissions by formulating the following objections to the ASI report:
             (i) The ASI report suffers from glaring errors and internal
                 inconsistencies;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            489


       (ii) The ASI report is only an opinion of an archaeologist in view    A
            of Section 45 of the Evidence Act 1872; and
      (iii) Archaeology is an inferential science which renders the
            report a weak account of evidence.
      Elaborating the third submission, Ms Arora submitted that
archaeology is a social science as distinct from a natural science.          B
Archaeology, in her submission, is not precise or exact as distinguished
from the natural sciences which are based on verifiable hypotheses.
Archaeology, the learned Senior Counsel urged, is based on drawing
inferences in the context of what is found in the course of excavation
and does not yield verifiable conclusions.                                   C
       Ms Arora urged the following additional objections with respect
to the ASI report:
       (i) No witness was called to prove the ASI report;
       (ii) No finding has been recorded by the ASI on whether there
                                                                             D
            was a pre-existing temple which was demolished for the
            construction of a mosque;
      (iii) The Summary of results recorded in the conclusion of the
            report is not attributed to any specific author unlike the
            individual chapters; and
                                                                             E
      (iv) The report does not indicate whether any meetings were
           held between the members of the team responsible for
           undertaking the excavation activity. If they did, the notes
           of the team meeting should have been furnished.
       Subsequently, during the course of his submissions on the scope       F
of the challenge to the report, Dr Rajeev Dhavan, learned Senior
Counsel appearing for the plaintiffs in Suit 4 submitted that whether
the Summary of results has been signed is a futile line of enquiry because
it only goes to the authenticity and authorship of the report. Dr Dhavan
fairly submitted that the authorship of the ASI report cannot be
questioned since there is no dispute that it is attributed to the ASI and    G
was submitted in pursuance of the directions of the High Court. In view
of the submission, the doubt raised earlier by Ms Arora on the authorship
of the Summary of results is set at rest. The report has been co-
authored by B R Mani and Hari Manjhi. The report emanates from
the ASI to whom the task was entrusted by the High Court. There being        H
490            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     no dispute about the authorship, origin or authenticity of the report, we
      find no substance in the objection that was raised by Ms Arora on that
      count.
            Merits of the objections
            462. The objections which have been addressed against the ASI
B     report by Ms Arora, learned Senior Counsel have been elaborated in
      Volume A-91 of the written submissions titled as “Stratigraphy /
      Periodisation, Pillar Bases, Walls, Circular Shrine, Divine Couple
      & Other Artefacts, Glazed Ware & Glazed Tiles; Animal Bones”.
      The preliminary submissions are:
C            (i) ASI did not properly mark the soil layers on excavation;
             (ii) ASI failed to maintain accurate records of the recovery of
                  artefacts from specific layers and lost the context;
            (iii) Though, the bones found in excavation could have been
D                 subjected to carbon dating and Paleo-Botanical studies to
                  arrive at better estimates of chronology, only charcoal
                  samples were sent for carbon dating;
            (iv) Though, ASI had assured the High Court in its interim report
                 that it would collect samples of soil and mortar (for carbon
                 dating), pottery (for thermoluminescence), grains and pollen
E
                 (for paleo-botanical studies) and bones (for study of faunal
                 remains), this was not done;
             (v) The High Court had issued directions to the ASI to maintain
                 a register for accurate recording of recovery of artefacts
                 from each layer; and
F
            (vi) ASI prepared and submitted its report in 15 days in a hurried
                 manner.
             463. ASI had to conduct a complex exercise. Its excavation was
      time bound. The excavating team had to work its way around a make-
G     shift temple without affecting the worship of the deity. The trenches
      had to be arranged with care. The difficulties which ASI encountered
      were numerous. Its team excavated in the glare of publicity, in the
      presence of parties or their representatives. The report notes the unusual
      circumstances which it faced in the course of the excavation:

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          491


      “a. In planning the excavation, it was decided to adopt the latest   A
          technique of layout of trenches where limited spaces are
          available and therefore in place of general practice of layout
          of 10 x 10m. squares divided four quadrants of 4.25x4.25m
       b. On the directions of the Hon’ble High Court, Archaeological
          Survey of India has excavated ninety trenches in a limited       B
          time of five months soon after which the excavation report
          is required to be submitted within fifteen days. This is an
          unprecedented event in the history of one hundred and forty
          two years of the existence of the Survey
       c. …Thus the time available for their documentation, study          C
          photography, drawing and chemical preservations was
          limited to just a few hours only and that too not in the case
          of material recovered from the trenches towards closing of
          the work for the day…Work was often affected and delayed
          due to formalities involved in security checks and such other
          administrative requirements…                                     D

       d. Working condition worsened at the onslaught of the monsoon
          from June onwards when the entire site was covered with
          multi-colored waterproof streets creating heat and humidity
          besides total darkness in a number of deep trenches.
          Monkeys started damaging the sheets as a result of which         E
          several layers of the sheets were spread over bamboo and
          wooden poles. They created further darkness…Much
          difficulty was felt for the stratigraphical observation
          particularly for determining layers. These factors slowed the
          process of ongoing work.”                                        F
       Ms Arora urges that these difficulties led to errors. The manner
in which ASI carried out “stratigraphy-periodisation” was questioned
before the High Court. Justice Sudhir Agarwal while rejecting the
objections observed:
      “3846. From the statement of the six expert witnesses produced       G
      on behalf of plaintiff (Suit-4), we find that all of them are not
      unanimous in saying that the entire stratigraphy or periodization
      made by ASI is bad or incorrect or suffers with such material
      illegality or irregularity that the same deserves to be rejected,
      which… ultimately may result in rejection of the entire report
                                                                           H
492            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           itself. Their statements are also contradictory, vague, confused
            and based on…conjectures.
            3863… On the contrary, most of them admit that determination
            of stratigraphy/chronology can be done in one or more method
            which are well recognized and they are… (1) dynasty wise, (2)
B           century wise and (3) layer wise, and the ASI has followed all
            the three systems.”
            The High Court observed:
            “3979. The report of the Archaeological Survey of India, which
            is a report of an expert in excavation, contains all the details
C           including details of stratigraphy, artifacts, periodisation as well as
            details of structures and walls.”
             464. In the course of analysing the ASI report, it is important to
      bear in mind the criticism levelled on the methodology adopted by and
      the findings recorded by ASI. Taking them into consideration will be
D     an important evaluative technique for this Court to deduce whether the
      objections, if found to be valid, are of such a nature as would detract
      wholly from the utility of the report. Alternatively, this Court may have
      to consider a more nuanced perspective under which the deficiencies
      shown to exist in the report can lead to a realistic assessment of the
E     conclusions based on probability, relevance and inconsistency. The
      judgment must deal with the basic question whether the findings of ASI
      have relevance to the determination of title.
            465. Ms Arora has highlighted the oral testimony of R C Thakran
      (PW- 30), who assailed the ASI report. PW – 30 noted that periods
F     VI to VII of Chapter III titled “Stratigraphy and Chronology” were
      subsequently altered in the ‘Summary of results’. Initially at pages 38
      to 41 of the report, the nomenclature of periods V, VI and VII is as
      follows:
            “Period V : Post-Gupta-Rajput, 7th to 10th Century
G           Period VI: Medieval – Sultanate, 11th-12th Century
            Period VII: Medieval, 12th to 16th Century.”
            PW-30, however draws attention to the fact that in the Summary
      of results the above nomenclature is revised to read as follows :

H           “Period V : Post-Gupta-Rajput, 7th-10th century
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        493


      Period VI: Early medieval, 11th-12th century                       A
                                         th   th
      Period VII: Medieval-Sultanate, 12 -16 century.”
     The above inconsistency which has been highlighted carefully by
Ms Arora must be borne in mind.
       According to PW-30, the transfer of the Medieval - Sultanate      B
period from period VI to VII has “the advantage” of ignoring Islamic
period materials like glazed ware or lime-mortar by removing them
arbitrarily from period VI levels to those of period VII so that their
actual presence in those levels does not pose a challenge to ASI in
placing the construction of an alleged “massive” or “huge” temple in
period VI.                                                               C

      On the aspect of ‘periodisation-stratification’, Jayanti Prasad
Srivastav (DW-20/5) who was formerly a Superintending Archaeologist
with ASI stated:
      “…However I agree with the opinion of the ASI, which is            D
      mentioned in the chart prepared by them at page 37-A, where
      they have assigned floor 4 and 5 to the early Medieval Sultanate
      period. On page 37-A in the chart the ASI has mentioned early
      Medieval Sultanate period whereas at page 40 they have
      mentioned Medieval period. To my mind it appears that there is     E
      difference between the two, but I cannot clarify the same.
      Q.Is it correct to say that the term “early Medieval Sultanate”
      period indicated by light green colour in the chart at page 37-A
      is no other period than the period described as period VI
      (Medieval Sultanate level) of 11th – 12th Century on page 40 of    F
      ASI report, Vol. I
      A. Since the term “early Medieval” has got a definite
      meaning in the chronological sense, I cannot equate it with
      Medieval-Sultanate level lightly, hence the excavators, who
      got this chart prepared are required to clarify the situation      G
      before any conclusion is drawn by us.”
                                                   (Emphasis supplied)
     The highlighted excerpts from the answer of the witness
emphasise the importance of a clarification being sought from the ASI    H
494            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     on the classification which it adopted. This precisely is one of the
      difficulties which the objectors must confront. If a clarification was
      necessary (as the witness acknowledges), it was but appropriate that
      under Order XXVI Rule 10(2), a request should have been addressed
      to the court for the examination of an appropriate witness from ASI.
B     This was not done.
            Objections as to Pillar bases
      466. The ASI report states that:
            “From the excavation it could be inferred that there were
C           seventeen rows of pillars from north to south, each row having
            five pillar bases.”
            On the other hand it admits that: “Out of excavated fifty pillar
            bases only twelve were completely exposed, thirty five were
            partially exposed and three could be traced in sections only. A
            few pillar bases were noticed during earlier excavation after
D
            which a controversy took place about their association with
            different layers and their load bearing capacity.”
             Ms Arora submitted that the so-called pillar bases could not either
      have formed a part of or supported the alleged massive structure /temple
      as claimed by the ASI for the following reasons:
E
             (i) During the excavation, the ASI identified different layers
                 belonging to different periods. Within the different layers, it
                 identified the presence of four different floors which are
                 marked by the existence or presence of clearly demarcated
                 floors of lime-surkhi or surkhi. Admittedly, the floors are
F                at different levels, floor 1 being the level of the demolished
                 mosque and floors 2, 3 and 4 being below it at different
                 levels as is illustrated in the report. Given that the alleged
                 pillar bases have been found in different floors or cutting
                 through different floors, it is evident that these pillar bases
                 have been constructed at different time periods. Hence, the
G
                 so-called pillar bases could not have contemporaneously
                 formed part of a single structure, let alone a purportedly
                 massive structure;
             (ii) There are discrepancies and variations in the number of
                  alleged pillar bases found on different floors in different
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                495


           parts of the ASI Report. The isometric view in Figure 23A             A
           contains a number of imagined or conjectured pillar bases
           which have not even been exposed. Therefore, the claim
           of a massive structure is an unfounded hypothesis as the
           exact number of pillar bases is not known;
      (iii) In any case, the so-called pillar bases are not in alignment         B
            as revealed from actual measurements and distances
            (admitted by DW-20/5 and OPW-17, expert witnesses who
            deposed in support of the ASI Report). The pillar bases are
            at different distances from the thick western wall. Further,
            the shapes and sizes of these purported pillar bases vary
            from elliptical to circular to square to rectangular to irregular,   C
            and have differing dimensions. This not only shows that they
            were built in different time periods but also that they could
            not have comprised the supporting framework of any
            massive structure or temple. Furthermore, none of these
            pillar bases have been found in association with any pillar;         D
            and
     (iv) Given the nature of the so-called pillar bases as exposed
          by ASI, which were mostly made of brick-bats, they could,
          at best, have supported only wooden pillars on them (as
          admitted by DW-20/5, an expert witness who testified in                E
          support of the ASI Report). Such wooden pillars could not
          have borne the heavy load of a massive structure.
      The above objections are sought to be established on the basis
of evidence under the following heads of the submissions of counsel:
       (i) Pillar bases do not belong to the same floor                          F
           Jayanti Prasad Srivastav (DW 20/5); Arun Kumar Sharma
           (OPW 18); Ashok Datta (PW 31); and Dr Shereen
           Ratnagar (PW 27) stated that all the pillar bases do not
           belong to the same floor. OPW 18 stated that 46 pillars
           belong to floor 3 of period VII (twelfth century A.D) and 4           G
           pillars belong to floor 4 (eleventh century A.D.). PW 31
           stated that some of the pillar bases found in the northern
           part of the mound belonged to a different elevation and
           structural activity. PW 27 stated that the pillar bases do not
           belong to the stratum.
                                                                                 H
496            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            (ii) Pillars and pillars bases are conjectural
                 R Nagaswami (OPW 17), Jayanti Prasad Srivastava (DW
                 20/5) and Ashok Datta (PW 31) claimed during the course
                 of their examination that the finding that there were 17 rows
                 of pillar bases with five in each row is an inference since
B                all the 85 pillar bases have not been excavated.
            (iii) The pillar bases are not in alignment
                 R C Thakran (PW 30), Ashok Datta (PW 31) and Dr
                 Supriya Verma (PW 32) stated that the pillar bases were
                 not in exact alignment as would be expected in a pillared
C                hall.
            (iv) Pillar bases are of different sizes and shapes
                 Jayanti Prasad Srivastava (DW 20/5) stated that pillar base
                 No. 42 (43X120X28 cm.) was the smallest in size while the
D                largest is pillar base No. 35 (170X160X38 cm).
            (v) Pillars /Pillar bases were not load bearing
                 R Nagaswami (OPW 17) stated that the pillars which were
                 used in the pillar bases were probably of wood and not stone
                 – such a pillar could bear a load of a tiled roof but not of a
E                huge superstructure. Ashok Datta (PW 31) stated that the
                 so-called bases are not pillar bases but are actually brick-
                 bat deposits. PW 27, PW 30 and PW 32 also deposed that
                 the pillar bases and the pillars were not of a load bearing
                 character.
F           Objections as to walls
            467. The following objections were addressed to the ASI report
      before the High Court in regard to the presence of the excavated walls:
            “A medieval temple in classical style would have had a central
            portion with thick internal walls to support a high superstructure.
G
            The key plan of structures, in Trench H1, shows two lengths of
            a wall or two narrow walls, each less than a meter long, with a
            gap of about 70 cm. This depiction in the plan and the one line
            is all the information given about this ‘entrance’.”
             Dealing with the objections, the High Court returned the following
H
      findings:
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                  497


         “3926. During excavations, in all 28 walls were traced as shown           A
         in Fig. 3A out of which wall no. 1 to 15 are either contemporary
         to the disputed structure or belong to disputed structure. Walls
         no. 16 to 28 are earlier to the disputed structure and were found
         underneath the disputed structure...
         ...                                                                       B
         3928. The statements of Experts (Archaeologists) of plaintiffs
         (Suit-4) in respect to walls and floors have already been referred
         in brief saying that there is no substantial objection except that
         the opinion ought to be this or that, but that is also with the caution
         that it can be dealt with in this way or that both and not in a           C
         certain way. In other words on this aspect witnesses are shaky
         and uncertain. We, therefore find no substantial reason to doubt
         the report of ASI in this respect.”
         Ms Arora has raised the following objections with respect to the
walls:                                                                             D
          (i) The inner walls (walls 18A, 18B, 18C and 18D) could not
              have been load bearing because they are too narrow, only
              two to three courses high and built from brick-bats. Wall
              16 is 1.77m wide whereas walls 18A, B, C and D are
              relatively thin;                                                     E
         (ii) Thicker western walls are a feature of mosque construction;
         (iii) Wall 16 could only have been the foundation of the Babri
               mosque; and
         (iv) According to Jayanti Prasad Srivastava (DW 20/5), wall 16
                                                                                   F
              was built around 1130 A.D. when a pillared hall was erected
              in front of the shrines. After construction of wall 17, the
              structures standing below floor 3, towards east of wall 17,
              got protected from flood and to further strengthen it, wall
              16 was constructed.
         Objections as to circular shrine                                          G

      468. The High Court noted the following objections in regard to
ASI’s findings about the existence of a circular shrine:
         “1. Erroneous to compare structure with certain temple
             structures and not with circular walls & buildings                    H
498            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            2. No object of Hindu worship found on this layer
             3. Surviving wall as per ASI’s drawings makes only a quarter
                of circle – such shapes are fairly popular in walls of Muslim
                construction
             4. Nothing found in the structure in the way of image or sacred
B               piece that can be called a “shrine”
             5. Shrine could have been a stupa belonging to the 6th or 7th
                century AD.”
            While rejecting these objections, the High Court recorded the
C     following findings:
            “3931. ‘Circular Shrine’, more virtually its existence, that was
            found by ASI has been admitted by most of the Experts
            (Archaeologist) of Muslim parties though a reluctant attempt has
            been made for diverting the identity by suggesting that it may be
D           a “Buddhist Shrine” or a tomb of erstwhile Islamic religious
            structure. PW-30 has categorically admitted it on page 15 and
            has said that his statement in para 14 of the affidavit was not
            after looking to the shrine at the spot but on the basis of its photo
            only.
            3935. During excavation at the disputed site between trenches
E
            E-8 & F-8 a circular structure of burnt bricks facing east was
            recovered, commonly termed as “circular shrine”, detailed at page
            70 to 72 of report, volume 1, and shown in figure 17, 24, 24A,
            and plates 59, 60 & 62 (volume 2) of the report. The bricks used
            here are of two sizes: 28x21x5.5 cm and 22x18x5 cm. The
F           bonding material was mud mortar. On its eastern side, there is a
            rectangular opening, 1.32 m in length and 32.5 cm in width, which
            was the entrance of the structure. A calcrete block, measuring
            70x27x17 cm, has also been found here, fixed, obviously, as the
            door-sill.
G           This was an independent miniature shrine. The architectural
            features suggest that, that it was a Shiva shrine.
            3939. It is unthinkable that inspite of these clear features of Shiva
            shrine, the objectors are identifying the same as a Muslim tomb.

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               499


       3940. Secondly, it is too small a structure for a tomb, from inside      A
       it is only 4.4 ft. square. Neither could it accommodate a grave
       in its interior, nor a Qiblah-Mihrab on its western wall ; Qiblah
       was an integral and essential part of tomb-structure during the
       Sultanate period (1192-1526 A.D.) as is illustrated by numerous
       examples all over northern India.
                                                                                B
       3941. Thirdly, there is no trace of an arch required for
       constructing dome over the tomb. There are no hook-shafts to
       bear and no structural trace to suggest any lateral thrust of the
       mihrab. It may be noted that the sub-structure of the mihrab is
       built massively on the edges of the four corners, to counter the
                                                                                C
       lateral thrust. One wonders, if it was a tomb without any arch
       or dome, and without even a grave?
       3942. Thus, on the one hand the dimension of this structure are
       too small for a tomb and on the other the gargoyle was never in
       tombs while it was an integral feature of the sanctum of Shiva           D
       temples to drain out water poured on the Sivlinga.
       3943. Shrine is a holy place where worship is performed. It is a
       structure where holiness is enshrined. Denial for the sake of denial
       should not be allowed. “No evidence to make this structure a
       shrine” and “a sheer figment of imagination and a conjecture             E
       without any evidentiary basis”, such comments grossly lack
       technical acumen and clearly show the dearth of logical thinking.
       These themselves are mere arguments lacking “evidentiary
       basis”. These and many like arguments show the ‘ostrich
       attitude’ of the plaintiff.
                                                                                F
       3952. In the overall view we find no reason to doubt the findings
       of ASI on this aspect also and the objections otherwise are
       accordingly rejected.”
       Ms Arora, learned Senior Counsel has raised the following
objections with respect to the findings in the report on the circular shrine:   G
        (i) The structure pertains to seventh to tenth century A.D. (post
            Gupta Rajput period) and hence, would have nothing to do
            with the alleged Ram Janmasthan temple which is of twelfth
            century A.D.;
                                                                                H
500               SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A              (ii) The excavation report shows pillar bases lying right above
                    the shrine which refutes the claim that the circular shrine
                    belonged to the same time period as that of the twelfth
                    century Hindu structure; and
               (iii) There is no evidence of any water residue.
B
               Divine couple and other artefacts
               469. The following objections were placed before the High
      Court:
               “Divine Couple:
C
                1. Piece so damaged that it is undecipherable.
                2. No reason for calling it “divine” given. Piece found in trench
                   K3-K4 and the recorded layer is “debris”. Thus the piece
                   does not come from a stratified context.
D               3. Octagonal Shaft: Comes from surface debris above topmost
                   floor (Floor 1) in Trench F3 (Pl. 140) – is of no relevance.
                4. Others: Out of 383 architectural fragments only 40 came
                   from stratified contexts. Out of these 40, none were specific
                   to a temple, the 8 fragments separately mentioned
E                  (doorjamb, amlaka, divine couple, srivatsa motif, lotus
                   medallion etc.) are of no significance. For example Srivatsa
                   design is associated with Jainism, lotus design could be
                   Buddhist or Muslim.”
           The High Court rejected the above objections. Justice Sudhir
F     Agarwal held:
               “3958. The identification and appreciation of the excavated
               material like human or animal figurines etc. is a matter of experts.
               None of these eight experts (Archaeologists of Muslim parties)
               claimed to be the experts in this… branch in Archaeology. Even
               otherwise their stand in respect to these finds is varying. One
G
               witness says that these finds were not at all recovered from the
               layers they are claimed while others say otherwise. We have seen
               photographs of many of such artifacts and finds and in generality
               there is no such inherent lacuna or perversity in the observations
               of ASI or other identification which may warrant any… comment
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          501


      from this Court or may vitiate their report. It is not in dispute    A
      that no Islamic religious artefacts have been found during
      excavation while the artifacts relating to Hindu religious nature
      were in abundance. For some of the items, it is claimed that it
      can also be used by non-Hindu people but that would not be
      sufficient to doubt the opinion of ASI. Plate No.50 (Kapotpalli),
                                                                           B
      Plates No.51 and 62 (floral motifs shown in walls 16 and 17),
      (Sravats) Plate No.88, Cobra hood (Nag Devta) Plate No.129
      and various other Gods and Goddesses in human shape (Plate
      Nos. 104, 105, 106, 107, 108, 109, 110, 111, 112, 114, 115, 116,
      118, 119, 120, 121, 122, 123, 125, 126) to our mind were quite
      clear and admits no doubt. Three witnesses namely Sri Arun           C
      Kumar (OPW-18), Dr. R. Nagaswami (OPW 17) and Sri
      Rakesh Dutt Trivedi (OPW19) were produced who supported
      the findings and report of ASI. They are retired officers, holding
      senior position in ASI. Their statements are sufficiently lengthy
      and extremely detailed. Since they have supported ASI report,
                                                                           D
      we have not mentioned their statements in detail for the reason
      that we intended to test the objections raised against ASI report
      in the light of what the witnesses of plaintiff (Suit 4) have
      deposed and only when we would have some doubt, we would
      refer to and compare the statement that of OPW 17 to 19. In
      totality we find no substance in the objection with respect to the   E
      figurines etc. and the same are accordingly rejected.”
       Besides the above objections, Ms Arora, learned Senior Counsel
has raised the following objections:
       (i) Different teams of the ASI which authored various chapters
           of the report arrived at inconsistent findings on the periods   F
           attributed to the artefacts;
      (ii) The so-called sculpture of the ‘divine couple’ is completely
           mutilated;
      (iii) There is no basis for the use of the expression “divine” as    G
            even the ‘alingan mudra’ does not appear clear; and
      (iv) The other artefacts such as the lotus design are not
           necessarily associated with the Hindu religious structures.
      Objections as to glazed ware and glazed tiles
                                                                           H
502            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           470. A total of 647 fragments of pottery which were recovered
      were assigned to nine periods as reflected below:
            “Period I : 99
            Period II : 73
            Period III : 105
B
            Period IV : 74
            Period V : 85
            Period VI : 63
            Periods VII, VIII & IX : 148
C
            TOTAL : 647.”
            Of the 647 fragments, 148 fragments have been assigned to
      periods VI, VIII and IX.
            Ms Arora submitted that the principal objections were that:
D            (i) Glazed ware was placed in the last phase of period VII
                 since otherwise it would militate against a temple being made
                 in that period;
            (ii) Glazed ware is an indicator of Muslim habitation and is not
                 found in medieval Hindu temples; and
E           (iii) Two pieces of glazed wares were found in VI – indicating
                  that the layers were wrongfully assigned.
            Objections as to animal bones
            471. Ms Meenakshi Arora, learned Senior Counsel has raised the
      following objections with respect to the animal bones:
F
             (i) No study was conducted of the bones found during the
                 excavation at every level of the site;
            (ii) The ASI report does not contain a separate chapter
                 regarding the study of bones and there is only a casual
G                reference in the Summary of results, without any
                 understanding of the contextual relationship of the bones
                 recovered with the structural remains; and
            (iii) Recovery of bone fragments with cut marks is a sign of
                  animals being utilised for food which would rule out the
                  possibility of a temple.
H
   M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                       503


     The above inconsistency which has been highlighted carefully by                     A
Ms Arora must be borne in mind.
       The Code of Civil Procedure: Section 75 and Order XXVI
       472. Before dealing with the objections raised by Ms Arora both
on the preliminary aspects outlined to above and on the merits on report
(which will be set out later), the Court must form a perspective of the                  B
nature and ambit of the investigation entrusted to the ASI by the High
Court.
       473. Section 75277 of the CPC empowers the court to issue
commissions “subject to such conditions and limitations as may be
prescribed”. The court may issue a commission, among other things to                     C
hold a scientific, technical or expert investigation. This specific provision
was incorporated by Amending Act 104 of 1976 with effect from 1
February 1977.
       Order XXVI deals with Commissions. Rules 1 to 8 cover
commissions for the examination of witnesses. Rules 9 and 10 deal with                   D
commissions for local investigation, while commissions for scientific
investigation and for the purpose of ministerial acts and the sale of
property are covered by Rules 10A, 10B and 10C. The remaining
provisions deal with commissions for the examination of accounts and
for making partitions and contain general provisions, including                          E
commissions at the instance of foreign tribunals.
       474. For the present purpose, the court has to deal with Rules 9,
10, 10A and 10B. Rule 9 empowers the court to issue a commission
for the purpose of a local investigation which it considers to be requisite
or proper for the purpose of elucidating any matter in dispute. After a                  F
local inspection, Rule 10 empowers the commissioner, to submit a signed

277
    Section 75. Power of court to issue commissions.- Subject to such conditions and
limitations as may be
prescribed, the Court may issue a commission-
(a) to examine any person;
(b) to make a local investigation;
                                                                                         G
(c) to examine or adjust accounts; or
(d) to make a partition
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which
is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act                                                       H
504            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     report to the Court together with the evidence. Rule 10 provides as
      follows:
            “10 . Procedure of Commissioner— (1) The Commissioner, after
            such local inspection as he deems necessary and after reducing
            to writing the evidence taken by him, shall return such evidence,
B           together with his report in writing signed by him, to the Court.
            (2) Report and deposition to be evidence in suit. The report of
            the Commissioner and the evidence taken by him (but not the
            evidence without the report) shall be evidence in the suit and shall
            form part of the record; but the Court or, with the permission of
C           the Court, any of the parties to suit may examine the
            Commissioner personally in open Court touching any part of the
            matters referred to him or mentioned in his report, or as to his
            report, or as to the manner in which he has made the
            investigation.
D           (3) Where the Court is for any reason dissatisfied with the
            proceedings of the Commissioner, it may direct such further
            inquiry to be made as it shall think fit.”
            Rule 10A makes the following provisions in regard to the
      appointment of a commission for the purposes of scientific investigation:
E           “10A . Commission for scientific investigation— (1) Where any
            question arising in a suit involves any scientific investigation which
            cannot, in the opinion of the Court, be conveniently conducted
            before the Court, the Court may, if it thinks it necessary or
            expedient in the interests of justice so to do, issue a commission
F           to such person as it thinks fit, directing him to inquire into such
            question and report thereon to the Court.
            (2) The provisions of rule 10 of this Order shall, as far as may
            be, apply in relation to a Commissioner appointed under this rule
            as they apply in relation to a Commissioner appointed under rule
            9.”
G
            Rule 10B deals with the appointment of a commission for the
      performance of a ministerial act which cannot be conveniently
      performed before the court.
            475. While directing the ASI to carry out a scientific investigation,
H     the High Court was exercising its powers under Section 75 and Rule
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        505


10A of Order XXVI. To such an investigation, sub-rule 2 of Rule 10A          A
stipulates that the provisions of Rule 10 shall apply, as far as may be,
as they apply in relation to a Commissioner appointed under Rule 9.
Rule 10(2) stipulates that the report and the evidence taken by the
commissioner “shall be evidence in the suit”. There is a mandate
of the statute that the report and the evidence be treated as evidence
                                                                             B
in the suit and that it “shall form part of the record”. However, either
the court on its own accord or any of the parties to the suit (with the
permission of the court) may examine the Commissioner personally. This
is an enabling provision under which the Commissioner can be examined
either by the court on its own accord or at the behest of a party to the
suit. The subject matter on which the Commissioner can be examined           C
is also described in sub-rule 2 of Rule 10. The Commissioner may be
examined on:
           (i) Any of the matters referred;
           (ii) Any of the matters mentioned in the report;
                                                                             D
          (iii) As to the report; or
          (iv) As to the manner in which the investigation has been made.
      This covers both matters of procedure followed in conducting
the investigation and the substantive aspects of the report.
                                                                             E
          476. Dr Bhuvan Vikram Singh
       During the course of the proceedings before the High Court, the
plaintiffs in Suit 5 filed an application requesting the examination of Dr
Bhuvan Vikram Singh, who was part of the excavation team. The High
Court summoned the witness. Dr Bhuvan Vikram Singh filed an
application278 requesting that he may be summoned as a court’s witness       F
as he was part of the court appointed excavation team and was not
willing to depose as a witness of any party to the suit. The counsel for
the plaintiffs in Suit 5 did not oppose the application and made a
statement that he did not wish to examine Dr Bhuvan Vikram Singh as
a witness in Suit 5. However, the counsel made a request that Dr             G
Bhuvan Vikram Singh should be treated and examined as a court’s
witness. By an order dated 4 December 2006, the High Court
discharged the witness without recording his deposition, while observing
that the court itself had the discretion to call any witness and be
278
      Application no 25(o) of 2006                                           H
506            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     examined as a court’s witness and such a discretion could not be
      fastened upon the court by an application filed by any party.
             477. Justice Sudhir Agarwal in the course of his judgment noted
      that parties had raised objections to the report, which were to be decided
      by the court. But then, it was found that the nature of the objections
B     was such that unless parties were allowed to lead evidence, a decision
      on the objections could not be taken. Hence, on 3 February 2005, the
      High Court directed that the ASI report shall be admitted in evidence
      but the objections that were raised by the parties would be decided at
      the final hearing of the suits by which time the recording of evidence
      would be complete. The High Court noted that there is no requirement
C     in the law or in Rules 10 or 10A or Order XXVI that the report cannot
      be treated as substantive evidence unless the Commissioner is examined
      as a witness. The High Court observed that none of the parties opted
      to examine the Commissioner on any matter touching the report.
      Moreover, the objections filed by them did not place a challenge to the
D     entirety of the report but only to the conclusions drawn in the Summary
      of results. It appears that allegations of bias and mala fides were also
      urged before the High Court; however, these were not pressed during
      the course of the hearing by Ms Arora, learned Senior Counsel, before
      this Court.
E            478. There is no dispute about the factual position that none of
      the parties sought to examine the Commissioner in terms of the
      provisions contained in Rule 10(2) of Order XXVI which, as seen above,
      are applicable by virtue of Rule 10A(2) to a Commission constituted
      for a scientific investigation. Rule 9 of Order XXVI is a substantive
      power allowing the court to issue a Commission for making a local
F     investigation. Rule 10 is procedural in nature. Rule 10A is substantive,
      empowering the court to issue a commission for making a scientific
      investigation. Rule 10A(2) which applies the provisions of Rule 10, in
      its application to a Commissioner appointed under Rule 9, to a
      commission for scientific investigation contains the expression “as far
G     as may be”. These words comprehend the notion of that which is
      practicable, and to the extent feasible for the purpose of fulfilling the
      power which is conferred upon the court to issue or appoint a
      Commission. The second part of Rule 10(2) is enabling insofar as it
      confers a discretion on the court to either itself examine the
      Commissioner on matters pertaining to the report or investigation and
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          507


for enabling parties to request the court to call the Commissioner for     A
examination. Rule 10 does not abrogate the right to question the report
of a Commissioner if the enabling power of calling the Commissioner
for cross-examination is not exercised. A party may avail of that
opportunity by seeking the examination of the Commissioner on matters
bearing upon the report. A party may also lead evidence of its own
                                                                           B
witnesses who seek to controvert the methodology or the findings of
the Commissioner appointed for conducting a scientific investigation.
The right of a party to object to the report of the Commissioner is not
abrogated merely because the Commissioner is not called for cross-
examination. Much will depend on the nature of the objections which
are sought to be urged by a party before the Court though the              C
Commissioner was not called for examination.
       479. In the present case, the High Court was of the view that
there was no requirement in law for the Commissioner to be called upon
to give evidence as a condition precedent to the report being treated
as evidence in the suit. The High Court is justified in this view since    D
Rule 10(2) of Order XXVI stipulates that the report of and the evidence
taken by the Commissioner “shall be evidence in the suit and shall
form part of the record”. Hence, the report was correctly treated
as evidence in the suit and as the part of the record. This, however,
did not foreclose any party to the proceedings from questioning the
report for which, it was open to it to follow any one or more of the       E
following courses of action namely:
       (i) Calling for the examination of the Commissioner in open
           court;
      (ii) Leading evidence of its own witnesses to displace the report    F
           of the Commissioner; and
      (iii) Placing its objections to the report of the Commissioner for
            consideration by the court. The judgment of Justice Agarwal
            does in fact note that the objections which parties had
            submitted to the report would be decided after the final       G
            hearing of the suits, by which time the evidence would be
            complete. The entitlement of a party to follow or pursue the
            courses of action referred to in (ii) and (iii) above was
            independent of the enabling power conferred by the latter
            part of Rule 10A(2).
                                                                           H
508               SUPREME COURT REPORTS                                   [2019] 18 S.C.R.


A            480. Having said this, it is necessary to bear in mind Section 45279
      of the Evidence Act 1872. When the court has to form an opinion,
      among other things, upon a point of science, the opinions upon that point
      of persons specially skilled in the science at issue are relevant facts.
      Such persons, as the statute provides “are called experts”. The manner
      in which the report of an expert must be evaluated has been delineated
B
      in a decision of the Privy Council in Chandan Mull Indra Kumar v
      Chiman Lal Girdhar Das Parekh280. Lord Romer recorded what the
      Subordinate Judge in that case had held about the manner in which the
      report of a local commission should be approached:
              “It has been laid down that interference with the result of a long
C             and careful local investigation except upon clearly defined and
              sufficient grounds is to be deprecated. It is not safe for a Court
              to act as an expert and to overrule the elaborate report of a
              Commissioner whose integrity and carefulness are unquestioned,
              whose careful and laborious execution of his task was proved
D             by his report, and who had not blindly adopted the assertions of
              either party.”


      279
          Section 45 provides thus:
      Opinions of experts.—When the Court has to form an opinion upon a point of foreign
E     law or of science or art, or as to identity of handwriting [or finger impressions], the
      opinions upon that point of persons specially skilled in such foreign law, science or art,
      [or in questions as to identity of handwriting] [or finger impressions] are relevant facts.
      Such persons are called experts.
      Illustrations
      (a) The question is, whether the death of A was caused by poison.
      The opinions of experts as to the symptoms produced by the poison by which A is
F     supposed to have died are relevant.
      (b) The question is, whether A, at the time of doing a certain act, was, by reason of
      unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing
      what was either wrong or contrary to law.
      The opinions of experts upon the question whether the symptoms exhibited by A
      commonly show unsoundness
      of mind, and whether such unsoundness of mind usually renders persons incapable of
G
      knowing the nature of the acts which they do, or of knowing that what they do is either
      wrong or contrary to law, are relevant.
      (c) The question is, whether a certain document was written by A. Another document
      is produced which is proved or admitted to have been written by A.
      The opinions of experts on the question whether the two documents were written by
      the same person or by different persons, are relevant.
      280
H         AIR 1940 PC 3
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        509


       Having recorded the above observations of the trial judge, the        A
Privy Council proceeded to affirm them as reflecting the correct position
in law:
        “This in their Lordships’ judgment is a correct statement of the
        principle to be adopted in dealing with the commissioner’s report.
        It is substantially the principle already laid down by this Board    B
        in the case of Ranee Surut Soondree Debea v. Baboo Prosonno
        Coomar Tagore [(1870) 13 Moo. I.A. 607 at p. 617.].”
      [See also in this context the judgment of a learned Single Judge
of the Delhi High Court in New Multan Timber Store v Rattan
Chand Sood281]                                                               C
       481. Dr Rajeev Dhavan, in the course of his written submissions,
fairly accepts that “the court may not have the expertise to sit in
judgment over the experts”. Yet, according to the submission, certain
aspects can certainly be examined by the court without sitting in
judgment over the expertise of the Commissioner. Those aspects are           D
as follows:
         (i) Whether the commission has fulfilled the remit of the court
             to provide an answer;
         (ii) Whether conditionalities and limitations have been observed;
        (iii) Whether the conclusions are in conformity with the findings;   E

        (iv) Whether there are obvious inconsistencies in the report; and
         (v) Whether conclusions have been drawn beyond reasonable
             probabilities.
      Hence, Dr Dhavan urged that in a first appeal, it is open to the       F
appellate court to examine the conclusions drawn by the trial court if
they are unrelated to and in excess of the report. Moreover, where all
the parties have not cross-examined the Commissioner, the trial court
and the appellate court would be acting within its jurisdiction in
examining objections based on consistency, relevance and probability.        G
      482. In principle, we are of the view that a party to a suit is not
foreclosed from raising objections to the report of a Commissioner or
from leading the evidence of its own witnesses to controvert the findings
merely because it has not requested the court to summon the
281
  (1997) 43 DRJ 270                                                          H
510            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     Commissioner for the purpose of examination. But, a party which fails
      to take recourse to the enabling power which is conferred by Rule 10(2)
      to request the court to allow the examination of the Commissioner in
      court, may in a matter touching upon the expertise of the Commissioner
      face a peril. In the present case, ASI is an expert authority. Its
      credentials and expertise are beyond reproach. The nature of the
B
      objections which can legitimately be considered by the court will depend
      upon the nature of the investigation ordered to be conducted by the
      Commissioner and the domain expertise involving both knowledge and
      experience in the particular branch of learning. There may well be certain
      facets of the report of the Commissioner on a matter pertaining to the
C     scientific investigation which could best be explained by the
      Commissioner. Rule 10(2) allows the Commissioner to be examined on
      any matter mentioned in the report or as to the report or as to the
      manner in which the investigation has been made. Failure to invoke the
      enabling power which is conferred in Rule 10(2) may result in
      consequences bearing on the failure of the party to address the
D
      clarifications which it seeks to the Commissioner in the course of an
      examination. In a matter pertaining to scientific investigation, the court
      lacks expertise on issues requiring domain knowledge which is why the
      Commissioner was appointed in the first place. The object and purpose
      of appointing the ASI was to direct an excavation at the disputed site
E     so as to enable the court to form an objective view on the subject matter
      of the dispute on the basis of the material found and the conclusions
      drawn by the ASI. The failure of a party which seeks to question the
      report of the Commissioner to call the Commissioner for cross-
      examination may circumscribe the nature of the objections which can
      be raised before the court for the reason that the Commissioner who
F
      was best positioned to explain the report has not been called for
      examination.
            483. We accept the proposition urged by Dr Dhavan, learned
      Senior Counsel that as a matter of principle, despite not having called
      the Commissioner for examination, a party could still urge objections
G     before this Court on matters such as the following:
             (i) Whether the remit of the court has been fulfilled by the
                 Commissioner, including
                  a. Whether the Commissioner has decided what was not
H                    referred; or
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            511


            b. Whether the Commissioner has not decided something            A
               which was referred;
       (ii) Whether there are contradictions or inconsistencies in the
            report of the Commissioner; and
      (iii) Whether the conclusions or findings of the Commissioner
            arise from the report.                                           B

      Ultimately, it lies within the jurisdiction of the court to decide
whether the findings that are contained in the report of the ASI sub-
serve the cause of truth and justice on the basis of relevance and
preponderance of probabilities. Common sense ought to guide the
exercise of judicial discretion, here as in other branches of the law.       C

      Analysis
      Pleadings
       484. The plaintiffs in Suit 5 sought a declaration “that the entire
premises of Sri Rama Janmabhumi at Ayodhya… belongs to the plaintiff         D
deities”. The pleading in paragraph 23 of the plaint is that there was
an ancient temple dating back to the reign of Vikramaditya at Sri Rama
Janmabhumi which was partly destroyed and an attempt was made to
raise a mosque on the site:
      “23. That the books of history and public records of                   E
      unimpeachable authenticity establish indisputably that there was
      an ancient Temple of Maharaja Vikramaditya’s time at Sri
      Rama Janma Bhumi, Ayodhya. That temple was destroyed
      partly and an attempt was made to raise a mosque thereat,
      by the force of arms, by Mir Baqi, a commander of Baber’s
                                                                             F
      hordes…In 1528 Babar came to Ayodhya and halted there
      for a week. He destroyed the ancient temple and on its
      site built a mosque, still known as Babar’s mosque…”
                                                    (Emphasis supplied)
       The claim in Suit 5 is that (i) there existed an ancient temple at    G
the site of Ram Janmabhumi; (ii) the temple dated back to the era of
Vikramaditya; and (iii) Babur constructed the mosque in 1528 by
destroying the temple and at its site.


                                                                             H
512            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           Issues
            485. In view of the pleadings of the parties, the following issues
      were framed in Suit 4 and Suit 5:
            “(a) Issue No. 1(b) in Suit No. 4
B           “Whether the building had been constructed on the site of an
            alleged Hindu temple after demolishing the same as alleged by
            defendant no. 13? If so, its effect?”
            (b) Issue No. 14 in Suit No. 5
            “Whether the disputed structure claimed to be Babri Masjid was
C           erected after demolishing Janmasthan temple at its site?”
            In order to establish their case, the plaintiffs in Suit 5 need to
      prove that:
             (i) There existed an ancient Hindu temple at the disputed site;
D            (ii) The existing ancient Hindu temple was demolished in order
                  to construct the Babri Masjid; and
            (iii) The mosque was constructed at the site of the temple.
             The burden of proof to establish a positive case lies on the
      plaintiffs in Suit 5 in terms of Sections 101 to 103 of the Evidence Act
E     1872.
            The purpose of the excavation ordered by the High Court
              486. While ordering a GPR survey, the High Court by its order
      dated 23 October 2002 explained the purpose and object of doing so in
F     the following terms:
            “The nature of super structure to a great extent is related to the
            foundations. …If any foundation is existing of any construction,
            it may throw light as to whether any structure existed and if so
            what would have been the possible structure at that time…”
G            The GPR survey report dated 17 February 2003 found a variety
      of anomalies ranging from 0.5 to 5.5 meters in depth that could be
      associated with ancient and contemporaneous structures such as pillars,
      foundations walls and slab flooring extending over a large portion of
      the site. The survey report however indicated that these anomalies were
      required to be confirmed by ‘systematic ground trothing’, such as by
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            513


archaeological trenching. Out of 184 anomalies detected by the GPR           A
survey, 39 were confirmed during excavation.
      On 5 March 2003, when the High Court directed the ASI to
excavate the site, it was in order to determine:
      “Whether there was any temple/structure which was demolished
      and a mosque was constructed on the disputed site.”                    B

      The ASI presented its final report dated 22 August 2003 opining:
      “Now, viewing in totality and taking into account the
      archaeological evidence of a massive structure just below the
      disputed structure and evidence of continuity in structural phases     C
      from the tenth century onwards upto the construction of the
      disputed structure along with the yield of stone and decorated
      bricks as well as mutilated sculpture of divine couple and carved
      architectural members including foliage patterns, amalaka,
      kapotapali doorjamb with semi-circular pilaster, broken octagonal
      shaft of black schist pillar, lotus motif, circular shrine having      D
      pranala (waterchute) in the north, fifty pillar bases in association
      of the huge structure, are indicative of remains which are
      distinctive features found associated with the temples of
      north India.”
                                                    (Emphasis supplied)      E
      The basic objection to the ASI report is that no finding was
rendered on whether any underlying temple or structure was demolished
and a mosque was constructed on its site. In this context, it has been
submitted that by its very nature, the report which is an opinion (albeit
of an expert body) is not direct evidence of a fact and is inherently        F
speculative and inconclusive.
       487. Section 3 of the Evidence Act 1872 defines the expression
“fact” thus:
      “”Fact” means and includes-
                                                                             G
      (1) anything, state of things, or relation of things, capable of
          being perceived by the senses;
      (2) any mental condition of which any person is conscious.”
      However, Section 45 allows for an opinion of an expert as a
relevant fact when the court has to form an opinion upon a point of          H
514                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     foreign law, science or art or as to the identity of handwriting or finger
      impressions.
            The distinction between a witness of fact and an expert witness
      has been explained in a decision of this Court in Prem Sagar Manocha
      v State (NCT of Delhi)282:
B               “20…The duty of an expert is to furnish the court his opinion
                and the reasons for his opinion along with all the materials. It is
                for the court thereafter to see whether the basis of the opinion
                is correct and proper and then form its own conclusion. But, that
                is not the case in respect of a witness of facts. Facts are facts
C               and they remain and have to remain as such forever. The witness
                of facts does not give his opinion on facts, but presents the facts
                as such. However, the expert gives an opinion on what he has
                tested or on what has been subjected to any process of scrutiny.
                The inference drawn thereafter is still an opinion based on his
                knowledge...”
D
            The report which has been submitted by the ASI is an opinion;
      an opinion nevertheless of an expert governmental agency in the area
      of archaeology. The report constitutes the opinion of an expert. Expert
      opinion has to be sieved and evaluated by the court and cannot be
      conclusive in and of itself.
E
                Archaeology as a discipline
              488. The report which has been presented by ASI is assailed on
      the ground that as distinct from the natural sciences, archaeology is a
      branch of knowledge in the social sciences and is inherently subjective.
F     The submission is that an archaeologist, in order to arrive at a
      conclusion, draws inferences from a variety of other disciplines including
      history, sociology and anthropology. The process of inferential reasoning
      – it is urged - may lead to multiple layers of subjectivity affecting the
      ultimate conclusions. Hence, it has been submitted that an archaeological
      report does not furnish verifiable conclusions but provides inferences
G     drawn from data or objects found during the course of excavation. It
      has been urged that interpretations vary and archaeologists may differ
      in the conclusions drawn from on the same set of data. Hence, there
      is no absolute or universal truth.

      282
H           (2016) 4 SCC 571
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               515


      Justice Agarwal, during the course of his judgment opined:                A
      “3896. Archaeology provides scientific factual data for
      reconstructing ancient historical material, culture, understanding.
      Archaeology… is a multi-disciplinary scientific subject and
      requires a team of workers for effective results. Excavation of
      ancient sites is one of the major works of Archaeologists. As it          B
      is a scientific discipline, it uses scientific methods in its working.”
      Ms Meenakshi Arora, learned Senior Counsel has urged that
contrary to the above finding, expert witnesses have testified to
archaeology being a matter of inference and interpretation:
       (i) Jayanti Prasad Srivastava (DW 20/5), who retired as a                C
            Superintending Archaeologist in the ASI deposed in support
            of the report. He stated:
            “…Interpretation is an important aspect in excavation…”
            “…By the word conjure, I mean conjectural picture which
            could be based on the available evidence and it is very much
                                                                                D
            in the practice in archaeological diggings…”
      (ii) R Nagaswami (PW 17), who retired as Director of
            Archaeology in the Government of Tamil Nadu and was an
            expert witness for the plaintiffs in Suit 5 stated:
            “…In archaeology data collected in excavation needs to be
                                                                                E
            interpreted from the context and reference to related textual
            material from known authentic sources. If we are to repeat
            what is mentioned in the excavation report, the purpose
            of excavation which is reconstruction of the history,
            is not possible…”
                                                        (Emphasis supplied)     F
     (iii) Professor Dr Shereen F Ratnagar (PW 27), a former
            professor of archaeology at JNU who was an expert
            witness for the plaintiffs in Suit 4 stated:
            “What constitutes a fact itself can be disputed. However,
            if the fact is established, there may be two opinions on the        G
            fact by two Archaeologists...”
     (iv) Dr Supriya Varma (PW 32), who was an Associate
            Professor of Archaeology in the School of Social Sciences
            at the University of Hyderabad stated :
                                                                                H
516            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                 “…When archaeologists excavate and find archaeological
                  material which can include pottery and bones inference and
                  interpretation are made by archaeologists on the basis of
                  the context in which these finds are exposed. The data does
                  not speak for itself. Inferences are made on the basis of
                  certain principles and methods that are followed in
B
                  archaeology…”
             489. About the existence of 17 rows of pillar bases from north
      to south with each row having 5 pillar bases, R Nagaswami (OPW 17)
      stated that it was only an inference as all the 85 pillar bases had not
      been exposed. A similar statement was made by Dr Ashok Datta (PW
C
      31), a senior lecturer in the Department of Archaeology of the University
      of Calcutta. Dealing with figure 23 of the ASI report (the isometrical
      figure), he noted that it was not to scale or elevation of different floor
      levels and it may be considered purely conjectural. R Nagaswami (OPW
      17) and Jayanti Prasad Srivastava (DW 20/5) supported the view of
D     the ASI report regarding the existence of a massive Hindu temple at
      the disputed site. On the other hand, Dr Supriya Varma (PW 32) agreed
      with the finding of the ASI regarding the existence of the structure
      underneath the disputed structure but disagreed with the interpretation.
      These depositions have been relied upon to suggest that archaeologists
E     can and do disagree on the interpretation of data because the field is
      essentially inferential.
             490. Archaeology as a science draws on multi-disciplinary or
      trans-disciplinary approaches. In considering the nature of archaeological
      evidence, it is important to remember that archaeology as a branch of
F     knowledge draws sustenance from the science of learning, the wisdom
      of experience and the vision which underlies the process of
      interpretation. As a discipline, it nurtures a trained mind. It relies on a
      cross-fertilization with other disciplines such as history, sociology and
      anthropology. This is not a weakness but a strength. Archaeology
G     combines both science and art. As a science, it is based on the principle
      of objective evaluation. As an art, it relies on a vision which is realised
      through years of commitment to the pursuit of knowledge based on the
      histories of eras. Archaeology as a discipline cannot be belittled as
      unreliable. The value of archaeology cannot be diluted in the manner
      which has been suggested by laying a claim to its being a weak form
H
      of evidence.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                517


       491. While considering archaeological evidence within the                     A
framework of Section 45 of the Evidence Act and the court-ordered
excavation in the context of the provisions of Rule 10A of Order XXVI
of the CPC, it is nonetheless necessary for the court to appreciate both
the strength and the limits of the discipline. Archaeology is no exception.
A distinguished archaeologist, Sir Mortimer Wheeler summarised the                   B
experience which he gained, in his work titled “Archaeology from the
Earth”283. Dealing with stratigraphy, Sir Mortimer notes:
          “an ancient city in the East is never level. Very rarely is a city
          completely destroyed and completely rebuilt at one moment and
          at one horizon. Normally, a house is reconstructed or replaced             C
          as it decays, or at the whim of its owner. The town as a whole
          is constantly in a state of differential destruction and construction.
          Individual building sites rise above their neighbours; the town-
          site itself rises and assumes the contour of a hill; buildings on its
          slopes are contemporary with buildings on its summit. A doorway
                                                                                     D
          or a potsherd may be found at one spot 10 feet below a doorway
          or a potsherd of precisely the same date at another spot.”
      Excavation in layers is in and of itself a complex exercise.
Interpreting the findings in turn involves navigating through layered
complexities. Sir Mortimer notes:
                                                                                     E
          “Well, there are examples of various kinds of stratigraphical
          evidence: of layers that are contemporary with one another, layers
          that are separated by greater or lesser time-intervals, layers that
          have accumulated in unbroken succession. The reading of a
          section is the reading of a language that can only be learned by
                                                                                     F
          demonstration and experience. A word of advice to the student.
          However practiced, do not read too hastily. Be your own devil’s
          advocate before passing judgment. And, wherever possible,
          discuss your diagnosis with others – with colleagues, with pupils,
          with your foreman. (‘The testimony of one person is no testimony;
          declares Hywel Dda, the wise Welsh law-giver.) Be humble. Do               G
          not ignore the opinion of the uninstructed. ‘Everyone knows as
          much as the savant. The walls of rude minds are scrawled all
          over with facts, with thoughts’. Emerson said so, and he was

283
      Mortimer Wheeler, Archaeology from the earth, Oxford: Clarendon Press (1954)   H
518                 SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A               right. Even if you do not accept the views of those you question,
                the mere act of questioning is at the same time a restraint and a
                stimulus.”
             Sir Mortimer’s caution would apply as much to the law as to
      archaeology: something that we as judges would do well to bear in mind
B     in arriving at our conclusion in these appeals.
            492. In his book titled “The Logic of Scientific Discovery”284,
      Karl Popper distinguishes the work of a scientist with that of a
      philosopher. Popper quotes Lord Acton when he states:
                “there is nothing more necessary to the man of science than its
C               history and the logic of discovery….: the way error is detected,
                the use of hypothesis, of imagination, the mode of testing.”
             The supposed distinction between science as embodying absolute
      truth and archaeology as unguided subjectivity is one of degree not of
      universes. Yet as in other disciplines of its genre, archaeology is as much
D     a matter of process as it is of deduction. The archaeologist must deal
      with recoveries as much as the ‘finds’ from them. Interpretation is its
      heart, if not its soul. Interpretations do vary and experts disagree. When
      the law perceives an exercise of interpretation it must recognize margins
      of error and differences of opinion. Archaeological findings are
E     susceptible of multiple interpretations. This may in part be a function
      of the archaeologist’s perception of the past and what about the past
      the archaeologist seeks to decipher. Tradition based archaeology may
      seek facts about the past. An archaeologist, on the other hand may set
      about to validate a belief about the past. An archaeologist may approach
      the task with an open mind to unravel features that are unknown. Guided
F     by the underlying approach to the discipline, the archaeologist will bring
      to bear on the task at hand the purpose underlying its own origin. So
      long as we understand the limits and boundaries of the discipline, we
      can eschew extreme positions and search for the often elusive median.
            493. Ms Meenakshi Arora relied on decisions of this Court which
G     consider reports of handwriting experts to be “generally of a frail
      character” leading it to “be wary to give too much weight” to them.
      This form of evidence has been held to be “indecisive” and hence
      something which must yield to positive evidence. The reason for this

      284
H           Karl R. Popper,The Logic of Scientific Discovery, Hutchinson & Co (1959)
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          519


was explained in Sri Sri Sri Kishore Chandra Singh Deo v Babu                  A
Ganesh Prasad Bhagat 285, on the ground that the conclusions of
handwriting experts are drawn “upon mere comparison of handwriting”.
The principle was reiterated in Smt Bhagwan Kaur v Shri Maharaj
Krishan Sharma286. In Murari Lal v State of Madhya Pradesh287,
this Court held that it would be unsafe to found a conviction solely on
                                                                               B
the opinion of a handwriting expert. While formulating the principle, this
Court however noted that the weight to be ascribed to expert evidence
is based on the nature of the science on which it is based. Where the
science in question possesses essential ingredients of verifiability and
objective analysis, expert evidence would to that extent require some
deference. The Court held:                                                     C
        “4…The more developed and the more perfect a science, the
        less the chance of an incorrect opinion and the converse if the
        science is less developed and imperfect. The science of
        identification of finger-prints has attained near perfection and the
        risk of an incorrect opinion is practically non-existent. On the       D
        other hand, the science of identification of handwriting is not
        nearly so perfect and the risk is, therefore, higher...”

       Thus, in the above extract, the court made a distinction between
identification of fingerprints and opinions of handwriting experts. Hence,     E
the weight that should be given to expert evidence is based on the nature
of the underlying science on the basis of which the expert opines.
Commenting on the imperfect nature of the science of identification of
handwriting this Court in State of Maharashtra v Sukhdev Singh288
held:
                                                                               F
        “29…But since the science of identification of handwriting by
        comparison is not an infallible one, prudence demands that before
        acting on such opinion the court should be fully satisfied about
        the authorship of the admitted writings which is made the sole
        basis for comparison and the court should also be fully satisfied      G
        about the competence and credibility of the handwriting expert…

285
    AIR 1954 SC 316
286
    (1973) 4 SCC 46
287
    (1980) 1 SCC 704
288
    (1992) 3 SCC 700                                                           H
520             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            True it is, there is no rule of law that the evidence of a handwriting
             expert cannot be acted upon unless substantially corroborated but
             courts have been slow in placing implicit reliance on such opinion
             evidence, without more, because of the imperfect nature of the
             science of identification of handwriting and its accepted
B            fallibility…”
           [See also in this context: Shashi Kumar Banerjee v Subodh
      Kumar Banerjee 289 , S P S Rathore v CBI 290 and Chennadi
      Jalapathi Reddy v Baddam Pratapa Reddy291.]
            The attempt by Ms Arora, learned Senior Counsel in her
C
      submissions to compare archaeological evidence with handwriting
      analysis is flawed. Underlying this submission is an erroneous
      appreciation of the knowledge, skills and expertise required of an
      archaeologist. It becomes necessary to dwell on the process adopted
      by ASI in conducting the excavation.
D
             The process
             494. The High Court issued detailed directions for the
      preservation of the record of excavation. Following the order of the
      High Court on 5 March 2003, a fourteen member ASI team was
      constituted by the Director General. On 11 March 2003, the High Court
E
      directed that a general survey of the site and layout of trenches would
      be conducted in the presence of contesting parties or their counsel.
      Videography was ordered and the results were to be placed in a sealed
      cover. The materials recovered were also directed to be preserved
      “under lock and seal” in a building situated in proximity to the site.
F     Periodical progress reports of the work of excavation were submitted
      to the High Court. The High Court was periodically informed about the
      trenches which had been laid, the nature of the excavation and the
      material that was recovered. On 26 March 2003, the High Court issued
      specific directions to the ASI team to maintain a register recording the
G     recovery of finds, which was to be sealed in the presence of parties.
      The following directions were issued:


      289
          AIR 1964 SC 529
      290
          (2017) 5 SCC 817
      291
H         (2019) SCC Online SC 1098
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             521


      “(i) ASI team shall note down in its own register to be                 A
           maintained (in respect of recovery of finds) the depth in
           meter/feet of the trench where it is found. It may also note
           down the layer of the strata according to its own
           interpretation.
       (ii) The signature of either the contesting parties or their counsel   B
            may be obtained.
      (iii) The register should further specify the nature of the finds
            i.e. bones and glazed ware etc.
      (iv) The finds shall be sealed in the presence of the parties/
                                                                              C
           counsel and signatures of either the contesting party or his/
           their counsel shall also be obtained who are present on the
           spot.
      (v) If the nature of the finds is not certain, a noting may be
          made accordingly and when it is unsealed, its nature may
          be verified after the Court permits to do so.”                      D

       Photographs both in colour and black and white were directed
to be taken. A register of work carried out from day to day was directed
to be prepared by the ASI team. Parties were also permitted to observe
the work of excavating trenches. The High Court observed:
                                                                              E
      “228... 4. It is suggested by Sri Jilani, learned counsel for the
      Sunni Central Board of Waqfs, that not more than two trenches
      should be excavated at one time after the completion of work in
      the trenches already being excavated for the reason that the
      parties or their counsel may not be able to observe the excavation
      of the trenches at one time.                                            F
      Sri B.R. Mani, Superintending Archaeologist and team leader has
      submitted a report dated 22.3.2003 stating that it has carved out
      various trenches of area 4 x 4 meters leaving 0.5 meter baulk
      all around. If the trenches are adjoining to each other, it can be
      observed by the contesting parties or their counsel and their           G
      nominees. We have permitted for each of the contesting parties
      to observe with their counsel as well as their nominees (one
      nominee at one time). The result is that for each of the contesting
      parties, there are three observers. If the distance is too much
      and it is difficult to observe another trench by any of them, they
                                                                              H
522            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           can legitimately raise grievance in this respect. It may be noted
            that the ASI team should ensure confidence of the parties and
            their counsel in the matter of excavation. It is, however, to be
            kept in mind that we have directed for expeditious excavation
            and for that purpose if necessary and without losing the
            confidence of the parties more than two trenches may also be
B
            laid by the ASI team.”
             Another suggestion was that there must be adequate
      representation to the Muslim community in the ASI team and in the
      engagement of labour for the work of excavation. This was also acceded
      to by the High Court by directing that adequate representation for both
C     the communities should be given in the constitution of the ASI team
      and the labour deputed at the site. In order to ensure transparency, two
      judicial officers from the Uttar Pradesh Higher Judicial Service of the
      rank of Additional District Judge were deputed to oversee the work.
      The process of excavation was carried out in the presence of parties
D     and was governed by the directions issued by the High Court to ensure
      impartiality and transparency. This was facilitated by directing the
      preservation of records, videographing of the excavation process,
      preservation of photographs and by the presence of two judicial officers
      for the purpose of overseeing the work. After the completion of the
      excavation work but before the preparation of the final report, further
E     directions were issued by the High Court on 8 August 2003 for keeping
      intact all the trenches so as to facilitate the ASI team to complete the
      study and submit its report.
            495. The ASI report has ten chapters which consist of:

F           Chapter I           Introduction
            Chapter II          Cuttings
            Chapter III         Stratigraphy and Chronology
            Chapter IV          Structure
G           Chapter V           Pottery
            Chapter VI          Architectural Fragments
            Chapter VII         Terracotta Figurines
            Chapter VIII        Inscriptions, Seals, Sealings and Coins
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           523


      Chapter IX          Miscellaneous Objects                             A
      Chapter X           Summary of Results
      Appendices I to IV to the report contain the following information
      Appendix I          C14 Dating of Charcoal Samples from
                          Ayodhya excavation                                B
      Appendix IIA        Report on the Chemical Analysis of Plaster
                          Samples pertaining to different trenches
                          collected from Ayodhya
      Appendix IIB        Report on the Chemical Analysis of Floor
                          Samples pertaining to different trenches          C
                          collected from Ayodhya
      Appendix III        On-Site Chemical Treatment and Preservation
                          of Excavated Artefacts
      Appendix IV         Information on the Data-Form as per direction
                                                                            D
                          of Special Full Bench, Lucknow of the
                          Hon’ble High Court, Allahabad.
       496. The ASI submitted its final report on 22 August 2003
together with a complete record containing field notebooks, series,
registers, site notebooks and a laptop together with a hard disk and
compact disks. The record that was submitted by the ASI together with       E
its report has been tabulated in paragraph 241 of the judgment of Justice
Sudhir Agarwal. In assessing the report of the ASI, it must therefore
be borne in mind that a structured process was followed in the course
of excavation in order to ensure that the process of excavation was
documented both in electronic and conventional forms. What is               F
excavated and found is a matter of fact. Undoubtedly, the archaeologist
has to relate the data which emerges from the excavation to a context.
The process of drawing inferences from data is an essential element
of archaeology as a discipline but to reject this exercise as conjectural
and hypothetical would be a dis-service both to the discipline and to
the underlying process. No submission questioning the independence          G
of the ASI team has been urged by Ms Arora. In this backdrop, the
fact the none of the parties called for examination of any one from the
ASI team under the provisions of Order XXVI Rule 10 (2) cannot be
ignored.
                                                                            H
524             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           The Idgah defence
             497. The case of the plaintiffs in Suit 5 is that below the disputed
      site there was an ancient temple dating back to the era of Vikramaditya
      which was destroyed by Mir Baqi, the Commander of Babur’s forces
      and that the Babri mosque was built upon it. It is alleged that the material
B     used to construct the mosque was taken from the destroyed temple,
      including the black Kasauti stone pillars.
            In its written statement, the Sunni Central Waqf Board denied
      that there was in existence any temple relatable to the era of
      Vikramaditya at the site of Babri Masjid. It also denied that the mosque
C     was constructed at the site of a temple by utilising the material used in
      the underlying temple. In the written statement, the Sunni Central Waqf
      Board also stated in paragraph 24(b) that:
            “Emperor Babur was a Sunni Muslim and the vacant land on
            which the Babri Masjid was built lay in state territories and did
D           not belong to anyone …”
             It therefore denied that there existed any underlying temple below
      the disputed site or that the underlying temple was destroyed for the
      construction of the mosque.
             498. Initially, the defence that was urged in response to the plaint
E     in Suit 5 was that there was no underlying structure which was
      demolished for the construction of the mosque. Confronted with the
      findings in the ASI report, the Sunni Central Waqf Board altered the
      stance and sought to claim that among the structures that came to be
      revealed during the course of the excavation was an ‘Idgah’ or ‘Kanati
F     Masjid’. This indeed, was not the case which was made out in the
      pleadings and was directly contrary to the case of the Sunni Central
      Waqf Board that the mosque had not been constructed upon the site
      of an existing temple but was constructed on vacant land. The reference
      to the existence of an Idgah in the underlying excavation was sought
      to be established through the archaeologist witnesses – Dr Jaya Menon
G     (PW 29), Dr Supriya Verma (PW 32) and R C Thakran (PW 30).
             Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf
      of the plaintiffs in Suit 5, urged that none of the witnesses produced by
      the Sunni Central Waqf Board deposed to the existence of an Idgah.
      The High Court observed:
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            525


      “3809. Initially the case set up by the plaintiffs (Suit-4) was that   A
      the building in dispute was constructed at a place where (there)
      neither…existed any Hindu religious structure nor (was) the place
      in dispute (a) place of worship…However, when the excavation
      proceedings progressed, a marked change in the approach of
      plaintiffs (Suit-4) became evident. Some of the archaeologists,
                                                                             B
      who also deposed later in favour of plaintiffs (Suit-4)…tried to
      set up a new case that there appears to be an Islamic religious
      structure existing beneath the disputed building or that there
      existed an Islamic religious structure when the disputed building
      was constructed. The suggestion was that it could be either an
      Idgah or a Kanati Masjid wherein only one long wall on the             C
      western side was constructed with a niche. The consensus
      appears to be amongst the eight experts of Muslim parties, more
      or less accepting the existence of a structure beneath the
      disputed structure. The above approach that the earlier structure
      was a Islamic religious structure excludes the possibility of a non-
                                                                             D
      religious structure at the disputed site beneath the disputed
      structure. It narrows down our enquiry to the question whether
      such structure could be an Islamic religious structure or non-
      Islamic structure i.e. a Hindu Religious Structure.”
      The defence which was taken was that the pre-existing structure
had an Islamic origin. Once this defence was taken the issue narrowed        E
down to whether the pre-existing structure had an Islamic or non-
Islamic origin. The ASI report had concluded that there was a Hindu
temple underlying the disputed structure and the correctness of this
opinion was being tested.
      499. During the course of the excavation, 28 walls came to be          F
traced as shown in figure 3A of the report. Of this, wall numbers 1 to
15 belong to or were contemporaneous to the disputed structure. Wall
numbers 16 to 28 dated prior to the disputed structure and were found
underneath. The ASI report found that wall 16 with a length of 50m
had a width of 1.77m. Ten of its lower brick courses were original while     G
the upper six courses were added later in the subsequent phase of
construction:
      “The wall 16 having its existing length around 50m, with its
      unexposed middle part, is 1.77m wide. Its ten lower brick courses
      are original and belong to the first phase of its construction, but    H
526            SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A           the upper six courses as seen in trenches E6, E7 and E8 are
            added at a later date – four courses during the second phase of
            construction and top two courses when its southern length
            outside the disputed structure was utilized in later constructions
            by reducing the width of the wall for the new structure along
            with the structure 3. It is also noticed that the first phase of wall
B
            16 has been plastered in the inner side with lime plaster while
            on the outer side the plaster was provided in the second phase
            of its raising. There are a few square cavities at intervals on both
            the faces of the wall in the second phase which might have been
            used for providing reinforcement to the wall…”
C           Walls 16 and 17 were found to be in a similar north-south
      alignment:
            “…Walls 16 and 17 were found running on almost the same
            alignment in north-south orientation in trenches ZE1 and ZF1.”
D            Wall 17 is a brick wall which was 1.86 m wide with four courses
      in the northern area and six courses in the southern area. Wall 17 had
      the same length as wall 16. Wall 17 runs at a lower level:
            “The wall 17 which is a brick wall was found to be 1.86 m wide
            having the maximum of four courses in the northern area (Pl.
E           50) and six courses in southern area. It was found to be of the
            same length as that of wall 16, though having a slight deviation
            in its orientation in the cardinal direction. Thus, it runs in the lower
            level than that of wall 16, almost parallel to it in the northern area
            and comes out below the wall 16 in the southern area as noticed
            in trench D7 where in the northern part it is projected 0.74 m
F           below wall 16 and in the southern part it is projected 1.07 m below
            wall 16 having provided decorated stone blocks on its top and
            also refixed in its veneer (Pl. 51), probably at the time of the
            construction of wall 16 to serve as its foundation. A thick floor
            of brick crush (Pl. 52) spread over a large area in northern and
G           southern areas with varying thickness was found associated with
            wall 17.”
            The ASI report notes the existence of inner walls which are
      attached to wall 16 both in the northern and southern areas. In the
      northern area, the inner wall (wall 18A) extends to a length of 15m in
      the East–West direction. Similarly, the excavation found two parallel
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             527


walls (walls 18C and D). Accordingly, these findings indicate that the        A
case that wall 16 was a single Idgah wall stands belied and the claim
of the Sunni Central Waqf Board that an Islamic structure existed
below the disputed site cannot be accepted. Moreover, the defence in
regard to the existence of an Idgah beneath the mosque would postulate
that the mosque was built on the foundation of a demolished Idgah.
                                                                              B
Besides being a far-fetched hypothesis, the nature of the recoveries
belied the claim. The Idgah defence was hence an afterthought, quite
contrary to the pleadings of the Sunni Central Waqf Board. The defence
was an attempt to gloss over the initial case that the mosque was built
over vacant land. The underlying structure was not of an Islamic origin.
      Disputed Structure and Pillar Bases                                     C

       500. The ASI report discloses that the disputed structure or
structure 3 was found to be directly resting over structure 4 which is
an earlier construction. Structure 4 had a 50m long wall (wall 16) in
the west and fifty exposed pillar bases to its east, attached with floor
2 or the floor of the last phase of structure 4. The report notes:            D

      “A square sandstone block placed at the top and the orthostats
      provided on its four sides, contemporary with the floor 2 was
      the prima facie nature of the pillar base which primarily served
      as base for the pillar erected over it. Their foundations were
      circular or square or irregular in shapes made of brick-bat courses     E
      laid in mud mortar, most of them resting over floor 4, top of which
      was provided with sand-stone or calcrete blocks in lime mortar,
      these blocks were also encased with brick-bats and somewhere
      sandstone chips were used to get the desired height and level.”
       Seventeen rows of pillar bases were revealed from north to south,      F
each row with five pillar bases. The pillar bases in the central portion
below the makeshift structure on the raised platform could not be
located due to the area restrictions imposed by the High Court. Out of
fifty excavated pillar bases, twelve were completely exposed, thirty-
five were partially exposed while three could be traced in sections. The      G
report notes that the controversy about the association of the pillar bases
with different layers and in respect of their load bearing capacity was
set at rest after the original form of the bases was exposed:
      “…The present excavation has set aside the controversy by
      exposing the original form of the bases having calcrete and stone
                                                                              H
528            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           blocks arranged and set in a proper manner over a brick
            foundation and their arrangements in rows including their
            association with the top floor of the structure existing prior to
            the disputed structure.”
             Forty-six pillar bases belong to floor number three and pertain
B     to period VII dating back to the twelfth century A.D., while four pillar
      bases belong to floor number four dating back to the eleventh century
      A.D. Seventeen rows of pillar bases were constructed along the north-
      south brick wall (wall 16). The ASI report deduces from the
      arrangement of the pillar bases that the central part of the pillared
      structure was important and special treatment was given to it in
C     architectural planning. The decorated octagonal sand stone block on
      pillar base number thirty-two having flower motifs on four corners in
      trench F7 in the southern area is stated to be a unique example at the
      site which belongs to the twelfth century A.D. as it is comparable to
      the ones found in Sarnath. In the backdrop of these observations in
D     the ASI report, the finding which was arrived at by the High Court was
      thus:
            “3904. A perusal of the report particularly at page 54 shows that
            all the 50 exposed pillar bases are attached with floor 2 dateable
            to 1200 A. D. and most of them are resting over floor no. 4
E           which has the earliest floor. The carbon dating report referred
            at page 69 of the report also proves that in a trench ZH1 the
            date reported between floor 2 & 3 is between 900-1300 A.D.
            which prima facie makes it clear that floor 2 was not made after
            1300 A.D. and not before 900 A.D. while floor 3 was made
            before 900 A.D. It is also clear from the report that all the pillar
F           bases exposed are attached with the floors existing prior to the
            floor of disputed structure. Pillar base is reported from the same
            trench, i.e. ZH-1 along with the floor which confirms the
            association of floor 2/3 and pillar bases along with C14 date
            between floor 2 & 3 (S. No. 47 of pillar base in page no. 28).
G           The same pillar base of ZH-1 was predicted as an anomaly in
            the GRP Survey. Therefore, it is clear that floor 4 which supports
            the foundation of pillar bases was the most extensive floor
            belonging to period VII A (page 42 of the report & fig. 23 &
            plate 35). The timing of period VII-A is the beginning of 12th
            century.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             529


      The ASI report concludes that there is in existence a massive           A
underlying structure, below the disputed structure.
      Circular Shrine
       501. The ASI report refers to the presence of an east facing
brick shrine labelled as Structure 5 (corresponding to plates 59 and 60
of the photographs). The circular structure possesses a rectangular           B
projection in the east and has a chute or outlet which according to the
ASI is a ‘pranala’ for draining out water. This brick circular shrine is
stated to be similar to Shiva temples near Rewa in Madhya Pradesh at
Chandrehe and Masaon belonging to 950 A.D. and a Vishnu temple
and another temple without a deity at Kurari and a Surya temple at            C
Tinduli in Fatehpur district. ASI has drawn an inference that on stylistic
grounds, the circular shrine dates back to the tenth century A.D.
      In the context of the above findings, Mr C S Vaidyanathan has
relied on the testimony of the expert witnesses, to displace the
submission of the Sunni Central Waqf Board that these witnesses               D
produced by them do not support the ASI report. The following extracts
from the depositions of the expert witnesses need to be borne in mind:
       (i) Suraj Bhan (PW 16) –
            “I agree with the report of ASI about the remains of Temple
            to the extent that these remains may have been of some            E
            temple.”
      (ii) D Mandal (PW 24) –
            “…a decorative stone has been fixed in wall no. 17. This
            decorative stone is floral motif, it is used in Hindu Temples.”
                                                                              F
            ...
            “It is correct to say that construction activities had been
            carried out at the disputed site even before the Mughal
            Period. As an Archeologist I admit discovery of structures
            beneath the disputed structure during excavation.”                G
      (iii) Supriya Verma (PW 32) –
            “…I agree with the finding of ASI regarding existence of
            the structure but I disagree with the interpretation arrived
            at by ASI. Further, it is correct to say the disputed structure
            was not constructed on the virgin land.”                          H
530      SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     (iv) Dr Ashok Dutta (PW 31) -
           “…I agree with the opinion of ASI that there lie a number
           of structures in the form of walls and floors beneath the
           disputed structure. Wall no. 1 to 15 may be related to the
           disputed structure. Wall no. 16 onwards are walls belonging
B          to a period before the construction of the disputed
           structure.”
      Dealing with the circular shrine, the High Court observed:
      “3937. The elevation, as shown in the drawing (Fig. 17 of the
      ASI Report) suggests that this structure was built on a raised
C     platform, viz. adhisthana. The gargoyle, or the drain, was provided
      on the northern side. The structure may be dated to 9th-10th
      century A.D. (The ASI carried out C-14 determination from this
      level and the calibrated date ranges between 900 A.D. and 1030
      A.D.).
D     3938. This was an independent miniature shrine. The
      architectural features suggest that, that it was a Shiva shrine.
      3939. It is unthinkable that inspite of these clear features of Shiva
      shrine, the objectors are identifying the same as a Muslim tomb.
      3940. Secondly, it is too small a structure for a tomb, from inside
E
      it is only 4.4 ft. square. Neither could it accommodate a grave
      in its interior, nor a Qiblah-Mihrab on its western wall ; Qiblah
      was an integral and essential part of tomb-structure during the
      Sultanate period (1192-1526 A.D.) as is illustrated by numerous
      examples all over northern India.
F
      3941. Thirdly, there is no trace of an arch required for
      constructing dome over the tomb. There are no hook-shafts to
      bear and no structural trace to suggest any lateral thrust of the
      mihrab. It may be noted that the sub-structure of the mihrab is
      built massively on the edges of the four corners, to counter the
G     lateral thrust. One wonders, if it was a tomb without any arch
      or dome, and without even a grave?
      3942. Thus, on the one hand the dimensions of this structure are
      too small for a tomb and on the other the gargoyle was never in
      tombs while it was an integral feature of the sanctum of Shiva
H     temples to drain out water poured on the Sivlinga.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            531


      3943. Shrine is a holy place where worship is performed. It is a       A
      structure where holiness is enshrined. Denial for the sake of denial
      should not be allowed. “No evidence to make this structure a
      shrine” and “a sheer figment of imagination and a conjecture
      without any evidentiary basis”, such comments grossly lack
      technical acumen and clearly show the dearth of logical thinking.
                                                                             B
      These themselves are mere arguments lacking “evidentiary
      basis”. By these and many like arguments show the ‘ostrich
      attitude’ of the plaintiff.
      3944. A structure is identified by its shape and/or by the use it
      was put to or by the function it was supposed to perform. This
      circular structure was found with a well defined ‘Pranala’ (water      C
      chute to drain out ablution liquids).The pranala could well have
      been denoted as drain but the area from where it was issuing
      was only 40 x 60 m (including the squarish hollow chamber for
      fixing the object of worship and the small entrance of the east)
      which could not be used for bath room or for kitchen, a few            D
      alternatives where water is required to be drained out, thus, the
      only valid explanation was it being a ‘pranala’ of a shrine, small
      only a subsidiary one and not the main shrine holding central/
      main deity.
      3945. Circular Shrine is found resting over wall 19A and others,       E
      this single fact, does not make the ‘Circular Shrine’
      Contemporary to the said walls, as the working level for the
      ‘Circular Shrine’ is much higher, and only foundations of Circular
      Shrine rest over the existing walls, which have been incorporated
      as foundation of Circular Shrine, these walls definitely are not
      made for providing foundation to the circular Shrine. Apparently,      F
      when the Circular Shrine was built the wall 19A and others were
      all buried under the ground and foundation of the circular shrine
      just reached upto that level.”
      There is a significant aspect in relation to the circular shrine
which must be borne in mind. This is the presence of pillar bases above      G
the circular shrine. This aspect must be taken into account while
ascertaining the overall weight to be ascribed to the ASI report.
      As regards the use of lime surkhi, it is urged by Ms Meenakshi
Arora, learned Senior Counsel that this is a typical material used in
                                                                             H
532              SUPREME COURT REPORTS                                [2019] 18 S.C.R.


A     Islamic structures. Controverting this, Mr C S Vaidyanathan has placed
      reliance on the deposition of Suraj Bhan (PW 16) who stated :
             “it is correct to say that lime water was found to have been used
             in the 3rd Century A.D. during the Kushana period in Takshshila
             and Pakistan…”
B            Similarly, Dr Jaya Menon (PW 29) also stated that :
             “…lime mortar was definitely used from Neolithic period.”
             Further elaboration is hence not required on the use of lime
      surkhi.
C              Architectural fragments
             502. Archaeological excavation of the disputed site at Ayodhya
      resulted in the recovery of architectural fragments such as pillars,
      pilasters292, broken door jambs, lintels, brackets, etc. These were
      retrieved as disjecta membra or broken fragments from areas ranging
D     from the surface of the mound to a considerable depth in the trenches
      which were excavated.
           Chapter VI of the ASI report which deals with architectural
      fragments states that among the recoveries, the notable ones are:
             “A few intact architectural members like Amlaka (plate 81, figure
E            59) pillar with Ghata-Pallava base with dwarf beings as weight-
             bearers and Kirtimukhas (plates 82-83, figure 59) to mention a
             few, have also been recovered. Besides, there are a number of
             architectural members which have been decorated with deeply
             carved foliage motifs. This pattern is a distinct one resembling
             like that of “stencil” work (plates 86-87). It may be pointed out
F
             that the various architectural members with similar decorative
             designs have been found used in the foundation of one of the
             major brick structures (wall 16) (see Chapter IV- Structures)
             exposed in these excavations.
             The aforesaid pillars and other decorative architectural members
G            of this site like fragment of broken jamb with semi pilaster (plate
             85), fragment of an octagonal shaft of Pillar (plate 84), a square
      292
         ―Pilaster is a shallow pier or rectangular form projecting from a wall and, in
      classical architecture, conforming to one of the orders and carrying an entablature. -
      Michael Clarke, The Concise Oxford Dictionary of Art Terms, Oxford Paperback
      Reference, OUP Oxford, 2010, pg 191
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        533


        slab with Srivatsa motif (plate 88), fragment of lotus medallion     A
        motif (plates 89-90) emphatically speak about their association
        with the temple architecture. Stylistically, these architectural
        members in general and pillars in particular may be placed in a
        time bracket of tenth-twelfth Century A.D. It is also pertinent
        to note that there are a few architectural members (plates 92-
        94), which can clearly be associated with the Islamic architecture   B
        on stylistic grounds, which might belong to sixteenth century A.D.
        onwards.
        In addition to the architectural fragments, a highly mutilated
        sculpture of divine couple seated in alinganamudra has also been
        recovered. The extant remain depicts the waist, thigh and foot       C
        (plate 235).”
        503. During the course of the hearing, we have had the benefit
of perusing the plates depicting the photographs of the architectural
fragments. Ms Meenakshi Arora, learned Senior Counsel criticised the
use of the expression “divine couple” to depict the recovery reflected
                                                                             D
in plate 235. The criticism advanced by counsel is not unfounded. The
sculpture reflected in the plate is (as the ASI report states) “highly
mutilated”. According to the ASI team, what remains of the sculpture
indicates a “waist, thigh and foot” of a couple. This may well be an
imaginative extrapolation of archaeological experience. But, calling it a
“divine couple” is beyond the stretch of imagination. Excluding this from    E
consideration, the ASI team has on a cumulative analysis of all the other
findings arrived at the inference that stylistically these architectural
findings and pillars in particular belong to the time span of the tenth to
twelfth century A.D. and are typical of temple architecture. This
inference, as it appears from the above extract is independent of the
sculpture of the couple found in “alingan mudra”. Hence even excluding       F
the above sculpture, there is a reasonable basis for an expert to draw
the above inference.
        During the course of excavation, ASI recovered an ‘Amalaka’
which is typically a segmented or notched globular stone disc with ridges
on its rim with which sits on top of the Hindu temples’ shikhara or main     G
tower.293 An amalaka may also resemble a lotus and is a symbol of a
deity seated below. ASI also recovered a ‘ghatapalava’ motif which is
associated with a ceremonial offering to a deity and as a symbol has
been used to decorate shrines.
293

                                                                             H
534            SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A            504. Ms Arora sought to rely on the testimonies of Jayanti Prasad
      (DW 20/5) and Dr Supriya Verma (PW 32) in support of the submission
      that apart from Hindu religious structures, these architectural fragments
      could belong to Buddhist or Jain structures as well. Dr Supriya Verma
      states that it could well have been a part of palaces or may belong to
      an Islamic structure. Extracts from the depositions of the two witnesses
B     are set out below:
           “(a) Mr. Jayanti Prasad Srivastav (DW 20/5), an expert witness
                who supported the ASI Report:
                 “…Amongst Jains, big temples are found but architectural
C                pattern is the same i.e. North Indian Shikhar style…”
            (b) Dr Supriya Varma (PW 32) deposed thus:
                 “I think, very categorically it is very difficult to say that some
                 of the finds of ASI relate to Hindu religious structures
                 because these finds could well have been part of palaces,
D                Buddhist structure, Jain structure and Islamic structure…”
              The possible linkages of Buddhist or Jain traditions cannot be
      excluded. Indeed, in assessing archaeological or historical material one
      must eschew an unidimensional view. The excavation in the present
      case does in fact suggest a confluence of civilisations, cultures and
E     traditions.
             Carefully analysing these depositions, the issue essentially is
      whether this will discredit the overall findings contained in the ASI
      report. In specialised subjects, experts may and do differ. The statement
      that some of the fragments belong to an Islamic structure has in fact
F     been noticed in the ASI report. The report specifically speaks of those
      fragments denoted by plates 92-94 which “can clearly be associated
      the Islamic architecture on stylistic ground”. Hence, the ASI report
      delineated those architectural recoveries which belong to Islamic
      architecture of the sixteenth century. Even taking the opinion of DW
      20/5 and PW 32 that the recoveries may also be consistent with a palace
G
      or a Buddhist and Jain structures, the noteworthy point that emerges is
      that those fragments are of a non-Islamic origin (except for those
      specific artefacts which have been identified to be of an Islamic origin
      by ASI, as noted above).

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             535


       Once this is the position, the ASI report has to be read and           A
interpreted in its entirety. It would be unfair to reject the conclusions
which have been arrived at by an expert team which carried out the
excavation under the orders of the High Court and has carefully
analysed the recoveries from distinct perspectives. Yet the report must
be read contextually, allowing for genuine divergences that arise on
matters of interpretation.                                                    B

        The formulation of conclusions by the ASI was preceded by a
careful analysis of the excavated materials. Individually, a different view
may be possible in respect of discrete recoveries or finds. However,
the test which the court must apply is whether on a preponderance of
probabilities, the conclusions which have been drawn by the ASI are           C
justified.
       505. Though bias and mala fides were sought to be attributed
to the ASI during the course of the proceedings before the High Court,
Ms Arora, learned Senior Counsel has specifically submitted that no
case to that effect is being pressed in the present appeals. In fact, when    D
Mr Vaidyanathan attributed a submission of bias or mala fides to Ms
Arora with respect to the task undertaken by the ASI, Ms Arora
intervened to state that she had not made any submission to that effect.
        One of the criticisms of the ASI report is that no analysis was
made of the recovery of bones and that thermoluminescence dating of           E
pottery was not carried out. Justice Agarwal has noted that an analysis
of the bones would have been instructive if they were recovered from
the regular layer. However, in this case, they have been recovered from
a filling and hence were held to “lose significance and importance”. It
also appears that the facility for thermoluminescence dating of pottery       F
was not available at the Institute at Lucknow and since charcoal
samples were available for C14 dating, further analysis of the pottery
was not carried out. This explanation apart, the deficiency is not
sufficient to discredit the report in its entirety.
      The standard of proof                                                   G
       506. The court in a civil trial applies a standard of proof governed
by a preponderance of probabilities. This standard is also described
sometimes as a balance of probability or the preponderance of the
evidence. “Phipson on Evidence” formulates the standard succinctly:
If therefore, the evidence is such that the court can say “we think it        H
536              SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     more probable than not”, the burden is discharged, but if the probabilities
      are equal, it is not.294 In Miller v Minister of Pensions295, Lord
      Denning, J (as the Master of Rolls then was) defined the doctrine of
      the balance or preponderance of probabilities in the following terms :
             “(1)… It need not reach certainty, but it must carry a high
B            degree of probability. Proof beyond reasonable doubt does
             not mean proof beyond the shadow of doubt. The law would
             fail to protect the community if it admitted fanciful
             possibilities to deflect the course of justice. If the evidence
             is so strong against a man as to leave only a remote possibility
             in his favour which can be dismissed with the sentence, “of
C
             course it is possible, but not in the least probable” the case is
             proved beyond reasonable doubt, but nothing short of that will
             suffice.”
                                                           (Emphasis supplied)
D           The law recognises that within the standard of preponderance
      of probabilities, there could be different degrees of probability. This was
      succinctly summarized by Denning, LJ in Bater v Bater296, where he
      formulated the principle thus :
             “So also in civil cases, the case must be proved by a
E            preponderance of probability, but there may be degrees of
             probability within that standard. The degree depends on that
             subject matter.”
                                                           (Emphasis supplied)
           The definition of the expression ‘proved’ in Section 3 of the
F     Evidence Act is in the following terms:
             “Proved” .—A fact is said to be proved when, after considering
             the matters before it, the Court either believes it to exist, or
             considers its existence so probable that a prudent man ought,
             under the circumstances of the particular case, to act upon the
G            supposition that it exists.”
            Proof of a fact depends upon the probability of its existence. The
      finding of the court must be based on:
      294
          Phipson on Evidence, 16th Edn. at pgs 154-155
      295
          (1947) 2 ALL ER 372
      296
H         [1951] P. 35
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             537


           A. The test of a prudent person, who acts under the supposition        A
              that a fact exists; and
           B. In the context and circumstances of a particular case.
      Analysing this, Y V Chandrachud J (as the learned Chief Justice
then was) in Dr N G Dastane v S Dastane297 held :
                                                                                  B
          “The belief regarding the existence of a fact may thus be founded
          on a balance of probabilities. A prudent man faced with
          conflicting probabilities concerning a fact-situation will act on the
          supposition that the fact exists, if on weighing the various
          probabilities he finds that the preponderance is in favour of the
          existence of the particular fact. As a prudent man, so the court        C
          applies this test for finding whether a fact in issue can be said
          to be proved. The first step in this process is to fix the
          probabilities, the second to weigh them, though the two
          may often intermingle. The impossible is weeded out at
          the first stage, the improbable at the second. Within the wide          D
          range of probabilities the court has often a difficult choice to
          make but it is this choice which ultimately determines where the
          preponderance of probabilities lies. Important issues like those
          which affect the status of parties demand a closer scrutiny
          than those like the loan on a promissory note: “the nature
          and gravity of an issue necessarily determines the manner               E
          of attaining reasonable satisfaction of the truth of the issue
          [ Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210] “;
          or as said by Lord Denning, “the degree of probability
          depends on the subject-matter. In proportion as the offence
          is grave, so ought the proof to be clear [Blyth v. Blyth, (1966) 1
          AER 524, 536] “. But whether the issue is one of cruelty or of          F
          a loan on a pronote, the test to apply is whether on a
          preponderance of probabilities the relevant fact is proved. In civil
          cases this, normally, is the standard of proof to apply for finding
          whether the burden of proof is discharged.”
                                                         (Emphasis supplied)      G
      The Court recognised that within the standard of preponderance
of probabilities, the degree of probability is based on the subject matter
involved.
297
      (1975) 2 SCC 326                                                            H
538                SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A               In State of U P v Krishna Gopal298, this Court observed:
                “26. The concepts of probability, and the degrees of it, cannot
                obviously be expressed in terms of units to be mathematically
                enumerated as to how many of such units constitute proof beyond
                reasonable doubt. There is an unmistakable subjective element
B               in the evaluation of the degrees of probability and the quantum
                of proof. Forensic probability must, in the last analysis, rest on a
                robust common sense and, ultimately, on the trained
                intuitions of the Judge.”
                                                               (Emphasis supplied)
C           507. On the basis of the ASI report, Justice Sudhir Agarwal
      entered the following findings of fact:
                “4055. The ultimate inference, which can reasonably be drawn
                by this Court from the entire discussion and material noticed
                above, is: (i) The disputed structure was not raised on a virgin,
D               vacant, unoccupied, open land;
                 (ii) There existed a structure, if not much bigger then at least
                      comparable or bigger than the disputed structure, at the site
                      in dispute;
                (iii) The builder of the disputed structure knew the details of
E                     the erstwhile structure, its strength, capacity, the size of the
                      walls etc. and therefore did not hesitate in using the walls
                      etc. without any further improvement;
                (iv) The erstwhile structure was religious in nature and that too
                     non-Islamic…;
F
                (v) The material like stone, pillars, bricks… of the erstwhile
                    structure was used in raising the disputed structure; and
                (vi) The artefacts recovered during excavation are mostly such
                     as are non-Islamic i.e. pertaining to Hindu religious places,
                     even if we accept that some of the items are such which
G
                     may be used in other religions also. Simultaneously no
                     artefacts etc., which can be used only in Islamic religious
                     place, has been found.”


      298
H           (1988) 4 SCC 302
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           539


       Justice S U Khan placed no credence on the ASI report. The           A
reasons which led the judge to that conclusion are specious. Firstly, the
learned Judge observed that the finding that there was evidence of
continuity in structural phases from the tenth Century onward upto the
construction of the disputed structure is directly in conflict with the
pleadings, gazetteers and history books. This omnibus finding has no
                                                                            B
factual basis. The purpose of the excavation was to enable an
assessment to be made by the court to determine whether the disputed
structure had been constructed on the site of a pre-existing temple.
Whether after the construction of temples by Vikramaditya and till the
construction of the mosque any construction activity had been carried
out under the disputed structure was a matter which could be deduced        C
after the excavation was carried out at the site. The second reason
was that in case a temple had been demolished for constructing a
mosque, the super structure of the temple “would not have gone inside
the ground”. This again is pure conjecture. The learned judge then
disregarded the architectural fragments on the ground that it is only in
                                                                            D
the case of a natural calamity that such material “goes down inside
the ground” and otherwise, a ruined building would be buried under the
ground after centuries. The judge observed that there is neither any
requirement nor any practice that even in the foundation of a temple,
there must be such items which denote the nature of the super structure.
These observations and findings of Justice S U Khan are hypothetical        E
and without any basis.
      The third learned judge, Justice D V Sharma has relied on the
findings contained in the ASI report.
      508. The conclusions which have been arrived at by Justice
Sudhir Agarwal on the ASI report, as extracted above are worthy of          F
acceptance. There is adequate basis in the material contained in the
ASI report to lead to the following conclusions:
       (i) The Babri mosque was not constructed on vacant land;
       (ii) The excavation indicates the presence of an underlying          G
            structure below the disputed structure;
      (iii) The underlying structure was at least of equal, if not larger
            dimensions than the disputed structure;
      (iv) The excavation of the walls of the underlying structure
           coupled with the presence of pillar bases supports the           H
540            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                conclusion of the ASI of the presence of a structure
                 underlying the disputed structure;
            (v) The underlying structure was not of Islamic origin;
           (vi) The foundation of the disputed structure rests on the walls
                of the underlying structure; and
B
           (vii) Artefacts, including architectural fragments which have
                 been recovered during excavation have a distinct non-
                 Islamic origin. Though individually, some of the artefacts
                 could also have been utilised in a structure of Buddhist or
                 Jain origins, there is no evidence of the underlying structure
C                being of an Islamic religious nature. The conclusion which
                 has been drawn by the ASI that the nature of the underlying
                 structure and the recoveries which have been made would
                 on stylistic grounds suggest the existence of temple
                 structure dating back to the twelfth century A.D. would on
D                a balance of probabilities be a conclusion which is supported
                 by evidence. The conclusion cannot be rejected as
                 unsupported by evidence or lying beyond the test of a
                 preponderance of probabilities, which must govern a civil
                 trial.

E           Caveats
             509. Having said this, we must also read the ASI report with
      the following caveats:
             (i) Though the excavation has revealed the existence of a
                 circular shrine, conceivably a Shiva shrine dating back to
F                the seventh to ninth century A.D, the underlying structure
                 belongs to twelfth century A.D. The circular shrine and the
                 underlying structure with pillar bases belong to two different
                 time periods between three to five centuries apart;
            (ii) There is no specific finding that the underlying structure was
G                a temple dedicated to Lord Ram; and
            (iii) Significantly, the ASI has not specifically opined on whether
                  a temple was demolished for the construction of the disputed
                  structure though it has emerged from the report that the
                  disputed structure was constructed on the site of and utilised
H                 the foundation and material of the underlying structure.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            541


      The unanswered question of demolition                                  A
      510. The ASI report has been criticised on the ground that it fails
to answer the question as to whether the disputed structure of a mosque
was constructed on the demolition of a pre-existing temple at the site.
      The High Court dealt with this objection in the following
observations of Justice Sudhir Agarwal:                                      B

      “3990. ASI, in our view, has rightly refrained from recording a
      categorical finding whether there was any demolition or not for
      the reason when a building is constructed over another and that
      too hundreds of years back, it may sometimes be difficult to
      ascertain…in what circumstances building was raised and                C
      whether the earlier building collapsed on its own or due to natural
      forces or for the reason attributable to some persons interested
      for its damage. Sufficient indication has been given by ASI that
      the building in dispute did not have its own foundation but it was
      raised on the existing walls. If a building would not have been        D
      existing before construction of the subsequent building, the builder
      might not have been able to use foundation of the erstwhile
      building without knowing its strength and capacity of bearing the
      load of new structure. The floor of the disputed building was just
      over the floor of earlier building. The existence of several pillar
      bases all show another earlier existence of a sufficiently bigger      E
      structure, if not bigger than the disputed structure then not lessor
      than that also.”
       The High Court noted that the floor of the disputed structure was
situated just above the floor of the earlier building. The ASI report has
opined that the disputed structure did not have its own foundation and       F
was raised on existing walls. Moreover, the existence of pillar bases
has been utilised to sustain an inference of a larger structure on which
the disputed structure had been constructed.
       The High Court justified the inability of ASI to come to a specific
finding on whether an erstwhile structure of a Hindu religious origin        G
was demolished for the construction of the mosque. The High Court
noted that when a structure has been constructed several hundred years
ago, it is difficult to conclude with any degree of certainty whether the
underlying structure on whose foundations it rests had collapsed due
to natural causes or whether the structure was demolished to give way
                                                                             H
542            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     to the structure of a mosque. This would indicate that the existence of
      the ruins of an underlying structure is not reason in itself to infer that
      the structure had been demolished for the construction of a new
      structure which rests on its foundations. ASI, as an expert body
      refrained from recording a specific finding on whether the underlying
      structure was demolished for the purpose of the construction of a
B
      mosque. Assuming that an inference in regard to demolition could have
      been made several hundred years later, ASI evidently did not find
      specific evidence to suggest that a structure had been demolished for
      the purpose of constructing a mosque. The report submitted by ASI is
      silent on this facet. The High Court, therefore, indicated that there could
C     be one of two hypotheses: either that the underlying structure had
      collapsed due to natural forces or that its demolition was the work of
      human intervention as part of the process of building a mosque on its
      foundations. Though, the ASI did not venture to enter a specific finding,
      the High Court seems to infer that since the foundation of the erstwhile
      structure was used for the construction of a mosque, the builder of the
D
      mosque would have been aware of the nature of the erstwhile structure
      and its foundation while constructing the mosque. This is an inference
      which the High Court has drawn though that is not a specific finding
      which the ASI has returned in the course of its report.
             511. Consequently, when the ASI report will be placed in balance
E     in terms of its evidentiary value in the course of this judgment, it is
      crucial for the court to sift between what the report finds and what it
      leaves unanswered. The ASI report does find the existence of a pre-
      existing structure. The report deduces 17 rows of pillar bases (a total
      of 85 of which 50 were exposed in sections, in parts or whole). The
F     report concludes on the basis of the architectural fragments found at
      the site and the nature of the structure that it was of a Hindu religious
      origin. The report rejects the possibility (urged by the Sunni Central
      Waqf Board) of the underlying structure being of Islamic origin. But
      the ASI report has left unanswered a critical part of the remit which
      was made to it, namely, a determination of whether a Hindu temple
G     had been demolished to pave way for the construction of the mosque.
      ASI’s inability to render a specific finding on this facet is certainly a
      significant evidentiary circumstance which must be borne in mind when
      the cumulative impact of the entire evidence is considered in the final
      analysis.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            543


       512. There is another aspect which needs to be flagged at this        A
stage and which will be considered when the question of title is
evaluated. That issue is whether a determination of title can rest on
the basis of the ASI findings as they stand. Whether the construction
of a mosque in 1528 A.D. (over 450 years ago) on the foundations of
an erstwhile religious structure (dating back to the twelfth century A.D.)
                                                                             B
can result in a finding on the question of title is a distinct matter. At
this stage, it will suffice to note that a determination of title was not
obviously within the remit of ASI. This is a matter on which the court
will need to draw a considered and objective conclusion when it deals
with the issue of title later in this judgment.
     N.10 Nature and use of the disputed structure: oral                     C
evidence
      513. The plaintiffs in Suit 5 produced nineteen witnesses. A broad
categorisation of these witnesses is indicated below:
        I.    Witnesses on facts:                                            D
              i. OPW 1 Mahant Paramhans Ram Chandra Das
              ii. OPW 2 Shri Devaki Nandan Agarwal
              iii. OPW 4 Harihar Prasad Tewari
              iv. OPW 5 Shri Ram Nath Mishra Alias Banarsi Panda             E
              v. OPW 6 Shri Housila Prasad Tripathi
             vi. OPW 7 Ram Surat Tewari
             vii. OPW 12 Shri Kaushal Kishore Mishra
             viii. OPW 13 Narad Saran                                        F
       II. Witnesses in relation to Vishnu Hari Inscriptions:
              i. OPW 8 Ashok Chandra Chatterjee
              ii. OPW 10 Dr. K.V. Ramesh
              iii. OPW 15 Dr. M.N. Katti                                     G

      III. Expert witnesses – Historians
              i. OPW 9 Dr. T.P. Verma
              ii. OPW 11 Dr. Satish Chandra Mittal
                                                                             H
544            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           IV. Expert witnesses - Religious matters
                   i. OPW 16 Jagadguru Ramanandacharya – Swami Ram
                      Bhadracharya Ji
             V. Expert witnesses – Archaeologists
B                  i. OPW 3 Dr. S.P. Gupta
                  ii. OPW 14 Dr. Rakesh Tewari
                  iii. OPW 17 Dr R. Nagaswami
                  iv. OPW 18 Sri Arun Kumar Sharma
C                 v. OPW 19 Sri Rakesh Dutta Trivedi.
            The depositions of the witnesses of fact need to be analysed to
      determine the nature and use of the disputed building. The witnesses
      have spoken also about the basis of their faith about the birth-place of
      Lord Ram.
D           The Hindu witnesses
            514. Mahant Paramhans Ram Chandra Das (OPW-1):
      Mahant Paramhans Ram Chandra Das was ninety-years old and the
      Mahant of All India Shri Panch Ramanandi Digamber Ani Akhara and
      Digamber Ayodhya Akhara, Baithak. The witness deposed that
E     according to Valmiki’s Ramayan, Lord Ram was born in Ayodhya.
      According to him:
            “It is mentioned in Valmiki Ramayan that Lord Ram was born
            in Ayodhya. Description of Ayodhya has been made in Vedas,
            Upanishads, in codes (Samhitas) and in eighteen Puranas, in
F           Smritis; and in recognized works of Sanskrit literature of Bharat.
            In all these, Ayodhya has been accepted as the birthplace of Lord
            Ram. This is the same Ayodhya, which exists at present. Lord
            Ram was born here.”
             The witness stated that the Skand Puran, in a chapter relating
G     to the importance of Ayodhya, contains a reference to the birth-place
      of Lord Ram. He stated that the ‘Garbh Grih’ is at the disputed place
      where the idol of Ram Lalla was in existence at the time of his
      deposition.
           According to the witness, he came to Ayodhya after leaving home
H     when he was fourteen to fifteen years of age and since then he had
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           545


seen people seeking darshan at several places in Ayodhya including at       A
Ram Janmabhumi. According to the witness, between 1934-1947, no
obstacle was placed in the way of worship of Lord Ram at Ram
Janmabhumi and since the time when he came to Ayodhya, he had not
seen namaz being offered in the disputed complex. He spoke of a door
of iron bars in the courtyard of Ram Janmabhumi and of the riots of
                                                                            B
1934. The witness stated that there were engravings containing
depictions of Gods and Goddesses on the pillars under the dome which
were worshipped. He stated that the place below the “middle dome”
is the place where Lord Ram was born, and this represented the ‘Garbh
Grih’. The witness deposed to the importance of Ayodhya in religious
texts. Deposing to his belief, the witness stated:                          C
      “In this connection, there is a reference in Ram Charit Manas
      that “uttat dishi bahi Saryu pavini (i.e. Saryu river flows in the
      North)”. This is an authentic statement about the location of Saryu
      river. There is a statement in Ramayan, i.e. Ram Charit Manas
      [Ramcharitmanas] regarding the importance of Ayodhya that             D
      “Avadh puri mam puri suhaisini (The city of Avadh is my dear
      city)” which makes it clear that Ayodhya is the birthplace of Lord
      Ram. It has also been mentioned here that people living here are
      very dear to me. The place, where a person is born, is called his
      birthplace. It has also been mentioned in Valmiki Ramayan that
      the land of my birth is dearer to me than Lanka, which is built       E
      of gold, because birthplace is superior even to heaven.”
      Again, according to the witness:
      “The faith of Hindus of the entire world over towards Ram Janam
      Bhoomi Sthal is similar to that of Muslims towards Kaba. There        F
      is only one Ram Janam Bhoomi temple in whole of the world,
      whereas there are thousands of temples of Lord Ram.”
       During the course of his examination, the witness was shown
an album containing black and white and coloured photographs pertaining
to the disputed site. He identified the figures of lions and a peacock      G
and the depictions of Lord Ganesh, Lord Shankar and of a Nandi:
      “Picture No. 20 of album of black and white pictures prepared
      by the Archaeological Department of Uttar Pradesh and filed in
      OOS 4/1989 about the disputed site was shown to the witness.
      The witness, after seeing the picture, said that there is a figure
                                                                            H
546            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           of a lion on both sides of the upper part of the gate. Then picture
            nos. 37 to 42 of the coloured album was again shown to the
            witness. After seeing it, witness said that a picture of peacock
            has been painted on the northern gate. The picture no. 58 of the
            coloured album was shown to the witness. After seeing it, the
            witness said that it is about the cave temple. The statues of
B
            Ganesh and Shanker, which are installed on the eastern-southern
            corner of the platform (Chabutra), have been shown in these
            pictures. The above pictures include the picture of Nandi and
            Lord Shanker also. After seeing picture no. 61 of the coloured
            album, the witness said that it is a picture of above – mentioned
C           Gods.”
             The witness deposed to the inventory made by the Commissioner
      after the attachment took place under Section 145 and to the presence
      of footprints and other sources of worship including Ramchabutra (in
      the outer courtyard). According to the witness, no Muslim had offered
D     namaz in the mosque after 1934. Speaking of his belief and faith, the
      witness stated:
            “The whole place, being the birthplace of Lord Ram, is a symbol
            of belief and faith for me.”
            Speaking of the ceremony associated with the consecration of
E     an idol (pran pratishtha), the witness stated that a minimum of 24
      hours and a maximum of 3 days are dedicated to the performance of
      the ceremony. During the course of his cross-examination by Mr
      Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central
      Waqf Board, on 17 January 2000, the witness stated:
F           “From the time, I first came to Ayodhya till 1934, I had been
            going to Ram Janam Bhoomi (disputed place) regularly every day.
            At that time, I used to go to that portion of the disputed place
            (building) where pillars were installed. There were two pillars
            installed at the eastern gate. I used to have ‘Darshan’ of them
G           also. Statues of Gods were engraved on those pillars…
            Two pillars of black stone were installed inside the main building.
            Volunteer: that pictures of Gods were engraved on stones
            thereon. There was a statute of Hanumanji on one of the two
            pillars of eastern gate and the second statue was a broken one,
            which was also of some God or Goddess. There was a wall of
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             547


      iron bars after the main gate and there were three gates                A
      thereafter in the main building and pillars of black stones were
      installed in all the three gates.”
      The witness alluded to the location of the pillars of black Kasauti
stones and to the depiction of Hindu Gods and Goddesses on them:
      “Question:- What was the location of the pillars of black stones        B
      installed inside?
      Answer:- There were four pillars in every gate.
      There were statues of Gods and Goddesses in the four pillars in
      the southern gate. Some of them were clear and some were not.           C
      I cannot say that statue of which God or Goddess was engraved
      on southern gate or any other gate. Before 1934, I used to have
      ‘Darshan’ of Garbh Griha’ situated under the middle ‘shikhar’
      after Ram Chabutra. Besides, I used to have darshan of the
      statues engraved on the pillars and offer ‘tulsi’ leaves.”
                                                                              D
       The witness made a distinction between ‘Garbh Grih’ and the
outer platform:
      “Question :- In addition of disputed building and the platform
      outside it, do you consider the land adjacent to it as ‘garbh griha’.
      By other platform, I mean the platform outside the disputed
                                                                              E
      building.
      Answer :- ‘Garbh Griha’ is the place, where Ram Lalla is seated
      (Virajman) at present. Outer platform is outside the disputed
      place.”
       According to the witness, the ‘Garbh Grih’ represented the birth-      F
place of Lord Ram and this was the place where on 23 December 1949,
the idol was installed after removing it from the Chabutra:
      “The place, which I describe as ‘garbh griha’, is according to
      my belief and according to the belief of all Hindus, birth place
      of Ram Chandra ji. I consider that place, where on 23 rd                G
      December 1949 idol was installed after removing it from the
      chabutara, as birth place and I used to consider that place as
      birth place before installation of the idol there.
      Question :- Can that place, which you describe as birth place
      according to your belief, be 10-15 hands away on either side of         H
548            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           the middle dome place?
            Answer:- No. The place where the idol is placed, is an authentic
            place and the whole Hindu community believes in that very place.
            There is no scope of any doubt. There cannot be a distance of
            even two – four feet in the location of this place.
B           The basis of this belief is that Hindus have been having ‘darshan’
            of this place as Janambhumi since centuries.”
             Though an effort was made to elicit from the witness an answer
      to whether the birth-place could be situated at a short distance away
      from the middle dome, he specifically answered that question in the
C     negative. The features which stand out from the evidence of OPW-1
      are as follows:
             (i) The witness was in Ayodhya since the age of 14 or 15
                 spanning over three quarters of a century;

D            (ii) The witness spoke of his faith and belief that the ‘Garbh
                  Grih’ under the middle dome represented the place where
                  Lord Ram was born;
            (iii) The witness spoke of the offer of worship by devotees;
            (iv) The presence of the iron railing was accepted; and
E           (v) The witness alluded to the shifting of the idols on 22/23
                December 1949.
             515. Dr Rajeev Dhavan, learned Senior Counsel appearing on
      behalf of the Sunni Central Waqf Board, has sought to draw the attention
      of this Court to certain contradictions which were elucidated in the
F     course of the cross-examination which have been catalogued below:
            “a) On December 22/23, 1949, an idol of Lord Ram appeared
                in the early hours of the morning. After this miraculous
                development at the place, the idol installed on Ram Chabutra
                was removed and shifted to ‘Garbh Grih’.
G
            (b) Idol of only Ram Lalla was installed at Ramjanma Bhoomi...
                this statement is in contradiction of the statement made by
                several other witnesses who have stated that other idols
                were also installed.

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            549


       (c) There was no idol of Ram Lalla below the top when it fell         A
           down. This shows that the demolition of the disputed
           structure which was in utter violation of the order passed
           by this Hon’ble Court, was also pre-planned, just like the
           desecration on December 22-23 1949.
       (d) First states that the whole of Parikrama was under the            B
           ‘Garbha Griha’, later says Parikrama was on the outer
           side.”
       These contradictions do not render the substratum of the evidence
on the facets which have been highlighted above untrustworthy. The
witness was ninety years of age when he deposed and had been                 C
associated with the disputed site for over seven decades. His evidence,
in regard to the faith and belief of the Hindus in regard to the birth-
place of Lord Ram, the sanctity attached to the place under the middle
dome and the offerings of worship by devotees are significant facets
of his testimony.
                                                                             D
       516. Shri Devaki Nandan Agarwal (OPW–2): Shri Devaki
Nandan Agarwal was eighty years of age when his Examination-in-
Chief was recorded between 16 and 18 June 2001. The witness was
the third plaintiff in Suit 5 suing as the next friend of the deities. The
cross-examination of the witness could not be completed upon the death
of the witness but Dr Dhavan stated that nonetheless, he is entitled to      E
rely upon the evidence of the witness. Dr Dhavan has adverted to the
testimony of OPW2, particularly in regard to the association between
the Vishva Hindu Parishad and the Ram Janmabhumi Nyas. Moreover,
in regard to the shifting of the idols, Dr Dhavan, in his note of
submissions highlighted the following facets pertaining to the evidence      F
of the witness:
       “i. The vigrah of Ram Lalla was seated in a cradle and installed
           on Ram Chabutra. This vigrah was movable and therefore
           in accordance with the wishes of the devotees, it was shifted
           from Ram Chabutra and installed under the central dome.           G
        ii. Till December 22, 1949, the idols were not inside the disputed
            building.
       iii. There was an idol of Ram Lalla at the Chabutra which was
            later placed under the dome in the disputed place.”
                                                                             H
550             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           Besides the above facets, Dr Dhavan relied on:
              (i) The admission of the witness that he did not worship idols
                  and there was no puja sthan in his house;
             (ii) The inability of the witness to state the name of the idol or
                  the number of times he had obtained darshan in 1984-85;
B
            (iii) The statement of the witness regarding his belief that the
                  ‘Garbh Grih’ was situated at that place where the temple
                  had been demolished was hearsay; and
            (iv) The reference by the witness to the Janmabhumi temple on
C                the northern side or the disputed site which was bifurcated
                 upon the construction of a road by the British administration.
            Challenge to credentials of the witness
             517. OPW2, who is the third plaintiff in Suit 5 has stated in the
      plaint that he is a Vaishnavite. In the course of his Examination-in-Chief
D     he reiterated that he is a Vaishnavite and a Hindu and that he was suing
      as a next friend of the first and second plaintiffs in Suit 5 with no
      personal or vested interest but an intent of service to the deity. He stated
      that during 1932-1934 whenever he went to the disputed place with
      his mother, he saw the worship of the idol of Lord Ram at Ramchabutra.
      According to him, there was a picture of Lord Ram inside the disputed
E
      structure and the priest took flowers and garlands from worshippers
      and offered them from a distance. He referred to the presence of the
      stone pillars at the gate and inside the disputed structure. However,
      according to him, as a result of the locks which were affixed on the
      gate to the inner premises of the disputed structure, the police did not
F     allow worshippers to enter and worship was from outside the gate:
            “There were two pillars of touchstone at the gate of the disputed
            structure, which were used for its construction after demolishing
            the temple which earlier existed there. There were two similar
            pillars also inside the structure, which could be seen from a
G           distance. But two locks were affixed on the gate of the inner
            premises of the disputed structure and because of them, the police
            did not allow anybody to enter inside and worship etc. of
            Bhagwan Shri Ram Lalla, who was Virajman inside, was done
            from outside the gate and nonstop recitation and chanting of name
            of Lord was being continuously done in the outer premises.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              551


      The witness has been candid in admitting that with the locks being       A
placed on the gate of the inner premises, Hindu devotees offered
worship from outside since the police did not permit entry into the inner
courtyard.
       518. Dr Dhavan’s attempt to discredit the witness as a person
who was not a worshipper is not borne out from the cross-examination           B
of OPW2. During the course of his cross-examination, he stated that
between 1940 and 1952, he conducted the business of a brick kiln and
worked as a contractor while undertaking his studies. The witness was
candid enough to state that during the time he was carrying on business,
he had no time to take interest in religion and did not worship an idol.
However, he spoke about his worship of Hindu religious deities on the          C
occasion of religious festivals. This part of the cross-examination must
be read in the context of a particular phase of the life of the witness
when he carried on business, before he entered the legal profession. It
would be incorrect to infer from the answers elucidated during the
course of cross-examination that the witness was not a believer or             D
worshipper of Lord Ram. The pleadings in the Suit and his evidence
establish the personal credentials of the witness as a person genuinely
interested in the deity of Lord Ram.
       519. Harihar Prasad Tewari (OPW-4): Harihar Prasad Tewari
was eighty-five years of age on the date of his Examination-in-Chief           E
on 1 August 2002. He was born in 1917, came to Ayodhya in 1938,
where he lived for four years to study Ayurveda. The witness stated
that he used to visit Ram Janmabhumi temple. The witness has been
principally relied upon by the plaintiffs in Suit 5 in support of the belief
that the disputed site was the birth-place of Lord Ram. In the course
of his Examination-in-Chief he stated:                                         F

      “Ayodhya is an ancient and the holiest Pilgrimage for Hindus
      where Parambrahma Parmeshwar Bhagwan Vishnu incarnated
      as Sri Ram, son of King Dashratha. The followers of Hinduism
      have the faith from the time immemorial that Bhagwan Vishnu
      incarnated at Ayodhya as Lord Sri Ram. This place is worship-            G
      able. Owing to this trust and faith people used to visit for Darshan
      and Parikrama (taking round) of Shri Ram Janam Bhoomi. My
      family members, my grand-father and elderly people, saints and
      hermits of Ayodhya, during my study there from 1934 to 1938,
      used to say that Bhagwan Vishnu had incarnated as Bhagwan                H
552            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           Shri Ram at this very place and this is Sri Ram Janam Bhoomi.
            Based on this faith and belief I have been going to Shri Ram
            Janam Bhoomi for Darshan. After completing my study,
            whenever I came to Ayodhya I used to go there for Darshan
            invariably. I mostly lived in Sugreev Quila, Ram Kot, Ayodhya
            for about last 8-9 years and usually go to the Ram Janam Bhoomi
B
            for having Darshan.”
             The witness has spoken about the entry to the outer courtyard
      through the two gates – Hanumat Dwar and Singh Dwar, the presence
      of Sita Rasoi, Ramchabutra and the Bhandar within. He has referred
      to pilgrims visiting in large numbers particularly on the occasion of
C     Chaitra Ramnavami and other religious festivals and to parikrama
      being performed daily by hundreds of devotees. The witness stated that
      he had never seen any Muslim offering namaz within the disputed site.
      The witness stated:
            “During 1934-38, I frequently visited the disputed site to have a
D           Darshan of Bhagwan Ram. Inside the building at the disputed
            site there was no idol of Bhagwan Ram seated, but his photo
            hung on a wall which was visible from the outside of the gate.
            The gate was locked so I had seen that photo from outside.”
             The witness has thus admitted that worship was from outside
E     the locked gate of the inner courtyard for Hindu devotees.
            The witness spoke of the worship in the outer courtyard between
      1934 and 1938:
            “There was a door on the north side of the precincts. This door
F           was known as Singh Dwar. While going inside Singh Dwar, on
            left side, on a platform there was rolling board (Chauka), Belan
            (rolling pin), Hearth (chulha) and Charan Chinha (foot marks)
            etc. Charan Chinhas were in four pairs. According to belief these
            Charan Chinhas were of Ram, Lakshaman, Bharat and
            Shatrughan. All the above things existed on the platform during
G           1934 to 38. Worship was performed by the priests at the platform
            also. At first the priests did worship at the Ram Temple Platform
            and then walked to above platform for worship.”
            The doors leading to what he described as the sanctum sanctorum
      were stated to have been closed during 1934-1938. According to the
H     witness, worship was offered outside the sanctum sanctorum. On the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           553


source of his religious faith, the witness stated that this was not based   A
on any religious text but having heard about the Janmabhumi of Lord
Ram “from an old aged person”. This is no reason to discredit the
genuineness of the belief and faith of OPW4. He has specifically
deposed to the regularity with which he visited the Janmabhumi to offer
worship and this aspect of his evidence has not been shaken. The
                                                                            B
witness fairly stated that he had not gone within the disputed building
because it was locked and that after 1938 while entry was forbidden,
arrangement for darshan was made at the Chabutra.
       520. Shri Ram Nath Mishra Alias Banarsi Panda (OPW-5):
On 6 August 2002, when the Examination-in-Chief of the witness was
recorded, he was ninety-one years old. He stated that he was married        C
to the daughter of Pandit Ramkrishna Upadhya who was a reputed
“Teerth-Purohit”. He deposed to having worshipped at Ram
Janmabhumi and of performing the parikrama since his marriage. Since
1932, he together with his spouse came to Ayodhya and started
managing and looking after the work performed by his father-in-law          D
including of about a hundred ghats which were owned by him. The
witness stated that on Chaitra Ram Navami nearly 10 to 15 lakh
devotees of Lord Ram visited Ayodhya and after a bath in the Saryu
river proceeded for darshan to Ram Janmabhumi, Kanak Bhawan and
Hanuman Garhi. He stated that thousands of devotees visited from
villages for seeking darshan at the Janmabhumi. The witness stated that     E
the importance of Ayodhya has been described in the Brahmpuran,
Skand Puran and Barahpuran.
      Some of the salient aspects of the examination of OPW-5 are:
       (i) The witness adverted to the two doors providing entry into       F
           what he described as the Ram Janmabhumi premises. The
           first was Hanumat Dwar from the east and the second was
           Singh Dwar on the northern side;
       (ii) On both corners of the gate of Hanumat Dwar, there were
            black stone pillars with pictures of flowers, leaves and        G
            deities. Similarly, on the upper side of Singh Dwar there was
            a picture of a ‘garud’ flanked by lions on either side;
      (iii) On entering through the main gate called Hanumat Dwar,
            there was a platform towards the south called the
            Ramchabutra on which were placed the idols of and
                                                                            H
554       SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           associated with Lord Ram. On the south-eastern corner of
            Ramchabutra, there were idols under a peepal tree including
            those of Lord Ganesh, Lord Shanker and other deities. Inside
            the main gate towards the northern side, there was a
            thatched enclosure known as the Bhandar or store in which
            provisions were stored;
B
      (iv) Inside the grill-brick wall towards the west of Ramchabutra
           there was, what he described as the ‘Garbh Grih’ temple
           covered by three domes and it was a matter of belief that
           the site below the central dome was the birth-place of Lord
           Ram. The witness and other Hindu devotees would seek
C          the darshan of Ram Janmabhumi at the site, which was
           considered to be sacrosanct;
       (v) Within the same complex was situated the Sita Rasoi which
           had a Chauka- Belan, hearth and footprints;
D     (vi) Inside the domed structure, there were pillars of black
           touchstone which had images of flowers, leaves and deities.
           Between 1928-1949, he had seen the picture of Lord Ram
           hanging inside the ‘Garbh Grih’ and he claimed to have seen
           the idol of Lord Ram until 1949;

E     (vii) In the grill-brick wall, there were two doors which remained
            locked and which were opened by the pujaris of Nirmohi
            Akhara. Darshan of the ‘Garbh Grih’ was arranged for the
            pilgrims from the railing where a donation box was kept;
      (viii) Speaking of the worship at the ‘Garbh Grih’, the following
F            answers were elicited during the course of the cross-
             examination of the witness:
       “For entry into the ‘Garbhgraha’, there were two doors in the
       wall. Below the three shikhars were the pillars of touchstone.
       These pillars were similar to the pillars flanking the Hanumat
       Dwar. In the ‘Garbhgraha’ was the idol made of black stone of
G
       approximated 7" – 8" height. The idol was made of black stone.
       It is difficult to say whether it was made of touchstone because
       we used to see it from outside. This was the idol of Sita and
       Lord Rama in one stone. Apart from that I do not remember
       whether there was Lord Saligram or not because I used to see
H      it from outside and it used to remain locked. I had not seen the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          555


      idol or Rambhakt Hanuman Ji inside. The key of the lock used         A
      to be in the possession of the people of Nirmohi Akhara and
      whose pujaris would open the lock, close the lock, and perform
      aarti puja and sounded bells and bugles. Whenever I went there,
      the devotees made the offerings from outside only and accepted
      the ‘prasad’. They would not go in. From 1932 to 1949, I saw
                                                                           B
      things happening in the same way.”
      OPW-5 spoke of the locks on the gate of the inner premises, as
noticed earlier. OPW-5 also noted worship being offered from outside
but according to him, the keys were with Nirmohi Akhara.
      (ix) During the course his cross-examination by Mr Zafaryab          C
           Jilani, the witness spoke about three types of parikrama
           namely:
           (a) Fourteen Kosi;
           (b) Five Kosi; and
                                                                           D
           (c) Antargrahi
      (x) Again, during the course of the cross-examination by Mr
          Jilani, the witness stated:
           “At the disputed premises, I used to have darshans at three
           places- first, at the Chabutra on the left, then of the domed   E
           (shikhar wale) ‘Garbhgraha’ from the railing outside and
           then north to have darshan of Sita Rasoi.”
      (xi) The witness stated that between 1928 and 1949, two gates
           in the wall of the railings were locked as a result of which
           darshan was obtained only from the railings from where          F
           offerings of flowers were made.
      521. Dr Rajeev Dhavan has made an earnest effort to discredit
the evidence of the witness on the basis of his inability to identify
whether the photographs which were shown to him pertained to the
disputed site. The witness stated that in 1990, a monkey caused the        G
collapse of the disputed building. This answer is evidently a figment of
his imagination and he did not furnish a true account of the demolition.
The inability of the witness to respond to the photographs shown by
the cross-examiner is certainly one aspect which has to be borne in
mind but that cannot be a ground to discredit the witness. At the date
                                                                           H
556            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     of his cross-examination, the witness was over 90 years of age and
      the contradictions must be viewed keeping in mind the entirety of the
      evidence. The explanation of the witness in regard to the collapse of
      the structure is indeed far-fetched. However, an overall reading of the
      evidence would indicate that the answers which were elicited during
      the cross-examination of the witness by Mr Jilani leaves the substratum
B
      of the Examination-in-Chief of the witness on the nature of the worship
      by Hindu devotees at the site unshaken. The witness was conversant
      with the nature and manner of worship and there can be no manner of
      doubt either about his presence at the disputed site as a worshipper or
      awareness of the modalities followed by the devotees including himself
C     in the course of seeking worship at the disputed site.
             522. Housila Prasad Tripathi (OPW-6): The witness was
      eighty years of age on 13 August 2002 on the date of his Examination-
      in-Chief. His village was 30 to 35 kilometres from Ayodhya which he
      visited in December 1935 for the first time when he was between the
D     age of twelve-thirteen. The witness stated that his uncle was receiving
      education between 1932 and 1945 at Sanskrit Vidyalaya at Ayodhya.
      During this period, the witness came to Ayodhya three to four times a
      year. Thereafter also, the witness stated that he had visited Ayodhya
      for the purpose of darshan at Ram Janmabhumi. During the course of
      his Examination-in-Chief, the witness spoke about darshan at Ram
E     Janmabhumi:
            “At the time of Ram Navmi, lakhs of people had come to
            Ayodhya from every nook and corner of the country. Majority
            of the pilgrims and visitors to Ayodhya come for the darshan of
            Ram Janam Bhoomi and offer prayers there. After having
F           darshan of Shri Ram Janam Bhoomi, I have seen thousands of
            people doing Parikrama of the entire Shri Ram Janam Bhoomi
            premises from outside. I, alongwith my father and grand mother
            also had Parikrama of the entire Shri Ram Janam Bhoomi
            premises after darshans. Due to old age, my grand mother could
G           do Parikrama only once whereas I and my father completed the
            Parikrama of Shri Ram Janam Bhoomi five times.”
            The salient aspects of his evidence are as follows:
             (i) The witness spoke of the close proximity of Ramchabutra
                 to the railing behind which there was a three domed
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          557


           structure which according to him represented the sanctum        A
           sanctorum of Ram Janmabhumi:
           “Right in front of the Ram Chabootra and Bhandar, there
           was a wall to the west in which there were several barred
           windows and two doors. The doors used to remain locked.
           There was a building of three shikhars to the west of the       B
           wall with iron-bars in which the place of the central shikhar
           portion is Shri Ram Janam Bhoomi which is called Sanctum-
           Sanctorum, according to Hindu tradition, faith and belief. On
           the basis of this faith and belief, I also used to go for the
           darshan and Parikrama of the Shri Ram Janam Bhoomi.”
                                                                           C
      The close-proximity of Ramchabutra with the grill-brick wall is
a matter which will assume importance. The witness noted that the wall
was “right in front of Ramchabutra”.
      (ii) The witness spoke of the manner in which devotees would
           enter the courtyard and proceed for darshan:                    D
           “All the pilgrims – darshanarthees would enter the Sri Ram
           Janam Bhoomi premises from the entry gate to the east and
           have darshans of the idols placed at Ram Chabootra, of the
           idols placed under the neem and peepal tree located to its
           south-east corner and Sita Rasoi and the foot prints etc.,      E
           there and also have darshan of sacrosanct Sri Ram Janam
           Bhoomi located inside the barred wall which is considered
           to be the Sanctum-Sanctorum.”
      (iii) The witness deposed to the presence of the black stone
            pillars within the three domed structure and of the carvings   F
            of deities on them. The space of the sanctum sanctorum
            represented, according to the witness, the place of birth of
            Lord Ram:
           “In the Sanctum-Sanctorum located in Sri Ram Janam
           Bhoomi, there were black pillars of touchstone on which
                                                                           G
           drawn the pictures of flower-leaves and Gods and
           Goddesses. The temple with shikhars is the sacred Sanctum-
           Sanctorum whereas per the ancient belief, Lord Ram was
           born…

                                                                           H
558            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                The touchstone (black stone) pillars were fixed at the doors
                 of Garb Griha. The Hindu pilgrims also used to have the
                 darshans of the idols drawn on those pillars.”
            (iv) During the course of his cross-examination, certain material
                 statements were elicited from the witness, some of which
B                are:
                 (i) Between 1935 and 1949, when he went to the Ram
                     Janmabhumi, he had darshan of Lord Ram at all the
                     religious places like Ramchabutra, Sita Rasoi and the
                     main sanctum sanctorum;
C                (ii) At the sanctum sanctorum, darshan was obtained from
                      outside the iron bars and prasad would be placed near
                      the iron bars;
                (iii) In front of the eastern gate, there was a wall with iron
                      bars in which there were two doors. Inside the door and
D                     below the dome was the sanctum sanctorum. There was
                      a photo of Lord Ram inside the sanctum sanctorum.
                      However, the witness had not himself seen any aarti
                      being performed inside the sanctum sanctorum; and
                (iv) No Muslim would approach the premises out of fear of
E                    the sadhus and bairagis.
             Based on what he perceived to be contradictions in the
      identification by the witness of certain photographs, Dr Rajeev Dhavan,
      in his written submissions criticised the testimony of the witness. He
      has also adverted to the statement of the witness that Ram Lalla had
F     made his appearance under the middle dome in 1949. The witness also
      offered some explanation of the damage that was done to the building
      in 1934. These contradictions cannot lead to the discrediting of the
      witness or his entire testimony on the nature of worship by Hindu
      devotees at the site. There is no reason to doubt the statement of the
      witness that he was a regular visitor and a worshipper at the site. His
G
      testimony in the Examination-in-Chief on the nature and site of worship
      has not been shaken in the course of the cross-examination. The
      discrepancies which have been noticed by Dr Rajeev Dhavan are
      certainly not of a nature which would cast doubt on the substratum of
      the deposition on the above aspects.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           559


       523. Ram Surat Tewari (OPW-7): The witness was seventy-              A
three years old on the date of his Examination-in-Chief which is 19
September 2002. His village was situated 8 kilometres from Ayodhya.
The witness stated that he visited Ayodhya for the first time in 1942
during the summer when he resided with his brother who was in service
there. Thereafter, he visited Ayodhya four to five times each year. The
                                                                            B
witness has specifically adverted to the pillars of black stone on either
side of Hanumat Dwar and to the carvings of stone:
      “On both the sides of Hanumat Dwar, pillars were erected of
      black touch stone on which flowers, petals and human images
      were engraved. Human images looked like Dwarpal and their
      faces appeared scratched. My brother had told that the idols were     C
      of Jai and Vijay.”
       In the above extract, the witness adverts to images which
resembled dwarpal (gatekeeper) and of Jai and Vijay. Like the other
witnesses, OPW-7 spoke of the fact that devotees would have darshan
at Ramchabutra and then proceed through the lattice wall for obtaining      D
darshan of the ‘Garbh Grih’. The witness deposed that above the Singh
Dwar, there existed two statues of lions, and between them of garuda.
He also stated that a statue of varah (a boar) was installed on the
southern wall of the main entrance gate. The witness spoke of twelve
pillars of Kasauti stone inside and outside the main gate of the middle     E
dome:
      “Twelve pillars of Kasauti (touch stone) were erected inside and
      outside the main gate of middle dome of the three-domed building
      inside the lattice wall and on those pillars a ghat-pallav, flowers
      and petals and the idols of Hindu Gods and Goddesses were             F
      inscribed and among them the faces of idols, hands and their legs
      were scratched.”
       524. Kaushal Kishore Mishra (OPW-12): The witness was
seventy-five years of age on 19 September 2002, the date of the
Examination-in-Chief. A resident of Ayodhya, the witness is an Acharya      G
and belongs to a family of priests. Since the age of fourteen or fifteen,
the witness stated that he was performing worship at Ram Janmabhumi.
During the course of the Examination-in-Chief, the witness stated that
lakhs of people gathered there for worship on the occasion of festivals
when they would visit Ramchabutra, Sita Rasoi and the sanctum
sanctorum where Lord Ram was born below the middle dome of the              H
560            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     three domed structure. The devotees would also perform a parikrama.
      The witness also stated that no Muslim of Ayodhya came near the
      premises of Ram Janmabhumi for the purpose of prayer and there was
      no offering of namaz.
             According to the witness, there were idols of Ram Lalla and
B     Shaligram on the Chabutra where offerings were made. Bairagis and
      sadhus also lived there, and they belonged to Nirmohi Akhara. Prasad
      for the deities was prepared in the store of Nirmohi Akhara and a priest
      was also appointed to look after the Ram Mandir and Sita Rasoi. The
      witness spoke about the two doors at the outer courtyard and the grill-
      brick wall separating the disputed building and the outer courtyard. Both
C     the doors of the wall with bars would be opened and the witness stated
      that he would go through the gate to worship the idol of Lord Ram.
      Though, the witness stated during the course of his Examination-in-
      Chief that he accompanied his father and grand-father to Ram
      Janmabhumi and saw the pilgrims praying below the middle dome of
D     the disputed structure in the sanctum sanctorum, in the course of his
      cross-examination, he stated that in 1934, he did not go inside the
      disputed building but only upto Ramchabutra. However, since 1934, he
      claimed to have been going inside the three domed building. He claimed
      that there were two iron doors to enter the building; one of which on
      the North was always kept open. According to him, in 1949 there was
E     no idol inside the building with domes but only a calendar was put up
      on the platform constructed below the middle dome. According to the
      witness, he performed worship inside the building when there was no
      rush but when there was a rush of people, worship would be performed
      outside near the Ramchabutra. However, he took devotees inside the
F     disputed building for worship after 1949 and not before it. Between 1949
      and 1986, he took oral permission from the receiver to go inside the
      building. During 1934-1949, some people made their offerings outside
      at Ramchabutra; others gave it to a priest near the iron wall gate due
      to the rush of the people while some people would go inside to make
      their offerings. The priest sitting in the platform below the middle dome
G     accepted the offerings. In response to the question as to how aarti and
      bhog was offered between 1934 and 1949 when there was no idol, the
      witness stated:
            “Question : - From 1934 to 1949 there was no idol below the
            dome, to whom the Aarti, bhog etc. offered?
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             561


      Answer : - The importance of the disputed building, the pictures        A
      on the Calendars, mental worship and meditation were such
      things for which worship, bhog, recitation, Aarti were performed.”
       The witness however accepted that there is no other public temple
lacking an idol in the sanctum sanctorum. According to him, the idol of
Ram Lalla was placed before the middle dome of the disputed building          B
during the night of 22/23 December 1949. According to the witness,
prior to 1949, the north side door to the disputed structure was opened
while the southern door remained closed, keys being in the custody of
police. Hence, between 1934 and 1949, he entered the disputed
structure below the dome only through the north door. Between 1934
and 1949, the police was deputed there as the crowd began to increase         C
and the southern door was kept locked. According to him, it was during
1934-49, that he visited the disputed structure below the middle dome
and made offerings to the photo of an idol in a calendar.
       525. Narad Saran (OPW-13): The witness was seventy-six
years old on the date of his Examination-in-Chief which was on 27             D
January 2003. He came to Ayodhya in 1946 and after the death of his
Guru, he succeeded him as the Mahant to Saraju Kund in 1979. The
witness has accepted that the idols were shifted from Ramchabutra to
the place below the central dome on the night between 22/23 December
1949. He was confronted with photographs of the inscription containing        E
the word “Allah”. According to the witness, the inscriptions were leaves
and flowers only. He accepted that where Allah is written, the wall
cannot be a wall of the temple. The witness could not confirm as to
whether Muslims had offered namaz in the disputed building on the dates
that he did not visit it. The witness spoke about the belief of the sanctum
sanctorum being below the middle dome. The witness deposed that there         F
were Kasauti pillars on either side of the gate at Hanumat Dwar with
the idols of Jai and Vijay engraved thereon.
      The Sunni witnesses
      526. The plaintiffs in Suit 5 have relied upon the account of Sunni     G
witnesses as strengthening their case. The following Sunni witnesses
were relied upon:
       Mohd Hashim (PW-1): The witness was seventy-five years
old when his statement was recorded in July 1996. He worked as a
tailor by profession and was a resident of Mohalla Kothia at Ayodhya.
                                                                              H
562            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     The witness stated that his residence was three furlongs away from
      the disputed site and he went to offer namaz in Babri Masjid for the
      first time in 1938. The witness stated that at that time, Friday namaz
      used to be performed in the two mosques but Taravi namaz (special
      prayer/namaz performed after Isha namaz during the pious month of
      Ramzan) used to be performed only in Babri Masjid. The witness claims
B
      to have read the last namaz at the disputed site on 22 December 1949
      and was thereafter prevented from accessing and offering prayers at
      the site by government officials. The witness stated that pursuant to
      the order of attachment, he and many others attempted to offer namaz
      but were prosecuted for committing a breach of Section 144 CrPC and
C     they were sentenced to two months’ imprisonment with a fine of Rs
      50/-. During the course of his statement, the witness deposed that Ganj-
      E-Shahidan was in the east of the disputed site. On the northern side
      there was a road and beyond that was a Janmasthan temple with a
      signboard marking the Janmasthan. On the southern side of the disputed
      site was a graveyard. There was a gate each on the northern and eastern
D
      sides of the disputed site and the entry was mostly from the eastern
      gate. On entering from the eastern gate there used to be a Chabutra
      whereupon sometimes the priest used to sit. Near the northern gate of
      the mosque there was a ‘Chulha’ called Sita Rasoi. According to the
      witness, there was a wall in front of Sita Rasoi and when the crowd
E     used to increase, the northern gate used to be opened for passage. The
      northern and eastern gates were surrounded by a boundary wall. There
      was another wall of the mosque where there was a main door which
      was locked. This lock was put on the date when the mosque was
      attached. The witness stated that no idols were placed inside the
      disputed site upto 22 December 1949 and no worship was ever
F
      performed inside the three domed structure.
              The witness was cross-examined initially on 24 June 1996.
      During the course of his cross-examination, the witness stated that the
      disputed site which was attached on 22/23 December 1949 was called
      Ram Janmabhumi by Hindus and Babri Masjid by the Muslims. He
G     stated that the Janmasthan temple was the Ram Janmabhumi temple
      and even in the Suit of 1885, the disputed site was referred to as the
      Ram Janmabhumi. During the course of his cross-examination, the
      witness further stated that as Ayodhya is considered to be the birth-
      place of Lord Ram, it is as important for Hindus as Mecca is for the
H     Muslims. He further stated that pilgrims from outside India also visited
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           563


the Janmasthan temple for darshan on the occasion of festivals and          A
temporary shops for selling offerings like flowers, garlands and batasha
were set up for the pilgrims. The witness stated that he had seen the
Hindus doing the Panchkoshi and Chaudhakoshi parikrama around the
disputed property since his childhood and that the practice was being
followed for hundreds of years. The witness after seeing photograph
                                                                            B
nos 45, 46 and 54 and A 2/41 of the Kasauti pillars stated that the
figurines or the carvings on the pillars were of Hindu Gods and that
the pillars that were visible at the eastern main gate were similar to
the ones used in the dome. The witness confirmed that the stone pillars
remained intact till the destruction of the disputed premises in 1992. In
response to a question whether a Muslim would go to offer namaz in          C
a place where there are pictures of Gods, Goddesses or flowers, the
witness responded that it was prohibited to offer namaz before a picture
of a God.
       527. Haji Mehboob Ahmed (PW-2): was fifty-eight years old
when his statement was recorded in September 1996. He was a resident        D
of Tedhi Bazar, Ayodhya and his house was situated about three
furlongs away from the disputed site. He stated that he had offered
namaz in the disputed site hundreds of times and besides the Friday
namaz he used to offer namaz five times till 22 December 1949. The
witness stated that he never saw any worship or puja being performed
by the Hindus inside the disputed site. The witness was cross-examined      E
initially on 17 September 1996. During the course of his cross-
examination, the witness referred to the grilled wall that joined the
boundary wall of the three domed structure and stated that the structure
was considered to be a mosque by the Muslims and a mandir by the
Hindus. The witness stated that just as Ayodhya was a place of              F
pilgrimage for the Hindus, similarly, it was for the Muslims and they
referred to it as ‘Khurd Mecca’. He stated that the parikrama used
to take place in the winters and those performing parikrama also used
to visit the temple for darshan. The witness was unable to determine
whether the pillars were made of stone or Kasauti stone. The witness
denied the existence of idols and other symbols of the temple shown in      G
photograph nos 29 and 30 and stated they were not there at the time
when he went to offer namaz at the disputed site.
       528. Mohd Yaseen (PW-4): He was sixty-six years old when
his statement was recorded in November 1996. He was a resident of
                                                                            H
564            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     Mohalla Raiganj, Ayodhya and was a shoemaker. The witness stated
      that the disputed structure was used for offering namaz and he had
      been continuously reading Friday prayers at the disputed site. He stated
      that there existed black stone pillars in the disputed structure, but no
      images of Gods and Goddesses were engraved on them. According to
      the witness, images of flowers and leaves in the shape of flowerpots
B
      were carved on them. The witness was first cross-examined on 29
      November 1996. During the course of his cross-examination, the witness
      stated that the Hindus believed that the disputed structure was the birth-
      place of Lord Ram and they considered it as a sacred place of worship.
      The witness further stated that it was wrong to assume that demolishing
C     a temple or an idol was not an offence according to the Quran. The
      witness deposed that no Muslim was allowed to demolish a temple built
      at a particular place and construct a mosque over it and if any person
      could prove a mosque was built upon the destruction of temple, it would
      not be a valid mosque.
D            529. Hasmat-ulla-Ansari (PW-7): He was sixty-five years old
      when his statement was recorded in December 1996. He was a resident
      of Mohalla Kaziana, Ayodhya and was a typist. The witness stated
      that the disputed structure was a mosque and that he had first offered
      namaz there in 1943 and thereafter till 1949. He also claimed that the
      disputed structure was never a temple and no Hindu offered worship
E     there till 22 December 1949. The witness was first cross-examined on
      5 December 1996. During the course of his cross-examination, he stated
      thus:
            “A Fair in Shravan is held here. Fair at the Mani Parbat and
            another fair at Vashishtha Kund is also organised. There is Ram
F           Navami Fair in the month of Chaitra. It is said that Ram Navami
            Fair is organised on the occasion of birthday of Lord Rama. On
            this occasion, people from outside also come to Ayodhya. During
            the days of our childhood thousands of people from outside used
            to come. These days lakhs of people come. Parikramas are also
G           organised there. Of the two parikramas one is Panchkosi and
            another is Chaudahkosi. Hindus come from different places and
            they perform Parikramas also on this occasion.”
            530. Mohd Qasim Ansari (PW-23): He was seventy-four
      years old when he filed an affidavit in January 2002. He was a resident
H     of Mohalla Kutia, Ayodhya and was a motor mechanic by profession.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           565


The witness stated that his residence was situated about three furlongs     A
away from the disputed site. The witness stated that he had recited
Fazir Zohar, Asir, Magrib, Isha, Tarvi and even Zumma namaz multiple
times at the disputed site. According to the witness, he recited the last
namaz on 22 December 1949 and till the time he recited namaz, there
was no idol kept inside the three domed structure and no Hindus ever
                                                                            B
prayed at the disputed site. The witness was first cross-examined on
16 January 2002. During the course of cross-examination, the witness
stated that the Hindus considered Lord Ram as their God and believed
that Lord Ram was born in Ayodhya. The witness stated that Babri
Masjid was referred to as the Janmabhumi by the Hindus and that he
was aware of Panchkoshi Marg and Panchkoshi Parikrama. He stated            C
that the disputed site was at a distance of 300 metres from Panchkosi
Marg and all the famous temples of Ayodhya including the disputed site
were situated within the Panchkosi Marg. According to the witness,
during the month of Kartik, a grand festival was organised in Ayodhya,
shops were set up and lakhs of pilgrims came to have darshan at the
                                                                            D
Ram Janmabhumi, Kanak Bhawan and Hanuman Garhi. The witness
also stated that the Chaudahkosi Parikrama was also performed once
a year during the month of Kartik and lakhs of pilgrims used to take
part in it. The witness also referred to the Ram Navami festival held
in the month of Chaitra and the Sawan festival which attracted lakhs
of people to the city of Ayodhya. The pilgrims used to take a dip in the    E
river Saryu and have darshan at Kanak Bhavan, Janmasthan mandir
and even the Janmabhumi. According to the witness, during the days
of the festival, Hindus and Muslims co-existed in love and peace.
      531. Analysing the depositions of the above witnesses, the
following facets can be gleaned:                                            F
       (i) Hindus consider Ayodhya as the birth-place of Lord Ram.
           Hindu Shastras and religious scriptures refer to it being a
           place of religious significance;
       (ii) The faith and belief of the Hindus is that Lord Ram was
            born inside the inner sanctum or ‘Garbh Grih’ right below       G
            the central dome of the three domed structure;
      (iii) What Muslims call the Babri mosque, the Hindus consider
            as the Ram Janmabhumi or the birth-place of Lord Ram;
      (iv) The faith and belief of the Hindus that Lord Ram was born
                                                                            H
           in Ayodhya is undisputed. Muslim witnesses also stated that
566      SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A          Hindus have faith and belief in the existence of the
           Janmasthan;
      (v) Both Hindu and Sunni witness testimonies indicate that the
          disputed site was being used for offering worship by
          devotees of both faiths;
B     (vi) Both Hindu and Sunni witnesses have described the physical
           layout of the disputed structure in the following manner:
          (a) There were two entrances to the disputed premises –
              one from the East through the Hanumat Dwar and the
              other from the North through Singh Dwar. There were
C             on both sides of Hanumat Dwar black touch stone
              (Kasauti stone) pillars with engravings of flowers, leaves
              and Hindu Gods and Goddesses. Hindus used to pray
              and offer worship to the engravings on the pillars. Two
              Hindu witnesses spoke about the ‘Jai and Vijai’
              engravings;
D
          (b) Outside the main gate was a fixed stone with the words
              ‘Janam Bhumi Nitya Yatra’ written on it. On entering
              through this gate, the Ramchabutra was on the left upon
              which the idols of Lord Ram had been placed. Kirtan
              was carried out near the Ramchabutra by devotees and
E             saints;
          (c) In one corner of the outer courtyard idols of Ganesha,
              Nandi, Shivlinga, Parvati and others were placed below
              a fig and a neem tree;
          (d) There existed a structure with a thatched roof, which
F
              had provisions for storing food and preparing meals;
          (e) Outside the disputed premises, in the south-eastern
              corner, Sita Koop was located at a distance of 200-250
              paces;

G          (f) The Northern entrance gate to the disputed site was
               Singh Dwar above which a pictorial representation of
               garuda was engraved in the centre with two lions on
               either side. On entering through Singh Dwar, Sita Rasoi
               was accessed, which included a Chauka-Belan-
               Choolha, Charan Chinha and other signs of religious
H              significance; and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           567


          (g) To the West of Ramchabutra, there was a wall with iron        A
              bars. Inside the railing was the three domed structure
              which Hindus believed to be the birth-place of Lord
              Ram. The Hindus believed this as the ‘Garbh Grih’
              which was considered a holy and revered place. There
              existed black Kasauti stone pillars in the three domed
                                                                            B
              structure. The witnesses stated that the pillars had
              engravings of flowers, leaves, Gods and Goddesses on
              them;
    (vii) A pattern of worship and prayer emerges from the
          testimonies of the witnesses. Upon entering Hanumat Dwar,
          the Hindus used to offer prayers and worship the idols of         C
          Lord Ram placed upon the Chabutra in the outer courtyard
          followed by the idols placed below the fig and neem tree.
          Prayers were offered at the Sita Rasoi and then pilgrims
          used to pay obeisance to the ‘Garbh Grih’ located inside the
          three domed structure, while making their offerings standing      D
          at the iron railing that divided the inner and outer courtyard.
          The Hindus performed a parikrama or performed
          circumambulation of the Ram Janmabhumi;
    (viii) Both Hindu and Muslim witnesses stated that on religious
           occasions and festivals such as Ram Navami, Sawan Jhoola,        E
           Kartik Poornima, Parikrama Mela and Ram Vivah, many
           Hindu pilgrims from across the country visited the disputed
           premises for darshan. Worshippers used to take a dip in the
           Saryu river and have darshan at Ram Janmabhumi, Kanak
           Bhawan and Hanumangarhi. Pilgrims would perform a
           customary circumambulation around the disputed premises;         F
           and
     (ix) Both Hindu and Muslim witnesses have referred to
          Panchkoshi and Chaudahkosi Parikramas that were
          performed once a year during the month of Kartik, which
          attracted lakhs of pilgrims to the city of Ayodhya.               G
     The areas of dispute
      532. From the testimony of the Hindu and Sunni Muslims
witnesses, there appear three significant areas of dispute:
                                                                            H
568     SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A      (i) The first is about the presence of idols under the central
           dome of the three domed structure, which was a part of
           the Babri mosque to the Muslims and the ‘Garbh Grih’ to
           the Hindus. The oral accounts contain isolated references
           to the presence of a calendar bearing a photograph of the
           idol and of worship being offered to this pictorial
B
           representation. The Hindu witnesses have however
           accepted that the idol of Lord Ram was shifted into the inner
           courtyard, below the central dome on the night between 22-
           23 December 1949. The possibility of any idol under the
           central dome prior to 22-23 December 1949 stands excluded
C          on a preponderance of probabilities;
      (ii) Second, there are variations in regard to the statements of
           the Hindu witnesses on whether and, if so the nature of the
           prayers, that were offered inside the inner sanctum prior
           to 22-23 December 1949. While some witnesses have stated
D          that they had entered the disputed structure for offering
           prayers below the central dome, other witnesses have
           stated that prayers were being offered only at the railing
           separating the inner and the outer courtyards. The case that
           prayers were offered at the railing is inconsistent with the
           claim that prayers were being offered inside the three domed
E          structure by the Hindus between 1934 and 1949. According
           to the Muslim witnesses, no prayers were being offered
           inside the three domed structure by the Hindus; and
      (iii) Third, there is a variation between the statements of the
            Hindu and Muslim witnesses on whether namaz was offered
F           inside the three domed structure of the mosque between
            1934 and 1949. The Muslim witnesses consistently deposed
            that namaz was being offered and that the last Friday
            prayers were offered on 22 December 1949. On the other
            hand, according to the Hindu witnesses, no Muslim offered
G           prayers at the three domed structure and if anyone ventured
            near the premises, they were made to leave out of the fear
            of the sadhus and Bairagis in the neighbourhood.
      N.11 Photographs of the disputed structure
      The report of the Commissioner dated 3 August 1950
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          569


       533. The judgment of Justice Sudhir Agarwal records that there      A
are three sets of albums containing photographs taken by the State
Archaeological Department pursuant to an order dated 10 January 1990.
Dr Rakesh Tewari (OPW-14) who was the Director of the State
Archaeological Department verified the photographs. Among them, one
album of coloured photographs containing 204 photographs was marked
                                                                           B
as paper No. 200 C1/1-204. The second album of black and white
photographs contains 111 photographs and was marked as paper No.
201 C(1)/1-111. The albums contained photographs of the Kasauti stone
pillars and other features of the disputed structure.
       Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf
of the Sunni Central Waqf Board, has placed reliance on the report         C
dated 3 August 1950 submitted by Mr Basheer Ahmad Khan, pleader
commissioner in Suit 1. The report contains thirteen photographs.
Paragraphs 1 and 8 to 10 of the report contain an explanation about
photographs 1, 8, 9 and 10. Photograph 1 depicts the word ‘Allah’
inscribed in Arabic above the arch of the main gate outside the disputed   D
structure. The Commissioner’s report states:
      “1. Photo No.1 is the Photograph of the disputed building from
      outside, of the main entrance. A little above the arch of the
      main gate towards the right and left there are small circles
      in which the word “Allah” is written (inscribed) in Arabic.          E
      A little above it there now hangs a picture of Hanumanji.
      (Beneath the frame of the picture ‘Allaho Akbar’ is inscribed in
      the wall in the Arabic character). This inscription has been
      covered by the said picture and therefore it is not visible in the
      Photograph, and as the photo of this portion could not be taken
      without the removal of the Picture of Hanumanji, I am making it      F
      clear in my report. I did not insist on the removal of the Picture
      with a view to avoid any trouble or ugly situation that might have
      arisen.”
                                                   (Emphasis supplied)
                                                                           G
      534. Photo 8 contains three inscriptions of “Allah” in Arabic
characters. It is taken from the courtyard of the building of the middle
arch in the eastern wall. The Commissioner’s report states:
      “8. No.8 is Photo taken from the Courtyard of the building in
      suit of the Middle Arch in the eastern wall. A little below the
                                                                           H
570            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           top of the arch at three places “Allah” in Arabic character
            is inscribed. Below the ‘Allah’ in the middle, the inscription
            ‘Toghra’ (...) is blurred in the photo (but at the spot it can be
            read).”
                                                          (Emphasis supplied)
B           Photograph 9 was of the inner central Mihrab in the western
      wall. Of this, the Commissioner states:
            “9. No. 9, is a Photo of inner Central Mehrab (Arch) in the
            western wall of the building in suit. On the top of the arch
            Caligraphic Allah in Arabic character is inscribed in the
C           wall and below it “Bimillah-hirrahman-irrahim” and still
            below it “Iailaha-illahah Moammadur Rasulullah” is
            inscribed.”
                                                          (Emphasis supplied)

D           Photograph 10 was of the mimber or pulpit in respect of which
      the Commissioner’s report states:
            “10. No.10 in the Photo if the pulpit (Mimber) on which the idols
            are placed. On the left side of the mimber there is a Persian
            inscription which is blurred in the Photo.”
E                                                        (Emphasis supplied)
          Finally, in respect of the photograph nos 11 and 12,
      Commissioner’s report contains the following observations:
            “11. No.11 is the Photo of the inner Northern Arch in the
            West wall towards the North of No.10. The calligraphic
F           Allah in the Arabic character is inscribed in the wall.
            12. No. 12 is Photo of the Southern Arch in the Western wall
            from inside the building with similar Arabic inscription of
            Allah as in No.11.”

G                                                         (Emphasis supplied)
             Photo 13 contained a depiction of the Vazoo or place of ablution.
      In the photographs which have been annexed to the report of the
      Commissioner dated 3 August 1950, the inscription of Allah appears,
      as stated above, in several places. Among them, in photograph 10, the
      inscription is not visible upon the idols being placed at the pulpit. The
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         571


Commissioner has also noted that there is a Persian inscription which     A
is blurred in the photographs. Similarly, the Commissioner also noted
that the inscription in photograph 1 was not visible since it had been
covered by the photograph of a Hindu idol. The Commissioner found
that the inscription in photograph 8 was blurred but could be read at
the spot. Be that as it may, during the course of the hearing, we have
                                                                          B
noticed with the assistance of the learned Counsel the inscription of
‘Allah’ in photograph 9 and in photographs 11 and 12.
      535. Turning to the albums of coloured and black and white
photographs, there is in photograph 40 of the coloured album, an emblem
of two lions flanking the garuda on either side above the entry door.
The album of coloured photographs contains, among other things,           C
depictions of the black Kasauti stone pillars. Justice Sudhir Agarwal
has recorded a reference to them as well as to the album of black and
white photographs in the following extract:
      “3435. There are three sets of albums which contain photographs
      taken by the State Archaeological Department pursuant to order      D
      dated 10.01.1990 passed by this Court. Dr. Rakesh Tiwari, OPW-
      14 was Director of State Archaeological Department who
      deposed statement as OPW 14 and verified all these
      photographs. One album which the learned counsel for the parties
      have termed as “Album of Coloured Photographs” contain 204          E
      photographs and has been marked as Paper No.200 C1/1-204.
      The second one contains 111 photographs which are black &
      white and the parties counsels have commonly call it “The Album
      of Black & White Photographs” and it is Paper No.201 C1/1-
      111. The relevant photographs of these pillars in the coloured
      album are Paper No.200 C1/48, 200 C1/50, 200 C1/51, 200 C1/         F
      52, 200 C1/54, 200 C1/87, 200 C1/104, 200 C1/105, 200 C1/109,
      200 C1/114, 200 C1/115, 200 C1/141, 200 C1/146, 200 C1/147,
      200 C1/166, 200 C1/167, 200 C1/181, 200 C1/186, 200 C1/187,
      200 C1/195, 200 C1/199 and 200 C1/200. Similarly, in the album
      of Black & White, photographs, the relevant one of concerning       G
      pillars are 201 C1/55, 201 C1/57, 201 C1/76, 201 C1/88, 201 C1/
      91, 201 C1/103, 201 C1/104 and 201 C1/106. All these photos
      are being appended collectively as Appendix 5 (A) to 5 (DD) to
      this judgment.”

                                                                          H
572            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            536. During the course of the hearing, this Court has perused
      the photographs in the albums which tally with the above observations
      of learned Judge. The black Kasauti stone pillars have carved
      engravings, many of which have been smeared with vermillion colour.
      Some of the images on the black Kasauti stone pillars have been
      desecrated. Among the witnesses who deposed in connection with the
B
      photographs was Dr T P Verma (OPW 3/5) who became the next friend
      of the first and second plaintiffs in Suit 5 after the death of Shri Deoki
      Nandan Agarwal. Dr T P Verma deposed that the places where
      vermillion has been applied may be images of idols, but he was not able
      to specifically state whether it was a picture of Yaksha –Yakshini or
C     Jai-Vijay. Since the testimony of Dr T P Verma has been emphasized
      by Dr Dhavan during the course of his arguments, we extract the
      relevant part:
            “Idols may be present at the places where vermillion or red colour
            has been used in photographs No. 104, 105, 109, 110, 114 and
D           115 but it is not clearly visible in the photographs as to which
            god-goddess or Yaksha-Yakshini or Jay-Vijay are represented
            therein. The picture of Yaksha-Yakshini or Jay-Vijay is not visible
            at the place where colour has been used in the pillars appearing
            in the rest of the photographs out of the aforesaid photographs.
            (page 130-131), I am not able to recognize any god-goddess,
E           Yaksha-Yakshini or Jay-Vijay in the black-white photographs of
            these pillars. There is a hazy figure above the ‘Ghat Kalash’ in
            photograph No. 55, which can be of some god-goddess or
            Yaksha-Yakshini.”
            Proceeding ahead, Dr Verma stated:
F
            “There are few idols in the coloured portion of Photograph Nos.
            141, 146 and 147, which may be of Gods-Goddess but I cannot
            recognise them. No idol is visible to me in the remaining
            photographs. In all these photographs where red colour is not
            present, I am not able to see the pictures of any God-Goddess,
G           Yaksha- Yakshini or Jai-Vijai.
            I am not able to recognize the idol of any God-Goddess, Yaksha-
            Yakshini or Jai-Vijai over the pillars appearing in these
            photographs.”

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            573


       On the other hand, other witnesses have specifically spoken of        A
the presence of Hindu idols in the photographs. Among them are
Raghunath Prasad Pandey (DW 3/5), Mahant Dharam Das (DW 13/
1-1), Ramesh Chandra Tripathi (DW 17/1) and Shashi Kant Rungta
(DW 20/1). The High Court noted certain contradictions in the
statements of the witnesses particularly in regard to the clarity of the
                                                                             B
photographs and the identity of the images. Justice Sudhir Agarwal
observed that these variations were normal since the witnesses were
not experts in the field of iconography. Justice Sudhir Agarwal also noted
the testimony of Dr TP Verma which noticed the images of Gods and
Goddesses in the coloured portions of photographs 188, 193-195, 189
and 200. However, he also stated that he was not able to precisely           C
recognise which Gods or Goddesses have been represented having
regard to the hazy nature of the images. After a review of the evidence,
Justice Sudhir Agarwal came to the following conclusion:
      “3443. In view of the above, we have no hesitation in observing
      that the pillars fixed inside and outside the building in dispute      D
      contain some human images and at some places there appears
      to be some images of Hindu Gods and Goddesses.”
      The photographs on the record contain inscriptions of Islamic
origin and of images traceable to Hindu forms of worship. Both co-
existed in the disputed structure.                                           E
      537. Justice Sharma while holding that the pillars contained
images of Hindu Gods and Goddesses inside the mosque held that the
disputed structure lacked the character of a mosque under the tenets
of Islam. Justice S U Khan has agreed with the view of Justice
Agarwal to the contrary.                                                     F
      Issue No. 19(f) in Suit 4 was:
      “Whether the pillars inside and outside the building in question
      contain images of Hindu Gods and Goddesses? If the finding is
      in the affirmative, whether on that account the building in question
      cannot have the character of Mosque under the tenets of Islam?”        G
       Justice Sudhir Agarwal came to the conclusion that despite the
existence of certain images of Hindu Gods and Goddesses on some of
the pillars inside and outside the building in question, the character of
the structure of a mosque remains unaffected. His view was that though
human or animal images at a place where namaz is to be offered are           H
574            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     not permitted under Islamic tenets, despite the existence of the pillars
      containing those images, Muslims treated the building in dispute to be
      a mosque and offered namaz for at least eighty years until the order
      of attachment was issued on 29 December 1949. In his view, where
      persons who believe in a particular form of worship treated the building
      as a place of Islamic worship, it was not open to a third party to contend
B
      particularly after a long time of lapse that the building was not a mosque
      constructed in accordance with the tenets of that religion. This aspect
      of the case has already been explored while dealing with the submission
      which was urged by Mr P N Misra on the tenets of Islam. It is sufficient
      to note that the evidence on the record consisting of the report of the
C     Commissioner dated 3 August 1950 as well as the coloured and black
      and white albums of photographs indicate firstly, the inscriptions of Allah
      on the disputed structure, secondly, the presence of black Kasauti stone
      pillars containing some images of Hindu Gods and Goddesses and thirdly,
      a depiction of a garuda flanked by lions which would appear to be of
      a non-Islamic origin. Inscriptions of an Islamic religious origin and
D
      engravings of a Hindu religious character have co-existed on the
      disputed structure. They signify that in the diversity of plural cultures
      in the sub-continent, there is underlying it all a universal truth founded
      in the essential one-ness of mankind.
             538. Dr Dhavan argued that there was no image of Hindu Gods
E     or Goddesses on the Kasauti pillars. He urged that the floral designs
      which were found on them exist in Islamic architecture. The submission
      is that decorative engravings and inscriptions do not detract from the
      character of a mosque and therefore a theological question was argued
      by the Hindus to the effect that the carvings were per se un-Islamic.
F     Dr Dhavan is not right in asserting that there is an absence of any
      depiction of Hindu Gods and Goddesses on the Kasauti stone pillars.
      The evidence indicates a position to the contrary. Dr Dhavan placed
      reliance on two specific photographs, photograph nos 128 and 129 of
      the albums containing coloured photographs. These photographs have
      been placed below the inner dome. Dr Dhavan submitted that one of
G     the photographs is of Guru Dutt Singh who was a City Magistrate while
      another photograph, is of K K Nayyar who was the District Magistrate
      at the relevant time when the incident took place in December 1949.
      According to Dr Dhavan, these are photographs placed within the
      structure in 1990 in breach of the order of status quo that was passed.
H     Dr Dhavan has drawn the attention of this Court to the evidence of
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            575


Mahant Bhaskar Das (DW 13/1) to whom photograph nos 128 and 129              A
were shown during the course of his cross-examination. Extracts from
the deposition of the witness, tracing the career of K K Nayyar have
been relied upon. On the basis of these photographs, it was submitted
that K K Nayyar and Guru Dutt Singh adopted a partisan attitude when
the mosque was desecrated in December 1949.
                                                                             B
       We have adverted to the submission of Dr Dhavan for the
completeness of the record and insofar as it has a bearing on the reason
which may have led to the installation of the photographs of two public
officials of the State government in the southern dome of the disputed
structure.
                                                                             C
      N.12 Vishnu Hari Inscriptions
       539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed
a report dated 3 February 2002 before the High Court of Dr K V
Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”.
The documents were taken on record “subject to objection and proof”          D
as required by the provisions of the Evidence Act 1872. During the
course of the trial, the plaintiffs of Suit 5 claimed that the above
inscription was recovered on 6/7 December 1992 from the debris of
the disputed structure which was demolished. The inscription is in stone
with a dimension of 115cm X 55cm. Under the orders of the Court, an
                                                                             E
e-stampage (paper no. 203 C-1/1) was prepared and was deciphered
by Dr K V Ramesh (OPW-10) who is an epigraphist. The translation
of the text was marked as Exhibit 2 in Suit 5. The case of the plaintiffs
is that there was a Vishnu Hari temple at the site in dispute and it was
on the demolition of the temple that a mosque was constructed in its
place. In this segment, the inscription forms the fulcrum of the             F
submission.
      540. Material portions of the translation have been adverted to
during the course of the proceedings and are extracted below:
      “Lines 13-14, verse 19- His nephew (literally brother’s son), the
                                                                             G
      widely celebrated Meghasuta, the illustrious one, who superseded
      Anayacandra; he earned the lordship of Saketamandala through
      the grace of his elder, the Lord of the earth, Govindacandra.
      Line 14, verse 20- Not only did he, who was powerful, put an
      end to the arrogant warriors who were dancing in unrestrained
                                                                             H
576            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           frenzy in the battles constantly fought by him, but he also gave
            (to his people) an excellent army which was replete with (soldiers
            comparable to) the wish-fulfilling trees.
            Lines 14-15, verse 21- By him, who was meditating in his mind
            on the easiest means of quickly jumping across the ocean of
B           worldly attachments, was erected this beautiful temple of (The
            god) Visnu-Hari, [on a scale] never before done by the preceding
            kings, compactly formed [i.e. built] with rows of large and lofty
            stones which had been sculpted out.
            Lines 15-16, verse 22- The position of Alhana, whose tireless
C           shoulders were like safety latches for the stability of the king
            Govindacandra’s empire, was subsequently occupied by his
            younger (son?) Ayusyacandra.
            Line 16, verse 23- Great poets dared not compare him with
            Sahasanka and Sudraka; out of sheer fear none save the God
D           of Love dared draw the bow-string in his presence.
            Line 17, verse 24- By him, who was of good conduct, and
            abhorred strife, while residing at Ayodhya, which had towering
            abodes, intellectuals and temples, Saketa-Mandala was endowed
            with thousands of wells, reservoirs, alms-houses, tanks.”
E            Dr Ramesh submitted a report about the inscription. The report
      states thus:
            “The subjoined stone inscription is engraved on a rectangular
            stone slab, the written area roughly covering an area of 115 cms
            X 55 cms. The slab as at present extant is diagonally broken in
F           two leading to the loss of a couple of letters in almost every line.
            Besides, the first and last two lines have suffered heavy damage
            resulting in the loss of many letters. All in all, the loss of letters
            have proved a handicap to epigraphists and Sanskritists in the
            matter of fully interpreting the contents of the text. Nevertheless,
G           the overall purport and the crux of its import are clear beyond
            doubt. In the first instance a hurriedly prepared estampage, and
            in recent times, a high quality estampage as well as some
            photographs were all provided by Dr. S.P. Gupta Chairman,
            Archaeological Society of India, New Delhi for which I am
            highly thankful to him.
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            577


  The text of the inscription is written in fairly chaste Sanskrit, the    A
  orthographical features being regular for the period to which the
  inscription belongs, namely the middle of the 12th Century A.D.
  The inscription is not in any way dated, but may be assigned,
  with confidence, to the middle of the 12th Century on
  palaeographical grounds as well as the internal evidence provided
                                                                           B
  by the inscriptional text in question.
  But for the opening salutation to Siva at the very beginning, the
  entire text of the inscription is composed in Sanskrit verse of fairly
  high literary excellence. As has been stated above, the
  palaeographical and orthographical features are normal for the
  period to which the inscription belongs, viz, the middle of the 12th     C
  century A.D. This was an important period of transition from
  classical Sanskrit to the North Indian vernaculars. This can be
  easily identified in contemporaneous inscriptions, including the
  present one, in the confusion in the use of class nasals and
  anusvara, and in the employment of the sibilants and palatals.           D
  As for the contents of the text, it is fully reflective of medieval
  vanity as far as the eulogies of the heroes mentioned in the
  inscription are concerned. The most important internal historical
  information we get from this epigraph is the mention of
  Govindachandra, obviously of the Gahadavala dynasty, who ruled           E
  over a fairly vast empire from 1114 to 1155 A.D. Verse 1 is entirely
  lost. Verse 2, which is badly mutilated, refers to Trivikrama and,
  hence, may have been composed in praise of Lord Visnu. Verse
  3, which is also badly damaged, seems to allude to the near-total
  decimation of the warrior clans by Bhargava-Parasurama. Verse
  4 refers to the emergence of a Ksatriya family, heroes born in           F
  which successfully resurrected the decadent warrior clans.
  According to Verse 5, in that noble family was born the beloved
  of the people, Mame. Verse 7 speaks of his detachment from
  mundane things while Verse 8 informs us that he bequeathed his
  realm and wealth to his son Sallaksana. Verse 9 to 14 contain            G
  conventional praises showered on this Sallaksana in which the
  poet has displayed a high level of poetic imagination. Verse 15
  refers to the birth of his son whose stunning resemblance to his
  father was the talk among the people. Verse 16 refers to this
  son as Alhana and credits him with retrieving the past power and
                                                                           H
578            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           glory of his family. While the next two verses (17 and 18) contain
            his conventional praise, verse 19 gives the information that his
            nephew, Meghasuta by name, as superseding a certain
            Anayacandra and obtaining the Lordship of Saketa-mandala
            through the grace of the senior Lord of the earth, Govindacandra,
            While verse 20 lauds the military might of this hero, verse 21
B
            gives the important information that, in order to ensure his easy
            passage into the heavens, Meghasuta built a lofty stone temple
            for the god Visnu-Hari. From verse 22 we learn that he, who
            was responsible for the stability of Govindacandra’s empire, was
            succeeded by the younger Ayusyacandra as the Lord of Saketa-
C           mandala. Verse 23 contains his conventional praise. According
            to verse 24, he set up residence in the city of Ayodhya, which
            was adorned with lofty abodes, intellectuals and temples, and
            added to the entire Saketa-mandala thousands of small and big
            water reservoirs. Verse 25 and 26 contain more conventional
            praises of Ayusyacandra. Verse 27, which is partly damaged,
D
            alludes to the well-known episodes of Vishnu’s incarnations as
            Narasimha, Krsna, Vamana and Rama. The badly damaged verse
            28 refers to a King (probably Ayusyacandra) as warding off the
            danger of invasion from the west (i.e. from the invading Muslim
            forces). Verse 29, which is incomplete, mentions the king
E           Ayusyacandra.
            The reference to Saketa-mandala is interesting. It is well known
            that North India just as in the case of the South, was divided
            into administrate divisions called mandalas (see the word mandala
            in the indices to H.C. Ray’s monumental two-volume work ‘The
F           Dynastic History of Northern India’, II edn.’ 1973, Delhi).”
             541. While discussing the evidence of the witness, Justice Sudhir
      Agarwal has noted that the expertise of OPW-10 as an epigraphist
      could not be disputed by any of the parties. OPW-10 appeared as a
      witness and proved the translation of the contents of the stone inscription
G     by him. According to the witness, the inscription would belong to the
      twelfth century A.D. and from it, the existence of a Vishnu Hari temple
      constructed in Ayodhya in twelfth century A.D. has been noted. OPW-
      10 stated that the expression indicates that Ayodhya was the
      headquarters of Saket Mandala. Moreover, while the temple was
      constructed by Meghasuta, the inscription was written by his successors.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                579


Justice Sudhir Agarwal in the course of his decision has observed that           A
the genuineness and authenticity of the inscription could not be doubted
though it was argued on behalf of the Muslim parties that the manner
in which it was claimed to have been retrieved was not trustworthy so
as to enter a finding that it had been affixed in the building at the disputed
site prior to its demolition. Hence, it was urged by them that the stone
                                                                                 B
inscription by itself cannot be evidence to hold that a Vishnu Hari temple
existed or was constructed at the disputed site.
        542. Dr K V Ramesh (OPW-10) stated in the affidavit in lieu of
his Examination-in-Chief that he has an M.A. in Sanskrit Language and
Literature from Madras University and completed a Ph.D. in History
in 1965 from Karnataka University. In 1965, he joined the ASI in the             C
office of the Government Epigraphist and was selected by UPSC as
Deputy Superintending Epigraphist for Sanskrit inscriptions in 1966. He
was promoted and eventually rose to become the Joint Director of the
ASI in 1992 before his retirement on 30 June 1993. Dr Ramesh stated
that he was approached by D N Agarwal and his counsel for                        D
deciphering the twenty-line stone inscription on the basis of an e-
stampage made available to him, which was paper no. 203C-1/1 on the
record of Suit 5. He accordingly made a translation of the e-stampage
and handed over the report to D N Agarwal. During the course of his
cross-examination, Dr Ramesh stated that he had seen an additional
legible photograph of the inscription in December 1992 when it was               E
brought to him by Dr S P Gupta at Delhi. He also stated that he had
partly deciphered the inscription on his own in his office at the ASI at
Delhi. He stated that he had once assembled with several other persons
at the office of the Indian Archaeological Society which was headed
by Dr S P Gupta. The witness stated that he was conversant with the              F
inscriptions of Gahadawala Nagri script and that he had seen nearly
ten to twenty inscriptions of the dynasty published in Ephigraphia Indica.
The witness had written over fifty articles on Sanskrit inscriptions found
in northern and southern India. Of them, ten inscriptions belonged to
northern India all of which relate to the period prior or up to the end of
the twelfth century A.D. During his cross-examination, the witness               G
explained the basis on which it had been deduced that the inscription
dated to the twelfth century:
       “According to me, the period of the inscription in question can
       be dated back to the 12th Century, and wherever I have used
                                                                                 H
580            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           specifically the period around middle of 12th Century, I meant
            that it was from about 1130 to 1170 A.D. If once I have used
            the period around middle of the 12th Century, it will remain the
            same even if I subsequently refer it to as 12th Century. It is on
            account of the palaeographical grounds and the internal evidence
            as recited by me in para 2 at page 1 of my report (Ext. OOS 5-
B
            2) that I arrived at the approximate period of the inscriptional
            text in question.”
            543. The expertise of Dr K V Ramesh, based on his qualifications
      and experience in the ASI, is a matter of record. Dr Rajeev Dhavan,
      learned Senior Counsel appearing on behalf of the Sunni Waqf Board,
C     however sought to emphasise the following aspects in regard to the
      testimony of Dr Ramesh:
             (i) In the translation at verse 27, incarnations of Lord Vishnu
                 are mentioned in the avatars – Narsimha, Krishna, Vamana
                 and Ram. Hence, according to the submission, no specific
D                importance or focus on Lord Ram has been made in the
                 inscription;
            (ii) Dr Ramesh is not a historian of Northern India and
                 according to him it is not possible to interpret inscriptions
                 until the epigraphist knows contemporary history;
E
            (iii) Dr Ramesh had occasion to sit with Dr S P Gupta in the
                  office of the Indian Archaeological Society (which is distinct
                  from the ASI which is a governmental body);
            (iv) Dr S P Gupta who is OPW-3 had admitted to being a
F                member of the RSS before 1975 and hence, bias cannot be
                 ruled out;
            (v) Dr Ramesh clarified that at page 9 of his report in verse 5
                – line 4 and 5, while making a reference to the noble family,
                he has translated Ram Janmabhumi as the birth-place of
                valour—- – meaning thereby the birth-place of the Royal
G
                Kshatriya family of the dynasty. He clarifies that the
                members of this family later became chieftains of Saketa
                Mandala during the time of Meghasuta. This, in the
                submission, shows that the reference to Ram Janmabhumi
                was not to the birth-place of Lord Ram but to the birth-place
H               of the royal dynasty at the time; and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             581


      (vi) Verse 27 in para 13 of the report is in praise of Lord Vishnu      A
           and there is no specific mention of Lord Ram.
       544. In assessing this submission, we must at the outset note that
no cogent basis has been furnished to doubt the qualifications and
experience of Dr K V Ramesh. Dr Ramesh was employed with the
ASI for many years and eventually rose to occupy the position of Joint        B
Director General. He has furnished a translation of the original
inscription and has indicated the basis on which he deduced that it relates
to the twelfth century. He notes that the epigraphists mention
Govindachandra who belonged to the Gahadavala dynasty and ruled
between 1114 and 1155 A.D. Moreover, the chaste Sanskrit,
orthographical features and palaeography confirmed (according to Dr           C
Ramesh) that the inscription belongs to the twelfth century A.D. Dr
Ramesh also spoke about verses 21 to 24 mentioning the construction
of a lofty stone temple by Meghasuta dedicated to Lord Vishnu Hari.
He was succeeded by Ayusyacandra who, while ruling Ayodhya
endowed Saketa Mandala with the construction of reservoirs. Verse             D
27 which has been damaged in part has been interpreted by Dr Ramesh
in the course of his Examination-in-Chief as follows :
      “13. “Verse 27 (damaged in part) alludes to the episodes of
      Vishnu’s incarnation as Narasimha (who killed Hirnyakasipu),
      Krishna (who killed Banasura), Vamana (who destroyed Bali)              E
      and Rama (who killed ten-headed Ravana).”
       Hence, he deduced that the Vishnu temple constructed by
Meghasuta must have been in existence in the temple town of Ayodhya
from twelfth century A.D. We must note at this stage that the
authenticity of the inscription has not been challenged. The language         F
on the stone slab is Sanskrit of the twelfth century A.D. The challenge
pertains to the place and manner in which the inscription was alleged
to have been recovered, which shall now be considered.
      545. As regards the recovery of the stone inscription, the plaintiffs
in Suit 5 relied on the evidence of Ashok Chandra Chatterjee (OPW-            G
8). The witness who is a resident of Faizabad stated that he was a
partner in a firm by the name of Majestic Automobiles as well as the
owner of Majestic Talkies. He claimed to be a reporter with a weekly
journal titled “Panchjanya” of Faizabad region for over fifteen years.
On the recovery of the stone inscription, OPW-8 stated that on 6
December 1992 when the disputed structure was demolished, he was              H
582            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     present at the site for the collection of news, on the western side of
      the three domed structure. When the work of levelling was being
      undertaken by the Government of Uttar Pradesh on the eastern side
      of the Ram Janmabhumi premises, he states that some stones were
      found which appeared to be the ruins of the temple. On getting this
      information, he proceeded to the site and all the idols including the ruins
B
      of the temple recovered during the process of levelling were placed in
      the custody of the Ram Katha Museum, Raj Sadan Ayodhya of the
      Archaeology Department of Uttar Pradesh.
             546. OPW-8 stated that on 6 December 1992 while he was
      standing behind the disputed structure, he saw a plaster of a part of
C     the western wall being broken and stones and bricks of uneven shape
      and size fitted in the wall. During the course of the demolition of the
      structure a slab (three and half feet long, two feet wide and six inches
      thick) fell down. He states that many of the slabs which had fallen
      appeared to be the ruins of some temple and that a saint at the site
D     informed him that the slab appeared to be an inscription of an old temple.
      The inscription was picked up by the Kar Sewaks who brought it near
      the building located at Ram Katha Kunj. The witness stated that
      subsequently the police took custody of the slabs. The witness stated
      that on 6 December 1992, the date of destruction of the mosque, he
      got acquainted with Dr Sudha Mallayya. On 13 December 1992, Dr
E     Sudha Mallaya contacted him for his help in inspecting the slabs which
      had been recovered during the course of the demolition. Dr S P Gupta
      and Dr Sudha Mallayya accordingly came to the building located at Ram
      Katha Kunj. The witness stated that on 15 December 1992, a photograph
      of the inscription was published in the Lucknow edition of the daily by
F     the name of ‘AaJ’. During the course of his cross-examination, the
      witness stated that he did not know the place where the slab was
      exactly fitted in the wall before it fell. He claimed that the photograph
      of the rock inscription / slab was handed over to him at night by someone
      whom he could not identify. He also stated that the photograph of the
      slab was published in Panchjanya of 13/20 December 1992.
G
             547. The testimony of OPW-8 has been challenged by Dr Dhavan
      on the following grounds:
             (i) The witness stated in his Examination-in-Chief that he was
                 standing on the western side of the disputed building at the
H                time of demolition;
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             583


       (ii) In the course of his cross-examination, the witness stated        A
            that he was standing on the southern side of the disputed
            building at the time of demolition and that nothing was clearly
            visible because of dust;
      (iii) In spite of this, he claims to have seen the slab containing
            the inscription falling;                                          B
      (iv) He then states that on the day following the demolition, he
           went together with Dr Sudha Mallaya and Dr S P Gupta to
           obtain pictures of the inscription;
      (v) Dr S P Gupta is a member of the RSS prior to 1975 and
          Dr Ramesh had also mentioned having met Dr S P Gupta;               C

      (vi) The witness was not able to identify the pictures of the
           disputed site, stating that it was not clear from the
           photographs whether this was the western boundary since
           he had visited the place only once in his lifetime; and
                                                                              D
     (vii) Initially, the witness stated that the rock inscription shown
           had fallen from the western wall of the southern dome but
           after seeing the picture, he stated that rock inscription which
           was available after the demolition of the structure did not
           appear to be fixed on the wall.
                                                                              E
       The inconsistencies in the testimony of the witness, which have
been copiously analysed by Dr Dhavan, cast serious doubt on the
credibility of the witness, his presence at the site and of his having
witnessed the recovery of the slabs from the disputed structure during
the course of demolition on 6 December 1992. The recovery of the
stone inscription from the disputed site following the demolition which       F
took place on 6 December 1992 has not been established. The chain
of custody is not established. The evidence of OPW-8 on the recovery
of the stone inscription does not inspire confidence. On the one hand,
reading his testimony, it is evident that nothing was clearly visible to
the witness because of the pall of dust which was raised. How he saw
                                                                              G
a particular rock inscription or the slab on which it was borne falling
defies rational explanation. In fact, during the course of his cross-
examination, the witness stated that:
      “Rock inscription /slab which was available after the demolition
      of the structure does not appear to be fixed in the wall.”
                                                                              H
584             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           Thus, from the evidence of OPW-8, it cannot be inferred that
      the rock inscription / slab was recovered from the disputed site.
             548. Since the recovery of the rock inscription from the disputed
      structure is not borne out from the evidence, a crucial link in the case
      which has been sought to be made out on the basis of the inscription,
B     by the plaintiffs in Suit 5 is found to be missing. The rock inscription
      would indicate the existence of a Vishnu Hari temple at Ayodhya, having
      been constructed in twelfth century A.D. But once the recovery of the
      inscription from the site in question is disbelieved, the inscription cannot
      be the basis to conclude that the Vishnu Hari temple which is referred
      to in the inscription was a temple which existed at the very site of the
C     demolished structure.
            N.13 The polestar of faith and belief
             549. Setting course through history, the cornerstone of the edifice
      for the Hindus is their faith and belief in the birth-place of Lord Ram
D     as the incarnation of Vishnu. Their faith is founded principally on the
      significance attached to Ayodhya in the following:
              (i) Religious scriptures, principally the association of Ayodhya
                  with the presiding deity of Lord Ram in Valmiki’s Ramayan,
                  Skand Puran and Sri Ramacharitmanas. Their submissions
E                 have been embellished in this Court by Mr P N Mishra
                  (appearing on behalf of defendant no 20 in Suit 5, Akhil
                  Bharatiya Shri Ram JanmBhumi Punrudhar Samiti), who
                  used religion and mythology to weave through the warp and
                  weft of history; and

F            (ii) Travelogues, gazetteers and books.
             In weaving through the wealth of documents produced before
      this Court, it is necessary to answer both the extent of judicial review
      of faith and belief and the evidentiary value of the reliance on
      travelogues, gazetteers and books.
G           550. The first extract from Skand Puran upon which reliance
      has been placed is thus:
            “I bow down to the immutable Rama, the Supreme Brahman
            whose eyes resemble lotus, who is as dark-blue as flower of flax
            (in complexion) and who killed Ravana.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               585


      Great and holy is the City of Ayodhya which is inaccessible to            A
      perpetrators of evil deeds. Who would not like to visit Ayodhya
      wherein Lord Hari himself resided?
      This divine and splendid City is on the bank of the river Sarayu.
      It is on par with Amaravati (the capital of Indra) and is resorted
      to by many ascetics.                                                      B
      (Srimad Skandpuranam .II.VIII… 29-31)”
       The Skand Puran, contains an edict for the devotees to offer
worship to Lord Ram as a means of salvation. There is a reference to
the place of birth of Lord Ram in another extract:
                                                                                C
      “The devotee shall take his holy bath in the waters of Sarayu
      and then worship Pindaraka who deludes sinners and bestows
      good intellect on men of good deeds always. The (annual) festival
      should be celebrated during Navaratris with great luxury. To the
      west of it, the devotee should worship Vighnesvara by seeking
      whom not even the least obstacle remains (in the affairs) of men.         D
      Hence Vighnesvara, the bestower of all desired benefits…
      (Srimad Skandapuranam II.VIII.10.15-17)
      “To the North-East of that spot is the place of the birth of Rama.
      This holy spot of the birth is the means of achieving salvation
                                                                                E
      etc. It is said that the place of the birth is situated to the East of
      Vighneswar, to the North of Vasistha and to the West of
      Laumasa. Only by visiting it a man can get rid of staying
      (frequently) in womb (i.e. rebirth). There is no necessity for
      making charitable gifts, performing a penance or sacrifices or
      undertake pilgrimage to holy spots. On the Navami day the man             F
      should observe the Holy vow. By the power of the holy bath and
      charitable gifts, he is liberated from the bondage of births. By
      visiting the place of birth, one attains that benefit which is obtained
      by one who gives thousands of tawny-coloured cows every day.
      By seeing the place of birth, one attains the merit of ascetics
                                                                                G
      performing penance in hermitage, of thousands of Rajasuya
      sacrifices and Agnihotra sacrifices performed every year. By
      seeing a man observing the holy rite particularly in the place of
      birth, he obtains the merit of the holy men endowed with devotion
      to mother and father as well as preceptors.
      (Srimad Skandapuranam II.VIII.10.18-25)”                                  H
586            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            551. Mr Zafaryab Jilani, learned Senior Counsel appearing on
      behalf of the Sunni Central Waqf Board has a nuanced response to
      the submissions which are founded in the religious scriptures relied upon
      by Mr P N Misra. Learned Senior Counsel argued that:
             (i) There is no reference to the Ram Janmabhumi site either
B                in Valmiki’s Ramayan or in Ramacharitmanas, the latter
                 dating to 1574 A.D; and
             (ii) The religious scriptures contain no reference to a Ram
                  Janmabhumi temple or to the Janmasthan temple.
             The submission which has been urged is that there is no dispute
C     about the faith and belief of the Hindus that Lord Ram was born in
      Ayodhya but the Janmasthan temple which has been worshipped, lies
      to the north of the disputed site. Moreover, it has been stated that after
      1855, the Chabutra in the outer courtyard was worshipped as the place
      of birth. Hence, according to Mr Jilani, there is no evidence of the area
D     below the central dome being worshipped as the place of birth of Lord
      Ram before the dispute over the site which arose in 1949.
             552. Having set out the basis of the claim of the Hindus in the
      religious texts outlined above, it becomes necessary to advert to the
      testimony of Jagadguru Ramanandacharya, a witness whom Mr Jilani
E     himself relied upon extensively. During his oral arguments, Mr Jilani
      described the witness as “a most scholarly person who knows religion”.
      He has been bestowed with the title of Ramanandacharya. The witness
      suffered from a visual disability since infancy. Surmounting these
      challenges, he obtained the degree of Acharya by pursuing Prathma,
      Vidyavaridhi and Vachaspati at the Sampooranand Sanskrit
F     Vishwavidyalaya at Varanasi. The witness has a Ph.D. and a D.Lit
      and on the date of his evidence in lieu of the Examination-in-Chief had
      authored seventy six publications. Except for Urdu, the witness stated
      that he had knowledge of almost all Indian languages. In his
      Examination-in-Chief, the witness stated:
G           “According to my study and information, the disputed site at
            Ayodhya is the birthplace of Lord Shri Ram and from time
            immemorial and as per traditions and faith, the disputed site is
            recognized as the birthplace of Lord Rama and that place is being
            worshiped on a continuing basis.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          587


      The witness relied on an extract from Shri Tulsi Dohashatak by       A
Goswami Tulsi Das and on Episode 18 (Bal Khand) of Valmiki
Ramayan and the Vaishnav Khand of Skand Puran to sustain the faith
and belief in the birth-place of Lord Ram. In the course of his cross-
examination, the witness was subjected to a searching enquiry on his
knowledge of Shri Ramcharitmanas, when he stated:
                                                                           B
      “…there is the concluding part of the book titled ‘Uttarkand’. I
      remember the fifth line of the 4th Doha in the Uttarkand relating
      to the Janam Bhoomi which goes like this – Janam Bhoomi Mam
      Puri Suhavan Uttar Disi Bah Sarju Pavani (Manas 7/4/5). The
      meaning of the above doha is – in my pleasant City is situated
      Janam Bhoomi Sthal to the north of which flows the Saryu river.      C
      It is wrong to suggest that there is no mention of the Janam
      Bhoomi in this couplet. As a matter of fact, it has been said that
      this pleasant city is my birthplace, which in turn, means that in
      my pleasant city is the Janam Bhoomi site.”
      The witness explained the significance of the fifth and seventh      D
couplets during the course of his cross-examination:
      “In the fifth couplet, which starts with the word ‘Janam Bhoomi’,
      the word city stands for the whole city and not for any particular
      site and the same thing has been mentioned by the word ‘ihan’
      in the 7th couplet and the same very thing in couplet No.4 has       E
      been described as ‘Awadhpuri’. It is wrong to suggest that in all
      these three couplets, the word ‘puri’ has been used in the sense
      of Janam Bhoomi. It is correct that in Ramcharitmanas, except
      this couplet, there is no mention of Ram Janam Bhoomi
      elsewhere. It is true that there is mention of Ayodhya and           F
      Awadhpuri at various places in Ramcharitmanas. In Shri
      Ramcharitmanas, there is no mention of the emergence of or
      habitation in Ayodhya. However, in the Valmiki Ramayana-in the
      ‘Balkand’ fifth section – one does find mention to this effect.”
      553. Swami Avimuketshwaranand Saraswati (DW 20/2) stated             G
that according to his “study and knowledge” the disputed site at
Ayodhya is the birth-place of Shri Ram and has been worshipped
regularly by devotees. He founded his belief on the scriptures, more
particularly the Valmiki Ramayan to which he makes a reference:

                                                                           H
588            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           “That, Lord Narayana, in third Shlok Couplet) of fifteenth Canto
            of Balkand of Srimad Valmiki Ramayana had himself, before
            taking incarnation by thinking about his birthplace proved the
            importance of birthplace.”
            Referring to the tenth chapter of the Ayodhya Mahatmya, the
B     witness relied on the importance of the Janmasthan:
            “That, method of journey to Ayodhya has been described in the
            Tenth Chapter of Ayodhya Mahatamya of Vaishnavkhand of
            Skand Puran, famous as Sthal-Puran. Wherein Janmsthan of Shri
            Rama is clearly referred and its importance is given. Sites
C           described in Purans with reference to above context are still in
            existence in Ayodhya. That is why every follower of Sanatan
            Dharma, visits these sites, particularly takes Darshan at Shri
            Ram Janam Bhoomi in Ayodhya, performs Parikarma and takes
            the dust of that place to his head and feels gratified.”
D            He adverted to the image of Varah (the Boar God) on the
      southern wall of the eastern main gate. The witness narrated the other
      temples at which he had worshipped in Ayodhya besides Ram
      Janmabhumi. He stated that there was a full structure in 1990. He had
      entered from the eastern gate and that there was a wall with a grill at
      the main gate. He took darshan at Ramchabutra. During the course of
E     his cross-examination, the witness stated that Ramacharitmanas does
      not contain a reference to the Ram Janmabhumi Mandir nor does it
      contain a specific reference to the construction of a mosque upon the
      demolition of a temple. During the course of his evidence, the witness
      alluded to the inscription on the disputed building to which there was a
F     reference in the 1960 Uttar Pradesh District Gazetteer, Faizabad where
      there was a reference to the construction of a building at a place where
      angels would descend. The witness stated that the site represented the
      place of the incarnation of Lord Ram.
             During the course of his cross-examination, the witness deposed
G     on whether there is a reference to the birth-place of Lord Ram in the
      scriptures. The witness stated that there is no reference to any particular
      birth-place of Lord Ram in the Purans except in the Ayodhya Mahatmya
      and Vaibhav Khand in the Skand Puran. However, he stated that he
      did not recall the distance of any place from the disputed site. During
      the course of his cross-examination, the witness furnished an explanation
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            589


for worship being conducted at Ramchabutra, stating that after an outer      A
enclosure was constructed near the mosque in 1858, the Hindus were
not allowed to go inside as a result of which they performed puja at
the outer Chabutra. This situation according to the witness was altered
in 1949 after the installation of the idols inside the mosque.
       554. Satya Narain Tripathi (DW3/3) stated that in                     B
Ramacharitmanas, there is no mention of “any special place regarding
the birth of Ramachandraji, but only a mention about Ayodhya”. Mahant
Ramji Das (DW3/7) was asked during cross-examination whether there
is a reference in Sri Ramacharitmanas to the birth-place of Lord Ram.
The question posed to and the answer of the witness are extracted
below:                                                                       C

      “Question: Is there mention of praise of Ramachandraji in 3rd,
      4th, 5th, 6th ,7th, 8th chopayees after above couplet No.71(b) in
      Uttarkand of “Shri Ramcharit Manas” and no mention about the
      birth place of Ramachandraji made in them?
                                                                             D
      Answer: There is no mention about the birth place of
      Ramachandraji in the above chopayees, it is only about
      taking birth of Ramachandraji.”
      Relying on the Ayodhya Mahatmaya, the witness adverted to the
reference to the birth-place in relation to the location of Sitakoop – the   E
wall near the disputed site. According to the witness:
      “Sitakoop is lying in Agnikona and the birthplace is in the west
      of Sitakoop.”
     He explained that the distance from Sitakoop to the birth-place
would be about two hundred steps.                                            F
       Both Dr Rajeev Dhavan and Mr Zafaryab Jilani contested the
claim of the Hindus that the place under the central dome of the disputed
structure represents the birth-place of Lord Ram. The evidence of the
above witnesses was relied upon by Mr Jilani to submit that: (i) the
scriptures do not contain a reference to the site called Ram                 G
Janmabhumi; (ii) there is no reference in the scriptures to the Ram
Janmabhumi temple or the Janmasthan temple; and (iii) there is an
absence of evidence that the place below the central dome was
worshipped prior to 1950 by the Hindus as the birth place of Lord Ram.
Mr Jilani submitted that after 1855, the Chabutra was being worshipped
                                                                             H
590             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A     as the place of birth of Lord Ram, which belies the notion that the place
      below the central dome was believed to represent Lord Ram’s birth-
      place.
             555. The Hindu witnesses to whom a reference has been made
      earlier have furnished statements of their faith and belief in the place
B     under the central dome being the birth-place of Lord Ram. The
      witnesses explained the basis of their belief by interpreting the texts of
      the scriptures: the Ayodhya Mahatmya, Valmiki Ramayan and
      Ramacharitmanas. The cross-examination of the witnesses has not
      established any basis for the court to be led to the conclusion that the
      faith and belief of the Hindus, as portrayed through these witnesses is
C     not genuine or that it is a mere pretence. Matters of faith and belief lie
      in the personal realm of the believer. That which sustains solace to the
      soul is inscrutable. Whether a belief is justified lies beyond ken of judicial
      inquiry. This is not a case where the witness statements indicate that
      the belief or faith is a veneer or that it is being put-forth merely as a
D     strategy in a litigation. Once the witnesses have deposed to the basis
      of the belief and there is nothing to doubt its genuineness, it is not open
      to the court to question the basis of the belief. Scriptural interpretations
      are susceptible to a multitude of inferences. The court would do well
      not to step into the pulpit by adjudging which, if any, of competing
      interpretations should be accepted. Faith is a matter for the individual
E     believer. Once the court has intrinsic material to accept that the faith
      or the belief is genuine and not a pretence, it must defer to the belief
      of the worshipper. This, we must do well to recognise, applies across
      the spectrum of religions and their texts, Hinduism and Islam being
      among them. The value of a secular constitution lies in a tradition of
F     equal deference.
             556. The fact that a belief and faith is held is however a matter
      which is distinct from the actual place where worship was offered. In
      deciding the latter, there has to be a careful evaluation of the evidentiary
      record. The evidentiary material in the present case consists among
G     other things of
              (i) Travelogues;
             (ii) Gazetteers;
             (iii) The documentary record pertaining to the genesis of and
                   the course which the disputes over the site in question
H
                   followed; and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             591


      (iv) Documentary material pertaining to the use of the three            A
           domed structure.
        557. In dealing with this aspect of the case, we must confront a
two-fold difficulty which the High Court perceived. The first facet of
that difficulty pertains to scrutinising documentary evidence dealing with
over five hundred years of history. The High Court gave expression to         B
its difficulty in unravelling history:
      “3672. What lies underneath? This question is of extreme
      complication ranging in a period of more than 500 years’ of
      history. No clear picture emerges from various history books…
      In fact, the contemporary record did not answer the issues, one         C
      or the other way, with certainty but some record, authored after
      about 200 years i.e., 18th Century, states about existence of
      temple, its demolition and the construction of the disputed building,
      while some well-known historians dispute it and some history
      books are silent.”
                                                                              D
       In another segment of its judgment, the High Court underscored:
(i) the religious importance of Ayodhya; and (ii) its significance for
Vaishnavites. While dealing with the unquestioned belief that Lord Ram
was born at Ayodhya, the High Court encountered another difficulty.
This related to the attempt to link the birth-place of Lord Ram, as
reflected in the scriptures, with an identified spot in the evidentiary       E
record.
       The High Court alluded to the fact that the scriptures do not
identify any particular place in Ayodhya as the place of birth. The
interpretation placed by the Hindu witnesses particularly on Valmiki
Ramayan and Ayodhya Mahatmya has been adverted to earlier. The                F
High Court was of the view that in the absence of a ‘specific
designated’ site in Ayodhya as the birth-place of Lord Ram, it was
difficult to enter a precise finding by retracing history and linking
religious belief to the situation on the ground. This emerges from the
following extract from the judgment of Justice Sudhir Agarwal:                G
      “To our mind instead of puzzling ourselves in so much literature
      etc., certain aspects which emerge from whatever we have
      mentioned above may be summarised which probably may give
      some idea as to how the questions are to be answered. The
      antiquity of Ayodhya is not disputed. It is also not disputed that
                                                                              H
592            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           Ayodhya is known as the principal place of religion and mainly
            concerned with Vaishnavites, i.e., the followers of Lord Rama.
            Lord Rama was born at Ayodhya and ruled there. The religious
            texts like Valmiki Ramayan and Ramcharitmanas of
            Goswami Tulsidas and others like Skandpuran etc. mention
            that Lord Rama was born at Ayodhya and it is his place of
B
            birth but do not identify any particular place in Ayodhya
            which can be said to be his place of birth. On the one hand
            we do not get any idea about the exact place or site but
            simultaneously we can reasonably assume that once it is not
            disputed that Lord Rama was born at Ayodhya there must be a
C           place which could be narrowed down at the site of his place of
            birth. It is true that a search of a place of birth after long time
            even today may not be very easy if one tried to find out in this
            regard just three or four generations back. Therefore,…such kind
            of inquiry in a matter of such an antiquity is almost impossible.
            But when a dispute in such a manner is raised then we go by
D
            the well accepted principle in law of evidence particularly as
            applicable in civil cases, i.e., preponderance of probability.”
                                                           (Emphasis supplied)
              558. There are severe limitations in applying the test of a balance
E     or preponderance of probabilities in situations like the present where
      faith is founded in aural traditions as much as in written text, where
      belief is nurtured by religion as much as by mythology and cultural
      traditions borne in epics, music and celebrations of festival provide balm
      to the soul of the believer. Bearing the difficulties which the High Court
      has expressed in mind, it is now necessary to analyse in further detail
F     various threads of the documentary material.
            559. We have, on the one hand, Abul Fazal’s ‘Ain-e-Akbari’.
      Colonel H S Jerrett’s English translation was first published in 1893-
      96. The second edition corrected and further annotated by Sir Jadunath
      Sarkar refers to the Ain-e-Akbari as:
G           “…an encyclopedia of the religion, philosophy and sciences of
            the Hindus, preceded by the chronology and cosmography of the
            Muslims, as required by literary convention, for comparison with
            the Hindu ideas on the same subjects.”
           In his editorial introduction written on 17 May 1894, Jerrett had
H     made a reference to the range and diversity of the subjects covered:
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              593


      “The range and diversity of its subjects (i.e. of the Ain-e-Akbari)      A
      and the untiring industry which collected and marshalled, through
      the medium of an unfamiliar language, the many topics of
      information to their minutest details, treating of abstruse sciences,
      subtle philosophical problems, and the customs, social, political
      and religious of a different race and creed, will stand by an
                                                                               B
      enduring monument of his learned and patient diligence…Though
      there is much to be desired, his comprehensive and admirable
      survey yet merits the highest praise…”
     There is a section titled as Ramavatara or Ram-Incarnation in
which the Ain-e-Akbari states:
                                                                               C
      “He was accordingly born during the Treta yuga on the ninth of
      the light half of the month of Chaitra (March-April) in the city
      of Ayodhya, of Kausalya wife of Raja Dasaratha.”
      In a segment titled “The Subah of Oudh”, there is a reference
to Oudh which runs thus:                                                       D
      “Awadh (Ajodhya) is one of the largest cities of India. In is
      situated in longitude 118o, 6’ and latitude 27o, 22. In ancient times
      its populous site covered an extent of 148 kos in length and 36
      in breadth, and it is esteemed one of the holiest places of antiquity.
      Around the environs of the city, they sift the earth and gold is
                                                                               E
      obtained. It was the residence of Rama-chandra who in the Treta
      age combined in his own person both the spiritual supremacy and
      the kingly office.”
      The footnote refers to Lord Ram:
      “The 7th avatar, who in this capital of the solar dynasty founded        F
      on the chariot wheel of Brahma, consummated the glories of sixty
      generations of solar princes and as the incarnate Rama, is the
      hero of the famous epic that bears his name.”
      Mr Jilani has stressed that in the above extract there is no
specific reference to the existence of a temple representing Ram
                                                                               G
Janmabhumi. Ayodhya is, however, referred to as the birth-place of Lord
Ram. Much cannot be attributed to the negative inferences based on
what a book does not contain. Absence of a reference to a temple may
not be evidence of the absence of a temple. Equally, the reference to
a mosque is absent in the above extract.
                                                                               H
594                 SUPREME COURT REPORTS                              [2019] 18 S.C.R.


A                Travelogues, gazetteers and books
            560. Learned Senior Counsel appearing for the plaintiffs in Suit
      5 placed reliance on the accounts of numerous travellers and gazetteers
      to highlight the religious importance attached to Ayodhya and the
      disputed site for the Hindus:
B            Exhibit 19 – Suit 5: William Foster299 edited a book titled
      “Early Travels in India (1583-1619)” which contains narratives of
      seven Englishmen who travelled in northern and western India during
      the reign of Akbar and Jahangir. These travellers are:
                 “Ralph Fitch (1583-91); John Mildenhall (1599-1606); William
C                Hawkins (1608-13); William Finch (1608-11); Nicholas Withington
                 (1612-16); Thomas Coriyat (1612-17) and Edward Terry (1616-
                 19).”
             Among them, William Finch arrived in India in August 1608 at
      Surat with Captain Hawkins. According to the Hindu parties, the
D     significance of the account of William Finch, who visited Ayodhya
      between 1608-1611 is that he did not find any building of importance
      of Islamic origin. There is a reference in the travels of William Finch
      to Ayodhya:
                 “To Oude (Ajodhya) from thence are 50c; a citie of ancient note,
E                and seate of a Potan king, now much ruined; the castle built four
                 hundred yeeres agoe. Heere are also the ruines of Ranichand(s)
                 castle and houses, which the Indians acknowled(g)e for the great
                 God, saying that he took flesh upon him to see the tamasha of
                 the world. In these ruins remayne certaine Bramenes, who record
F                the names of all such Indians as wash themselves in the river
                 running thereby ; which custome, they say, hath continued foure
                 lackes of yeeres (which is three hundred ninetie foure thousand
                 and five hundred yeeres before the worlds creation). Some two
                 miles on the further side of the river is a cave of his with a narrow
G                entrance, but so spacious and full of turnings within that a man
                 may well loose himself there, if he take not better heed ; where
                 it is thought his ashes were buried. Hither resort many from all
                 parts of India, which carry from hence in remembrance certaine

      299
H           William Foster, “Early Travels in India (1583-1619)”, London (1921) at pg 176
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                   595


        graines of rice as blacke as gun-powder, which they say have                    A
        beene reserved ever since. Out of the ruines of this castle is yet
        much gold tried. Here is great trade, and such abundance of
        Indian asse-horne that they make hereof bucklers and divers
        sorts of drinking cups. There are of these hornes, all the Indians
        affirme, some rare of great price, no jewell comparable, some                   B
        esteeming them the right unicorns horne.”
       The expression “ruines of Ranichand(s) castle and Houses” has
appended to it a footnote stating: “Ram Chandra, the hero of the
Ramayana. The reference is to the mound known as the Ramkot or
fort of Rama.”                                                                          C
       561. Exhibit 133 – Suit 5: Joseph Tieffenthaler wrote his
travel account in Latin in his book titled “Description Historiqueet
Geographique Del’inde”. Tieffenthaler was a Jesuit Missionary,
reportedly proficient in Arabic, Persian and Sanskrit and visited India
in 1740. His travels were between 1743-1785300. His visit to Ayodhya                    D
is described in the text, which was made available during the course
of the trial in French. An English translation was furnished by the
Government of India in pursuance of an order of the High Court.
Tieffenthaler’s account reads thus:
        “Avad called as Adjudea, by the educated Hindus, is a city of                   E
        very olden times. Its houses are (mostly) made up of mud only;
        covered with straw or tiles. Many (however), are made of bricks.
        The main street goes from South to North and it has a length of
        about a mile. The width (of the city) is a little lesser. Its western
        side and that of North as well, are situated on a mud hill. That                F
        of north-east is situated on knolls. Towards Bangla it is united.
        Today, this city has been hardly populated, since the foundation
        Bangla or Fesabad (1) – a new city where the Governor
        established his residence – and in which a great number (of
        inhabitants of Oude) settled in. On the South bank (of Deva)
                                                                                        G
        are found various buildings constructed by the nobles in memory
        of Ram, extending from East to West.

300
   Jose K. John, The Mapping of Hindustan : A Fortotten Geographer of India, Joseph
Tieffenthaler (1710-1785), Proceedings of the Indian History Congress, Vol. 58 (1997)
at pages 400-410                                                                        H
596     SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     The most remarkable place is the one which is called (2)
      Sorgadaori, which means: the celestial temple. Because they
      say that Ram took away all the inhabitants of the city from there
      to heaven: This has some resemblance/ similarity to the Ascent
      of the Lord. The city, thus deserted, was repopulated and was
      brought back to its earlier status by Bikarmadjit - the famous
B     king of Oude (OUDH) [OUDJEN] (3)
      There was a temple in this place constructed on the elevated
      bank of the river. But Aurengzeb, always keen to propagate the
      creed of Mohammed and abhorring the noble people, got it
      demolished and replaced with a mosque and two obelisks, with
C     a view to obliterate even the very memory of the Hindu
      superstition. Another mosque build by the Moors is adjacent to
      the one towards the East.
      Close to Sorgadoari is a building constructed lengthways by
      Nabairay_a Hindu, a formerly lieutenant of the Governor
D     (proprietor) of this region (a). But a place especially famous
      is the one called Sitha Rassoi i.e. the table of Sita, wife of
      Ram, adjoining to the city in the South, and is situated on
      a mud hill.
      Emperor Aurengzeb got the f ortress called Ramcot
E     demolished and got a Muslim temple, with triple domes,
      constructed at the same place. Others say that it was
      constructed by ‘Babor’. Fourteen black stone pillars of 5
      (/) span (4) high, which had existed at the site of the
      fortress, are seen there. Twelve of these pillars now
      support the interior arcades of the mosque. Two (of these
F     12) are placed at the entrance of the cloister. The two
      others are part of the tomb of some ‘Moor’. It is narrated
      that these pillars, or rather this debris of the pillars
      skillfully made, were brought from the Island of Lanca or
      Selendip (called Ceyian by the Europeans) by Hanuman,
G     King of Monkeys.
      On the left is seen a square box raised 5 inches above the
      ground, with borders made of lime, with a length of more
      than 5 ells(5) and a maximum width of about 4 ells. The
      Hindus call it Bedi i.e. ‘the cradle. The reason for this is
H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          597


  that once upon a time, here was a house where Beschan                  A
  was born in the form of Ram. It is said that his three
  brothers too were born here. Subsequently, Aurengzebe or
  Babor, according to others, got this place razed in order
  to deny the noble people, the opportunity of practicing
  their supersitions. However, there still exists some
                                                                         B
  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. The two spots
  are surrounded by a low wall constructed with battlement.
  One enters the front hall through a low semi-circular door.
  Not far from there is a place where one digs out grains of             C
  black rice, burned into small stones, which are said to have
  been hidden under the earth since the time of Ram. On
  the 24th of the Tschet month, a big gathering of people is
  done here to celebrate the birthday of Ram, famous in the
  entire India. This vast city is a mile away from Bangla at the         D
  east towards E. N. E such that its latitude also will be greater
  by about one minute than that of Bangla.
  The fortress constructed in square from situated on the elevated
  bank of the river, is equipped with round and low towers. The
  walls need to be repaired. It is uninhabited and is not protected.     E
  Earlier, the Governors of the province had their residence here.
  Sadatkhan frightened by a bad forecast got it transferred to
  Bangla. Today, it is destroyed from top to bottom.
  In a space of 2 miles, from the place where the canons are
  planted up to ‘Oude’, the Gagra takes its course towards east,         F
  making a double bend – one close to the western side of the
  city and the other, a little distance from there, towards the West.
  And bending from there towards the NE# and ¼ E, it washes
  the city in the West; after that, it returns towards the East, close
  to the northern side. But it has been changing its course almost
  every year. Its river bed is equal (in width) to that of Danube        G
  near the citadel of Ingoldstadt in Bavaria, but the volume of
  water is less. In rainy season, it increases breadth-wise in such
  a way that at some places, its breadth exceeds a mile and a half.”
                                                (Emphasis supplied)
                                                                         H
598            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            Tieffenthaler’s account was relied on by various Hindu parties
      as it emphasises the following features:
             (i) It contains a reference to the belief of the Hindus that Lord
                 Ram is the human incarnation of Vishnu (described as
                 Beschan in the account). The account sets out the belief
B                of the Hindus that Lord Ram was born at the site, the symbol
                 of it being the “Bedi” or “cradle”;
            (ii) The account while adverting to the faith of the Hindus in
                 Lord Ram makes a reference to other associated places of
                 worship including “Sorgadaori” (Swarg Dwar) and “Sitha
C                Rassoi” (Sita Rasoi);
            (iii) The account contains a reference to the alleged demolition
                  by Aurangzeb of “the fortress called Ram Cot” and the
                  construction of a mosque with triple domes at the same
                  place. Tieffenthaler however, also records that according
D                 to some the mosque was constructed by Babur;
            (iv) Tieffenthaler’s account contains a reference to the use of
                 fourteen black stone pillars which had existed at the site of
                 the erstwhile fortress. Twelve of them are stated to support
                 the interior arcades of the mosque. Two are stated to be at
E                the entrance of the cloister;
            (v) He describes a square box raised 5 inches above the ground
                which according to the Hindus is the cradle (representing
                the birth of Lord Ram);
            (vi) The account notes that in spite of the alleged demolition (by
F
                 Aurangzeb or Babur), “there still exists some superstitious
                 cult in some place or other” that continues to worship at
                 the site. An example of that is stated to be the place where
                 the “native house” of Lord Ram is thought to have existed,
                 around which Hindus circumambulate (“go around”) three
G                times and prostrate on the floor; and
           (vii) The account makes a reference to the presence of a large
                 gathering of people to mark and celebrate the birthday of
                 Lord Ram.

H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               599


      Tieffenthaler’s travels to Ayodhya were after 1740, which would               A
have been a little over three decades after the death of Aurangzeb.
His account makes a reference to the faith of the Hindu devotees and
contains a reference to the alleged demolition, in his opinion most likely
to have been at the hands of Aurangzeb, and the erection of a mosque
on the site which is believed to be the birth-place of Lord Ram. The                B
account adverts to the use of many black stone pillars in the structure
of the mosque.
       562. Exhibit 20 – Suit 5: Robert Montgomery Martin wrote
the “History, Antiquities, Topography and Statistics of Eastern
India” in three volumes. Martin, born in Dublin in 1801, was an Anglo-              C
Irish author and civil servant.301 He spent ten years in medical practice
in Shillong, East Africa and New South Wales besides working as a
journalist in Calcutta where he established the “Bengal Herald”.302
        Martin’s account on Ayodhya is as follows:
        “The people of Ayodhya imagine, that after the death of                     D
        Vrihadbala, their city was deserted, and continued so until the
        time of Vikrama of Ujjain, who came in search of the holy city,
        erected a fort called Ramgar, cut down the forests by which the
        ruins were covered, and erected 360 temples on the places
        sanctified by the extraordinary actions of Rama, of his wife Sita,          E
        of his brother Lakshman, and of his general Mahavira. The only
        foundation probably for such a tradition is, that Vikrama may have
        erected some temples, and that in the Mahabharat the genealogy
        of the family is continued no lower than the time of Vrihadbala,
        as being foreign to the subject of the book; but in the sri Bhagwat
        Vrihadbala is succeeded by 29 princes, and in the Bangsalata                F
        by 24. These, taken according to the scales of Rama’s
        predecessors in Valmiki and the Sri Ghagwat, would give 18
        princes, and this will give us 279, or 558 years, according as we
        call these succesions reigns or generations, bringing the existence
        of the family down to the time nearly of Alexander; but none of             G
        the latter princes rose to considerable power, and they were
        vassals of the kings of Magadha. Their existence, however,
        throws a great doubt on the whole story concerning Vikrama.
301
   Robert Montgomery Martin (Biographical details) – British Museum
302
   F. H. H. King, Survey our empire! Robert Montgomery Martin (1801–1868), a bio-
bibliography (1979)                                                                 H
600            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           This Vikrama is usually supposed to have been the personage
            from whom the era called Sambat is derived, and according to
            the reckoning used in Kosala, this ere commences 57 years before
            the birth of Christ, so that the city had been then deserted about
            280 years. How the places remarkable for the actions of the God
            could be traced after such a long interval, and amidst the forest,
B
            seems rather doubtful; and the doubt will be increased, if we
            suppose that the latter Vikrama, the son-in-law of the Emperor
            Bhoj, was the person who constructed the temples at Ayodhya.
            This I am inclined to think was probably the case, for although
            Rama was probably worshipped before the time of the elder
C           Vikrama, yet his worship, as that peculiarly distinguishing a sect
            of Bigots, seems to have been first established by Ramanuja
            about the time of the latter Vikrama, who may from thence be
            supposed peculiarly eager to discover the traces of the deity of
            his own sect. Unfortunately, if these temples ever existed, not
            the smallest trace of them remains to enable us to judge of the
D
            period when they were built; and the destruction is very generally
            attributed by the Hindus to the furious zeal of Aurungzebe, to
            whom also is imputed the overthrow of the temples in Benares
            and Mathura.”
             Martin’s account notes some inconsistencies as to the exact
E     ruler who is said to have rediscovered Ayodhya and constructed the
      numerous temples. In his view the worship of Lord Ram in the region
      was likely carried out even prior to the time of Vikrama. Martin later
      refers to the destruction of temples and the erection of mosques “on
      the situations of the most remarkable temples” of which, he states that
F     the mosque at Ayodhya has “every appearance of being the most
      modern”. His account (at pages 335 and 336) is as follows:
            “The bigot by whom the temples were destroyed, is said
            to have erected mosques on the situations of the most
            remarkable temples, but the mosque at Ayodhya, which is
            by far the most entire, and which has every appearance of
G
            being the most modern, is ascertained by an inscription
            on its walls (of which a copy is given) to have been built
            by Babur, five generations before Aurungzeb. This renders
            the whole story of Vikrama exceedingly doubtful, especially as
            what are said to be the ruins of his fort, do not in any essential
H           degree differ from those said to have belonged to the ancient
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          601


  city, that is, consist entirely of irregular heaps of broken bricks,   A
  covered with sol, and remarkably productive of tobacco; and,
  from its name, Ramgar, I am inclined to suppose that it was a
  part of the building actually erected by Rama.
  Although, I do not fail to visit the place, and whatever the Hindus
  reckon remarkable, I did not choose to take any measurements,          B
  so as to draw with any accuracy a plan of the space which the
  ruins occupy, as the doing so might have given offence to the
  Government of the Nawab Vazir, in whose territory, separated
  from this district only by the river Sarayu, they are situated.
  I may in a general manner observe, that the heaps of bricks,
                                                                         C
  although much seems to have been carried away by the river,
  extend a great way, that is, more than a mile in length, and more
  than half a mile in width: and that although vast quantities of
  materials have been removed to build the Muhammedan Ayodhya
  or Fyzabad, yet the ruins in many parts retain a very considerable
  elevation; nor is there any reason to doubt, that the structure to     D
  which they belonged, has been very great; when we consider
  that it has been ruined for above 2000 years. None of the Hindu
  buildings at present existing are in the least remarkable either
  for size for architecture, and they are all not only evidently, but
  avowedly, quite, modern. that is, they have been all erected since
  the reign of Aurungzeb, most of them even within the memory            E
  of man. Although they are built on what I have no doubt are
  the ruins of the palace that was occupied by the princes
  of the family of the sun, their being built on the spots,
  where the events which they are intended to celebrate,
  actually happened, would have been extremely doubtful,
                                                                         F
  even had the elder Vikrama built temples on the various
  places which had been destroyed by Aurungzeb, so that the
  spots selected by Vikrama might be known by tradition;
  but the whole of that story being liable to strong suspicion, we
  may consider the present appropriation of names of different
  places as no better founded than the miracles, which several of        G
  them are said to commemorate.
  It is said that in digging for bricks many images have been
  discovered, but the few which I was able to trace were too much
  broken to ascertain what they were meant to represent, except
  one at the convent (Aakhara) of Guptar, where Lakshman is
                                                                         H
602             SUPREME COURT REPORTS                              [2019] 18 S.C.R.


A             supposed to have disappeared. This represents a man and woman
              carved on one stone. The latter carries somewhat on her head,
              and neither has any resemblance to what I have before seen.
              The only thing except these two figures and the bricks,
              that could with probability be traced to the ancient city, are
              some pillars in the mosque built by Babur. These are of
B
              black stone, and of an order which I have seen nowhere
              else, and which will be understood from the accompanying
              drawing. That they have been taken from a Hindu building,
              is evident, from the traces of images being observable on
              some of their basis; although the images have been cut
C             off to satisfy the conscience of the bigot. It is possible that
              these pillars have belonged to a temple built by Vikrama;
              but I think the existence of such temples doubtful; and if
              they did not exist, it is probable that the pillars were taken
              from the ruins of the palace. They are only 6 feet high.”
D                                                           (Emphasis supplied)
              Martin’s account adverts to the inscription on the walls of the
      mosque on the basis of a copy which was given to him and infers that
      the mosque was built by Babur. The mosque at Ayodhya, he describes
      as having “every appearance of being the most modern”. It also refers
      to the alleged destruction of Hindu places of worship by Aurangzeb.
E     Martin has also adverted to the presence of pillars in the mosque made
      up of black stone. The account narrates that these have been taken
      from a Hindu building which he infers from the traces of the images
      observable on some of the pillars, although, “the images have been cut
      off to satisfy the conscience of the bigot”. In Martin’s view, it is unlikely
F     that the ruins rest on the exact spots where the historical events
      attributed to them occurred. To his mind the whole story is of greater
      religious and mythological significance than historical. Worship at these
      spots commemorates the significant events that are believed by the
      Hindus to have occurred there.
              563. Exhibit 5 – Suit 5: Edward Thornton’s Gazetteer titled
G     “Gazetteer of the territories under the Government of East India
      Company and the Native States on the Continent of India”303 first
      published in 1858.
      303
         Edward Thornton, 1799-1875: A Gazetteer of the Territories Under the Government
      of the East-India Company, And of the Native States On the Continent of India,
      London: W. H. Allen (1854).
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           603


       Thornton’s Gazetteer contains a reference to “an extensive           A
establishment called “Hanumangurh, or Fort of Hanuman”, with an
annual revenue of 50,000 settled on it by Shuja-ud-daulah, “formerly
Nawaub Vizier”. The revenues are stated to be dispensed to about 500
bairagis or religious ascetics and other Hindu mendicants of various
descriptions “no Mussulman being allowed with the walls”. Thornton’s        B
Gazetteer also refers to “extensive ruins, said to be those of the fort
of Rama”:
      “Close to the town on the east, and on the right bank of the
      Ghogra, are extensive ruins, said to be those of the fort of Rama,
      king of Oude, hero of the Ramayana, and otherwise highly              C
      celebrated in the mythological and romantic legends of India.
      Buchanan observes, “that the heaps of bricks, although much
      seems to have been carried away by the river, extend a great
      way: that is more than a mile in length, and more than half a
      mile in width; and that, although vast quantities of materials have   D
      been removed to build the Mahomedan Ayodhya or Fyzabad, yet
      the ruins in many parts retain a very considerable elevation nor
      is there any reason to doubt that the structure to which they
      belonged has been very great, when we consider that it has been
      ruined for above 2,000 years. “The ruins still bear the name of
      Ramgur, or “Fort of Rama; “the most remarkable spot in which          E
      is that from which, according to the legend, Rama took his flight
      to heaven, carrying with him the people of his city; in
      consequence of which it remained desolate until half a century
      before the Christian era, and by him embellished with 360
      temples. Not the smallest traces of these temples, however            F
      now remain; and according to native tradition, they were
      demolished by Aurungzebe, who built a mosque on part of
      the site. The falsehood of the tradition is, however, proved
      by an inscription on the wall of the mosque, attributing the
      work to the conqueror Baber, from whom Aurungzebe was                 G
      fifth in descent. The mosque is embellished with fourteen
      columns of only five to six feet in height, but of very elaborate
      and tasteful workmanship, said to have been taken from the ruins
      of the Hindoo fanes...
                                                                            H
604              SUPREME COURT REPORTS                               [2019] 18 S.C.R.


A            A quadrangular coffer of stone, whitewashed, five ells long, four
             broad, and protruding five or six inches above ground, is pointed
             out as the cradle in which Rama was….as the seventh avtar of
             Vishnu; and is accordingly abundantly honoured by the
             pilgrimages and devotions of the Hindoos. Ayodhya or Oude is
             considered by the best authorities to be the most ancient city in
B
             Hindostan.”
                                                            (Emphasis supplied)
             This account notes that no traces of the ancient temples remain.
      The gazetteer relied on “an inscription on the wall of the mosque” to
      attribute the construction to Babur while also noting that the “local
C     tradition” ascribed the destruction of the temples and the construction
      to Aurangzeb. The gazetteer has relied on the opinion of Buchanan.
             564. Exhibit 123- Suit 5: Surgeon General Edward Balfour
      wrote the “Cyclopedia of India and of Eastern and Southern Asia,
      Commercial, Industrial and Scientific: Products of the Mineral,
D     Vegetable, and Animal Kingdoms, Useful Arts and
      Manufactures”304. Balfour’s text refers to Ayodhya:
             “AYODHYA, on the right bank of Gogra River, Near Fyzabad
             in Oudh, is in latitude on 26o 48’ 20" North; and longitude 80o 24’
             40" E. It has now a population of 7518 of Hindus and
E            Mahomadans but in ancient times it was the capital of the
             kingdome of Kosala, the Modern Oudh, ruled over by the great
             King Dasarath of the Solar line, and father of Ram Chandra. At
             one time it is said to have covered an area of 12 yojana, equal
             of 96 miles. During Buddhist supremacy Ajodhya declined, but
             on the revival of Brahmanism it was restored by King
F            Vikramaditya (AD 57). There are many Jain Temples and
             three mosques on the site of three Hindu shrines, -the
             Janmsthan on the site where Ram was born, the Swarg
             Dwar (Mandir) where his remains were burnt, and the
             Tareta Ka Thakur, framed as the scene of one of his great
G            sacrifices. A mausoleum is here of the Babu Begum and is the
             finest in Oudh.”
                                                            (Emphasis supplied)
      304
        Surgeon General Edward Balfour, Cyclopaedia of India and of Eastern and Southern
      Asia, Commercial, Industrial and Scientific: Products of the Mineral, Vegetable, and
      Animal Kingdoms, Useful Arts and Manufactures, Third Edition, London: Bernard
H     Quaritch, 15 Piccadilly 1885
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             605


      565. Exhibit 6 – Suit 5: Alexander Cunningham, who was                      A
the Director General of the Archaeological Survey of India compiled
the work titled “Archaeological Survey of India - Four Reports
Made During the Years 1862-63-64-65”305. Cunningham refers to
Ayodhya thus:
        “There are several very holy Brahmanical temples about Ajudhya,           B
        but they are all of modern date, and without any architectural
        pretensions whatever. But there can be no doubt that most of
        them occupy the sites of more ancient temples that were
        destroyed by the Musulmans. Thus Ramkot, or Hanuman Garhi,
        on the east side of the city, is a small walled fort surrounding a
        modern temple on the top of an ancient mound. The name                    C
        Ramkot is certainly old, as it is connected with the traditions of
        the Mani Parbat, which will be hereafter mentioned; but the
        temple of Hanuman is not older than the time of Aurangzib. Ram
        Ghat, at the north-east corner of the city, is said to be the spot
        where Rama bathed, and Sargdwari or Swargadwari, the “Gate                D
        of Paradise.” On the north-west is believed to be the place where
        his body was burned. Within a few years ago there was still
        standing a very holy-Banyan tree called Asok Bat, or the
        “Griefless Banyan, “a name which was probably connected with
        that of Swargadwari, in the belief that people who died or were
        burned at this spot were at once relieved from the necessity of           E
        future births. Close by is the Lakshman Ghat, where his brother
        Lakshman bathed, and about one-quarter of a mile distant, in the
        very heart of the city, stands the Janam Asthan, or “Birth-place
        temple” of Rama. Almost due west, and upwards of five miles
        distant, is the Gupta Ghat, with its group of modern white-washed         F
        temples. This is the place where Lakshman is said to have
        disappeared, and hence its name of Guptar from Gupta, which
        means “hidden or concealed.” Some say that it was Rama who
        disappeared at this place, but this is at variance with the story
        of his cremation at Swargadwari.”
                                                                                  G
      566. Exhibit 49- Suit 5: P Carnegy, who was posted as
Officiating Commissioner and Settlement Officer, Faizabad wrote the
“Historical Sketch of Faizabad With Old Capitals Ajodhia and
305
  Alexander Cunningham, Four Reports Made During the Years 1862-63-64-65,
Archaeological Survey of India, Volume 1, Simla: Government Central Press, 1871
                                                                                  H
606              SUPREME COURT REPORTS                               [2019] 18 S.C.R.


A     Fyzabad”306 (1870). Carnegy underscores the importance of Ayodhya
      to the faith of the Hindus:
             “Ajudhia – Ajudhia, which is to the Hindu what Macca is to the
             Mahomedan, Jerusalem to the Jews, has in the traditions of the
             orthodox, a highly mythical origin, being founded for additional
B            security not on the earth for that is transitory, but on the chariot
             wheel of the Great Creator himself which will endure for over.”
             Carnegy refers to the Janmasthan, Swarga Dwar Mandir and
      Treta-Ke-Thakur. He attributes the construction of the mosque to Babur
      in 1528, noting that it still bears his name. In Carnegy’s opinion, many
C     of the columns of an erstwhile temple have been used in the
      construction of the Babri mosque. These pillars as he states, are made
      out of Kasauti stone and are carved. Carnegy who was a settlement
      officer has adverted to the conflagration which took place in 1855
      between the Hindus and Muslims. According to him, during the conflict,
      the Hindus occupied Hanuman Garhi while the Muslims took possession
D     of the Janmasthan. The attempt of the Muslims to lead a charge on
      Hunuman Garhi was repulsed by the Hindus resulting in the death of
      75 Muslims who are buried in the graveyard. The Hindus are stated to
      have then taken possession of the Janmasthan. According to Carnegy
      until then both Hindus and Muslims alike worshipped in what he
E     describes as the “mosque-temple”. However, since colonial rule, a railing
      was put up within which, it has been stated that the Muslims pray, while
      outside the fence the Hindus have raised a platform on which they make
      their offerings. Carnegy’s account is extracted below:
             “The Janmasthan and other temples.- It is locally affirmed that
F            at the Mahomedan conquest there were three important Hindu
             shrines, with but few devotees attached, at Ajudhya, which was
             then little other than a wilderness. These were the “Janmasthan,”
             the “Sargadwar mandir,” also known as “Ram Darbar,” and
             “Tareta-Ke-Thakur.” On the first of these the Emperor Baber
             built the mosque which still bears his name, A.D. 1528; on the
G            second Aurangzeb did the same, A.D. 16581707; and on the third
             that sovereign, or his predecessor, built a mosque according to
             the well-known Mahomedan principle of enforcing their religion
             on all those whom they conquered.
      306
        Historical Sketch of Faizabad With Old Capitals Ajodhia and Fyzabad by P. Carnegy,
H     Officiating Commissioner and Settlement Officer, Oudh Government Press, 1870
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       607


  The Janmasthan marks the place where Ramchandar was                 A
  born. The Sargadwar is the gate through which he passed into
  Paradise, possibly the spot where his body was burned. The
  Tareta-Ke-Thakur was famous as the place where Rama
  performed a great sacrifice, and which he commemorated by
  setting up there images of himself and Sita. “667. Babar’s
                                                                      B
  mosque.- According to Leyden’s Memoirs of Babar, that emperor
  encamped at the junction of the Serwu and Gogra rivers, two or
  three kos east from Ajudhya, on the 28th March, 1528, and there
  he halted seven or eight days, settling the surrounding country.
  A well-known hunting-ground is spoken of in that work, seven
  or eight kos above Oudh, on the banks of the Sarju. It is           C
  remarkable that in all the copies of Babar’s life now known
  the pages that relate to his doings at Ajudhya are wanting.
  In two places in the Babari mosque the year in which it
  was built, 935 H., corresponding with 1528 A.D., is carved
  in stone, along with inscriptions dedicated to the glory of
                                                                      D
  that emperor.
  If Ajudhia was then little other than a wild, it must at least
  have possessed a fine temple in the Janamsthan; for many
  of its columns are still in existence and in good
  preservation, having been used by the Musalmans in the
  construction of the Babari Mosque. These are of strong              E
  close-grained dark slate-colored or black stone, called by
  the natives Kasoti (literally touch-stone,) and carved with
  different devices. To my thinking these strongly resemble
  Budhist pillars that I have seen at Benares and elsewhere.
  They are from seven to eight feet long, square at the base,         F
  centre and capital, and round or octagonal intermediately
  Hindu and Musalman differences.-The Janamsthan is within a
  few hundred paces of the Hanuman Garhi. In 1855 when a great
  rupture took place between the Hindus and Mahomedans, the
  former occupied the Hanuman Garhi in force, while the               G
  Musalmans took possession of the Janamsthan. The Mahomedans
  on that occasion actually charged up the steps of the Hanuman
  Garhi, but were driven back with considerable loss. The Hindus
  then followed up this success, and at the third attempt, took the
  Janamasthan, at the gate of which 75 Mahomedans are buried
                                                                      H
608            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           in the “Martyrs’ grave” (Ganj-Shahid.) Several of the King’s
            Regiments wee looking on all the time, but their orders we not
            to interfere. It is said that up to that time the Hindus and
            Mahomedans alike used to worship in the mosque-temple.
            Since British rule a railing has been put up to prevent
            disputes, within which in the mosque the Mahomedans
B
            pray, while outside the fence the Hindus have raised a
            platform on which they make their offerings.”
                                                          (Emphasis supplied)
             The various Hindu parties placed reliance on the account of
C     Carnegy to establish the belief of the Hindus that the Janmasthan was
      the place of birth of Lord Ram, and the Kasauti columns were used in
      the construction of the mosque. There is a reference to the carvings
      on the Kasauti pillars. Carnegy’s account, which was published in 1870
      has adverted to the incident which took place in 1855 involving a conflict
      between the Hindus and Muslims. He refers to worship being offered
D     by both Hindus and Muslims “in the mosque-temple” prior to the incident
      and to the construction of a railing thereafter, with a view to prevent
      disputes. Carnegy notes that the railing was put up so as to separate
      the two communities, by allowing the Muslims to worship within its
      precincts in the mosque while the Hindus had outside it, raised a platform
E     to make their offerings.
            567. Exhibit 7 – Suit 5: Gazetteer of Oudh (1877): The
      gazetteer contains a description in the same terms as the account of
      Carnegy and therefore does not need any further elaboration.
            568. Exhibit 8 Suit – 5: AF Millet’s “The Report of
F     Settlement of Land Revenue, Faizabad District – (1880)” broadly
      embodies the contents of Carnegy’s account.
            569. Exhibit 52 – Suit 5: H.R. Nevill, I.C.S. compiled and
      edited the work titled “Barabanki: A Gazetteer being Volume
      XLVIII of the District Gazetteer of the United Provinces of Agra
G     and Oudh” (1902). This contains an account of the clash between
      the Hindus and Muslims which occurred in the 1850s.
           570. Exhibit 10 – Suit 5: “The Imperial Gazetteer of India,
      Provincial series, United provinces of Agra and Oudh – Vol. II
      (Allahabad, Banaras, Gorakhpur, Kumaon, Lucknow and
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              609


Faizabad divisions and the native states)”. The Imperial Gazetteer             A
has the following account of Ayodhya:
      “Ajodhya was the capital of the kingdom of Kosala and contained
      the court of the great king Dasaratha, fifty-sixth monarch of the
      Solar line in descent from Raja Manu. The opening chapters of
      the Ramayana recount the magnificence of the city, the glories           B
      of the monarch, and the virtues, wealth, and loyalty of his people.
      Dasaratha was the father of Rama Chandra, the hero of the epic,
      whose cult has experienced a great revival in modern times. With
      the fall of the last of the Solar line, Raja Sumintra, the one hundred
      and thirteenth monarch, Ajodhya became a wilderness and the
      royal family dispersed. From different members of this scattered         C
      stock the Rajas of Udaipur, Jaipur, &c., claim descent. Tradition
      relates that Ajodhya was restored by king Vikramaditya of Ujjain,
      whose identity is a matter of dispute. Ajodhya was of small
      importance in Buddhist times, when Saketa became the chief city
      of Kosala. It is still uncertain where Saketa was situated, and it       D
      has been suggested that it occupied part of the ancient city of
      Ajodhya. Numismatic evidence points to the rule of a line of
      independent Rajas, in or near Ajodhya, about the commencement
      of the Christian era.”
      Referring to the “present town”, the gazetteer notes:                    E
      “The present town stretches inland from a high bluff overlooking
      the Gogra. At one corner of a vast mound known as Ramkot,
      or the fort of Rama, is the holy spot where the hero was
      born. Most of the enclosure is occupied by a mosque built
      by Babar from the remains of an old temple, and in the                   F
      outer portion a small platform and shrine mark the
      birthplace. Close by is a larger temple in which is shown
      the cooking-place of Sita, the faithful wife of Rama. A lofty
      temple stands on the bank of the Gogra at the place where
      Lakshmana bathed; and Hanuman, king of the monkeys, is
      worshipped in a large temple in the town, approached by an               G
      immense flight of steps, which bears the name Hanuman Garhi.
      Other noticeable temples built during the eighteenth and
      nineteenth centuries are the Kanakbhawan, a fine building erected
      by a Rani of Tikamgarh, the Nageshwarnath temple, Darshan
      Singh’s temple, and a small marble temple built by the present           H
610                 SUPREME COURT REPORTS                              [2019] 18 S.C.R.


A               Maharaja. Ajodhya also contains a number of Jain temples, five
                of which were built in the eighteenth century to mark the
                birthplaces of the five hierarchs who are said to have been born
                at Ajodhya. Besides the mosque of Babar, two ruined mosques,
                built by Aurangzeb, stand on the sites of celebrated Hindu shrines-
                the Swargadwara, where Rama’s body was cremated, and the
B
                Treta-ka-Thakur, where he sacrificed. An inscription of Jai
                Chand, the last king of Kanauj, has been found in the latter. Three
                graves are reverenced by Musalmans as the tombs of Noah,
                Seth, and Job, and the two last are mentioned under those names
                in the Ain-i-Akbari. A large mound close by, called the
C               Maniparbat, is said to have been dropped by Hanuman when
                carrying a portion of the Himalayas, while another tradition asserts
                that it was formed by the coolies who built Ramkot shaking their
                baskets as they left work ; it possibly covers a ruined stupa.”
                                                                     (Emphasis supplied)
D           571. Exhibit 23 - Suit 5: Hans Baker wrote his work
      “Ayodhya”307 in three parts. The introduction states that the first part
      deals with the history of Ayodhya, the religious movements which
      governed its development, the local context in which this took concrete
      shape and the manner in which it is reflected in the religious work,
E     Ayodhya Mahatmya. Introducing his work, the author notes:
                “…two matters of great consequence became evident. First that
                the religious development of Ayodhya into a centre of pilgrimage
                took place in the second millennium AD and consequently the
                that the Ayodhyamahatmya in all its versions belongs to this
                period; secondly that the growth of the religious significance of
F
                the town was linked up with the rise of the worship of Rama as
                the principal manifestation of Visnu.”
             The author traces the History of Saketa/Ayodhya from 600 B.C.
      to A.D. 1000 in Chapter I, noting that the site is situated on a curve of
      river Sarayu (Gogra) which encircles the modern town on three sides.
G     He states:
                “In the centre of this site is an area of broken ground called the
                Ramkot or Kot Ramchandar, which today is occupied for a great
                part by temples and maths. Especially on its southern side,
      307
H           Hans Bakker, Ayodhya, Egbert Forsten Publishers (1986)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             611


      however, several artificial mounds are found that are hardly built      A
      on and are strewn with broken bricks and blocks of stone,
      especially the so-called Kubertila on the south-western corner.
      The site described above with a river surrounding it on three sides
      and an area of elevated ground in the centre, not far from a
      crossing of the river, seems to possesses all the essential physical    B
      characteristics of an ancient settlement. Two excavations in
      Ayodhya have been reported so far.”
      Baker notes that from the middle of the first century A.D., the
Dattas of Kosala were increasingly confronted with the Kushana power
in the west which resulted in a siege of a capital by Kanishka.               C
According to Baker, following the reign of Chandragupta - I in A.D
320 and the reign of his successor Samudragupta, Saketa was placed
under the direct rule of Patliputara. There was a renewal of
Brahmanical institutions and learning in the latter half of fourth century
A.D. in the context of which it has been stated:
                                                                              D
      “During the early Gupta period the evolution of the Brahmanic
      religion into Hinduism was accomplished. Along with the
      deification of the king the theory of god’s avataras on earth –
      be it in the form of an idol or as a ‘historical’ human being –
      gained solid ground. By this development, as we have seen, the
      way was paved for recognition of the glorious town of Ayodhya           E
      of yore as the city of Saketa. So forceful was this revival, that
      the Budhist pilgrim Fahsien, who visited Saketa under
      Samudragupta’s successor Chandragupta II, hardly perceived
      anything of his interest in “the great country of Sha-chi” and its
      capital. What we accidentally learn from his account is that
                                                                              F
      Saketa was a walled town.”
      Tracing the history of the town in the fifth century, Baker notes:
      “The fifth century would appear to be a crucial phase in the
      history of the town. It saw Saketa/Ayodhya in the heyday of its
      prosperity and ‘restored’ to its ‘former’ glory as capital of the       G
      illustrious Iksvaku kings. It is true, owing to the disintegration of
      the Gupta empire and the consequent general recession, that this
      prestige suffered a serious drawback in the following centuries,
      yet it safeguarded the town from the same destiny that fall upon
      the majority of the cities of the Gupta empire, namely a
                                                                              H
612             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           languishing existence after the Gupta age resulting in a final
            disappearance from the stage of history. Thanks to its recognition
            as the legendary town of the Iksvakus, and most of all as the
            capital of Lord Visnu himself in his incarnation of Rama, the town
            never fully disappeared from the purview of the Hindus, and
            consequently it could, when the circumstances were set for such
B
            a development, reappear as one of holiest places of North India.
            Like other holy places to come, Mathura and Varanasi, “which
            were practically abandoned after Gupta times”, the city
            reemerged in the beginning of the second millennium.”
             Baker has noted that the survival of Ayodhya can also be
C     attributed to its central position in north India and its strategic value in
      the Gangetic plain. Under the Delhi Sultanate of the thirteenth century,
      Ayodhya was to once again become a provincial capital. In later times,
      its commercial and strategic importance came to be taken over by rival
      townships – Jaunpur in the fifteenth century, Faizabad in the eighteenth
D     century and by Lucknow towards the end of eighteenth and beginning
      of the nineteenth century. Ayodhya did not fall into decay and is stated
      to have witnessed a flourishing of the religious life in the city. Adverting
      to Chinese sources, Baker observes:
            “From Chinese sources as we know that King Vikramaditaya,
E           i.e. Skandagupta, had the royal court installed in Ayodhya
            (According to Paramartha), or ‘country of Srasvati’ (according
            to Hieun Tsang). It is beyond doubt that the ‘country of Sravasti’
            refers to Kosala, the capital of which was at that time Saketa/
            Ayodhya, not Sravasti. The possibility remains open that the royal
            court had already moved from Pataliputra to Saketa/Ayodhya
F           during the reign of Kumaragupta. We have seen that the first
            inscription featuring the name of Ayodhya dated from the reign
            of this King. In the inscriptions preserved the last Gupta ruler to
            mention Pataliputra is Kumaragupta’ father Candragupta II.”
             Baker notes the prevalence of a local tradition in Ayodhya which
G     ascribes the re-discovery of the town to Vikramaditya. This oral tradition
      was reported by Martin in 1838, and after him by Cunningham and
      Carnegy (1870).
            Analysis of accounts of travellers and the gazetteers
           572. William Finch (1608-11) makes a reference to Oude
H     (Ajodhya) ‘a citie of ancient note, and seate of a Potan king now much
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              613


ruined”. Finch notes of a castle built 400 years earlier and the ruins of          A
“Ram Chandra’s castle and houses” 308. Finch acknowledges the
religious beliefs associated with Lord Ram stating the purpose of his
incarnation. Tieffenthaler (1770) refers to the association of Lord Ram
with Ayodhya, and there is a reference to “a temple in this place
constructed on the elevated bank of the river”. Tieffenthaler states
that the temple was demolished by Aurangzeb and was replaced with                  B
a mosque. Tieffenthaler has made a specific reference to the
demolition by Aurangzeb of the fortress called Ram Cot and to the
construction of “a Muslim temple with three domes” at the same place.
Tieffenthaler’s account also notes that according to some, the mosque
was constructed by Babur. The account contains a reference to fourteen             C
black stone pillars, twelve of which support the interior arcades of the
mosque, two being placed at the entrance. His account also refers to
the presence of a square box raised five inches above the ground “with
a length of more than 5 ells and a maximum width of about 4 ells”.
The Hindus, according to Tieffenthaler, called it a cradle or Bedi based
on the belief that once upon a time there was a house where Beschan                D
(Vishnu) was born in the form of Lord Ram. Though, subsequently,
Aurangzeb or Babur “got this place destroyed”, the text contains an
observation that in the place where the native house of Lord Ram
existed, the Hindus “go around 3 times and prostrate on the floor”.
There is a reference to the gathering of devotees during the Chaitra               E
month.
       573. In assessing Tieffenthaler’s account (and for that matter
those of others) it is necessary to distinguish between what he may
have heard from others from what he has actually noticed and
observed. The former is hearsay. Tieffenthaler’s accounts of the
                                                                                   F
existence of the mosque, a three domed structure with black stone pillars
is evidently based on his personal observation. His opinion that the
mosque was constructed most likely by Aurangzeb is evidently based
on what he heard and is not something to his personal knowledge.
Similarly, any finding of fact that the mosque was constructed upon the
demolition of a temple needs independent verification and cannot be                G
based purely on Tieffenthaler’s account. The account is certainly of
significant value when it adverts to the existence of the faith and belief
of the Hindus in Lord Ram and of the association of the place of birth
308
   Ram Chandra, the hero of the Ramayana. The reference is to the mound known as
the Ramkot or fort of Rama.                                                        H
614            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     in close-proximity to the three-domed structure where a “square box”
      was worshipped as symbolizing the cradle of birth. The account has a
      reference to the form of worship, by circumambulation and to the
      assembly of devotees at the site.
             574. Hamilton’s account in the “East Indian Gazetteer of
B     Hindustan” (1828) refers to Oude, “situated on the right bank of the
      river Goggra. Referring to the town, Hamilton notes that “this town is
      esteemed one of the most sacred places of antiquity.” He adverts to
      pilgrimages, “where the remains of the ancient city of Oude, the capital
      of the great Rama, are still to be seen; but whatever may have been
      its former magnificence it now exhibits nothing but a shapeless mass
C     of ruins”. He found “a mass of rubbish and jungle among which are
      the reputed sites of temples dedicated to Rama, Seeta, his wife,
      Lakshman, his general, and Hunimaun (a large monkey), his prime
      minister”. Hamilton noticed the religious mendicants, performing the
      pilgrimage drawn from “the Ramata sect, who walk round the temples
D     and idols, bathe in the holy pools, and performed the customary
      ceremonies”. While Hamilton evidently adverts to the belief and faith
      in Lord Ram, to the temples at Ayodhya and to the customary forms
      of worship, there is no specific observation either about a Ram
      Janmabhumi temple or to the mosque.
E            575. Martin’s account (1838) contains a reference to the
      destruction of temples at Ayodhya “generally attributed by the Hindus
      to the furious zeal of Aurangzebe”, noting that “not the smallest trace
      of them remains”. The mosque at Ayodhya which Martin’s states “has
      every appearance of being the most modern” is ascertained by the
      inscription on its walls to have been built by Babur, five generations
F     before Aurangzeb. Martin refers to the belief of the people of Ayodhya
      that after the death of Vrihadbala, their city was deserted until the time
      of “Vikrama of Ujjain” who came in search of the holy city and erected
      360 temples on the places sanctified by the belief of Lord Ram. Martin
      while referring to “Vikrama”, refers both to the originator of the Samvat
G     era and to the latter day Vikram. According to Martin, it was likely
      that the worship of Lord Ram dates back to “the time of elder Vikrama”
      yet, his worship as a part of a sect must have been first established by
      Ramanuja. These are a part of Martin hypothesising on the origins of
      the city and its temples. That does not constitute evidence. Martin,
      while referring to the pillars in the mosque built by Babur, notes that
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               615


these are of black stones and have been taken from a Hindu building,            A
which is evidenced by the images on some of their bases which have
been desecrated. According to Martin, these pillars would have been
taken from the ruins of a palace. Martin’s account, as the above
analysis indicates, is inferential. While he has spoken of his own
observations in regard to the mosque; of the faith and belief associated
                                                                                B
with Lord Ram; and the presence of black stone pillars the account
contains largely an account of his own assessment of past history.
       576. Edward Thornton’s account in the “Gazetteer of the
territories under the Government of East India Company” (1858) refers
to “extensive ruins, said to be those of the fort of Rama”. Thornton
proceeds to cite extracts from a text attributed to Buchanan. He makes          C
a reference to the lore surrounding the construction of 360 temples and
to the belief of their demolition by Aurangzeb. His attribution of the
construction of a mosque on the site of a temple is not proof of a
historical fact. Thornton records what he heard: neither those who
told him about their belief nor the author of the document are available        D
to be assessed in the course of a cross-examination. Such an account
cannot meet the rigorous standards of acceptable evidence as well as
the more relaxed standard of a preponderance of probabilities which
govern civil trials.
       577. Mr Zafaryab Jilani, learned Senior Counsel appearing for            E
the Sunni Central Waqf Board, has stressed that in the above extract
the gazetteer relies upon “an inscription on the wall of the mosque” to
support the theory that the mosque was constructed by Babur as
opposed to the local tradition which ascribed the construction of the
mosque to Aurangzeb. There is according to him, no specific reference
to the worship by the Hindus under the middle dome of the mosque.               F
However, it is relevant to note that Thornton’s observations are not
personal and he has drawn an inference from the text of Buchanan.
       The purpose of the colonial government was to offer to the British
public in “a cheap and convenient form” authentic information about
India in the form of a gazetteer. Bearing this caveat in mind, it is relevant   G
to note that the above extract adverts to:
        (i) The ruins of “Ramgur or Fort of Rama”;
       (ii) The presence of 14 Kasauti stone pillars in the mosque with
            “elaborate and tasteful workmanship” and;
                                                                                H
616            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           (iii) A “quadrangular coffer of stone”, believed to be the cradle
                  in which Lord Ram was born as the avatar of Lord Vishnu.
             578. Cunningham’s “Archaeological Survey of India” (1862-
      5) refers to existence of “several holy Brahmanical temples about
      Ajudhya” and that the “ancient temples were destroyed by the
B     Musalmans”. The report states that “in the very heart of the city, stands
      the Janam Asthan”, or “birth-place temple” of Ram”. The text refers
      for Ramkot, Swargadwari and notices that “about one quarter of a mile
      distant, in the very heart of the city, stands the Janam Asthan or ‘Birth-
      place temple’ of Rama.” Mr Jilani contended that the reference to the
      Janamsthan or birth-place temple of Ram is not the same as the disputed
C     structure and that it is located somewhere else. Cunningham’s account
      notices a conglomeration of religious sites including Hanuman Garhi,
      Swarg Dwar, Lakshman Ghat and the Janmasthan.
             579. P Carnegy as Officiating Commissioner and Settlement
      Officer has in “A Historical Sketch of Faizabad” (1870) underscored
D     the importance of Ayodhya to the faith of Hindus, with a reference to
      the Janmasthan, Swarga Dwar Mandir and Treta-Ke-Thakur. He
      attributes the construction of the mosque to Babur in 1528 A.D. and
      notes that many of the Kasauti stone columns of an erstwhile temple
      have been used in the mosque. His account adverts to “Ramkot the
E     strong-hold of Ramchandar” and that the fort was “surrounded by 20
      bastions”, each of which was believed to have been commanded by
      one of Lord Ram’s famous generals. Carnegy adverted to the
      conflagration which took place in 1855 between the Hindus and Muslims
      and the resultant death of 75 Muslims who were buried in the graveyard
      next to the disputed structure. According to Carnegy, until then, Hindus
F     and Muslims alike used to worship in what he describes as the “mosque-
      temple”. However, since British Rule, a railing was put up to avoid
      future conflicts. Within it, it has been stated, the Muslims pray, while
      outside the fence the Hindus raised a platform on which they made
      their offerings. Carnegy’s account refers to three religious sites,
G     including the Janmasthan. His account has attributed the construction
      of the mosque to Babur, on the site of the Janmasthan which he states,
      “marks the place where Ram Chander was born”.
            580. Carnegy has relied on Leyden’s memoirs on the expedition
      of Babur, which camped at the junction of the Sarayu and Gogra river,
H     taking notice of the fact that “it is remarkable that in all the copies of
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          617


Babur’s life now known, the pages that relate to his doings in Ajudhia     A
are wanting”. He noted two inscriptions on the mosque, attributing its
construction to 1528 A.D. There is a reference to the Kasauti stone
pillars used in the mosque, which to him, resemble Buddhist pillars.
Based on them, he hypothesises that “if Ajudhia was then little other
than a wild, it must at least have possessed a fine temple in the
                                                                           B
Janmasthan; for many of its columns are still in existence and in good
preservation, having been used by the Musalmans in the construction
of the Babri Mosque.”
      Carnegy provides an account of the conflagration of 1855:
      “Hindu and Musalman differences– The Janmasthan is within a          C
      few hundred paces of the Hanuman Garhi. In 1855 when a great
      rapture took place between the Hindus and the Muhammadans,
      the former occupied the Hanuman Garhi in force, while the
      Musalmans took possession of the Janmasthan. The
      Mohammadans on that occasion actually charged up the steps
      of the Hanomangarhi, but were driven back with considerable          D
      loss. The Hindus then followed up this success, and at the third
      attempt took the Janmasthan at the gate of which 75
      Muhammadan are buried in the ‘martyr’s grave’ (ganj-i-shahid).
      Several of the King’s Regiments were looking on all the time,
      but their orders were not to interfere. It is said that up to that   E
      time the Hindus and Mohomedans alike used to worship in the
      mosque-temple. Since British rule a railing has been put up to
      prevent the disputes, within which in the mosque, the
      Mahomedans pray, while outside the fence the Hindus have
      raised a platform on which they make their offerings.”
                                                                           F
        Carnegy’s account is about fifteen years after the incident of
violence which resulted in the railing being put up by the British to
separate the two communities in their areas of worship. Mr Jilani
challenged Carnegy’s account insofar as it refers to worship both by
Hindus and Muslims within the “mosque-temple” prior to the incident.
Carnegy is indeed cautious in the above extract when he observes that      G
“it is said” that upto that time, Muslims and Hindus alike prayed inside
the mosque. But the account indicates something on which there is no
dispute namely, that the railing came up after the incident as a barrier
which would separate the two communities in the conduct of religious
worship – Muslims in the inner courtyard and the Hindus in the outer       H
618                 SUPREME COURT REPORTS                              [2019] 18 S.C.R.


A     courtyard. Significantly, Carnegy’s account links the construction of
      the platform by the Hindus to the construction of the railing outside the
      mosque. According to his account, the Hindus would have set up the
      platform outside the railing, faced with the exclusion caused from the
      erstwhile mode of worship as a result of the construction of the railing.
      As will be explored subsequently, the platform was constructed in close-
B
      proximity to the railing from where worship was offered and offerings
      were made to what the Hindus believe to be the birth-place of Lord
      Ram.
             581. The Imperial Gazetteer of India (1908) refers to a “vast
      mound” known as “Ramkot, or the fort of Rama” and the existence at
C     a corner of which is the holy spot where Lord Ram was born. The
      gazetteer records that most of the enclosure is occupied by a mosque
      built by Babur from the remains of an old temple. It refers the existence
      of Ramchabutra in the outer portion that “marks the birth-place” of
      Lord Ram. The gazetteer notices the presence of Sita Rasoi in close-
D     proximity.
             582. The District Gazetteer of Faizabad, (1960)309 attributes
      to Chandragupta I the status of being the real founder of the kingdom
      “which extended upto Saketa (Awadh) and Prayaga (Allahabad)”. The
      credit for restoration of Ayodhya is attributed to Vikramaditya of Ujjain
E     identified as Chandragupta II. The gazetteer notes that the Chinese
      pilgrim Hiuen Tsang (630-644 A.D.) passed through Oudh and referred
      to the existence of “100 Buddhist monasteries, more than 3,000
      Mahayani and Hinayani monks and only ten deva (non-Buddhist god)
      temples, the non-Buddhist being but few in number”. According to the
      gazetteer, most of the area represented by the beliefs of the Hindus, to
F     be the birth-place of Lord Ram is occupied by the mosque. The claim
      by the gazetteer is that the mosque was constructed on the remains of
      an old temple. It notices that in the outer portion, a small platform and
      shrine marked the birth-place.
            583. On his analysis of the gazetteereers and travelogues during
G     the course of the submissions, Mr Jilani formulated the following
      propositions:
                 (i) For the period dating from the construction of the mosque
                     in 1528 until 1949, there is no evidence to establish the belief
      309
H           U.P. District Gazetteer Faizabad by Smt. Isha Basant Joshi. (1960 Edition)
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             619


            of the Hindus that the place of birth of Lord Ram was below       A
            the middle dome of the mosque;
       (ii) There is no evidence to show continuity of Hindu worship
            inside the mosque onwards from 1828;
      (iii) Ramchabutra is the birth-place of Lord Ram;
                                                                              B
      (iv) Ramchabutra as the birth-place is corroborated by the fact
           that in the Suit of 1885, the plaintiff sought no prayer with
           respect to the inner courtyard;
       (v) It was only in Suit 5 of 1989 that the concept of a
           Janmasthan was introduced prior to which the belief that           C
           the central dome was the birth-place of Lord Ram did not
           exist; and
      (vi) The theory of the middle dome marking the birth-place of
           Lord Ram only comes from the statements of witnesses in
           Suit 5.                                                            D
       The formulation of Mr Jilani that the Ramchabutra is the birth-
place will assume significance from two perspectives: the first is that
the entire site comprising of the inner and outer courtyards is one
composite property, the railing being put up by the colonial government
only as a measure to protect peace, law and order. The second
                                                                              E
perspective is that Mr Jilani’s submission postulates: (i) the acceptance
of the position that the birth-place is at an area within the disputed site
(the Ramchabutra, according to him); and (ii) there is no denying the
close physical proximity of Ramchabutra, which was set up right outside
the railing.
      Evidentiary value of travelogues, gazetteers and books                  F

      584. Dr Rajeev Dhavan, learned Senior Counsel appearing on
behalf of the plaintiff in Suit 4 urged that any use of historical material
consisting of travelogues and gazetteereers should be prefaced with
caution. Dr Dhavan urged that:
                                                                              G
       (i) Issues of title cannot be decided on the basis of historical
           work, treatises and travelogues;
       (ii) The court ought not to pursue the line of approach adopted
            by counsel for the plaintiffs in Suit 5 who attempted to draw
            inferences on the basis of untested historical material; and
                                                                              H
620                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               (iii) History cannot be read or interpreted without recourse to
                      historiography.
            Dr Dhavan faulted the methodology followed by Justice S U
      Khan and Justice Sudhir Agarwal on the ground that their analysis
      proceeds on the basis of guess work. Raising the issue as to how a
B     preponderance of probabilities can be fed into gazetteereers, he
      submitted that by relying upon historical material, the High Court was
      essentially being asked (as he described it) “to stand at the cusp of
      guess work”.
             585. Analysing the submissions which have been urged, we must
C     at the outset advert to the decision of the Punjab Chief Court in Farzand
      Ali v Zafar Ali 310. In that case, there was a dispute between the
      Mutawalli of a mosque and the defendants, who were descendants of
      the late Imam, over certain properties. The Mutawalli claimed it as a
      part of a religious endowment. The court held:
                “We are inclined to think that the use of the historical works
D
                to establish title to the property cannot be justified on the
                strength of section 57 of the Indian Evidence Act. The
                question of title between the trustee of a mosque, though
                an old and historical institution, and a private person
                cannot, in our opinion, be deemed to be a “matter of public
E               history” within the meaning of the said section.
                We must, therefore, exclude this piece of evidence from
                consideration, and we do not think that this exclusion would make
                any difference in the result. The description contained in the two
                books does not advance the case for the plaintiff to any
F               appreciable extent, and, indeed, this description can be gathered
                from other admissible evidence on the record.”
                                                             (Emphasis supplied)
             A similar view was adopted by a two judge Bench of this Court
      in Karnataka Board of Waqf v Government of India311, where
G     Justice Rajendra Babu observed:
                “We are inclined to think that the use of the historical works
                to establish title to the property cannot be justified on the

      310
            (1918) 46 IC 119
H     311
            (2004) 10 SCC 779
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                         621


        strength of section 57 of the Indian Evidence Act. The                                A
        question of title between the trustee of a mosque, though
        an old and historical institution, and a private person
        cannot, in our opinion, be deemed to be a “matter of public
        history” within the meaning of the said section.
        We must, therefore, exclude this piece of evidence from                               B
        consideration, and we do not think that this exclusion would make
        any difference in the result. The description contained in the two
        books does not advance the case for the plaintiff to any
        appreciable extent, and, indeed, this description can be gathered
        from other admissible evidence on the record.”
                                                                                              C
                                                                (Emphasis supplied)
       A similar view was adopted by a two judge Bench of this Court
in Karnataka Board of Waqf v Government of India311, where
Justice Rajendra Babu observed:
        “8….As far as a title suit of civil nature is concerned, there is                     D
        no room for historical facts and claims. Reliance on borderline
        historical facts will lead to erroneous conclusions. The question
        for resolution herein is the factum of ownership, possession and
        title over the suit property. Only admissible evidence and records
        could be of assistance to prove this.”                                                E
                            312
      586. Section 57 of the Evidence Act 1872 elucidates facts of
which judicial notice must be taken by the court. After delineating 13
categories of fact of which judicial notice may be taken, it stipulates
312
   57. Facts of which Court must take judicial notice.—The Court shall take judicial
notice of the following facts:—
                                                                                              F
[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament [of the United
Kingdom], and all local and personal Acts directed by Parliament [of the United Kingdom]
to be judicially noticed;
(3) Articles of War for [the Indian] Army, [Navy or Air Force];
[(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent
Assembly of India, of Parliament and of the legislatures established under any law for        G
the time being in force in a Province or in the State;]
(5) The accession and the sign manual of the Sovereign for the time being of the United
Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the [Courts in
[India]], and all Courts out of [India] established by the authority of 8[the Central
Government or the Crown Representative]: the seals of Courts of Admiralty and
Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized    H
622               SUPREME COURT REPORTS                                     [2019] 18 S.C.R.


A     that “in all these cases, and also on all matters of public history, literature,
      science and arts, the court may resort to appropriate books or
      documents for reference”. The above provision enables the court to
      resort “for its aid” to books and reference documents inter alia on
      matters of public history.
B            587. While extensive reliance has been placed on the
      gazetteereers by counsel representing the plaintiffs in Suit 5 and by other
      counsel appearing for the Hindu parties, it is necessary to read them in
      the context of the principles of law which govern the reliance on
      gazetteereers.
C           588. Section 81 of the Evidence Act 1872 requires the court to
      “presume the genuineness of every document purporting to be” any
      Official Gazetteere or the Government Gazette “of any colony,
      dependency or possession of the British Crown”. 313 Section 81 raises
      to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act
      or Regulation having the force of law in [India];
D     (7) The accession to office, names, titles, functions, and signatures of the persons
      filling for the time being any public office in any State, if the fact of their appointment
      to such office is notified in [any Official Gazette];
      (8) The existence, title and national flag of every State or Sovereign recognized by [the
      Government of India];
      (9) The divisions of time, the geographical divisions of the world, and public festivals,
      fasts and holidays notified in the Official Gazette;
E     (10) The territories under the dominion of [the Government of India];
      (11) The commencement, continuance, and termination of hostilities between [the
      Government of India] and any other State or body of persons;
      (12) The names of the members and officers of the Court and of their deputies and
      subordinate officers and assistants, and also of all officers acting in execution of its
      process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons
      authorized by law to appear or act before it;
F     (13) The rule of the road, [on land or at sea].
          In all these cases, and also on all matters of public history, literature, science or art,
      the Court may resort for its aid to appropriate books or documents of reference.
         If the Court is called upon by any person to take judicial notice of any fact, it may
      refuse to do so, unless and until such person produces any such book or document as
      it may consider necessary to enable it to do so.
      313
G          Section 81 of the Evidence Act 1872 provides thus:
      Presumption as to Gazettes, newspapers, private Acts of Parliament and other
      documents - The Court shall presume the genuineness of every document purporting
      to be the London Gazette, or [any Official Gazette, or the Government Gazette] of any
      colony, dependency of possession of the British Crown, or to be a newspaper or
      journal, or to be a copy of a private Act of Parliament [of the United Kingdom] printed
      by the Queen’s Printer, and of every document purporting to be a document directed
H     by any law to be kept by any person, if such document is kept substantially in the form
      required by law and is produced from proper custody.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                     623


a presumption of the genuineness of the document and not of its                           A
contents. When the court has to form an opinion on the existence of a
fact of a public nature, Section 37 of the Evidence Act314 indicates that
any statement of it in a government gazette is a relevant fact. While
gazetteereers have been noticed in several decisions of this Court, it is
equally important to note that the reliance placed on them is more in
                                                                                          B
the nature of corroborative material.
       589. In Rajah Muttu Ramalinga Setupati v Perianayagum
Pillai315, the Privy Council dealt with an objection to the judgment of
the High Court on the ground that excessive weight had been given to
the reports of Collectors. In that context, the Privy Council held:
                                                                                          C
        “Their Lordships think it must be conceded that when these
        reports express opinions on the private rights of parties,
        such opinions are not to be regarded as having judicial
        authority or force. But being the report of public officers made
        in the course of duty, and under statutable authority, they are
        entitled to great consideration so far as they supply                             D
        information of official proceedings and historical facts, and
        also in so far as they are relevant to explain the conduct and
        acts of the parties in relation to them, and the proceedings of
        the Government founded upon them.”
                                                              (Emphasis supplied)         E
      The Privy Council cautioned against the use of the report of the
Collector when it opined on matters relating to private rights. But as
records of official proceedings or historical facts, and to explain the
conduct of parties in relation to them, they would provide useful material.
                                                                                          F
     In Ghulam Rasul Khan v Secretary of State for India in
Council316, the Privy Council held:
314
    Section 37 of the Evidence Act 1872 provides thus :
Relevancy of statement as to fact of public nature, contained in certain Acts or
notifications.- When the Court has to form an opinion as to the existence of any fact
of a public nature, any statement of it, made in a recital contained in any Act of        G
Parliament [of the United Kingdom], or in any [Central Act, Provincial Act, or [a State
Act], or in a Government notification or notification by the Crown Representative
appearing in the Official Gazette or in any printed paper purporting to be the London
Gazette or the Government Gazette of any Dominion, colony or possession of His
Majesty is a relevant fact.
315
    (1873-74) 1 IA 209
316
    1925 SCCOnLine PC 12                                                                  H
624                 SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A               “…statements in public documents are receivable to prove
                the facts stated on the general grounds that they were made by
                the authorized agents of the public in the course of official duty
                and respecting facts which were of public interest or required
                to be recorded for the benefit of the Community: Taylor’s, Law
                of Evidence, 10th Ed., S. 1591). In many cases, indeed, in
B               nearly all cases, after a lapse of years it would be
                impossible to give evidence that the statements contained
                in such documents were in fact true, and it is for this
                reason that such an exception is made to the rule of
                hearsay evidence.”
C                                                              (Emphasis supplied)
            In Sukhdev Singh v Maharaja Bahadur of Gidhaur317, this
      Court explored the nature of a zamindari and examined the District
      Gazetteer in that context. The court observed:
                “The statement in the Gazetteer is not necessarily conclusive,
D
                but the Gazetteer is an official document of some value, as it is
                compiled by experienced officials with great care after obtaining
                the facts from official records. As Dawson Miller, C.J. has
                pointed out in Fulbati’s case [AIR 1923 Patna 453] there are a
                few inaccuracies in the latter part of the statement quoted above,
E               but so far as the earlier part of it is concerned, it seems to derive
                considerable support from the documents to which reference is
                made.”
             In the above extract, the court carefully calibrated its reliance
      on the gazetteereer, noting that it was not “necessarily conclusive,” but
F     of “some value”. The portion, which was relied upon by the court, as
      it noted, derived considerable support from documents and was hence
      grounded in them. The rest was not relied upon. The court
      independently assessed its corroborative value. It rejected one part and
      the part which it accepted was found to derive support from other
      documentary material. In other words, the contents of the gazetteereer,
G     even in so far as they were acceptable, were corroborative.
           590. In Mahant Shri Srinivasa Ramanuj Das v Surajnarayan
              318
      Dass , Justice Raghubar Dayal, while dealing with the contents of
      317
            (1951) SCR 534
      318
H           1966 Supp. SCR 436
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            625


O’ Malley’s Puri Gazetteer of 1908, which had elucidated the history             A
of a Math observed:
          “It is urged for the appellant that what is stated in the Gazetteer
          cannot be treated as evidence. These statements in the Gazetteer
          are not relied on as evidence of title but as providing historical
          material and the practice followed by the Math and its head. The       B
          Gazetteer can be consulted on matters on public history.”
       The above observations indicate that the statements in the
gazetteer were not relied on as evidence of title but as providing a
historical background including on matters relating to the practice
followed by the Math. A clear distinction must be drawn between relying          C
on a gazetteereer to source a claim of title (which is impermissible)
and as reference material on a matter of public history (which the court
may consult to an appropriate extent with due circumspection).
       In Vimla Bai v Hiralal Gupta319, the issue was whether a
female bandhu was entitled to succeed to the estate of the male holder           D
through her mother’s side within five degrees of the male holder. On
the issue of the inam register, this Court observed that it had “great
evidentiary value” but its entries had to be considered in the context of
other evidence on the record. On the evidentiary value of an official
gazette, the two judge Bench of this Court dealt with the provisions of
Section 37 and Section 57(13) of the Evidence Act 1872 in the context            E
of migration and observed:
          “4. ... Thus, it is clear that migration cannot be presumed but it
          must be established by adduction (sic) of evidence. The question
          then arises is whether the recital in Indore State Gazette relied
          on, at the appellate stage, can form the sole base to establish        F
          that the plaintiff’s family were the migrants from Mathura in U.P.
          Section 37 of the Evidence Act, 1872 postulates that any
          statement made in a government gazette of a public nature is a
          relevant fact. Section 57(13) declares that on all matters of public
          history, the court may resort for its aid to appropriate books or      G
          documents of reference, and Section 81 draws a presumption
          as to genuineness of gazettes coming from proper custody.
          Phipson on Evidence, the Common Law Library (Thirteenth
          Edition) at page 510 paragraph 25.07 stated that the government

319
      (1990) 2 SCC 22                                                            H
626                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               gazettes ... are admissible (and sometimes conclusive) evidence
                of the public, but not of the private matters contained therein...
                5. The statement of fact contained in the official Gazette
                made in the course of the discharge of the official duties
                on private affairs or on historical facts in some cases is
B               best evidence of facts stated therein and is entitled to due
                consideration but should not be treated as conclusive in
                respect of matters requiring judicial adjudication. In an
                appropriate case where there is some evidence on record
                to prove the fact in issue but it is not sufficient to record
                a finding thereon, the statement of facts concerning
C               management of private temples or historical facts of status
                of private persons etc. found in the official Gazette may
                be relied upon without further proof thereof as
                corroborative evidence.”
                                                            (Emphasis supplied)
D
             A statement of fact contained in the Official Gazette made in
      the course of the discharge of official duties on private affairs or on
      historical facts in “some cases” is the best evidence of facts and is
      entitled to “due consideration”. However, it should not be treated as
      conclusive on matters requiring judicial adjudication. Questions of title
E     raise issues for adjudication. Conflicting claims of title require judicial
      adjudication. Statements contained in a text of history or in a gazetteer
      cannot conclude the issue of title.
             591. In Bala Shankar Maha Shanker Bhattjee v Charity
      Commissioner, Gujarat State320, the issue was whether the temple
F     of Kalika Shrine on Pavagadh was a public trust within the meaning of
      the Bombay Public Trust Act 1950. In this context, a two judge Bench
      of this Court held:
                “22…It is seen that the Gazette of the Bombay Presidency, Vol.
                III published in 1879 is admissible under Section 35 read with
G               Section 81 of the Evidence Act, 1872. The Gazette is admissible
                being official record evidencing public affairs and the court may
                presume their contents as genuine. The statement contained
                therein can be taken into account to discover the historical

      320
H           1995 Supp (1) SCC 485
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          627


         material contained therein and the facts stated therein is            A
         evidence under Section 45 and the court may in conjunction
         with other evidence and circumstance take into
         consideration in adjudging the dispute in question, though
         may not be treated as conclusive evidence.”
                                                      (Emphasis supplied)      B
       In other words, the gazette was not treated to be independent
evidence of a conclusive nature in itself. The court has a caution in
the above extract. The contents of the gazetteer may be read in
conjunction with other evidence and circumstances. They may be taken
into consideration but would not be conclusive evidence.                       C
     [See also the decision in Aliyathammuda Beethathebiyyappura
Pookoya v Pattakal Cheriyakoya321].
       592. The historical material which has been relied upon in the
course of the proceedings before the High Court must be weighed in
the context of the salutary principles which emerge from the above             D
decisions. The court may have due regard to appropriate books and
reference material on matters, of public history. Yet, when it does so,
the court must be conscious of the fact that the statements contained
in travelogues as indeed in the accounts of gazetteers reflect opinions
on matters which are not amenable to be tested by cross-examination
at this distant point of time. Consequently, where there is a dispute          E
pertaining to possession and title amidst a conflict of parties, historical
accounts cannot be regarded as conclusive. The court must then decide
the issue in dispute on the basis of credible evidentiary material.
       593. Interpreting history is an exercise fraught with pitfalls. There
are evident gaps in the historical record, as we have seen from the            F
Babur-Nama. Translations vary and have their limitations. The court
must be circumspect in drawing negative inferences from what a
historical text does not contain. We are not construing a statute or a
pleading. We are looking into historical events knit around legends.
stories, traditions and accounts written in a social and cultural context
different from our own. There are dangers in interpreting history without      G
the aid of historiography. Application of legal principles to make
deductions and inferences out of historical context is a perilous exercise.
One must exercise caution before embarking on the inclination of a
legally trained mind to draw negative inferences from the silences of
321
      2019 SCCOnLine 953                                                       H
628             SUPREME COURT REPORTS                             [2019] 18 S.C.R.


A     history. Silences are sometimes best left to where they belong - the
      universe of silence.
             594. In a contribution to the Times Literary Supplement on 19
      June 1953 titled “Victorian History”, E.H Carr had the following
      caution:
B            “There is a two-way traffic between past and present, the
             present being moulded out of the past, yet constantly recreating
             the past. If the historian makes history, it is equally true that
             history has made the historian … The present-day philosopher
             of history, balancing uneasily on the razor edge between the
C            hazards of objective determinism and the bottomless pit of
             subjective relativity, conscious that thought and action are
             inextricably intertwined, and that the nature of causation, in history
             no less than in science, seems the further to elude his grasp the
             more firmly he tries to grapple with it, is engaged in asking
             questions rather than in answering them.”322
D           In a case such as the present, history presents another difficulty:
      in Eastern philosophy, religious tradition is transmuted through
      generations by modes not confined to written records. Marc Bloch in
      his work titled “The Historian’s Craft”323, spoke of this when he said:
             “For, unlike others, our civilization has always been extremely
E            attentive to its past. Everything has inclined it in this direction :
             both the Christian and the classical heritage. Our first masters,
             the Greeks and the Romans, were history-writing peoples.
             Christianity is a religion of historians. Other religious systems
             have been able to found their beliefs and their rites on a
             mythology nearly outside human time.”
F
                                                               (Emphasis supplied)


            While we have made a reference to the accounts of travellers
      and gazetteers, we read them with caution. The contents of these
G     accounts cannot be regarded as being conclusive on the issue of title
      which has necessitated an adjudication in the present proceedings. While
      the gazetteers may provide to the court a glimpse on matters of public
      322
          Introduction by Richard J Evans in E.H. Carr, What is History?, Penguin (2018
      reprint) at page 12
      323
H         Marc Bloch, The Historian’s Craft, Penguin (2019 reprint), at page 4
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               629


history, history itself is a matter of divisive contestation. While the court   A
is not precluded from relying on the contents as relevant material, they
must be read together with the evidence on the record in order to enable
the court to enter its findings of fact in the course of the present
adjudication. Above all, the court must sift matters which may be of a
hearsay origin in its effort to deduce the kernel of truth which lies hidden
                                                                                B
in the maze of conflicting claims. Travellogues and gazetteers contain
loose fragments of forgotten history. The evidentiary value to be ascribed
to their contents necessarily depends upon the context and is subject
to a careful evaluation of their contents. Our analysis has included in
the balance, the need for circumspection, as we read in the accounts
of travellers and gazetteers a colonial perspective on the contest at the       C
disputed site.
       N.14 Historian’s report
      595. On 13 May 1991, four historians prepared a document
which is titled: “Babri Mosque or Rama’s Birth Place? Historians’
Report to the Indian Nation”. The report has been authored by (i)               D
Professor RS Sharma, formerly a Professor at Delhi University and
Chairperson of the Indian Council of Historical Research; (ii) Professor
M Athar Ali, formerly a Professor of History at Aligarh Muslim
University and a former President of the Indian History Congress; (iii)
Professor D N Jha, Professor of History, Delhi University; and (iv)             E
Professor Suraj Bhan, Professor of Archaeology and Dean, Faculty of
Social Sciences, Kurukshetra University, Haryana. The report was
submitted under a covering letter dated 13 May 1991 by Professor R
S Sharma, Professor M Athar Ali, Professor D N Jha and Professor
Suraj Bhan.
                                                                                F
       The significant observations in the report are:
        (i) There is no basis in the Skandpuran (Ayodhya Mahatmya)
            to indicate the site of Babri Masjid as the birth-place of Lord
            Ram;
       (ii) The carvings on the pillars of the mosque do not indicate a         G
            Vaishnavite association;
      (iii) The brick bases which were found in the excavation
            conducted by Professor BB Lal in 1979 were mentioned
            by him only in 1990 though several papers had been
            published by him;                                                   H
630            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           (iv) Professor B B Lal did not mention the pillar bases in his
                 report submitted to the ASI in 1979-80;
            (v) No stone pillars or architecture of roof material of a temple
                were found in the debris of the trenches where the pillar
                bases stood; and
B           (vi) There is no mention of Babri Masjid in Ram Charitmanas
                 composed in 1675-76.
            The conclusions in the study were:
             (i) No evidence exists in the texts to indicate that before the
C                eighteenth century any veneration was attached to a spot
                 in Ayodhya as being the birth site of Lord Ram;
            (ii) There are no grounds for supposing that a temple of Lord
                 Ram, or any temple, existed at the site where Babri Masjid
                 was built in 1528-29;
D           (iii) The legend that Babri Masjid occupied the site of Lord
                  Ram’s birth did not arise until the late eighteenth century;
                  and that a temple was destroyed to build a mosque was not
                  asserted until the beginning of the nineteenth century; and
            (iv) The “full-blown legend” of the destruction of the temple at
E                the site of the birth of the Lord Ram and Sita Ki Rasoi dates
                 to 1850 after which there is a “progressive reconstruction
                 of imagined history, based on faith”.
             596. Justice Sudhir Agarwal noted that the report had not been
      signed by Professor D N Jha, a fact which was admitted by Professor
F     Suraj Bhan (PW 16) who deposed in evidence. The report indicated
      that the material from the excavations of Professor B B Lal had not
      been available for inspection to the four historians.
             Having extracted from the deposition of PW 16, Justice Agarwal
      rejected his expertise on the ground that he was an archaeologist and
G     not an authority on medieval history.
            597. Justice Agarwal proceeded to analyse the evidence of Suvira
      Jaiswal (PW 18), formerly a Professor at Jawahar Lal Nehru
      University. PW 18 stated that her knowledge about the destroyed site
      was on the basis of newspapers or the work of other historians. Justice
H     Agarwal questioned the credentials of PW 18, noting that she was a
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               631


doctoral student under the guidance of Professor R S Sharma who was             A
a co-author of the report. Ultimately, he concluded that the report had
not been signed by all the four historians (Professor DN Jha not having
signed it) and the opinion of an alleged expert (PW 18) was not based
on her study and research but a reflection of what others had written.
Accordingly, the learned judge held that it was not credible evidence
                                                                                B
under Section 45 of the Evidence Act.
       Dr Dhavan has submitted that on the sole basis of the report
not having been signed by Professor D N Jha, Justice Sudhir Agarwal
erroneously proceeded to make strictures against the four historians.
He urged that while assessing the credibility of the historians, the learned
Judge confounded his assessment of PW 18 with the authors of the                C
report. These observations, it has been urged did not pertain to the
historians but to PW 18.
       598. We are of the view that Justice Agarwal has been
unjustifiably harsh on the four historians. The learned judge seems to
have confounded his criticism of PW 18 (who had only relied on the              D
work of others without any independent assessment) with the report
of the historians. PW 18 was not part of the team of historians. The
fact that one of the four historians did not sign on the covering document
was not reason enough to discard the work in its entirety. The weight
which could be attributed to the historians’ report is a distinct matter        E
but, while analysing this aspect, it was not necessary for the High Court
to make observations in regard to the personal standing and
qualifications of the historians. It is thus necessary to clarify that those
observations were unnecessary for the exercise which was being
embarked upon by the High Court.
                                                                                F
       Having said this, it is evident from the report of the four historians
that they did not have the benefit of inspecting the material on the basis
of which Dr B B Lal had conducted his research in 1979. But that
apart and more significantly, thereport by the historians pre-dates the
material which has emerged in the form of the ASI report which was
prepared during the pendency of the suit in pursuance of the directions         G
of the High Court. Since the four historians did not have the benefit of
that material which has now been assessed by this Court in the earlier
segment of this judgment, it is not necessary to carry the matter any
further save and except to clarify that the historians’ report which is
prior to the report of ASI, cannot carry any significant degree of weight,      H
632            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     since they have not had the benefit of analysing the material which has
      emerged from the ASI report. The inferences which have been drawn
      by the historians in regard to the faith and belief of the Hindus in the
      birth-place of Lord Ram constitute their opinion. Evidence having been
      led in the suits, this Court cannot rest a finding of fact on the report of
      the historians and must evaluate the entirety of the evidence. The issue
B
      of title, insofar as Suit 5 is concerned, has to be decided together with
      Suit 4 on an overall assessment of the evidence. Hence, at the present
      stage, the next segment of the judgment will proceed with analyzing
      Suit 4. The question of title will be ultimately adjudicated after
      marshaling the entirety of the evidence.
C
            O. Suit 4: Sunni Central Waqf Board
            O.1 Analysis of the plaint
            599. Suit 4 was instituted on 18 December 1961 by the Sunni
D     Central Waqf Board. As amended, the following reliefs have been
      sought in the plaint:
            “(a) A declaration to the effect that the property indicated by
                 letters A B C D in the sketch map attached to the plaint is
                 public mosque commonly known as ‘Babri Masjid’ and that
                 the land adjoining the mosque shown in the sketch map by
E
                 letters E F G H is a public Muslim graveyard as specified
                 in para 2 of the plaint may be decreed.
             (b) That in case in the opinion of the Court delivery of
                 possession is deemed to be the proper remedy, a decree for
                 delivery of possession of the mosque and graveyard in suit
F
                 by removal of the idols and other articles which the Hindus
                 may have placed in the mosque as objects of their worship
                 be passed in plaintiff’s favour, against the defendants.
           (bb) That the statutory Receiver be commanded to hand over
                the property in dispute described in the Schedule ‘A’ of the
G               Plaint by removing the unauthorised structures erected
                thereon.”
            [Note: Prayer (bb) was inserted by an amendment to the plaint
      pursuant to the order of the High Court dated 25 May 1995].

H
                           [2019] 18 S.C.R. 633                             633


       The suit is based on the averment that in Ayodhya, there is an       A
ancient historic mosque known commonly as Babri Masjid which was
constructed by Babur more than 433 years ago following his conquest
of India and the occupation of its territories. It has been averred that
the mosque was built for the use of the Muslims in general as a place
of worship and for the performance of religious ceremonies. The main
                                                                            B
construction of the mosque is depicted by the letters A B C D on the
plan annexed to the plaint. Adjoining the land is a graveyard. According
to the plaintiffs, both the mosque and the graveyard vest in the Almighty
and since the construction of the mosque, it has been used by the Muslims
for offering prayers while the graveyard has been used for burial. It
has been averred that a cash grant was paid from the royal treasury         C
for the upkeep and maintenance of the mosque, which was continued
by the Nawab Wazir of Oudh. After the annexation of Oudh, the British
Government continued the ‘cash nankar’ until 1864 by revenue free
grants in the villages of Sholapur and Bahoranpur in the vicinity of
Ayodhya.
                                                                            D
       600. The plaint alleged that outside the main building of the
mosque, Hindu worship was being conducted at a Chabutra
admeasuring 17 x 21 feet on which there was a small wooden structure
in the form of a tent. The plaint contains a recital of the Suit of 1885
instituted by Mahant Raghubar Das for permission to build a temple
on the Chabutra together with a reference to the dismissal of the suit.     E
According to the plaintiffs, Mahant Raghubar Das sued on behalf of
himself, the Janmasthan and the whole body of persons interested in
it. The Mutawalli of Babri Masjid was made a defendant.
       According to the plaintiffs, the decision in the suit operates as
res judicata on the ground that the matter directly and substantially in    F
issue was:
       (i) The existence of Babri Masjid; and
       (ii) The rights of Hindus to construct on the land adjoining the
            mosque.                                                         G
       The plaint contains a reference to the riots of 1934 and to the
restoration of the portions of the mosque which were damaged, at the
cost of the government. According to the plaintiffs, following the
enactment of the UP Muslim Waqfs Act 1936, an enquiry was
conducted by the Commissioner of Waqfs and the report of the
                                                                            H
                                  633
634            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     Commissioner was published in the official gazette. The plaintiffs
      claimed that Muslims have been in peaceful possession of the mosque
      which was used for prayer until 23 December 1949 when a crowd of
      Hindus is alleged to have entered the mosque and desecrated it by
      placing idols inside. According to the plaintiffs, assuming without
      admitting that there existed a Hindu temple as alleged by the defendants
B
      on the site of which the mosque was built 433 years ago by Emperor
      Babur, the Muslims by virtue of their long, exclusive and continuous
      possession commencing from the construction of the mosque and
      ensuing until its desecration, perfected their title by adverse possession.
      The plaint then proceeds to make a reference to the proceedings under
C     Section 145 and to the institution of civil suits before the Civil Judge at
      Faizabad. As a result of the order of injunction in Suit 2 of 1950, Hindus
      have been permitted to perform puja of the idols placed within the
      mosque but Muslims have been prevented from entering. It has been
      averred that the suit has been instituted on behalf of the entire Muslim
      community together with an application under Order I Rule 8 of the
D
      CPC.
             601. It has been stated that the receiver who is in possession
      holds the property for the real owner and the plaintiffs would be entitled
      to possession if the suit succeeds. Alternatively, a plea for possession
      has also been made. The plaint was amended following the demolition
E     of Babri Masjid to place subsequent facts and events on the record.
      According to the plaintiffs, a mosque does not require any particular
      structure and even after the demolition of the mosque, the land on which
      it stood continues to remain a mosque in which Muslims are entitled to
      offer prayers. The plaint adverts to the acquisition of the land under
F     the Acquisition of Certain Areas of Ayodhya Act 1993.
            According to the plaintiffs, the cause of action for the suit arose
      on 23 December 1949 when the Hindus are alleged to have wrongfully
      entered the mosque and desecrated it by placing idols inside the mosque.
      The injuries are claimed to be continuing in nature. As against the state,
      the cause of action is alleged to have arisen on 29 December 1949
G
      when the property was attached by the City Magistrate who handed
      over possession to the receiver. The respondent assumed charge on 5
      January 1950.
            The reliefs which have been claimed in the suit are based on
      the above averments. Essentially, the case of the plaintiffs proceeds
H     on the plea that:
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              635


       (i) The mosque was constructed by Babur 433 years prior to              A
           the suit as a place of public worship and has been
           continuously used by Muslims for offering prayers; and
       (ii) Even assuming that there was an underlying temple which
            was demolished to give way for the construction of the
            mosque, the Muslims have perfected their title by adverse          B
            possession. On this foundation, the plaintiffs claim a
            declaration of title and, in the event that such a prayer is
            required, a decree for possession.
       602. Suit 4 was instituted on 18 December 1961 by the Sunni
Central Waqf Board and nine Muslims resdients of Ayodhya. Defendant            C
no 1 in Suit 4 is Gopal Singh Visharad; defendant no 2 is Ram Chander
Dass Param Hans; defendant no 3 is Nirmohi Akhara; defendant no 4
is Mahant Raghunath Das; defendant no 5 is the State of U.P.;
defendant no 6 is the Collector, Faizabad; defendant no 7 is the City
Magistrate, Faizabad; defendant no 8 is the Superintendent of Police           D
of Faizabad; defendant no 9 is Priyadutt Ram; defendant no 10 is the
President, Akhil Bharat Hindu Mahasabha; defendant no 13 is Dharam
Das; defendant no 17 is Ramesh Chandra Tripathi; and defendant no
20 is Madan Mohan Gupta.
       603. Now with these principles in mind, it is necessary to carefully    E
scrutinise the pleadings in Suit 4 in regard to the assertion of possession.
The plea in paragraph 2 of the plaint is that the mosque has since the
time of its construction by Babur been used by the Muslims for offering
prayers and that the Muslims have been in the peaceful possession of
the mosque in which prayers were recited till 23 December 1949. The
alternate plea is that assuming (without admitting) that there existed a       F
Hindu temple as alleged by the Hindus on the site on which the mosque
was built, the Muslims by virtue of their long, exclusive and continuous
possession beginning from the time when the mosque was built and
continuing until it was desecrated (by the placing of idols) perfected
their title by adverse possession and “the right, title or interest of the     G
temple and of the Hindu public if any, extinguished”. The claim of
possession is hence based on the plea that there has been a continuous
use of the mosque for offering prayers since its inception and that this
use has been long, continuous and exclusive.

                                                                               H
636            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           O.2 Written statements
            Gopal Singh Visharad
              604. In the written statement filed by Gopal Singh Visharad, the
      first defendant (who is also the plaintiff in Suit 1), it has been stated
      that if the Muslims were in possession of the mosque, it ceased in 1934.
B     The Hindus claim to be in possession after 1934 and their possession
      is stated to have ripened into adverse possession. According to the
      written statement, no prayers were offered in the mosque since 1934.
      Moreover, no individual Hindu or Mahant can be said to represent the
      entire Hindu community. Hindu puja is stated to be continuing inside
C     the structure, which is described as a temple since 1934 and admittedly
      since January 1950, following the order of the City Magistrate. In an
      additional written statement, a plea has been taken that the UP Muslim
      Waqfs Act 1936 is ultra vires. It has been averred that any determination
      under the Act cannot operate to decide a question of title against non-
      Muslims. In a subsequent written statement, it has been stated that
D     Hindus have worshipped the site of the Janmabhumi since time
      immemorial; the Muslims were never in possession of the Janmabhumi
      temple and, if they were in possession, it ceased in 1934. The suit is
      alleged to be barred by limitation.
            As regards the Suit of 1885, it has been submitted that the plaintiff
E     was not suing in a representative capacity and was only pursuing his
      personal interest;
            Nirmohi Akhara
             605. The written statement of Nirmohi Akhara denies the
F     existence of a mosque. Nirmohi Akhara states that it was unaware of
      any suit filed by Mahant Raghubar Das. According to it, a mosque never
      existed at the site and hence there was no occasion for the Muslim
      community to offer prayers till 23 December 1949. It is urged that the
      property described as Babri mosque is and has always been a temple
      of Janmabhumi with idols of Hindu Gods installed within. According to
G     the written statement, the temple on Ramchabutra had been judicially
      recognised in the Suit of 1885. It was urged that the Janmabhumi temple
      was always in the possession of Nirmohi Akhara and none else but
      the Hindus were allowed to enter and offer worship. The offerings are
      stated to have been received by the representative of Nirmohi Akhara.
      After the attachment, only the pujaris of Nirmohi Akhara are claimed
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             637


to have been offering puja to the idols in the temple. The written            A
statement contains a denial of Muslim worship in the structure at least
since 1934 and it is urged that Suit 4 is barred by limitation. In the
additional written statement, Nirmohi Akhara has denied that the findings
in the Suit of 1885 operate as res judicata. There is a denial of the
allegation that the Muslims have perfected their title by adverse
                                                                              B
possession.
      State of Uttar Pradesh
       606. The State of Uttar Pradesh filed its written statement to
the effect that the government is not interested in the property in dispute
and does not propose to contest the suit.                                     C
      Akhil Bhartiya Hindu Mahasabha
       607. In the written statement filed on behalf of the tenth
defendant, Akhil Bhartiya Hindu Mahasabha, it has been averred that
upon India regaining independence, there is a revival of the original Hindu
law as a result of which the plaintiffs cannot claim any legal or             D
constitutional right. In an additional written statement, the tenth
defendant denies the incident of 22 December 1949 and claims that
the idols were in existence at the place in question from time
immemorial. According to the written statement, the site is the birth-
place of Lord Ram and no mosque could have been constructed at the            E
birth-place.
      Abhiram Das and Dharam Das
       608. The written statement by Abhiram Das and by Dharam Das,
who claims to be his chela, questions the validity of the construction of
a mosque at the site of Ram Janmabhumi. According to the written              F
statement, the site is landlocked and surrounded by places of Hindu
worship and hence such a building cannot be a valid mosque in Muslim
law. The written statement contains a denial of a valid waqf on the
ground that a waqf cannot be based on adverse possession. According
to the written statement, at Ram Janmabhumi there was an ancient
                                                                              G
temple tracing back to the rule of Vikramaditya which was demolished
by Mir Baqi. It has been averred that Ram Janmabhumi is indestructible
as the deity is divine and immortal. In spite of the construction of the
mosque, it has been submitted, the area has continued to be in the
possession of the deities and no one could enter the three-domed
structure except after passing through Hindu places of worship. The           H
638            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     written statements filed by the other Hindu defendants broadly follow
      similar lines. Replications were filed to the written statements of the
      Hindu parties.
            O.3 Issues and findings of the High Court
            609. 1 Whether the building in question described as
B     mosque in the sketch map attached to the plaint was a mosque
      as claimed by the plaintiffs. If the answer is in the affirmative-
            (a) When was it built and by whom whether by Babar as
                alleged by the plaintiffs or by Mir Baqi as alleged by
                defendant no 13;
C
            (b) Whether the building had been constructed on the site
                of an alleged Hindu temple after demolishing the same
                as alleged by defendant no 13; If so, its effect
                     Justice S U Khan - The construction of a mosque took
D                    place by or under the orders of Babur. Whether it was
                     actually built by Mir Baqi or someone else is not
                     material. Muslims offered regular prayers until 1934,
                     after which until 22 December 1949, only Friday prayers
                     were offered. This is sufficient for continuous possession
                     and use. No temple was demolished for the construction
E                    of the mosque. Until the mosque was constructed during
                     the period of Babur, the premises were not believed to
                     be or treated as the birth-place of Lord Ram.
                     Justice Sudhir Agarwal - Answered in favour of the
                     plaintiffs.
F
                         1(a): Answered in the negative – plaintiffs have
                         failed to prove the construction of the structure by
                         Babur. In the absence of pleadings and evidence,
                         no certain finding can be returned on who had
                         constructed the structure but an informed guess is
G                        that it was constructed during the regime of
                         Aurangzeb (1659-1707 A.D.).
                         1(b) – Answered in the affirmative.
                     Justice D V Sharma - Issue Nos 1 and 1(a) answered
                     against the plaintiffs.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          639


      Issue 1(b) answered in favour of the defendants on the basis of      A
the ASI Report.
      1(b)(a) Whether the building existed at Nazul plot no.583
of the Khasra of the year 1931 of Mohalla Kot Ram Chandra
known as Ram Kot, City Ayodhya (Nazul estate?) Ayodhya. If
so its effect thereon.                                                     B
           Justice S U Khan - Following the demolition of the
           structure on 6 December 1992, it is no longer necessary to
           decide the question of identification of the property.
           Justice Sudhir Agarwal – Though the building is shown
                                                                           C
           to be situated on Nazul plot number 583 of the Khasra of
           1931 of Mohalla Kot Ram Chandra, it will not impact upon
           the claim of the two communities since the State of Uttar
           Pradesh has not staked any claim, having filed a written
           statement of no contest.
                                                                           D
           Justice D V Sharma - The property existed on Nazul plot
           number 583 of Khasra of 1931 belonging to the government.
     1-B(b) Whether the building stood dedicated to almighty
God as alleged by the plaintiffs.
           Justice S U Khan - The mosque was a valid mosque.               E
           Justice Sudhir Agarwal - Not answered, being irrelevant.
           Justice D V Sharma - Answered against the plaintiffs.
      1-B(c) Whether the building had been used by the
members of the Muslim community for offering prayers from                  F
time immemorial. If so, its effect.
           Justice S U Khan - Until 1934, the mosque which was
           constructed by or under the orders of Babur was being used
           for regular prayers by Muslims. From 1934 until 22
           December 1949, only Friday prayers were conducted but           G
           this is sufficient to indicate continuance of possession and
           use.
           Justice Sudhir Agarwal - Since both the parties were
           using the structure in accordance with their respective forms
           of worship, belief and faith for 80 years prior to the          H
640           SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A               institution of the first suit, the inner courtyard and the building
                were not restricted for use by one community.
                Justice D V Sharma – Answered against the plaintiffs.
            2 Whether the plaintiffs were in possession of the property
      in suit upto 1949 and were dispossessed from the same in 1949
B     as alleged in the plaint.
                Justice S U Khan - Title follows possession. Hence, both
                parties held to be joint title-holders in possession of the
                premises in dispute.
                Justice Sudhir Agarwal and Justice D V Sharma -
C               Answered against the plaintiffs
            3 Is the suit within time.
                Justice S U Khan - The suit is not barred by limitation.
                Justice Sudhir Agarwal and Justice D V Dharma - The
D               suit is barred by limitation.
            4 Whether the Hindus in general and the devotees of
      ‘Bhagwan Sri Ram in particular have perfected right of prayers
      at the site by adverse and continuous possession as of right for
      more than the statutory period of time by way of prescription as
E     alleged by the defendants.
                Justice S U Khan - Both parties held to be joint title-
                holders in possession since prior to 1885 and hence it is not
                necessary to decide the question of adverse possession.
                Justice Sudhir Agarwal - Since 1856-57, the outer
F               courtyard has not been used or possessed by Muslims but
                the inner courtyard has been used by both parties.
                Justice D V Sharma - Decided against the plaintiffs.
            5 (a) Are the defendants estopped from challenging the
      character of property in suit as a waqf under the administration
G     of plaintiff No.1 in view of the provision of Section 5(3) of U.P.
      Act 13 of 1936. (This issue has already been decided in the
      negative vide order dated 21.4.1966 by the learned Civil Judge)
                Justice S U Khan - In the absence of any specific finding,
                he has stated that he is in agreement with Justice Sudhir
H               Agarwal.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        641


          Justice Sudhir Agarwal and Justice D V Sharma - The            A
          issue has been answered against the plaintiffs by the order
          of the Civil Judge dated 21 April 1966.
     5 (b) Has the said Act no application to the right of Hindus
in general and defendants in particular, to the right of their
worship.                                                                 B
          Justice S U Khan - In the absence of any specific finding,
          he has stated that he is in agreement with Justice Agarwal.
          Justice Sudhir Agarwal and Justice D V Sharma -
          Decided in favour of the defendants and the Hindu parties,
                                                                         C
          against the plaintiffs.
      5 (c) Were the proceedings under the said Act conclusive.
(This issue has already been decided in the negative vide order
dated 21 April 1996 by the learned Civil Judge).
          Justice S U Khan - In the absence of any specific finding,     D
          he has stated that he is in agreement with Justice Agarwal.
          Justice Sudhir Agarwal - Decided by the order of the civil
          judge dated 21 April 1966 that the bar of Section 5(3) under
          UP Act XIII of 1936 does not hit the defence of the
          defendants of the leading case.                                E
          Justice D V Sharma - Decided in the negative by the order
          dated 21 April 1966.
      5 (d) Are the said provisions of Act XIII of 1936 ultra-vires
as alleged in written statement. (This issue was not pressed by
                                                                         F
counsel for the defendants, hence not answered by the learned
Civil Judge, vide his order dated 21 April 1966).
          Justice S U Khan - In the absence of any specific finding,
          he has stated that he is in agreement with Justice Agarwal.
          Justice Sudhir Agarwal and Justice D V Sharma - Issue          G
          5(d) has not been pressed.
      5 (e) Whether in view of the findings recorded by the
learned Civil Judge on 21 April 1996 on issue no.17 to the effect
that, “No valid notification under section 5(1) of the Muslim
Waqf Act (No. XIII of 1936) was ever made in respect of the              H
642           SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     property in dispute”, the plaintiff Sunni Central Board of Waqf
      has no right to maintain the present suit.
                Justice S U Khan - In the absence of any specific finding,
                he has stated that he is in agreement with Justice Agarwal.
                Justice Sudhir Agarwal - Decided in favour of the
B               plaintiffs subject to issue 6 in Suit 3 which has also been
                decided in favour of the defendants.
                Justice D V Sharma - Decided against the plaintiffs.
            5 (f) Whether in view of the aforesaid finding, the suit is
C     barred on account of lack of jurisdiction and limitation as it was
      filed after commencement of the U P Muslim Waqf Act, 1960.
                Justice S U Khan - In the absence of any specific finding,
                he has stated that he is in agreement with Justice Agarwal.
                Justice Sudhir Agarwal - Answered in the negative in
D               favour of the plaintiffs and against the defendants.
           6 Whether the present suit is a representative suit,
      plaintiffs representing the interest of the Muslims and
      defendants representing the interest of the Hindus.
                Justice S U Khan - In the absence of any specific finding,
E
                he has stated that he is in agreement with Justice Agarwal.
                Justice Sudhir Agarwal - Answered in the affirmative.
                Justice D V Sharma - Decided in favour of the plaintiffs.
           7 (a) Whether Mahant Reghubar Das, plaintiff of Suit
F     No.61/280 of 1885, had sued on behalf of Janmasthan and whole
      body of persons interested in it.
                Justice S U Khan - The decision in Suit of 1885 does not
                attract the principles of Section 11 of CPC, since virtually
                nothing was decided in the suit.
G
                Justice Sudhir Agarwal - Answered in the negative. The
                Suit of 1885 was not filed by Mahant Raghubar Das on
                behalf of the Janmasthan and the whole body of persons
                interested in it.
                Justice D V Sharma - Decided against the plaintiffs.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       643


      7 (b) Whether Mohammad Asghar was the Mutawalli of                A
alleged Babri Masjid and did he contest the suit for and on behalf
of any such mosque.
          Justice Sudhir Agarwal - Decided in favour of the
          plaintiffs.
          Justice D V Sharma - Decided against the plaintiffs.          B

     7 (c) Whether in view of the judgment in the said suit, the
members of the Hindu community, including the contesting
defendants, are estopped from denying the title of the Muslim
community, including the plaintiffs of the present suit, to the
property in dispute. If so, its effect.                                 C

          Justice Sudhir Agarwal - Decided in the negative.
          Justice D V Sharma - Decided against the plaintiffs.
      7 (d) Whether in the aforesaid suit, title of the Muslims
to the property in dispute or any portion thereof was admitted          D
by plaintiff of that suit. If so, its effect.
          Justice Sudhir Agarwal - Answered in the negative. There
          was no admission by the plaintiff in the Suit of 1885 about
          the title of the Muslims to the property in dispute.
                                                                        E
          Justice D V Sharma - Decided against the plaintiffs.
      8 Does the judgment in Suit No.61/280 of 1885, Mahant
Raghubar Das Vs. Secretary of State and others, operate as res
judicata against the defendants in suit.
          Justice Sudhir Agarwal - Answered in the negative.            F
          Justice D V Sharma - Decided against the plaintiffs; the
          judgment will not operate as res judicata.
     10 Whether the plaintiffs have perfected their rights by
adverse possession as alleged in the plaint.
                                                                        G
          Justice S U Khan - Both parties are in joint possession
          before 1885. Hence, there is no need to determine the issue
          of adverse possession.
          Justice Sudhir Agarwal and Justice D V Sharma -
          Answered against the plaintiffs and Muslims.
                                                                        H
644           SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A         11 Is the property in suit the site of Janam Bhumi of Sri
      Ram Chandraji.
                Justice S U Khan - No temple was demolished for
                constructing the mosque. Until the mosque was constructed
                during the period of Babur, the premises in dispute were not
B               treated or believed to be the birth-place of Lord Ram.
                Justice Sudhir Agarwal - The place of birth believed in
                and worshipped by the Hindus is the area covered under
                the central dome of the disputed structure in the inner
                courtyard
C               Justice D V Sharma - Decided against the plaintiffs.
            12 Whether idols and objects of worship were placed
      inside the building in the night intervening 22nd and 23rd
      December 1949 as alleged in paragraph 11 of the plaint or they
      have been in existence there since before. In either case the
D     effect.
                Justice S U Khan - Idols were kept on the pulpit inside
                the constructed portion of the mosque for the first time
                during the night between 22/23 December 1949.
                Justice Sudhir Agarwal - The plaintiffs have failed to
E
                prove that the idols and objects were placed inside the
                building during the night intervening 22/23 December 1949.
                The idols and objects existed even prior to 22 December
                1949 in the outer courtyard. The issue is answered in the
                negative.
F
                Justice D V Sharma - The plaintiffs have failed to prove
                that the idols and objects of worship were installed in the
                building in the night intervening 22/23 December 1949.
            13 Whether the Hindus in general and defendants in
      particular had the right to worship the ‘Charans’ and ‘Sita Rasoi’
G     and idols and objects of worship, if any, existing in or upon the
      property in suit.
                Justice S U Khan - Title follows possession and both
                parties were joint title-holders in possession of the premises
                in dispute.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        645


          Justice Sudhir Agarwal - Hindus in general had been            A
          entering the premises within the inner courtyard as a matter
          of right for several centuries, hence the issue is answered
          in the affirmative.
          Justice DV Sharma - Decided against the plaintiffs.
       14 Have the Hindus been worshipping the place in dispute          B
as Sri Ram Janam Bhumi or Janam Asthan and visiting it as a
sacred place of pilgrimage as of right since time immemorial. If
so, its effect.
          Justice S U Khan - No temple was demolished for
          constructing the mosque. Until the construction of the         C
          mosque during the period of Babur, the premises were
          neither treated nor believed to be the birth-place of Lord
          Ram.
          Justice Sudhir Agarwal - Answered in the affirmative.
                                                                         D
          Justice D V Sharma - Decided against the plaintiffs.
      15 Whether the Muslims been in possession of the
property in suit from 1528 A.D. continuously, openly and to the
knowledge of the defendants and Hindus in general. If so, Its
effect.
                                                                         E
          Justice S U Khan -There is no need to decide the question
          of adverse possession since both parties are joint title-
          holders in possession.
          Justice Sudhir Agarwal and Justice DV Sharma -
          Answered against the plaintiffs and the Muslims.               F
      16 To what relief, if any are the plaintiffs or any of them,
entitled.
          Justice S U Khan - In the absence of any specific finding,
          he has stated that he is in agreement with Justice Agarwal.
                                                                         G
          Justice Sudhir Agarwal - The suit is liable to be dismissed
          as being barred by limitation.
          Justice D V Sharma - The plaintiffs are not entitled to any
          relief and the suit is dismissed.
                                                                         H
646           SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           17 Whether a valid notification under section 5 (1) of the
      U.P. Muslim Waqf Act No. XIII of 1936 relating to the property
      in suit was ever done. If so, its effect. (This issue has already
      been decided by the learned Civil Judge by order dated
      21.04.1966)
B               Justice S U Khan - In the absence of any specific finding,
                he has stated that he is in agreement with Justice Agarwal.
                Justice Sudhir Agarwal and Justice D V Sharma -
                Decided by the order dated 21 April 1966 of the Civil Judge.
            18 What is the effect of the judgment of the Supreme
C     Court in Gulam Abbas and others v State of UP and others,
      (A.I.R. 1981 Supreme Court 2198) on the finding of the learned
      Civil Judge recorded on 21st April, 1966 on issue no 17.
                Justice S U Khan - In the absence of any specific finding,
                he has stated that he is in agreement with Justice Agarwal.
D
                Justice Sudhir Agarwal - The decision of the Supreme
                Court does not affect the findings on issue 17.
                Justice DV Sharma - Decided against the plaintiffs.
             19(a) Whether even after construction of the building in
E     suit, deities of Bhagwan Sri Ram Virajman and the Asthan Sri
      Ram Janam Bhumi continued to exist on the property in suit as
      alleged on behalf of defendant no 13 and the said places
      continued to be visited by devotees for purpose of worship. If
      so whether the property in dispute continued to vest in the said
      deities.
F
                Justice S U Khan - No temple was demolished for
                constructing the mosque. Until the mosque was constructed
                during the period of Babur, the premises were neither
                believed nor treated to be the birth-place of Lord Ram.
G               Justice Sudhir Agarwal - The premises which are
                believed to the place of birth of Lord Ram continued to vest
                in the deity. Hindu religious structures in the outer courtyard
                cannot be held to be the property of the plaintiffs.
                Justice D V Sharma - Decided against the plaintiffs.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        647


       19(b) Whether the building was land-locked and cannot be          A
reached except by passing through places of Hindu worship. If
so, its effect.
          Justice S U Khan - In the absence of any specific finding,
          he has stated that he is in agreement with Justice Agarwal.
          Justice Sudhir Agarwal - Answered in the affirmative to        B
          the extent that the building was land-locked and could not
          be reached except by passing through places of Hindu
          worship. However, this by itself is of no consequence.
          Justice D V Sharma - Decided against the plaintiffs.
                                                                         C
      19(c) Whether any portion of the property in suit was used
as a place or worship by the Hindus immediately prior to the
construction of the building in question. If the finding is in the
affirmative, whether no mosque could come into existence in
view of the Islamic tenets at the place in dispute.
                                                                         D
          Justice S U Khan - No temple was demolished for
          constructing the mosque. Until the mosque was constructed
          during the period of Babur, the premises were neither
          believed nor treated to be the birth-place of Lord Ram.
          Justice Sudhir Agarwal - Hindus were worshiping at the
                                                                         E
          place in dispute before the construction of the disputed
          structure. However, insofar as the second part is concerned,
          it has no relevance, being hypothetical.
          Justice D V Sharma - The property in suit is the site of
          Janmabhumi of Lord Ram and the defendants had a right
                                                                         F
          to worship. The Hindus have been doing that since time
          immemorial.
       19(d) Whether the building in question could not be a
mosque under the Islamic law in view of the admitted position
that it did not have minarets.
                                                                         G
          Justice S U Khan - It cannot be said that the mosque was
          not a valid mosque.
          Justice Sudhir Agarwal - Answered in favour of the
          plaintiffs.
          Justice D V Sharma - Decided against the plaintiffs.           H
648           SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A          19(e) Whether the building in question could not legally
      be a mosque as on plaintiffs own showing it was surrounded by
      a grave-yard on three sides?
                Justice S U Khan - It cannot be said that the mosque was
                not a valid mosque.
B               Justice Sudhir Agarwal - Answered in favour of the
                plaintiffs.
                Justice D V Sharma - Decided against the plaintiffs.
             19(f) Whether the pillars inside and outside the building
      in question contain images of Hindu Gods and Goddesses. If the
C     finding is in affirmative, whether on that account the building in
      question cannot have the character of mosque under the tenets
      of Islam.
                Justice S U Khan - No temple was demolished for
                constructing the mosque. Until the construction of the
D               mosque, the premises were neither treated nor believed to
                be the birth-place of Lord Ram.
                Justice Sudhir Agarwal - The first part is answered in the
                affirmative. The second part is redundant and left
                unanswered. In the ultimate result, the issue is answered
E               in favour of the plaintiffs.
                Justice D V Sharma - Decided against the plaintiffs.
            20(a) Whether the waqf in question cannot be a Sunni Waqf
      as the building was not allegedly constructed by a Sunni
      Mohammedan but was allegedly constructed by Mir Baqi who
F     was allegedly a Shia Muslim and the alleged Mutawallis were
      allegedly Shia Mohammedans. If so, its effect.
                Justice S U Khan -It cannot be said that the mosque was
                not a valid mosque.
                Justice Sudhir Agarwal - Irrelevant and not answered.
G
                Justice D V Sharma - Decided against the plaintiffs.
           20(b) Whether there was a Mutawalli of the alleged Waqf
      and whether the alleged Mutawalli, not having joined in the suit,
      the suit is not maintainable so far as it relates to relief for
      possession.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           649


          Justice S U Khan – In the absence of any specific finding,        A
          he has stated that he is in agreement with Justice Agarwal.
          Justice Sudhir Agarwal - At the time of the attachment
          of the building, there was a mutawalli and in the absence
          of whom relief of possession cannot be allowed to the
          plaintiffs in their capacity as worshippers.                      B
          Justice D V Sharma - The suit is held not to be
          maintainable.
      21 Whether the suit is bad for non-joinder of alleged
deities.
                                                                            C
          Justice S U Khan - Though, the deity is not a defendant,
          the suit cannot be dismissed on this ground as the deity is
          sufficiently represented.
          Justice Sudhir Agarwal - Answered in favour of the
          plaintiffs.                                                       D
          Justice D V Sharma - Decided against the plaintiffs.
      22 Whether the suit is liable to be dismissed with special
costs.
          Justice S U Khan – In the absence of any specific finding,
                                                                            E
          he has stated that he is in agreement with Justice Agarwal.
          Justice Sudhir Agarwal - No special costs need to be
          awarded.
          Justice D V Sharma - The plaintiffs are not entitled to any
          relief: the suit is dismissed with easy costs.                    F
     23 Is the Waqf Board an instrumentality of State. If so,
whether the Board can file a suit against the State itself.
          Justice S U Khan - In the absence of any specific finding,
          he has stated that he is in agreement with Justice Agarwal.
                                                                            G
          Justice Sudhir Agarwal - Neither is the Waqf Board an
          instrumentality of the State nor is there any bar to the filing
          of the suit by the Waqf Board against the State.
          Justice D V Sharma - The suit is not maintainable.
                                                                            H
650            SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A            24 Is the Waqf Board ‘State’ under Article 12 of the
      Constitution? If so, can the said Waqf Board being state file any
      suit in a representative capacity sponsoring the case of particular
      community and against the interest of another community.
                 Justice S U Khan – In the absence of any specific finding,
B                he has stated that he is in agreement with Justice Sudhir
                 Agarwal.
                 Justice Sudhir Agarwal - Neither is the Sunni Central
                 Waqf Board an instrumentality of the State nor is there any
                 bar to the filing of a suit by the Waqf Board against the
C                State.
                 Justice D V Sharma - The suit is not maintainable.
            25 Whether on the demolition of the dispute structure as
      claimed by the plaintiff, it can still be called a mosque and if not
      whether the claim of the plaintiffs is liable to be dismissed as
D     no longer maintainable.
                 Justice S U Khan - In the absence of any specific finding,
                 he has stated that he is in agreement with Justice Agarwal.
                 Justice Sudhir Agarwal - Suit 4 cannot be held to be not
                 maintainable as a result of the demolition of the disputed
E                structure.
                 Justice D V Sharma - Decided against the plaintiffs.
            26 Whether Muslims can use the open site as mosque to
      offer prayer when the structure which stood thereon has been
      demolished.
F
                 Justice S U Khan - In the absence of any specific finding,
                 he has stated that he is in agreement with Justice Sudhir
                 Agarwal.
                 Justice Sudhir Agarwal - Suit 4 cannot be held not to be
G                maintainable as a result of the demolition of the disputed
                 structure.
                 Justice D V Sharma - Decided against the plaintiffs.
           27 Whether the outer courtyard contained Ramchabutra,
      Bhandar and Sita Rasoi. If so whether they were also
H     demolished on 6 December 1992 along with the main temple.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           651


           Justice S U Khan - Ramchabutra came into existence               A
           before the visit of Tieffenthaler (1766-1771 A.D.) but after
           the construction of the mosque (1528 A.D.).
           Justice Sudhir Agarwal - All parties admitted that the
           three structures were demolished on 6 December 1992
           when the disputed structure was demolished. Hence,               B
           answered in the affirmative.
           Justice D V Sharma - Decided in the affirmative.
      28 Whether the defendant no 3 has ever been in
possession of the disputed site and the plaintiffs were never in
its possession.                                                             C

           Justice S U Khan - Both parties are joint title-holders in
           possession of the premises in dispute.
           Justice Sudhir Agarwal - The plaintiffs have failed to
           prove their possession of the outer and inner courtyards         D
           including the disputed building.
           Justice D V Sharma - Decided against the plaintiffs.
      The view of the High Court
      Two of the three judges of the High Court (Justice SU Khan
and Justice Sudhir Agarwal) directed a three-way division of the disputed   E
premises:
      “1/3rd each to the Muslim parties, plaintiffs of suit 5 and Nirmohi
      Akhara.”
       The basis on which the High Court directed this three-fold           F
division was its finding of joint possession. Justice D V Sharma decreed
the entire property to the plaintiffs in Suit 5.
      The common thread that runs through the judgment of Justice S
U Khan is that Muslims and Hindus were in joint possession and since
under Section 110 of the Evidence Act title follows possession, both        G
were joint title-holders of the premises in dispute.
      610. The basis of Justice Sudhir Agarwal’s judgment can be
delineated thus:
       (i) Muslims did not have possession of the outer courtyard at
           least from 1856-57 when the dividing railing was raised by       H
652      SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A          the British. Muslims have had at best, only a right of passage
           through the outer courtyard;
       (ii) The possession of the Hindus over the outer courtyard was
            open and to the knowledge of the Muslims. This is evidenced
            by the documents of 1858 which indicate that the Mutawalli
B           of the mosque had made several complaints, in spite of
            which the structures continued in the premises as did the
            entry and worship of the Hindus in the outer courtyard;
      (iii) There is no evidence of the Muslims being in possession of
            the property in dispute. While it cannot be held that the
C           Muslims did not visit the inner courtyard at all or that no
            namaz was offered till 1949, that by itself will not amount
            to possession in law. There was a beneficial enjoyment by
            the Muslims with the Hindus and the Muslims thus visited
            the inner courtyard for worshipping in their own way;
D     (iv) Though there is a claim of the plaintiffs that since regular
           namaz was offered in the inner courtyard, the receiver
           would have recovered requisite material relatable to its use,
           no such material was found, leading to the inference that
           none existed. This weakens the claim of the Muslims to
           exclusive possession in the form of continuous worship;
E
      (v) The Muslims did not abandon the property in dispute. They
          continued to exercise a claim over it, getting it recognised
          by the British government in the form of a grant for upkeep
          and maintenance. The maintenance of the building to the
          extent of the disputed structure and the partition wall is
F         evident as is the entry of Muslims into the inner courtyard
          for namaz. While both the Hindus and Muslims visited the
          disputed property as worshippers, the only distinction was
          that Hindus visited the entire property while Muslims were
          confined to the inner courtyard for the purposes of offering
G         prayers;
      (vi) While Muslims have failed to prove that the property in Suit
           4 was in their exclusive possession up to 1949, both the
           communities were in possession of the inner courtyard;
      (vii) The outer courtyard was not in the possession of the
H           Muslims as of 1949 and even prior thereto. Insofar as the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           653


           inner courtyard is concerned, the Muslims have discontinued      A
           their possession from 23 December 1949. Prior thereto, the
           possession of the inner courtyard was enjoyed by both
           Hindus and Muslims; and
     (viii) Hindu religious structures existed in the outer courtyard
            since sometime after 1856-7 and were being managed and          B
            administered by the priests of Nirmohi Akhara. Therefore,
            to the extent of the outer courtyard, the disputed site can
            be said to have been in possession of the Nirmohi Akhara
            while the Muslims ceased to have possession over it. The
            inner courtyard was not in the exclusive possession of either
            of the parties and it was visited by members of both the        C
            communities without any obstruction.
       In allowing the entirety of the claim of the plaintiffs in Suit 5,
Justice D V Sharma held:
       (i) A mosque loses its sacred character upon being adversely         D
           possessed by a non-Muslim. Muslims were not in possession
           over the suit property and there is no reliable evidence to
           indicate that prayers were offered by them from time
           immemorial; and
       (ii) Muslims have not established exclusive and continuous           E
            possession over the suit property from 1528 A.D. or that
            they offered prayers in the disputed structure since time
            immemorial. On the other hand, the Hindus have established
            exclusive possession over the inner courtyard and that they
            were visiting it for offering prayers.
                                                                            F
      Maintainability of Suit 4
       611. During the course of hearing, Mr Parasaran, learned Senior
Counsel objected to the maintainability of Suit 4 on the ground that the
suit could have only been instituted at the behest of a Mutawalli. It was
urged that the Sunni Central Waqf Board had no locus to institute the
                                                                            G
proceeding. There is no merit in the submission. Section 19(2) of the
UP Muslim Waqf Act 1960 specifically empowers the board to adopt
measures for the recovery of property and to institute and defend suits
relating to waqfs. Under Section 3(2), the Board is defined to mean
the Sunni Central Waqf Board, or the Shia Central Waqf Board
constituted under the Act. Clearly, therefore in terms of the statutory     H
654             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     power, the Sunni Central Waqf Board has authority to institute legal
      proceedings.
            O.4 Limitation in Suit 4
            Pleadings
B            612. In the plaint in Suit 4, the cause of action for the institution
      of the proceedings is founded on the events which took place on 23
      December 1949, during the course of which idols were placed inside
      the mosque by a crowd of Hindus. The intent of doing so was to destroy,
      damage and defile the mosque. Moreover, according to the plaintiffs,
      this act of entry into the mosque and the placement of idols amounted
C     to a desecration of the mosque. This clearly emerges from the
      averments in paragraph 11 of the plaint:
            “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
D           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 descecrated 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
E           Indian Penal Code.”
           Linked to the above averment is the statement in paragraph 23
      which reads thus:
            “23. That cause of action for the suit against the Hindu public
            arose on 23.12.1949 at Ajodhiya District Faizabad within the
F           jurisdiction of this Hon’ble Court when the 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 gang
G
            in the graveyard, (Ganj-Shahidan) and reciting Fatiha to the dead
            persons buried therein. The injuries so caused are continuing
            injuries are 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
H           defendant No. 7 the City Magistrate Faizabad-cum-Ajodhiaya
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             655


      attached the mosque in suit and handed over possession of the           A
      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.”                                                        B
       In the suit as it was originally filed, a declaration was sought to
the effect that the property identified by the letters A B C D in the
map annexed to the plaint is a public mosque known as Babri Masjid
and the land adjoining it depicted by letters E F G H is a public Muslim
graveyard. Prayer (b) seeks a decree for the delivery of possession of        C
the mosque and graveyard, by removing of the idols and other articles
of worship placed by the Hindus, “in case in the opinion of the Court
delivery of possession is deemed to be the proper remedy”. Prayer (bb)
is for a command to the statutory receiver to handover the property
described in Schedule ‘A’ by removing the unauthorised structures.
Prayer (bb) was brought in by way of an amendment on 25 May 1995.             D

      Written statements
       613. The plea of limitation was specifically raised in several
written statements, among them in paragraphs 27 and 28 of the written
statements of the first and second defendants and paragraph 23 of the         E
additional written statement. The plea of limitation was also raised in
paragraph 35 of the written statement, filed by Nirmohi Akhara and
Mahant Raghunath Das, defendant nos 3 and 4; in paragraph 29 of
the written statement of the Akhil Bharat Hindu Mahasabha, defendant
no 10; and in the written statements of several other Hindu parties.
                                                                              F
       The tenth defendant filed a written statement on 15 February
1990 and denied paragraph 23 of the plaint. In the additional pleas raised
in paragraphs 29 and 79, a specific plea was raised that the suit is barred
by limitation. Paragraph 79 of the written statement reads thus:
      “…79. That the suit as framed is a suit for declaration only and
                                                                              G
      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.”                                                                  H
656            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            Paragraph 39 of the written statement was inserted pursuant to
      the order of the court dated 23 November 1992. A replication was filed
      to the amended written statement of the tenth defendant but there was
      no specific traverse of paragraph 79 of the written statement.
            614. The suit was presented and filed on 18 December 1961.
B            615. The first plaintiff of Suit 4 was impleaded as the ninth
      defendant to Suit 3 instituted by Nirmohi Akhara in pursuance of the
      order of the court dated 23 August 1989. A statement was made on
      behalf of the first plaintiff through counsel that the written statements
      which were already filed on behalf of defendant nos 1 to 5 in Suit 5
C     and defendant nos 6 to 8 in Suit 3 were being adopted. Sunni Central
      Waqf Board was also impleaded as defendant no 10 in Suit 1 pursuant
      to the order of the court dated 7 January 1987. In paragraph 22 of the
      written statement filed by defendant nos 1 to 5 in Suit 1, it was
      specifically stated that namaz had been offered until 16 December 1949.
      Similarly, in paragraph 26 of the written statement filed on behalf of
D     defendant nos 6 to 8 in Suit 3 it was also stated that namaz had been
      continuously offered till 16 December 1949. Thus, for the purpose of
      the issue of limitation, it is necessary to proceed on the basis that the
      last namaz was offered on 16 December 1949.
            Before the High Court, it was urged by learned Counsel
E     appearing on behalf of defendant no 20 that:
             (i) In a suit for declaration, Article 120 of the Limitation Act
                 1908 is applicable and even if the cause of action as set
                 out in paragraph 23 is taken as correct, the suit which was
                 instituted after the expiry of six years is barred by limitation;
F                and
             (ii) Even if Article 120 is held to be inapplicable and Articles
                  142 and 144 are held to apply, the cause of action arose on
                  16 December 1949 and was not a continuing wrong. Hence,
                  the suit which was filed on 18 December 1961 after the
G                 expiry of twelve years is barred by limitation, albeit by 2
                  days.
            Findings of the High Court
           616. Dealing with the provisions of Section 145, Justice Sudhir
      Agarwal held that the proceeding is not of a judicial nature nor does
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                      657


the Magistrate deal with it as if it were a suit for immovable property.   A
The proceedings under Section 145 would neither result in extension
of limitation nor is any exclusion provided for the purpose of computing
limitation. The appointment of a receiver by the magistrate merely made
the property custodia legis and is not a dispossession within the
meaning of Article 142 of the Limitation Act. The attachment of the
                                                                           B
property does not either amount to the dispossession of the owner or a
discontinuance of possession. Adverting to the decision of this Court in
Deokuer v Sheoprasad Singh324, the High Court noted the principle
that following an order of attachment under Section 145, the property
is custodia legis; since it is not in the possession of any private
individual, there is no need to seek a relief for the restoration of       C
possession and a declaration of title would be sufficient. Relief of
possession is not required because no private defendant would be in a
position to deliver possession to the plaintiff and the Magistrate holds
possession during the period of attachment for the party who is
ultimately found entitled to it upon adjudication.
                                                                           D
       617. Having set out the position in law, Justice Sudhir Agarwal
held that the plaint in Suit 4 has no averment that the plaintiffs were
dispossessed of the property which they had already possessed. On
the contrary, the plea was that by the placement of idols inside the
mosque, there was an act of desecration which interfered with the right
of the plaintiffs to worship. Moreover, the relief which the plaintiffs    E
sought was not for the continuation of the right of worship but a
declaration of the status of the structure being a mosque. The learned
judge held that the pleadings did not bring the case under Article 142
since the plea in paragraph 23 of the plaint was not sufficient to
constitute a case of dispossession or discontinuance of the possession     F
of the plaintiffs over the property in dispute. The placement of idols
inside the mosque, it was held, did not constitute a dispossession or
discontinuance of possession since these concepts contemplate a total
deprivation of the person who was earlier in possession. Obstruction
or interference, it was held does not constitute dispossession or
discontinuance of possession. Justice Sudhir Agarwal noted that if the     G
plaintiffs had not set up the plea either that they were dispossessed or
that their possession was discontinued in categorical and clear terms,
the court could not provide the deficiency by reading something which
was not present in the pleadings.
324
      AIR 1966 SC 359                                                      H
658                SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A            618. Justice Sudhir Agarwal held that for the above reasons
      neither Article 47 nor Article 142 had any application. Dealing with the
      case under Article 120, the learned judge noted that the cause of action
      arose on 23 December 1949 and 29 December 1949. The suit was
      instituted beyond the period of limitation of six years. Hence, whether
      the last namaz was held on 16 or 23 December 1949, would be of no
B
      consequence. The date on which the last namaz was held would have
      been of some significance if Article 120 was not to apply. In the absence
      of the application of Articles 142 and 144, it was only Article 120 which
      would be attracted, and the suit was held to be barred by limitation.
             On whether there was a continuing wrong, Justice Sudhir
C
      Agarwal held that if the suit had been instituted for seeking relief against
      the obstruction of the right of worship it would probably have attracted
      the principle of continuing wrong in Section 23 of the Limitation Act
      1908, particularly in view of the decision of the Privy Council in Sir
      Seth Hukum Chand v Maharaj Bahadur Singh325. However, the suit
D     had not been instituted to seek an enforcement of the right of worship
      but for obtaining a declaration of status about the nature of the building
      in dispute as a mosque and for delivery of possession in the capacity
      of possessory title-holders. Justice Sudhir Agarwal held that a distinction
      has to be made between a continuing wrong and continuing effects of
      a wrong. The facts pleaded by the plaintiffs indicated that they were
E
      ousted from the disputed premises on 22/23 December 1949 and the
      wrong was complete once they had been dispossessed from the
      property. On this ground, the learned judge held that the principle of
      continuing wrong was not attracted. Justice Sudhir Agarwal held that
      the ouster of the plaintiffs was complete with the desecration of the
F     mosque on 23 December 1949 and hence the suit for the purpose of
      limitation was governed by Article 120. The suit was held to be barred
      by limitation.
             Justice D V Sharma held that the suit had been instituted for
      seeking a declaration after the attachment by the Magistrate under
G     Section 145. The suit seeking a declaration was not governed by the
      principle of a continuing wrong and in view of the decision of the Privy
      Council in Raja Rajgan Maharaja Jagatjit Singh v Raja Partab
      Bahadur Singh326, it was Article 120 that would apply. Hence, the
      325
            (1933) 38 LW 306 (PC)
      326
H           AIR 1942 PC 47
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           659


learned judge held that neither Article 142 nor Article 144 had any         A
application. The learned judge also held that though the suit had been
instituted in 1961, it was amended after 33 years (in 1995), to seek
possession and to bring it within the purview of Articles 142 and 144.
On these grounds the suit was held to be barred by limitation.
       Justice S U Khan held to the contrary and was of the view that       B
Suit 4 was within limitation. The learned judge indicated five reasons
for holding that Suits 3, 4, and 5 were not barred by limitation which
have already been adverted to earlier.
      Thus, by a majority (Justice Sudhir Agarwal and Justice D V
Sharma), the suit was held to be barred by limitation; Justice S U Khan     C
holding a contrary view on this issue.
      Submissions of counsel
       619. During the course of the arguments before this Court, Mr
K Parasaran, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5, submitted that Suit 4 would be governed by Article    D
120 of the Limitation Act alone and that neither Articles 142 nor 144
would apply. This submission is sought to be supported on the basis of
the following propositions:
       (i) The primary relief which has been sought in Suit 4 (prayer
           (a)) is a declaration that the property in dispute is a public   E
           mosque and hence, the suit does not seek a declaration for
           the enforcement of the right of worship;
       (ii) When a suit is filed for a declaration of title to property
            which is attached under Section 145, it is not necessary to
            seek further relief for the delivery of possession since the    F
            defendant is not in possession and is not in a position to
            deliver possession. The property under attachment being
            custodia legis, the receiver is bound to hand over
            possession to whoever is held to be entitled as a result of
            the civil adjudication;                                         G
      (iii) A prayer seeking possession was not necessary since the
            property was custodia legis since December 1949 and the
            prayer was introduced only to circumvent the period of
            limitation of six years imposed by Article 120;
                                                                            H
660            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           (iv) Statutes of limitation are statutes of repose;
             (v) The period of six years under Article 120 has to be computed
                 from the date when the right to sue accrues and there is
                 no right to sue unless there is an accrual of the right asserted
                 in the suit and an infringement or a clear and unequivocal
B                intention to infringe the right;
            (vi) The cause of action as pleaded in paragraph 23 of the plaint
                 is stated to have arisen on 23 December 1949 when the
                 Hindus unlawfully entered the mosque and desecrated it by
                 placing idols inside, thus causing an interference in the
C                offering of prayers by Muslims;
            (vii) The case of the plaintiffs is that the injury which was
                  sustained was of a continuing nature and not the wrong,
                  which was complete on the date of the desecration. The
                  bar of limitation is sought to be overcome by alleging that
D                 the cause of action is renewed by virtue of a continuing
                  wrong;
           (viii) In the present case, there can be no question of a continuing
                  wrong since the property was custodia legis. Hence, even
                  assuming (without admitting) that the placement of the idols
E                 under the central dome was a continuing wrong, it came to
                  an end upon the attachment of the property; and
            (ix) The cause of action arose when the idols were placed in
                 the inner courtyard. This arose even before the proceedings
                 under Section 145 and hence, the fact that the Magistrate
F                has not passed any final order would not lead to limitation
                 ceasing to run.
            Analysis
             620. Both the Limitation Act 1908 and its successor, the Limitation
      Act of 1963 are statutes of repose. Extensions or exceptions to limitation
G     are stipulated in the statute. These provisions include:
             (i) Sections 4 – 11 (part II)
             (ii) Sections 12-25 (part III) dealing with computation of the
                  period of limitation;

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             661


      (iii) Section 26 (acquisition of the right of easement in 20 years);    A
            and
      (iv) Section 27 (modification of 20 years for a reversioner of
           servient tenement).
      Article 47
                                                                              B
       621. Article 47 of the Limitation Act 1908 applies to a suit by a
person bound by an order “respecting the possession of immoveable
property” made under the Code of Criminal Procedure 1898 or the
Mamlatdar’s Court Act 1906 or by anyone claiming under such person
to recover the property in the order. The period of limitation is three
years and time begins to run from the date of the final order in the          C
case. In order for Article 47 to apply, the suit must meet the description
specified in the first column. In other words, Article 47 applies only in
a situation where a Magistrate has passed an order respecting the
possession of immoveable property. When no order regarding possession
of immovable property which is the subject matter of a proceeding             D
under Section 145 has been passed, the suit shall not be of the description
specified in the first column. It is only if the Magistrate has passed such
an order that the suit would meet the description specified, and in which
event Article 47 would govern. However, though Article 47 is not
attracted, a person aggrieved by the order of attachment may file a
suit for declaration of his right. On the determination of the right by       E
the civil court, he would become entitled for possession and the
Magistrate is duty bound to hand over possession in accordance with
the order of the civil court. In the present case, absent any order
respecting possession under Section 145, Article 47 on its plain terms
has no application.                                                           F
      Articles 120, 142, 144
       622. The next limb of the submission on the basis of which the
bar of limitation has been urged, is that Suit 4 is governed by Article
120. Now Article 120 deals with suits for which no period of limitation
is provided elsewhere in the schedule. Article 120 is in the nature of a      G
residuary provision. Hence, where a specific article in the schedule
applies, the residuary article can possibly have no application and it is
only when the suit does not fall within the description specified in any
other article that the residuary provision would govern.
                                                                              H
662                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            623. The two competing articles which have been pressed-in-
      aid on behalf of the plaintiffs are Article 142 and, in the alternate, Article
      144. Article 142 covers a suit for possession of immoveable property
      when the plaintiff has either been dispossessed while in possession of
      the property or has discontinued the possession. Dispossession
      postulates an act of an involuntarily nature while discontinuance is more
B
      in the nature of a voluntary cessation of possession. In the present case,
      the plaintiffs in Suit 4 have sought a declaration that the property
      indicated by the letters A B C D is a public mosque and that the land
      delineated by the letters E F G H is a Muslim graveyard. Beside this,
      the plaintiffs seek a prayer for the delivery of possession, in case the
C     court is of the opinion that such relief is deemed to be the proper remedy.
             624. The basis on which it has been urged that Suit 4 is not a
      suit for possession is that this Court has held in Deokuer v
      Sheoprasad Singh327 that where property is custodia legis, it is not
      necessary to make an independent prayer for the delivery of possession.
D     Hence it has been urged that since a specific prayer for seeking
      possession was not necessary, prayer (b) is otiose and the character
      of the suit must be adjudicated only with reference to prayer (a).
             The submission cannot be accepted. The decision of this Court
      in Deokuer lays down that where property is custodia legis, it is
E     sufficient to seek a declaration of title. This is because the court receiver
      who is an officer of the court would hold the property for the party
      who is found, upon adjudication, to be entitled to possession. Since the
      receiver would be duty bound to hand over possession to whoever is
      held by the court to be entitled to the property, a formal prayer for
      seeking possession is not necessary. But what this submission misses
F     is that a suit seeking relief of possession has not been held to lack
      maintainability. A declaration of title suffices because once property is
      custodia legis, possession would necessarily follow the grant of the
      declaration upon the adjudication by the court. The relief of possession
      is therefore implicit. To hold that a suit of this nature where the property
G     is custodia legis cannot possibly be held to be a suit for possession is
      therefore a submission which has no valid basis.
             625. The submission that Suit 4 is barred by limitation is founded
      on the following hypotheses:

      327
H           AIR 1966 SC 359
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         663


       (i) The entire property which is the subject matter of the suit    A
           was custodia legis consequent upon the proceedings under
           Section 145;
      (ii) Once the property is custodia legis, a suit for declaration
           would suffice and there is no need to seek the relief of
           possession;                                                    B
      (iii) Prayer (b) seeking a decree for the delivery of possession,
            “if it is considered necessary” is redundant; and
      (iv) Consequently, in the absence of a prayer for possession, the
           suit is only one for declaring the character of the mosque
           and is hence governed by Article 120 of the Limitation Act     C
           1908.
       The basic foundation on which the above submission is based is
that the entirety of the property comprised in the inner and outer
courtyards was custodia legis and was under the protective attachment
of the receiver. However, as a matter of fact on 18 December 1961         D
when the suit was instituted only the inner courtyard had been attached
in pursuance of the orders passed under Section 145. The outer
courtyard was placed under receivership only in 1982. In Suit 4, the
property which was the subject matter of the dispute was:
      (a) The inner courtyard which had been attached under Section       E
          145;
      (b) The outer courtyard which had not been attached; and
      (c) The adjoining graveyard which had not been attached.
      626. Suit 4 related to both areas which were attached under         F
Section 145 and areas which were clearly not the subject matter of
attachment. Consequently, the declaration which was sought in the suit
was not merely in respect of the land which fell within the purview of
the order of attachment. Relief was sought in terms of:
      (a) A declaration of the property described by the letter A B C     G
          D as a public mosque (covering both the inner and outer
          courtyards) and the graveyard marked by the letter E F G
          H; and
      (b) Possession of the area of the mosque depicted as A B C
          D.                                                              H
664                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            In addition, it must be noted that prayer (bb) was brought in by
      way of an amendment as a consequence of the destruction of the entire
      mosque and the relief which was claimed was as against the statutory
      receiver who was appointed as a consequence of the decision in Ismail
      Faruqui. In view of the above position, it becomes evident that the
      relief of possession which was sought in terms of prayer (b) was not
B
      only in respect of the area of the property which covered what was
      attached, but also that which was not the subject matter of the
      attachment. This being the position, the entire basis of the submission
      invoking the bar of limitation suffers from a fallacy and cannot be
      accepted.
C            627. Reading the plaint, the grievance of the plaintiffs was that
      they were in possession and had offered prayers till 23 December 1949.
      On 23 December 1949, it is alleged that the Hindus surreptitiously
      installed idols inside the mosque as a result of which the mosque was
      desecrated. By pleading specifically that the plaintiffs were in possession
D     and had offered prayers until a particular date, the sequitur is that after
      that date, the plaintiffs ceased to be in possession. This being the position,
      it becomes evident that even before the property became cutodia legis
      following the attachment under Section 145, the plaintiffs had been
      ousted from possession. It was in this background, that in prayer (a),
      the plaintiffs sought a declaration in regard to the character of the
E     mosque as a public mosque and in prayer (b) sought possession, in case
      it is necessary. Formulating a prayer for relief in such terms is not
      unknown to the law of pleadings. Such was the case for instance in C
      Natrajan v Ashim Bai328 where the reliefs were formulated in the
      following terms:
F               “2. The appellant herein filed a suit against the respondents
                claiming, inter alia, for the following reliefs:
               “(a) For declaration of the plaintiff’s title to the suit property;
                (b) For consequential injunction, restraining the defendants, their
G                   men, agents, servants, etc. from in any manner interfering
                    with the plaintiff’s peaceful possession and enjoyment of
                    the suit property.



      328
H           (2007) 14 SCC 183
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              665


       (c) Alternatively, if for any reason this Honourable Court comes        A
           to a conclusion that the plaintiff is out of possession, for
           recovery of vacant possession of the suit property;
       (d) Directing the defendant to pay the costs of this suit.”
      This Court in proceedings arising out of an application for rejection
of a plaint under Order VII Rule 11 of the CPC, held that a plea in            B
such a form would not invalidate the additional relief. The Court
observed:
      “14. If the plaintiff is to be granted a relief of recovery of
      possession, the suit could be filed within a period of 12 years. It
      is one thing to say that whether such a relief can be granted or         C
      not after the evidence is led by the parties but it is another thing
      to say that the plaint is to be rejected on the ground that the same
      is barred by any law. In the suit which has been filed for
      possession, as a consequence of declaration of the plaintiff’s title,
      Article 58 will have no application.”                                    D
       The suit in the circumstances is a suit for possession of
immoveable property falling in the description provided by the first
column of Article 142. The suit has been instituted within a period of
twelve years of the date of alleged dispossession on 23 December 1949
and is hence within limitation. In the view which has been taken above,        E
the issue about whether a case of a continuing wrong has been
established has no relevance. On the basis that the cause of action was
completed on 23 December 1949, it is evident that the suit was instituted
within a period of twelve years from the date of dispossession. Whether
there was a continuing injury as opposed to a continuing wrong hence
does not arise in the above view of the matter.                                F
       628. Mr Parasaran has submitted that the suit is for a declaration
under Section 42 of the Specific Relief Act 1877 as to the character
of property and not to the title to the property. Learned counsel
submitted that prayer (a) as phrased is for a declaration that the property
comprised within letters A B C D in the map annexed to the plaint is a         G
public mosque. On this basis, it has been urged that prayer (a) does
not seek a declaration of title. There is no merit in the submission. Prayer
(a) seeks a declaration not only with respect to the disputed structure
of the mosque but also in regard to the land which was appurtenant to
it. This is also evident from paragraph 21B of the plaint as amended
                                                                               H
666            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     which dealt with the consequence of the demolition of the mosque on
      6 December 1992. Paragraph 21B of the plaint contains a plea that
      notwithstanding the demolition of the structure, the land continues to
      retain its character as a mosque.
             629.The cause of action as set up by the plaintiffs was that the
B     Muslims were in peaceful possession of the mosque and used to recite
      prayer in it till 23 December 1949 when a crowd of Hindus with an
      intent to destroy, damage or defile the mosque entered it and desecrated
      the mosque by placing idols inside. The expression “till 23 December
      1949” in paragraph 11 of the plaint qualifies not merely the offering of
      prayers in the mosque but the fact of possession as well. Hence, a
C     reading of paragraph 11 of the plaint indicates that the case of the
      plaintiffs was that the act of entering upon the mosque on 23 December
      1949 and placing idols inside it was intended to destroy, damage and
      defile the character of the mosque and that by doing so the mosque
      stood desecrated. Moreover, it is in that context that the pleading in
D     paragraph 23 is that the cause of action arose on 23 December 1949
      when the mosque was desecrated and interference in the worship by
      the Muslims was caused. The evidence on the record indicates that
      after the idols were introduced into the mosque on 23 December 1949,
      worship of the idols was conducted by the priests within the precincts
      of the mosque. Hence, the plea in the paragraph 11 is not just one of
E     obstruction of the Muslims in offering namaz in the mosque after 23
      December 1949, but a dispossession with effect from that date.
             630. The inner structure was attached by a preliminary order
      under Section 145 on 29 December 1949 and the receiver assumed
      charge on 5 January 1950. Reading the pleadings of the plaintiffs as a
F     whole, it is evident that what has been asserted in paragraphs 11 and
      23 is not merely an obstruction which was caused to the worship within
      the precincts of the mosque by the Muslims by the placement of the
      idols. The case of the Muslims was that the mosque was desecrated
      and defiled by the installation of the idols. Moreover, the very fact that
G     worship was offered exclusively by the Hindus within the precincts of
      the mosque after the placement of the idols indicates a loss of possession
      by the Muslims.
            An important aspect of the matter is that the events which took
      place on 22/23 December 1949 led to the ouster of the plaintiffs from
H     the mosque. Hence, to read the plaint as a plaint which merely spoke
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             667


of the obstruction in performing worship and not as a complaint against       A
the ouster of the Muslims would be incorrect. In fact, Justice Sudhir
Agarwal has in the course of his discussion noted that there was an
ouster of the Muslims on 23 December 1949. In paragraph 2439, Justice
Sudhir Agarwal observed thus:
      “…In the case in hand, the facts pleaded by the plaintiffs show         B
      that they were ousted from the disputed premises on 22/23rd
      December, 1949 and the wrong is complete thereon since
      thereafter they are totally dispossessed from the property in
      dispute on the ground that they have no title.”
      A similar observation is contained in paragraph 2443 where it           C
has been noted :
      “…D. When the idols were placed under the central dome in
      the night of 22nd/23rd December, 1949, and regular daily Puja
      commenced according to Hindu Shastric Laws ousting Muslims
      from entering the property in dispute.”                                 D
       These findings of the learned judge are inconsistent with his
earlier observation that there was no ouster from possession but merely
an obstruction or interference with worship. The act of placing the idols
under the central dome on the night intervening 22/23 December 1949
effectively desecrated the mosque. The evidence indicates that Hindu
                                                                              E
prayers and worship commenced within the mosque following the
installation of the idols. This was an ouster of possession.
       631. This being the position, the High Court was in error in
applying the provisions of Article 120. The suit in essence and substance
was governed by Article 142. Though, the last namaz was held on 16
December 1949, the ouster of possession did not take place on that            F
day. The next Friday namaz would have been held on 23 December
1949 and the act of ouster took place on that date and when the mosque
was desecrated. The suit which was filed on 18 December 1961 was
within a period of 12 years from 23 December 1949 and hence within
limitation. The view, which has been taken by the majority of the High        G
Court holding that Suit 4 is barred by limitation, is hence incorrect. Suit
4 was filed within limitation.
       Alternatively, even if it is held that the plaintiffs were not in
exclusive or settled possession of the inner courtyard, the suit would
fall within the residuary Article144 in which event also, the suit would
                                                                              H
be within limitation.
668            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A         O.5 Applicable legal regime and Justice, Equity and Good
      Conscience
             632. The facts of the present case traverse three centuries.
      During the oral arguments, the attention of this Court was drawn further
      back in time to written accounts recording the life of Emperor Babur
B     in the sixteenth and seventeenth century. Taking the court beyond the
      pages of history, archaeological evidence has been relied upon before
      the court. In seeking to establish their rights over the disputed land, the
      parties have turned back the clock of human history, to establish a point
      of genesis, where one party’s claims over the disputed property were
      uncontested: to establish the first right and the first wrong. This court
C     is called on to determine the legal consequences arising out of a
      thousand years of prayer, contest, construction and destruction at the
      disputed site.
             633. During this period, the disputed property has fallen within
      the territory of various rulers and legal regimes. The question of which
D     party, king or religion had a first claim to the disputed site is one of
      significant historical interest. But this court must determine what are
      the legal consequences arising from such an enquiry. Human history is
      testament to the rise and fall of rulers and regimes. The law cannot be
      used as a device to reach back in time and provide a legal remedy to
E     every person who disagrees with the course which history has taken.
      The courts of today cannot take cognisance of historical rights and
      wrongs unless it is shown that their legal consequences are enforceable
      in the present. Thus, before this Court embarks on a lengthy historical
      enquiry, it is important to consider the extent to which acts done and
      rights accrued under previous legal regimes have legal consequences
F     today under our present laws.
             634. The facts pertaining to the present case fall within four
      distinct legal regimes: (i) The kingdoms prior to 1525 during which the
      “ancient underlying structure” dating back to the twelfth century is
      stated to have been constructed; (ii) The Mughal rule between 1525
G     and 1856 during which the mosque was constructed at the disputed site;
      (iii) The period between 1856 and 1947 during which the disputed
      property came under colonial rule; and (iv) The period after 1947 until
      the present day in independent India.
            635. Mr Vaidyanathan, learned Senior Counsel appearing on
H     behalf of the plaintiffs in Suit 5, placed great emphasis on the existence
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        669


of an ancient Hindu structure underneath the disputed property. Counsel      A
contended that the ruins of this structure were used in the construction
of the mosque. Mr H S Jain, learned counsel appearing on behalf of
the Hindu MahaSabha urged that during Babur’s invasion of India,
several temples were destroyed, including the temple constructed by
Vikramaditya at Ayodhya. He contended that during the Mughal period,
                                                                             B
the territory now known as ‘India’ was under ‘foreign’ occupation -
Hindus were not permitted to exercise their religious rights and, upon
the adoption of the Constitution of India, the wrongs of the Mughals
are liable to be rectified. To appreciate these arguments, it is necessary
to understand the extent to which our law recognises the legal
consequences of acts done and rights accrued under previous legal            C
regimes.
          Acts of State and changes in sovereignty
       636. The principles determining the extent to which our courts
can enforce the legal consequences of actions and rights from previous
legal regimes has been laid down by the Privy Council and adopted by         D
this Court after Independence. In Secretary of State Council in India
v Kamachee Boye Sahaba,329 the Rajah of Tanjore died on 29 October
1855 without a legal heir, causing the East India Company to declare
that the Raj had lapsed to the colonial government. A letter was sent
by the colonial government, as the ‘new sovereign of Tanjore’,               E
requesting a list of the private and public property held by the former
ruler in order to decide any claims made against this property. When
no response was received, a company official, “taking advantage” of
the presence of the 25th Regiment of Infantry, took possession of the
property of the Raja, placed it under seal and stationed sentries to guard   F
the property. A suit was brought before the Supreme Court of Madras
by the eldest widow of the erstwhile Raja with respect to the private
property of the former ruler. It was contended that upon the lapse of
the Raj, it was only the public property of the Raja that was acquired
by the new ruler while the private property of the Raja was to be
distributed in accordance with the Hindu law of succession. The              G
respondents contended that the seizure of the Raja’s property was an
“act of State” on behalf of the colonial government as the new
sovereign. The lapse of the Raj and the subsequent seizure involved

329
      (1857-60) 7 Moo IA (476)                                               H
670             SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A     only the Raja and the colonial government - two sovereign powers, and
      consequently, the court had no jurisdiction to entertain the matter.
      Accepting this contention, Lord Kingsdown, speaking for the Privy
      Council held:
            “But, whatever may be the meaning of this letter…It shows that
B           the [colonial] Government intended to seize all the property which
            actually was seized, whether public or private, subject to an
            assurance that all which, upon investigation, should be found to
            have been improperly seized, would be restored. But, even with
            respect to property not belonging to the Rajah, it is
            difficult to suppose that the Government intended to give
C
            a legal right of redress to those who might think
            themselves wronged, and to submit the conduct of their
            officers, in the execution of a political measure, to the
            judgement of a legal tribunal.
            …
D
            The result, in their Lordships’ opinion, is, that the property now
            claimed by the respondent [eldest widow] has been seized by
            the British Government, acting as a Sovereign power, through
            its delegate the East India Company; and that the act so done,
            with its consequences, is an act of State over which the
E           Supreme Court of Madras has no jurisdiction.
            Of the propriety or justice of that act, neither the Court below
            nor the Judicial Committee have the means of forming, or the
            right of expressing, if they had formed any opinion. It may have
            been just or unjust, politic or impolitic, beneficial or
F           injurious, taken as a whole, to those whose interests are
            affected. They are considerations into which their
            Lordships cannot enter. It is sufficient to say that, even if
            a wrong has been done, it is a wrong which no Municipal
            Court of justice can afford a remedy.”
G                                                        (Emphasis supplied)
            637. The action of the colonial government in seizing the Raja’s
      property was an action between two sovereign actors - the colonial
      government and the State of Tanjore embodied by the Raja. The suit
      was instituted before the Supreme Court of Madras, a court of the
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          671


colonial government drawing on the colonial government’s sovereignty.          A
The Privy Council held that the actions of the colonial government vis-
à-vis another sovereign entity (the Raja of Tanjore) were acts of State
and the municipal courts could not entertain matters questioning the
legality of those acts unless the colonial government itself recognised
that the matter was justiciable. The Privy Council held that there was
                                                                               B
no evidence to support the claim that the colonial government
recognised that legal redress was to be given to claimants of the Raja’s
property. Absent a recognition by the colonial government that the
consequences of the act of State were legally enforceable in municipal
law, municipal courts could not entertain suits with respect to the act
of State.                                                                      C
       638. In 1899, this principle was followed by the Privy Council in
its decision in Thomas and James Cook v Sir James Sprigg.330 The
respondents in appeal had challenged certain agreements made by a
Native Chief of Pondoland granting concessionary rights over lands and
forests to the appellants, as delegates of the British Sovereign. The          D
respondents contended that the agreements were contrary to the laws
of Pondoland at the time. The Privy Council held the grant of lands
and rights to the British Sovereign to be an act of State between the
“Paramount Chief of the Pondos” and the British Sovereign and could
not be challenged before a municipal court on the grounds of violating
Pondo law. Lord Halsbury, speaking for the Privy Council, held:                E
          “The taking possession by Her Majesty whether by cession or
          by any other means by which sovereignty can be acquired was
          an act of State and treating Sigcau [the Pondo Chief] as an
          independent Sovereign – which the Appellants are compelled to
          do in deriving title from him – it is a well-established principle   F
          of law that the transactions of independent States between
          each other are governed by other laws than those which
          municipal courts administer.
          It is no answer to say that by the ordinary principles of
          International Law private property is respected by the
          Sovereign which accepts the cession and assumes the                  G
          duties and legal obligations of the former Sovereign with
          respect to such private property within the ceded
          territory…if there is either an express or well-understood

330
      (1899) AC 572                                                            H
672                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               bargain between the ceding Potentate and the Government to
                which the cession is made that private property shall be respected
                that is only a bargain which can be enforced by Sovereign
                against Sovereign in the ordinary course of diplomatic
                pressure.”

B                                                            (Emphasis supplied)
            639. The common law principle which the Privy Council adopted
      was that municipal courts cannot enforce the law applicable between
      two sovereign states. The Privy Council clarified that irrespective of
      what international law had to say on whether the new sovereign was
C     subrogated into the shoes of the old sovereign with respect to the legal
      obligations of the latter, a municipal court cannot enforce such legal
      obligations in the absence of express recognition of the legal obligations
      by the new sovereign. Where there is a change of sovereignty from a
      former sovereign to a new sovereign, the municipal courts of the new
      sovereign will not enforce the legal rights of parties existing under the
D     former sovereign absent an express recognition by the new sovereign
      of such legal rights.
              640. The applicability of the above principles to the question of
      proprietary rights existing under a former regime was discussed in a
      1915 decision of the Privy Council in Secretary of State of India in
E     Council v Bai Rajbai331. The respondent in appeal, being part of a
      group called Kasbatis, had been given a grant to collect rent from
      certain villages by the Gaekwar rulers of Ahmedabad. In 1817, the
      district of Ahmedabad was ceded by the Gaekwars to the British
      Government. However, the settlement of the territories ceded was not
      practically implemented until 1822-23. When the territory was ceded,
F
      the respondents were in possession of seventeen villages, but refused
      to pay the requisite tax to the colonial Bombay government on the
      ground of their grant by the former ruler. A settlement proposed by a
      Mr Williamson was also rejected by the respondent and the Bombay
      government eventually executed a series of leases granting the Kasbatis
G     the villages “at the pleasure of the government”. The respondent filed
      a suit claiming that upon the expiry of the leases, she was legally entitled
      to be granted a new lease. Lord Atkinson, speaking for the Privy
      Council, observed:

      331
H           ILR (1915) 39 Bom 625
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         673


  “Before dealing with the action of which the Government of            A
  Bombay took in reference to this village of Charodi on receipt
  of these reports, it is essential to consider what was the precise
  relation in which the Kasbatis stood to the Bombay Government
  the moment the cession of their territory took effect, and what
  were the legal rights enforceable in the tribunals of their new
                                                                        B
  Sovereign, of which they were thereafter possessed. The relation
  in which they stood to their native Sovereigns before this cession,
  and the legal rights they enjoyed under them, are, save in one
  respect, entirely irrelevant matters. They could not carry in
  under the new regime the legal rights, if any, which they
  might have enjoyed under the old. The only legally                    C
  enforceable rights they could have as against their new
  Sovereign were those, and only those, which that new
  Sovereign, by agreement expressed or implied or by
  legislation, chose to confer upon them. Of course, this
  implied agreement might be proved by circumstantial
                                                                        D
  evidence, such as the mode of dealing with them which the
  new Sovereign adopted, his recognition of their old rights,
  and express or implied election to respect them and be
  bound by them, and it is only for the purpose of determining
  whether and to what extend the new Sovereign has recognised
  these ante-cession rights of the Kasbatis, and has elected or         E
  agreed to be bound by them, that the consideration of the
  existence, nature, and extent of these rights become relevant
  subjects for inquiry in this case. This principle is well
  established…”
  …                                                                     F
  In their Lordships’ view, putting aside legislation for the moment,
  the burden of proving that the Bombay Government did
  so consent to any, and if so, to what extent, rests, in this
  case upon the respondent. The Kasbatis were not in a position
  in 1822 to reject Mr. Williamson’s proposal, however they might       G
  have disliked it, or to stand upon their ancient rights. Those
  rights had for all purposes of litigation ceased to exist, and
  the only choice, in point of law, left to them was to accept his
  terms or to be dispossessed.”
                                               (Emphasis supplied)      H
674                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A             641. The cession of the territory of Ahmedabad by the Gaekwars
      to the colonial government was an act of State between two sovereigns.
      Upon the cession of the territory, the rights of the citizens within the
      territory of their new sovereign, and consequently in the municipal courts
      of the new sovereign, were only those expressly recognised by the new
      sovereign. Unless the new sovereign recognised the rights of the citizens
B
      which existed in the old regime, the municipal courts of the new
      sovereign could not enforce those ancient rights. This includes the right
      to property of the citizens within the territory. Whether or not the new
      sovereign should recognise the property rights of citizens is a contention
      to be urged between the two sovereigns at a supra-national plane and
C     a municipal court would not entertain such contentions. The recognition
      of property rights previously recognised in the old regime by the new
      sovereign need not be explicit and may be implied through the conduct
      of the new sovereign and established through circumstantial evidence.
      However, the burden of proving the existence of the right in the previous
      regime and the recognition of the right by the new sovereign rested on
D
      the party claiming such a right.
             642. The principles enunciated by Lord Atkinson have been
      adopted by this Court after Independence. A significant number of
      disputes arose out of the rights granted to individuals by former princely
      rulers prior to the cession of their territories to the Republic of India.
E     This Court was called upon to determine whether such rights were
      enforceable after the change of sovereignty from the princely rulers to
      the Republic of India.
             643. In Promod Chandra Deb v State of Orissa332 a batch of
      writ petitions were heard by a Constitution Bench of this Court. The
F     facts of the petitions were largely analogous to each other: the
      petitioners had received certain cash grants, or Khor Posh grants, from
      princely rulers prior to these rulers ceding their territories to the Republic
      of India (then the Dominion of India). A question arose as to whether
      the State of Orissa, as a delegate of the Central Government, was
      required to enforce the old laws of the princely states including the
G
      providing of the Khor Posh grants. Referring to the Privy Council
      decisions discussed above, Chief Justice B P Sinha speaking for the
      Constitution Bench laid down certain principles applicable when the
      municipal courts of a new sovereign must enforce rights accruing to
      parties from the legal regime of a previous sovereign:
H     332
            1962 Supp (1) SCR 405
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           675


  “17. On an examination of the authorities discussed or referred         A
  to above, the following propositions emerge. (1) “Act of State”
  is the taking over of sovereign powers by a State in respect of
  territory which was not till then a part of its territory, either by
  conquest, treaty or cession, or otherwise, and may be said to have
  taken place on a particular date, if there is a proclamation or other
                                                                          B
  public declaration of such taking over. (2) But the taking over of
  full sovereign powers may be spread over a number of years,
  as a result of a historical process
  …
  (5) As an act of State derives its authority not from municipal         C
  law but from ultra-legal or supra-legal means, Municipal Courts
  have no power to examine the propriety or legality of an act which
  comes within the ambit of “act of State”. (6) Whether the act
  of State has reference to public or private rights, the result
  is the same, namely, that it is beyond the jurisdiction of
  Municipal Courts to investigate the rights and wrongs of                D
  the transaction and to pronounce upon them and, that,
  therefore, such a Court cannot enforce its decisions, if any.
  It may be that the presumption is that the pre-existing laws of
  the newly acquired territory continue, and that according to
  ordinarily principles of International Law private property of the      E
  citizens is respected by the new sovereign, but Municipal Courts
  have no jurisdiction to enforce such international obligations.
  …
  (8) The Municipal Courts recognised by the new sovereign
  have the power and jurisdiction to investigate and ascertain            F
  only such rights as the new sovereign has chosen to
  recognise or acknowledge by legislation, agreement or
  otherwise. (9) Such an agreement or recognition may be
  either express or may be implied from circumstances and
  evidence appearing from the mode of dealing with those                  G
  rights by the new sovereign. Hence, the Municipal Courts
  have the jurisdiction to find out whether the new sovereign
  has or has not recognised or acknowledged the rights in
  question, either expressly or by implication, as aforesaid. (1) In
  any controversy as to the existence of the rights claimed against
                                                                          H
676             SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A            the new sovereign, the burden of proof lies on the claimant
             to establish the new sovereign has recognised or
             acknowledged the right in question.”
                                                          (Emphasis supplied)
             644. The Constitution Bench accepted the legal principles laid
B     down by the Privy Council in determining the method in which the legal
      consequences of acts of a previous legal regime are recognised.
      Crucially, it does not matter that the acts pertain to public or private
      rights. Municipal courts will only recognise those rights and liabilities
      which have been recognised by the new sovereign either expressly or
C     impliedly through conduct established by evidence. The municipal courts
      of the new sovereign can embark upon an inquiry as to whether the
      new sovereign has expressly or impliedly recognised the rights and
      liabilities existing under a former regime. However, the burden to
      establish the existence and recognition of such rights and liabilities
      remains on the party claiming them.
D
            645. The principles laid down in Promod Chandra Deb were
      affirmed by a seven-judge Bench of this Court in State of Gujarat v
      Vora Fiddali Badruddin Mithibarwala.333 The seven-judge Bench
      also expressly rejected the contention that grants given by a former
      sovereign are merely voidable until expressly revoked by the new
E     sovereign. The court held that such grants are not enforceable by the
      municipal court of the new sovereign unless expressly or impliedly
      recognised by the new sovereign. These principles have also been
      affirmed by subsequent benches of this Court in Pema Chibar v Union
      of India334 Union of India v Sudhansu Mazumdar335.
F           646. The evidence and arguments submitted before this Court
      have canvassed four distinct legal regimes. The legal consequences of
      actions taken, proprietary rights perfected, or injuries suffered in
      previous legal regimes can only be enforced by this Court if they
      received implied or express recognition by subsequent sovereigns.
G     Absent such recognition, the change of sovereignty is an act of State
      and this Court cannot compel a subsequent sovereign to recognise and
      remedy historical wrongs.

      333
          (1964) 6 SCR 461
      334
          (1966) 1 SCR 357
      335
H         (1971) 3 SCC 265
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                   677


       Ancient rights claimed by the parties                                        A
        647. The nature of the ancient underlying structure beneath the
disputed property dating back to the twelfth century has been the subject
matter of great controversy in the present proceedings. Mr
Vaidyanathan contended that the structure represented a Hindu temple.
It was urged that the existence of an ancient Hindu temple below the                B
disputed property was evidence that title to the disputed land vested in
the plaintiff deities in Suit 5. It was further urged that as the land of a
deity is inalienable, the title of the plaintiff deities from the twelfth century
continues to be legally enforceable today. For this submission to be
accepted, it would need to be demonstrated that every subsequent
sovereign to the territory within which the disputed land falls either              C
expressly or impliedly recognised the title of the plaintiff deities in Suit
5. The burden to establish this would rest firmly on the plaintiffs in Suit
5.
        648. No argument other than a bare reliance on the ASI report
was put forth. No evidence was led by the plaintiffs in Suit 5 to support           D
the contention that even if the underlying structure was believed to be
a temple, the rights that flow from it were recognised by subsequent
sovereigns. The mere existence of a structure underneath the disputed
property cannot lead to a legally enforceable claim to title today.
Subsequent to the construction of the ancient structure in the twelfth              E
century, there exists an intervening period of four hundred years prior
to the construction of the mosque. No evidence has been led with
respect to the continued existence of the legal regime or any change
in legal regime. It is admitted by all parties that at some point during
the reign of the Mughal empire, a mosque was constructed at the
disputed site. Even if this Court was to assume that the underlying                 F
structure was in fact a Hindu temple which vested title to the disputed
site in the plaintiff deities, no evidence has been led by the plaintiffs in
Suit 5 to establish that upon the change in legal regime to the Mughal
sovereign, such rights were recognised.
       649. The Mughal conquest of the territories was a supra-national             G
act between two sovereigns subsequent to which, absent the recognition
by the new sovereign of pre-existing rights, any claim to the disputed
property could not have been enforced by virtue of the change in
sovereignty. This Court cannot entertain or enforce rights to the disputed
property based solely on the existence of an underlying temple dating
to the twelfth century.                                                             H
678            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            650. The next change in legal regime occurred on 13 February
      1856 with the annexation of Oudh by the East India Company, which
      later became the colonial government of the British Sovereign. The
      events which took place between 1856 and Indian Independence and
      beyond will be considered in great detail at various parts of this
      judgement and we need not advert to it at this juncture. However, certain
B     factual aspects with respect to recognition of rights by the British
      sovereign may be noted. Upon the annexation of Oudh by the British
      sovereign, no actions were taken by the sovereign to exclude either
      the Hindu devotees of Lord Ram from worship nor the resident Muslims
      offering namaz at the disputed property. On 15 March 1858, by the
C     proclamation of Lord Canning, all property, excluding a select few
      estates, were confiscated by the British sovereign and the disputed
      property was designated as Nazul land (i.e. land confiscated and vesting
      in the government). However, the conduct of the British government
      was to respect the practices and prayer of both religious communities
      at the disputed site. The construction of the railing in 1858 to separate
D     and maintain law and order between the two communities is premised
      on the worship of both religious communities at the disputed property.
      If either community was not present at the disputed site, no question
      of needing to separate the two communities could have ever arisen.
      The Hindus however maintained immediate and continued contest over
      their exclusion from the inner courtyard. In 1877, another door was
E
      opened on the northern side of the outer courtyard by the British
      Government, which was given to the Hindus to control and manage.
              651. With respect to the change of legal regime between the
      British sovereign and the Republic of India, there exists a line of
      continuity. Article 372 of the Constitution embodies the legal continuity
F     between the British sovereign and independent India. Article 372(1)
      states:
            “(1) Notwithstanding the repeal by this Constitution of the
            enactments referred to in article 395 but subject to the other
            provisions of this Constitution, all the law in force in the
G           territory of India immediately before the commencement
            of this Constitution shall continue in force therein until
            altered or repealed or amended by a competent Legislature
            or other competent authority.”
                                                          (Emphasis supplied)
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                  679


       Article 296 of the Constitution states:                                     A
       “Subject as hereinafter provided, any property in the territory of
       India which, if this Constitution had not come into operation,
       would have accrued to His Majesty or, as the case may be, to
       the Ruler of an Indian State by escheat or lapse, or as bona
       vacantia for want of a rightful owner, shall, if it is property situate     B
       in a State, vest in such State, and shall, in any other case, vest
       in the Union”
       These articles in the Constitution evidence a legal continuity
between the British sovereign and the Republic of India. Moreover, the
conduct of the Republic of India subsequent to attaining Independence              C
was to uphold private property claims that existed during the rule of
the British sovereign. It cannot be said that upon independence, all pre-
existing private claims between citizens inter se were extinguished. They
were recognised unless modified or revoked by the express acts of the
Indian government. For the present purposes therefore, there is both
express and implied recognition that the independent Indian sovereign              D
recognised the private claims over property as they existed under the
British sovereign unless expressly evidenced otherwise. Therefore, the
rights of the parties to the present dispute which occurred during the
colonial regime can be enforced by this Court today.
       652. This Court cannot entertain claims that stem from the                  E
actions of the Mughal rulers against Hindu places of worship in a court
of law today. For any person who seeks solace or recourse against
the actions of any number of ancient rulers, the law is not the answer.
Our history is replete with actions that have been judged to be morally
incorrect and even today are liable to trigger vociferous ideological              F
debate. However, the adoption of the Constitution marks a watershed
moment where we, the people of India, departed from the determination
of rights and liabilities on the basis of our ideology, our religion, the colour
of our skin, or the century when our ancestors arrived at these lands,
and submitted to the rule of law. Under our rule of law, this court can
adjudicate upon private property claims that were expressly or impliedly           G
recognised by the British sovereign and subsequently not interfered with
upon Indian independence. With respect to the disputed property, it is
evident that the British Sovereign recognised and permitted the existence
of both Hindu and Muslim communities at the disputed property upon
the annexation of Oudh in 1856. This culminated with the construction
                                                                                   H
680            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     of the railing in order to maintain law and order between the two
      communities. The acts of the parties subsequent to the annexation of
      Oudh in 1856 form the continued basis of the legal rights of the parties
      in the present suits and it is these acts that this Court must evaluate to
      decide the present dispute.
B           Justice, Equity and Good Conscience
             653. Dr Rajeev Dhavan, learned Senior Counsel appearing on
      behalf of the plaintiffs in Suit 4 contended that the substantive content
      of the law applicable to the present case is ‘justice, equity and good
      conscience’. Dr Dhavan contended that while certain facets of the
C     present dispute fall within a statutory framework, there are significant
      gaps in the positive law which must be filled in by applying the principles
      of justice, equity and good conscience.
             654. The import of this contention is that the Court must be
      mindful of the genesis of the present dispute that spans over four distinct
D     legal regimes – that of Vikramaditya, the Mughals, the British and now,
      Independent India. In assessing the submissions of the parties and
      arriving at the eventual conclusion, the needs of justice require specific
      attention to the peculiarities of the case. The case canvasses the rule
      of law, religion and law and conquest, besides a myriad of conflicting
      interests. These cannot always be comprehended within the available
E     statutory framework applicable to the present facts. This makes the
      role of the court even more sensitive as it must craft a relief that
      accords with justice, equity and good conscience.
            655. Any discussion on the concept of ‘justice, equity and good
      conscience’ begs a few preliminary questions: (i) How did the concept
F     originate?; (ii) What does it entail?; and (iii) What was the Indian
      experience with the concept? In an essay titled “Justice, Equity and
      Good Conscience”, Duncan Derrett notes the difficulties that plague
      a discussion of a concept whose contours are vague:
            “It may be argued at the outset that ‘justice, equity and good
G           conscience’ is a nice, comfortable formula meaning as much or
            as little as the judges for the time being care to make it mean.
            One might confine one’s activity to considering how judges have
            in fact construed the direction to consult it. The results would
            not be of permanent value, since just as the concept of public
            policy varies with the years and the venue, so precedents may
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                    681


          be of little help where this phrase is called into play. Let us agree          A
          at once that stuff of the judicial applications of the ‘residual’ or
          ‘repugnancy’ references has limitation. Very few cases show a
          real curiosity as to what the phrase means, many expressions
          fall per incuriam, and consequently are of no authority. But a
          survey of some representative application of the formula, and a
                                                                                         B
          review of its extraordinary history, may help to place the matter
          in perspective, showing that it still has a lively part to play in the
          development of the legal systems of developing countries.”336
          Equity and Romano-canonical origins
       656. It is a common misconception that the term ‘justice, equity                  C
and good conscience’ has its origins in English law. Sir George Rankin
succinctly stated that the origins of ‘justice, equity and good conscience’
did not point to English law.337 Instead, Romano-canonical learning,
which was common to the European continent and appeared later in
English minds of the sixteenth century, forms the genesis of the concept.                D
In his seminal work “Ethics”338, Aristotle considers the relations
between equity and justice. Although equity is not identical to strict
justice, it is nevertheless a kind of justice. To him, where the written
statute is unequipped to address the particular circumstances of the case
and point to a truly just outcome, aequitas (i.e. equity or fairness) steps
in. Adherence to the written law may lead to an unjust outcome. In                       E
this view, where certain factors place the facts of a case on a different
pedestal, such as public policy, it would be unjust to impose the strict
legal outcome of generally expressed laws. Consequently, a departure
from the written law is (according to Artistotle) permissible. This
departure served the specific purpose of elevating certain considerations                F
that inform a factual matrix in order to arrive at a just and equitable
conclusion. This notion was an inspiration for and foundation of the
Western legal tradition of equity.339

                                                                                         G
336
    Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in
Developing Countries (JND Anderson ed.) at page 120
337
    Sir George Rankin, The Personal Law in British India, Sir George Birdwood Memorial
Lecture on 21 February, 1941.
338
    Aristotle, Ethics, JAK Thomson (trans) (London, Penguin, 1976) at pages 198–200.
339
      Max Hamburger, Morals and Law: The Growth of Aristotle’s Legal Theory (1965).      H
682             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A            657. Derrett documents that the above notion influenced
      Romanic propositions in two ways: (i) aequitas served as an ally in
      the interpretation of statute law to correct, modify and if necessary,
      amend it; and (ii) to make good the deficiencies of the written or
      otherwise ascertainable law. To this end, the role of equity was
B     formulated as follows:
             “If we see iustitia [justice] as the correlative of aequitas, then
             iustitia consists of positive law, made up of written and unwritten
             sources, statutes and customs, the applicability of these being
             determined either by positive law itself, or by the natural equity,
C            that is to say, the natural reason of the case. But in another sense
             aequitas comes into the picture of iustitia. There can be no ius
             in practice without its twin, the aequitas in sense (i) which
             modifies or amends it to suit circumstances. Ius strictum, or
             summum ius, the ‘letter of the law’, can very seldom, if ever,
D            move without the aid of aequitas, ‘equity’. Thus, in sense (i)
             aequitas is bound up with Justitia, and yet seems to be by
             definition an addition to it ab extra. In the second sense of the
             term, aequitas fills the gaps left by the positive law. It supplements
             the ius scriptum sive non scriptum for cases not covered by
             statute, for example, or contemplated by custom is so many
E            words. In sense (ii) aequitas is the most important source of law,
             particularly for developing countries. Aequitas in this sense is both
             scripta and non scripta.”340
             658. The correlation between law and justice was the defining
F     factor– in one sense, equity modifies the applicable law or ensures its
      suitability to address the particular circumstances before a court to
      produce justice. The modification of general rules to the circumstances
      of the case is guided by equity, not in derogation or negation of positive
      law, but in addition to it. It supplements positive law but does not supplant
      it. In a second sense however, where positive law is silent as to the
G     applicable legal principles, equity assumes a primary role as the source
      of law itself. Equity steps in to fill the gaps that exist in positive law.
      Thus, where no positive law is discernible, courts turn to equity as a

      340
        Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in
      Developing Countries (JND Anderson ed.) at page 120
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            683


source of the applicable law. In addition to these, Derrett notes that           A
there is a third sense in which equity or aequitas assumed importance
– where established political authority is taken away or is in doubt and
the formal sources of law are in doubt, the nature of judicial office
requires a decision in accordance with ex bono et aequo. This was
evidenced in decisions concerning widows and orphans and in the realm            B
of mercantile law.
       659. In all three senses noted above, equity offered judges the
discretion to marry general principles of law and the particular
circumstances before them to arrive at a just decision. However, this
discretion was not unbridled. Derrett rightly notes:                             C
        “What did this jurisdiction amount to? Did it mean that the judge
        followed his nose, and gave judgment according to his fancy?
        No…it is emphasized again and again that the judge consults
        analogous provisions of law; juridical maxims, in particular those
        contained in the Corpus juris, even though they have not in fact
                                                                                 D
        been applied to such a case in the written sources of law or
        equity; and the writings of jurists steeped in legal thinking.
        …
        …The first step will be to see whether the other provisions of
        the code throw any general light on the problem. This implies an         E
        interpretation of ius scriptum…Thus equity in very many cases
        involves consultation of law…”341
       In this sense, positive law and the general principles furnished
by positive law serve as a useful guide in ensuring that equity is not a
method of giving effect merely to the individual worldview of judges.            F
Where positive law is silent and equity steps in to furnish a source of
law, its content is informed by analogous provisions of the law that
furnish a useful guide. This ensures that equity operates within a larger
legal framework informed by the values which underline the legitimacy
of the legal system as a whole.
                                                                                 G
        Inroads into India
       660. The application of ‘justice, equity and good conscience’ to
India commenced with colonial rule in Bombay. As Bombay assumed
341
  Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in
Developing Countries (JND Anderson ed.) at page 123                              H
684              SUPREME COURT REPORTS                               [2019] 18 S.C.R.


A     prominence as a commercial centre, there arose a need for a system
      of mercantile law to avoid the inadequacies of the common law in its
      application in India as well as in the English Admiralty courts. Company
      judges appointed in 1669 were hence required to adjudicate in
      accordance to good conscience.342 Eventually, the Royal Charters of
      (i) 9 August, 1683 set up the mercantile and admiralty courts at Bombay;
B
      and (ii) 30 December, 1687 set up the Municipality and Mayor’s Court
      at Madras. The Court of Judicature at Bombay was required to
      adjudicate ‘according to the rules of equity and good conscience, and
      according to the laws and customs of merchants.’ The Mayor’s Court
      at Madras was to be guided according to equity and good conscience.
C
           661. On 5 July, 1781 Governor General Warren Hastings passed
      the Regulations for the Administration of Justice in the Court of
      Dewanee Adaulat of the provinces of Bengal, Bihar and Orissa.
      Regulation 60 of the said regulations stated:

D            “That in all cases, within the jurisdiction of the Mofussil
             Dewannee Adalat, for which no specific Directions are hereby
             given, and respective Judges thereof do act according to Justice,
             Equity and Good Conscience.”
             A similar provision for Judges of the Sadr court was made in
E     Regulation 93. Though these provisions were procedural in nature, they
      marked further inroads of the concept into the Indian administrative and
      legal framework. Regulation 9 of Regulation VII of 1832 reads:
             “Where parties are of different persuasions, the laws of the
             religions shall not deprive a party of property to which, but for
F            the operation of such laws, he would have been entitled. In all
             such cases, the decisions shall be governed by the principles of
             justice, equity and good conscience, it being clearly understood,
             however, that this provisions shall not be considered as justifying
             the introduction of the English or any foreign law, or the application
G            to such cases of any rules not sanctioned by these principles.”
            Accompanying this was the space carved out for the application
      of the personal law of the parties. For example, in 1781 itself, the
      Parliament passed the Act of 1781, Section 17 of which stipulated that
      342
        B Lindsay, British Justice in India, the University of Toronto Law Journal, Vol. 1,
H     No. 2 (1936), at page 344
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                      685


the Supreme Court should have the power to entertain all suits against                     A
the inhabitants of Calcutta:
        “Provided that inheritance and succession to lands, rents and
        goods, and all matters of contract and dealing between party and
        party, shall be determined in the case of Mahomedans by the
        laws and usages of Mahomedans, and in the case of Gentoos,                         B
        by the laws and usages of Gentoos; and where only one of the
        parties shall be a Mahomedan or Gentoo by the law and usages
        of the defendant.”343
       The scheme for administration of justice drawn up by Warren
Hastings was characterized by two main features: one was that of                           C
decentralisation by the introduction of subordinate courts, both civil and
criminal. The other was the reservation to both Hindus and
Mohammedans of their own personal laws and usages in the domain
of their domestic relations.
                                                                                           D
       662. Until the 1850s, judges turned to Hindu personal law and
Muslim personal law to decided matters of faith and religion. Where
the exact provisions were not certain, judges required the reassurance
that their decisions were in consonance with the needs of justice in every
case. For this, they turned to ‘justice, equity and good conscience’.
                                                                                           E
        The conflation between the concept and English law
       663. Alongside the introduction of ‘justice, equity and good
conscience’ in the Indian legal system, another parallel development
gradually took place - despite the broad underpinnings of the term which
allowed reference by analogy to varied systems of law, over time, there
                                                                                           F
arose a presumption that the term ‘justice, equity and good conscience’
was synonymous with English law. The expansion in the powers of the
East India Company was accompanied with a vesting in the Company
of the power of administration of justice. MC Setalvad writes:

343
   See also Article 27 of the Plan of 1772 which reads: “That in all suits regarding       G
inheritance, marriage and caste and other religious usages and institutions, the laws of
the Koran with respect to Mahomedans and those of the Shaster with respect to
Gentoos shall be invariably adhered to. On all such occasions the Molavies shall
respectively attend to expound the law and they shall sign the report and assist in
passing the decree.” See also Section 15 of Regulation IV of the Cornwalliis Code of
1793.
                                                                                           H
686                SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A               “As the Company’s territories became gradually enlarged by
                settlement and conquest the Privy Council, as the highest court
                of appeal from the decisions of the Indian courts, became a
                growing influence in the application of the basic principles of
                English jurisprudence as the rules of decision all over the country.
B               It was natural, perhaps inevitable, that the eminent English judges,
                who presided over this tribunal should attempt to solve the
                problems that came before them wherever Indian regulations or
                statutes contained no provisions applicable to them by drawing
                upon the learning on which they had been brought up and the
                rules and maxims to which they had been accustomed for a
C               lifetime. This explains why from the earliest times the decisions
                of this tribunal in appeals from India have resulted in a steady
                and continuous granting of the principles of common law and
                equity into the body of Indian jurisprudence.”344
             664. With an increase in the activities of the East India Company,
D
      judges and barristers trained in English law moulded the Indian judicial
      system. This led to, an increased reference to English law both in
      arguments before courts as well as in the judgments of the Courts in
      British India. The distinguished American scholar Marc Galanter has
      documented the conflation of the term with English law:
E
                “In their search for authoritative bodies of law, the British made
                collections and translations of ancient texts and recent
                commentaries. However, Indian law proved strangely elusive…It
                was soon recognized that sastra was only a part of the law and
                that in many matters Indians were regulated by less formal bodies
F               of customary law. But even customary law was not
                sufficient…The need to fill the felt gaps was ultimately to lead
                to statutory codification on the basis of English law. But in the
                meantime, courts, empowered to decide cases in
                accordance with ‘justice, equity and good conscience’,
                filled the interstices of sastra and custom with
G
                ‘unamalgamated masses of foreign law’. Although there was
                some attempt to draw the most suitable rule from other sources,



      344
H           MC Setalvad, The Common Law in India (1960) at pages 31-32.
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                         687


        in most cases the [English] judges were inclined to assume                            A
        that English law was most suitable.”345
                                                    (Emphasis Suuplied])
       665. The applicable law was stated to be the parties’ personal
law and the colonial government initially relied on the testimonies of
pandits and maulvis to translate religious texts which would be used                          B
to adjudicate. Eventually, this system was abolished and increased
reliance was placed on English translations of the relevant religious texts.
Ultimately, the colonial government sought to fill any remaining lacunae
with English law.346 Another impetus was the setting up of the Privy
Council in 1833 as the final court of appeal from India. These together                       C
resulted in the conflation between ‘justice, equity and good conscience’
and English law. However, in truth, the term ‘justice, equity and good
conscience’ authorises a broad-ranging reference to analogous systems
of law to source legal principles that can be applied to the specific case
before the court and ensure a just outcome.
       666. The correct legal position was noted by Chief Justice Barnes                      D
Peacock in Degunbaree Dabee v Eshan Chunder Sein347 where it
was held:
       “Now, having to administer equity, justice and good conscience,
       where are we to look for the principles which are to guide us?
       We must go to other countries where equity and justice are                             E
       administered upon principles which have been the growth of ages,
       and see how the courts act under similar circumstances; and if
       we find that the rules which they have laid down are in
       accordance with the true principles of equity, we cannot do wrong
       in following them.”
                                                                                              F

345
    Marc Galanter, Law and Society in Modern India (1997), at pages 221,222.
346
    Sir George Rankin, the Personal Law in British India, Sir George Birdwood Memorial
Lecture on 21 February, 1941– “Under the scheme of 1772 the English judges in the
civil courts were to get their law form the pandits and moulavies. These “law officers”
lasted as an institution from 1772 till 1864, then they were abolished, not before their      G
usefulness had come to an end. There was no system of training them, as Sir Thomas
Strange was to point out (1825); their qualifications were not always great, nor
temptation always absent. It was imperative that the texts should be made available to
the judges themselves, and the labours of Jones, Henry Colebrooke, the Macnaghtens,
and Strange were directed to the translation of the original authorities and the exposition
of their contents.”
347
    (1868) 9 W.R. 230, 232.                                                                   H
688                SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A            A true understanding of the evolution of the concept found
      expression in judicial decisions in India. In Gatha Ram Mistree v
      Moohita Kochin Atteah Domoonee,348 the plaintiff filed a suit for
      the restitution of conjugal rights. The Deputy Commissioner held that
      though a ceremony took place, it did not constitute a formal marriage.
      No reasons were given and hence, the matter was remanded. In
B     addition to this direction, Justice W Markby made an additional
      observation with respect to the enforceability of a decree of restitution
      of conjugal relations:
                “But surely, when we look to the law of England for a guide, it
                is where that law is in harmony with the general principles
C               of equity and jurisprudence that we should adopt it, not
                where it is exceptional. That the English law, on the subject
                of enforcing conjugal rights, is exception, I have no manner of
                doubt…It appears to me, therefore, that if we were to hold that
                a court could enforce continuous performance of conjugal duties
D               by unlimited fine and imprisonment, we should place the law
                of this country in opposition to the law of the whole
                civilized world, except the ecclesiastic law of England.”
                                                           (Emphasis supplied)
             The court clarified that even where courts look to English law
E     to furnish a guide, the first step was to check whether it conformed to
      the principles of general equity and justice. The court recognised that
      while the exaction of conjugal duties or pain of unlimited fines and
      imprisonment might conform to the position in England, the court was
      not bound to adopt it where the governing principles of the civilised legal
      regimes indicated that it was against justice, equity and good conscience
F
      to do so.
              667. In Radha Kishen v Raj Kaur349, a man who bore children
      from a woman outside his caste was treated to be an outcaste. Upon
      his death, the woman held his property, the possession of which she
      handed to their children upon her death. The brothers of the man sued
G
      for the recovery of his property contending that the woman and their
      illegitimate children had no right to the property. The court, without any
      reference to English law, held that the property was self-acquired and

      348
            (1875) 23 W.R. 179
      349
H           (1891) 13 All 573
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               689


that justice, equity and good conscience required that the suit be                  A
dismissed. Chief Justice Edgar and Justice Knox writing together for
the Allahabad High Court held:
        “We cannot find amongst the authorities and texts cited to us
        any sure principle to guide us in this case. Under these
        circumstances we must act on the principles of equity and good              B
        conscience, and decline to oust from the possession of the
        property acquired by Khuman his sons and their mother and the
        widow of the deceased son for the benefit of the vendee of
        brothers …”
      No explicit reference was made to English law, but to general                 C
principles that would provide content to the concept of ‘justice, equity
and good conscience.’
      668. In Rajah Kishendatt Ram v Rajah Mumtaz Ali Khan350,
the Privy Council dealt with the rights of redemption of a mortgagor
whose property had received accretions through certain mergers by the               D
mortgagee in possession. Justice JW Colville spoke thus:
        “27…If the principle invoked depended upon any technical rule
        of English law, it would of course be inapplicable to a case
        determinable, like this, on the broad principles of equity and good
        conscience. It is only applicable because it is agreeable to general        E
        equity and good conscience. And, again, if it possesses that
        character, the limits of its applicability are not to be taken as rigidly
        defined by the course of English decisions, although those
        decisions are undoubtedly valuable, in so far as they recognize
        the general equity of the principle, and show how it has been
        applied by the Courts of this country.”                                     F
       669. The position that the term ‘justice, equity and good
conscience’ indicates English law is thus unsupported. The formula “was
a device to escape from English law, not to call it in”.351 It is true that
its application in India heralded the diffusion of English Law into the
Indian legal system by virtue of globalisation, acculturation and common            G
epistemic communities. The formula authorised reference by analogy
to systems of law across national frontiers. Though the Roman origins
350
  (1878-79) 6 IA 145
351
  Dr J Duncan M Derrett, Justice Equity and Good Conscience In Changing Law in
Developing Countries (JND Anderson ed.)                                             H
690                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     of the term stand for a broader application of the term even where
      there is an express provision that governs the case, the development
      of the term as it evolved in India indicates that it is only where the
      positive law and customary law was silent or led to perverse or absurd
      outcomes, that the principles of justice, equity and good conscience were
      applied.
B
                Justice, Equity and Good Conscience today
             670. With the development of statutory law and judicial precedent,
      including the progressive codification of customs in the Hindu Code and
      in the Shariat Act 1937, the need to place reliance on justice, equity
C     and good conscience gradually reduced. There is (at least in theory) a
      reduced scope for the application of justice, equity and good conscience
      when doctrinal positions established under a statute cover factual
      situations or where the principles underlying the system of personal law
      in question can be definitively ascertained. But even then, it would do
      disservice to judicial craft to adopt a theory which excludes the
D     application of justice, equity and good conscience to areas of law
      governed by statute. For the law develops interstitially, as judges work
      themselves in tandem with statute law to arrive at just outcomes. Where
      the rights of the parties are not governed by a particular personal law,
      or where the personal law is silent or incapable of being ascertained
E     by a court, where a code has a lacuna, or where the source of law
      fails or requires to be supplemented, justice, equity and good conscience
      may properly be referred to.
             671. Post-independence, Indian Courts have utilised the concept
      less frequently but adopted a broader view of the term ‘justice, equity
F     and good conscience’. Two cases of this Court are instructive. In
      Namdeo Lokman Lodhi v Narmadabai352, it was argued that the
      amendment made in 1929 to Section 111(g) of the Transfer of Property
      Act requiring a written notice by the lessor for the determination of a
      lease embodies a principle of justice, equity and good conscience. Justice
      Mehr Chand Mahajan (as he then was), writing for a two judge Bench
G     of this Court held:
                “7. The main point for consideration thus is whether the particular
                provision introduced in sub-section (g) of Section 111 of the
                Transfer of Property Act in 1929 is but a statutory recognition

      352
H           1953 SCR 1009
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           691


          of a principle of justice, equity and good conscience, or whether     A
          it is merely a procedural and technical rule introduced in the
          section by the legislature and is not based on any well established
          principles of equity. The High Court held, and we think rightly,
          that this provision in sub-section (g) of Section 111 in regard to
          notice was not based upon any principle of justice, equity and
          good conscience.                                                      B

          18. …In England it is not necessary in case of non-payment of
          rent for a landlord to give notice before a forfeiture results. It
          cannot, therefore, be said that what has been enacted in sub-
          section (g) of Section 111 is a matter which even today in English
          law is considered as a matter of justice, equity and good             C
          conscience.”
       This Court held that the requirement of a notice being issued by
the lessor upon the non-payment of dues was one of procedure, and
absent a statutory mandate, the same could not be introduced under
the guise of ‘justice, equity and good conscience.’ It appeared at a first      D
glance that the Bench conflated justice, equity and good conscience
with the position in English law. This is not the correct position. The
view expressed in this case was reinterpreted by this Court in Murarilal
v Dev Karan353 which arose out of a redemption suit filed by the
respondent against the appellant. The respondent had contended that             E
though the period to repay the loan taken by him against a mortgage
of certain properties had elapsed, the right to redeem continued to vest
in him. This was resisted by the appellant who contended that upon
the expiry of the repayment period stipulated, the appellant became the
absolute owner of the mortgaged property. Though Section 60 of the
Transfer of Property Act embodied the equity principle of redemption,           F
it was not applicable in Alwar where the dispute arose. A Constitution
Bench of this Court held that the mortgage deed contained a provision
which amounted to a clog on the equity of redemption. Chief Justice
PB Gajendragadkar, speaking for the Bench held:
          “5. Therefore, the main question which arises in the present          G
          appeal is: Does the equitable doctrine ensuing the mortgagors
          equity of redemption in spite of a clog created on such equity by
          stipulation in the mortgage deed apply to the present case? This
          question arises in this form, because the Transfer of Property
353
      (1964) 8 SCR 239
                                                                                H
692       SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     Act did not apply to Alwar at the time when the mortgage was
      executed nor at the time when the 15 years’ stipulated period
      expired.
      …
      15. In dealing with this argument, it would be relevant to observe
B     that traditionally, courts in India have been consistently enforcing
      the principles of equity which prevent the enforcement of
      stipulations in mortgage deeds which unreasonably restrain or
      restrict the mortgagor’s right to redeem… In fact, in Namdeo
      Lokman Lodhi v. Narmadabai [(1953) SCR 1009] this
C     Court has emphatically observed that it is axiomatic that
      the courts must apply the principles of justice, equity and
      good conscience to transactions which come before them
      for determination even though the statutory provisions of
      the Transfer of Property Act are not made applicable to
      these transactions. These observations, in substance,
D     represent the same traditional judicial approach in dealing
      with oppressive unjust and unreasonable restrictions
      imposed by the mortgagees on needy mortgagors when
      mortgage documents are executed.
      …
E
      16. … Even so, we think it would be reasonable to assume that
      civil courts established in the State of Alwar were like civil
      courts all over the country, required to administer justice
      and equity where there was no specific statutory provision
      to deal with the question raised before them. …. In the
F     absence of any material on the record on the point, we are
      reluctant to accept Mr Sarjoo Prasad’s argument that the
      doctrine of equity and justice should be treated as irrelevant in
      dealing with the present dispute.
      …
G
      20. Thus it is clear that the equitable principle of justice, equity
      and good conscience has been consistently applied by civil courts
      in dealing with mortgages in a substantial part of Rajasthan and
      that lends support to the contention of the respondent that it was
      recognised even in Alwar that if a mortgage deed contains a
H     stipulation which unreasonably restrains or restricts the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             693


      mortgagor’s equity of redemption courts were empowered to               A
      ignore that stipulation and enforce the mortgagor’s right to
      redeem, subject, of course, to the general law of limitation
      prescribed in that behalf. We are, therefore, satisfied that no case
      has been made out by the appellant to justify our interference
      with the conclusion of the Rajasthan High Court that the relevant
                                                                              B
      stipulation on which the appellant relies ought to be enforced even
      though it creates a clog on the equity of redemption.”
       672. The Court also cited instances of decisions of the High
Courts which had held that Section 60 of the Transfer of Property Act
embodied the just and equitable principle. In this view, the Bench took
a broader view of the principles embodied by justice, equity and good         C
conscience. The Court held that the view of this Court in Namdeo is
consistent with and similar to the analogous situation of unreasonable
and oppressive contractual terms and in that sense, justice, equity and
good conscience was analogous to English law only where English law
itself was in conformity with the principles supported by justice, equity     D
and good conscience.
       673. The common underlying thread is that justice, good
conscience and equity plays a supplementary role in enabling courts to
mould the relief to suit the circumstances that present themselves before
courts with the principle purpose of ensuring a just outcome. Where           E
the existing statutory framework is inadequate for courts to adjudicate
upon the dispute before them, or no settled judicial doctrine or custom
can be availed of, courts may legitimately take recourse to the principles
of justice, equity and good conscience to effectively and fairly dispose
of the case. A court cannot abdicate its responsibility to decide a dispute
over legal rights merely because the facts of a case do not readily           F
submit themselves to the application of the letter of the existing law.
Courts in India have long availed of the principles of justice, good
conscience and equity to supplement the incompleteness or
inapplicability of the letter of the law with the ground realities of legal
disputes to do justice between the parties. Equity, as an essential           G
component of justice, formed the final step in the just adjudication of
disputes. After taking recourse to legal principles from varied legal
systems, scholarly written work on the subject, and the experience of
the Bar and Bench, if no decisive or just outcome could be reached, a
judge may apply the principles of equity between the parties to ensure
                                                                              H
694            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     that justice is done. This has often found form in the power of the court
      to craft reliefs that are both legally sustainable and just.
            Equity and Article 142
             674. The concept of ‘justice, equity and good conscience’ as a
      tool to ensure a just outcome also finds expression in Article 142 of
B     the Constitution which reads:
            “142. (1) The Supreme Court in the exercise of its jurisdiction
            may pass such decree or make such order as is necessary for
            doing complete justice in any cause or matter pending before
            it, and any decree so passed or order so made shall be
C           enforceable throughout the territory of India in such manner as
            may be prescribed by or under any law made by Parliament and,
            until provision in that behalf is so made, in such manner as the
            President may by order prescribe.”
                                                           (Emphasis supplied)
D
              The phrase ‘is necessary for doing complete justice’ is of a wide
      amplitude and encompasses a power of equity which is employed when
      the strict application of the law is inadequate to produce a just outcome.
      The demands of justice require a close attention not just to positive law
      but also to the silences of positive law to find within its interstices, a
E     solution that is equitable and just. The legal enterprise is premised on
      the application of generally worded laws to the specifics of a case
      before courts. The complexities of human history and activity inevitably
      lead to unique contests – such as in this case, involving religion, history
      and the law - which the law, by its general nature, is inadequate to deal
      with. Even where positive law is clear, the deliberately wide amplitude
F
      of the power under Article 142 empowers a court to pass an order
      which accords with justice. For justice is the foundation which brings
      home the purpose of any legal enterprise and on which the legitimacy
      of the rule of law rests. The equitable power under Article 142 of the
      Constitution brings to fore the intersection between the general and
G     specific. Courts may find themselves in situations where the silences
      of the law need to be infused with meaning or the rigours of its rough
      edges need to be softened for law to retain its humane and
      compassionate face. Above all, the law needs to be determined,
      interpreted and applied in this case to ensure that India retains its
      character as a home and refuge for many religions and plural values.
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               695


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

      675. In Union Carbide Corporation v Union of India,354 this
Court speaking through Chief Justice Ranganath Misra circumscribed
the power under Article 142 in the following manner:
          “83…Prohibitions or limitations or provisions contained in ordinary       C
          laws cannot, ipso facto, act as prohibitions or limitations on the
          constitutional powers under Article 142…But we think that such
          prohibition should also be shown to be based on some underlying
          fundamental and general issues of public policy and not merely
          incidental to a particular statutory scheme or pattern. It will again
                                                                                    D
          be wholly incorrect to say that powers under Article 142 are
          subject to such express statutory prohibitions. That would convey
          the idea that statutory provisions override a constitutional provision.
          Perhaps, the proper way of expressing the idea is that in
          exercising powers under Article 142 and in assessing the needs
          of “complete justice” of a cause or matter, the apex Court will           E
          take note of the express prohibitions in any substantive statutory
          provision based on some fundamental principles of public policy
          and regulate the exercise of its power and discretion accordingly.
          The proposition does not relate to the powers of the Court under
          Article 142, but only to what is or is not ‘complete justice’ of a        F
          cause or matter and in the ultimate analysis of the propriety of
          the exercise of the power. No question of lack of jurisdiction or
          of nullity can arise.”
       Where rigidity is considered inadequate to address a situation,
the plenary power of this Court for doing complete justice is an appeal             G
of last resort to the inherent quality of equity that the law is designed
to protect, to ensure that the Court is empowered to craft a relief that
comports with both reason and justice. Similarly, in Supreme Court

354
      (1991) 4 SCC 584                                                              H
696             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A     Bar Association v Union of India355, Justice A S Anand, speaking
      for the Court held:
             “47…It, however, needs to be remembered that the powers
             conferred to the court by Article 142 being curative in nature
             cannot be construed as powers which authorise the court to
B            ignore the substantive rights of a litigant while dealing with a case
             pending before it ... Article 142, even with the width of its
             amplitude, cannot be used to build a new edifice where none
             existed earlier, by ignoring express statutory provisions dealing
             with a subject and thereby to achieve something indirectly which
C            cannot be achieved directly.”
              676. The extraordinary constitutional power to pass any decree
      or an order which, in the opinion of this Court is necessary for doing
      complete justice embodies the idea that a court must, by necessity, be
      empowered to craft outcomes that ensure a just outcome. When a court
D     is presented before it with hard cases356, they follow an interpretation
      of the law that best fits and justifies the existing legal landscape - the
      constitution, statutes, rules, regulations, customs and common law.
      Where exclusive rule-based theories of law and adjudication are
      inadequate to explain either the functioning of the system or create a
      relief that ensures complete justice, it is necessary to supplement such
E     a model with principles grounded in equitable standards. The power
      under Article 142 however is not limitless. It authorises the court to
      pass orders to secure complete justice in the case before it. Article 142
      embodies both the notion of justice, equity and good conscience as well
      as a supplementary power to the court to effect complete justice.
F            O.6 Grants and recognition
             677. The Sunni Central Waqf Board has set up the case that
      Babri Masjid was built by or at the behest of Babur in 1528 and was
      dedicated as a place for Muslims to offer prayer. The claim is that since
      the date of its construction until the mosque was attached in December
G     1949, Muslims offered prayers continuously in the mosque. Expenses
      for the upkeep and maintenance of the mosque were stated to have

      355
         (1998) 4 SCC 409
      356
        Ronald Dworkin, Hard Cases, Harvard Law Review, Vol. 88., No. 6 (Apr. 1975),
H     pp. 1057-1109.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          697


been realised in the form of a cash grant which was paid by the royal      A
treasury during the rule of Babur which was continued under colonial
rule by the British.
       678. The significant aspect of the case which has been pleaded
in Suit 4 is the construction of the mosque in 1528 A.D. and its use by
Muslims for the purpose of offering prayer thereafter. But, a crucial      B
aspect of the evidentiary record is the absence of any evidence to
indicate that the mosque was, after its construction, used for offering
namaz until 1856-7. Justice Sudhir Agarwal noticed this feature of the
case bearing on the lack of evidence of the use of the mosque for the
purpose of worship until the riots of 1856-7. The learned Judge also
                                                                           C
noted the submission of Mr Jilani for the Sunni Central Waqf Board in
the following extracts:
      “2314…even if for the purpose of the issues in question we
      assume that the building in dispute was so constructed in 1528
      A.D., there is no evidence whatsoever that after its construction,
                                                                           D
      it was ever used as a mosque by Muslims at least till 1856-57.
      Sri Jilani fairly admitted during the course of arguments that
      historical or other evidence is not available to show the position
      of possession or offering of Namaz in the disputed building at
      least till 1855…”
                                                                           E
      During the course of the hearing before this Court, this
observation on the absence of any evidence indicating worship by
Muslims prior to 1856-7 was specifically put to Dr Rajeev Dhavan
learned Senior Counsel appearing on behalf of the Sunni Central Waqf
Board. Learned Senior Counsel did not deny that the evidentiary record
which is relied upon by the Sunni Central Waqf Board essentially           F
commences with the grants which were stated to have been continued
by the British Government for the upkeep of the mosque. Bearing this
in mind, it is necessary now to scrutinise the evidence.
      I Grants by the British Government for upkeep of mosque
      679. According to the Sunni Central Waqf Board, the colonial         G
government continued grants for the upkeep and maintenance of the
mosque originally given during the time of Babur. In this regard, the
Sunni Central Waqf Board has in the course of its written submissions
formulated its reliance on the documentary record thus:
                                                                           H
698            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A          “(a) The extract of Register Mafiat bearing Government Orders
                dated March 13, 1860 and June 29, 1860 show the name
                of Babur as the donor/grantee.
                     Further Column 13, which refers to the order of the
                     Chief Commissioner, states that- “So long the Masjid is
B                    kept up and the Mohammadans conduct themselves
                     properly, I recommend the continuance of the grant.”
                     Moreover, in column 14, headed ‘Final order of
                     Government’ it has been mentioned that- “Released so
                     long as the object for which the grant has been made is
C                    kept up vide Government Order No.2321 dated January
                     29, 1860.”
             Justice Sudhir Agarwal noted in his judgment that this appears
      to be a copy of some register “but it is an extremely torn document
      and the contents on page 163 are almost illegible”. He observed
D     the following:
           “(b) The Register of Inquiry (14.3.1860) of rent free land records
                that Emperor granted revenue grant of Rs.302/3/6 to Mir
                Baqi for the purposes of construction and maintenance of
                Mosque namely Babri Mosque at village Shahnawa. The
E               following points were recorded in the register:
                     The name of Emperor Babur was noted as the ‘grantee’.
                     The rent-free land is situated at village Shahnawa and
                     that it generates an annual revenue of Rs.302, 3 ana
                     and 6 pai.
F
                     This rent-free land grant was given as a Waqf at the
                     time of construction of Babri Masjid by Babar for
                     meeting the expenses of the salary of Muezzin and
                     Khatib.
                     This rent free grant was given to Saiyed Baqi for his
G                    lifetime and thereafter to his son for lifetime and
                     thereafter to Saiyed Hussain Ali.
                     Decision of the Board (dated June 29, 1880) was that
                     the grant will survive till the continuation of the purpose
                     for which it was given exemption from land revenue.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             699


      The document states that there is “no knowledge of the date of          A
grant” and the name of the donor/grantor is “on the basis of testimony”.
Similarly, it has been stated that “based on the testimonies, this land
free grant was given as waqf at the time of the preparation for
construction of Babri Masjid at Ayodhya by Emperor Babur for meeting
the expenses and the salary of “Muezzin and Khateeb”. The order and
                                                                              B
date are not known:
      “(c) Copy of the excerpts of the Register No. 6 (e), conditional
      land revenue exemption of Tehsil Faizabad dated 29 June 1860.
      In this Register, the name of ‘Mohd. Asghar and Mohd. Rajjab
      Ali’ is recorded as the name of the person who is holding the
      rent-free land (reflected in Column. 6 & 7).”                           C

      II Conversion of cash nankar grant into grant of revenue
free land
       680. In 1864, the British Government converted the cash nankar
into a grant of revenue-free land situated in the Villages of Sholapur        D
and Bahoranpur in the vicinity of Ayodhya. A certificate of grant was
executed in favour of Rajjab Ali and Mohd Asghar, bearing the seal of
the Chief Commissioner. It reads:
      “It having been established after due inquiry that Rajjab Ali and
      Mohd. Asghar received a Cash Nankar of (Rs. 302-3-6) Rupee              E
      Three Hundred and two three annas six pie from Mauza
      Shahanwa District Fyzabad, in rent free tenure under the former
      Government. The Chief Commissioner, under the authority of the
      Governor General in Council is pleased to maintain the grant for
      so long as the object for which the grant has been made is kept
      up on the following conditions. That they shall have surrendered        F
      all sunnds title deeds and other documents relating to the grant
      in question. That they and their successors shall strictly perform
      all the duties of land holders in matters of Police, and any Military
      or Political service that may be required of them by the
      Authorities and that they shall never fall under the just suspicion     G
      of favouring in any way the designs of enemies of the British
      Government. If any one of these conditions is broken by Rajjab
      Ali and Mohammad Asghar or their successor the grant will be
      immediately resumed.”

                                                                              H
700            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           Dealing with the above documents, Justice Agarwal has
      observed:
            “2336. The above documents though show that some grant was
            allowed to Mir Rajjab Ali and Mohd. Asgar but it does not appear
            that any kind of inquiry was made by the authorities concerned
B           and if so, what was the basis therefor. According to the claim
            of Muslims, the Commander of Babar, who was responsible for
            construction of the building in dispute was Mir Baqi while Mir
            Rajjab Ali claimed himself to be the son-in-law of the
            daughter of grand son of Syed Baqi. Mohd. Asgar was son
            of Mir Rajjab Ali, therefore, the son and father claimed
C           relation with the 4th generation of the alleged original
            Mutwalli and staked their claim for grant. No material existed
            to show that earlier such grant was awarded by any one though
            stated by the aforesaid two persons. If we go by the averments
            of the plaint that the alleged waqf was created in 1528, it
D           is wholly untrustworthy to find out that in the last more
            than 325 years, it could only be the fourth generation and
            its relatives are at the best 5th generation. The authorities
            in 1860-61 were not under a duty to act judicially in this matter
            and therefore, might not have given any details of their enquiry
            as to on what basis the alleged enquiry was conducted. Ex facie,
E           to us, the genealogy of Mir Rajjab Ali commencing from
            Syed Baki who must have existed in 1528 is unbelievable.
            It is not out of context that the story of grant might have been
            set up by the two persons i.e. father and son for the purpose of
            obtaining valuable grant from Britishers in their favour. In any
F           case, these documents only show that a financial assistance
            was provided by the British Government for the purpose
            of the mosque in question but this by itself may not be a
            proof that the building in dispute was used by Muslims for
            offering Namaz or for Islamic religious purposes to the
            extent of ouster of Hindu people or otherwise.”
G
                                                        (Emphasis supplied)
            From the above extract, it appears that a grant was provided to
      Rajjab Ali and Mohd Asghar. However, certain significant facets emerge
      from the record:
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          701


       (i) The absence of a due enquiry indicating the basis of the        A
           grant;
      (ii) A claim set up by Mir Rajjab Ali stating that he was the
           son-in-law of the daughter of the grandson of Mir Baqi while
           Mohd Asghar was the son of Mir Rajjab Ali; and
      (iii) The absence of any material to indicate the basis for such     B
            a grant being granted in the previous history of 325 years;
            and
      (iv) The setting up of a claim by a person belonging to the fourth
           generation from Mir Baqi with no evidence on the record
           of the intervening period of over three centuries.              C

       Be that as it may, the High Court has noted that the documents
would show that financial assistance was provided by the British for
the purposes of the maintenance of the mosque, but this would not
amount to proving that the structure was used for the purpose of
offering namaz. In connection with the above grant of revenue free         D
land, the following documents have been relied upon:
      “(i) On August 25, 1863, Secretary Chief Commissioner of
           Awadh wrote to the Commissioner Faizabad Division
           mentioning that the Governor General has sanctioned Chief
           Commissioner’s proposal for the commutation of the cash         E
           payment of Rs.302-3-6 granted in perpetuity for the support
           of the Janamasthan Mosque to the grant of rent-free land
           near Ayodhya. It was further requested that a provision for
           the change be made by grant of some Nazul Land near
           Ayodhya.” (Exhibit A 14 Suit 1)                                 F
      (ii) On August 31, 1863, an order was passed by Deputy
           Commissioner regarding the rent-free land (fetching an
           annual rent of Rs. 302/3/6) which was sanctioned by the
           Government to the Masjid Janamsthan. It was ordered that
           the map of the proposed land marked for the purpose should
                                                                           G
           clearly indicate boundaries and be sent by the Deputy
           Commissioner to the Commissioner.
      (iii) On September 13, 1860, order was passed by the Deputy
            Commissioner, Faizabad, wherein it was stated that the map
            of the lands which had been selected for approval for giving
                                                                           H
702                SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                       in lieu of the lands of the Masjid had been sent. It was
                        therefore ordered that the proceedings be presented before
                        the Additional Assistant Commissioner for immediate action.
               (iv) Thereafter several orders were passed to consider as to
                    which lands were to be allotted for the purpose of the
B                   Masjid.
                (v) On October 10, 1865 it was ordered that possession of the
                    lands should be immediately given and acknowledgment
                    should be taken.
               (vi) On October 19, 1865, it was reported that the proceedings
C                   regarding the handing over the land have been completed
                    and the acknowledgement was also confirmed.
               (vii) Subsequently, on October 30, 1865, the file was consigned
                     to the record.”

D               III Grants of 1870
             681. The British Government having discontinued the annual cash
      grant, on repeated representations of Mohd Asghar and Rajjab Ali,
      granted fresh land in Muafi in the villages of Bhuraipur and Sholapur
      in 1870. Later on, a sanad was issued by the Chief Commissioner that
      the cash nankar of Rs 302/3annas/6pies received by Rajjab Ali and
E
      Mohd Asghar as rent-free tenure in village Shahanwa under the former
      Government (Rule of Nawab) was being maintained (as Muafi and in
      the villages of Bhuraipur and Sholapur) under the authority of the
      Governor General in Council so long as the object for which the grant
      had been made was kept up.
F           On 3 January/February 1870, an order was passed by the
      Settlement Officer in Mohd Afzal Ali and Mohd Asghar v
      Government357, wherein it was decreed as follows:
                “The superior proprietary right in Mauza Bahronpur is decreed
                revenue free to Mohammad Asghar and Mohammad Afzal Ali.”
G
                IV Nakal Khasra Abadi
            682. In 1931, the entry in the Nakal Khasra Abadi mentioned in
      the Nazul register records the presence of Babri Masjid at Plot No.
      583 and notes that the same was a “Masjid Waqf Ahde Shahi”. This
      357
H           Case No.5
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             703


document also notes that the Ramchabutra was famous as the birth-             A
place.
      The document inter alia contains the following entries:

         “Dastandazi (11)        Indraz Raghunath Das Janambhumi
                                 Ke Mahant Mukarrar Kiye Gaye, Ke
                                                                              B
                                 Bajaye Mahant Ram Sharan Das.
         Kaifiyat (Details) (16) Masjid Pokhta Waqf Ahde Shahi
                                 andar Sahan Masjid Ek Chabutara Jo
                                 Janambhumi Ke naam Se Mashhoor
                                 Hai, Darakhtan Goolar Ek Imli Ek
                                 Mulsiri Ek, Pipal Ek, Bel Ek..Masjid         C
                                 Mausma       Shah     Babur    Shar
                                 Marhoom.”

      O.7 Disputes and cases affirming possession
       683. After the riots of 1856-7, the British set up a railing outside   D
the three-domed structure. This evidently appears to have been done
to maintain peace and order. Muslims would worship inside the railing
while the Hindus would worship outside. The platform which has been
described as Ramchabutra was constructed by the Hindus in close
proximity to and outside the railing. The construction of the Ramhabutra
was adverted to in the written statement of Mohd Asghar in the Suit           E
of 1885. Though, according to the Muslims, on an application by them,
an order was passed for digging out the Ramchabutra, no order has
been placed on record. Following the incident of 1856-7, several cases
were instituted. These include the following:
     Case No 884 – Eviction of Nihang Singh Faqir from Masjid                 F
premises:
       (i) On 28 November 1858, Thanedar Sheetal Dubey filed an
           application stating that one Nihang Singh Faqir Khalsa
           resident of Punjab, organised hawan and puja of Guru
           Gobind Singh and erected a symbol of ‘Sri Bhagwan’ within          G
           the premises of the Masjid. The Thanedar requested that
           action, as deemed necessary, may be taken;
       (ii) On 30 November 1858, Syed Mohammad Khatib (Moazzin
            of the Babri Masjid) lodged a complaint, being case number
            884, before the Station House Officer about the installation      H
704      SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A          of a Nishan by Nihang Singh and requested its removal. In
           the application, he stated that:
           a) Nihang Singh is creating a riot in the masjid;
           b) He had forcibly made a Chabutra inside the masjid,
              placed a picture of the idol inside the masjid, lit a fire
B             and was conducting puja. He had written the words
              “Ram Ram” with coal on the walls of the masjid;
           c) The masjid is a place of worship of Muslims and not
              Hindus, and if someone constructs anything forcibly
              inside it, he should be punished;
C
           d) Previously also the Bairagis had constructed a
              Ramchabutra overnight of about 1 ballisht height (about
              22.83 cms), until injunction orders were issued;
           e) The application stated:
D                  “Previously the symbol of janam sthan had been
                   there and Hindus did puja”
            f) It was therefore prayed that:
                i. The spot may be inspected, and the new construction
                   be demolished; and
E
                ii. Hindus be ousted from the masjid and the symbol
                    and the idol may be removed and the writing on the
                    walls be washed.
      (iii) A dispute has been raised about the translation of the above
F           document by Mr Pasha, learned Counsel appearing on
            behalf of the plaintiffs in Suit 4. The document was
            translated thus:
           “You are the master of both the parties since the Shahi ear
           (sic) if any person constructs forcibly he would be punished
G          by your honour. Kindly consider the fact that Masjid is a
           place of worship of Muslims and not that of Hindus.
           Previously the symbol of Janamsthan had been there
           for hundreds of years and Hindus did puja.”
                                                   (Emphasis supplied)
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            705


      The correct translation, according to Mr Pasha, should read thus:      A
      “It is evident from the clear words of the Shah that if any person
      constructs forcibly he would be punished by the government and
      your honour may consider the fact that Masjid is a place of
      worship of the Muslims and not the contrary position that
      previously the symbol of Janamsthan had been there for hundreds        B
      of years and Hindus used to perform puja.”
                                                    (Emphasis supplied)
       The words “and not the contrary position” in the submissions of
Mr Pasha are contrived. They militate against the tenor of the letter of
the Moazzin. The complaint was against the erection of a Ramchabutra         C
inside the Masjid and in that context it was stated that though previously
the symbol of the Janmasthan has been there for hundreds of years
and Hindus conducted puja, a construction had been made inside the
Masjid for the first time.
      (iv) An order was passed on 30 November 1858, pursuant to              D
           which Sheetal Dubey, Thanedar visited the disputed
           premises and informed Nihang Singh about the order but
           he replied that the entire place is of Nirankar and the
           government of the country should impart justice;
       (v) On 1 December 1958, Sheetal Dubey, Thanedar submitted             E
           a report in case number 884, describing that when he took
           the summons order dated 30 November 1858 addressed to
           Nihang Singh Faqir for leaving the place, he received no
           reply. He reported what had actually transpired and sought
           instructions from the higher authorities;                         F
      (vi) An order dated 5 December 1858 was issued in case
           number 884 wherein a direction was issued by the court in
           furtherance of the order dated November 30, 1858 (wherein
           it was directed that the Faqir sitting in Babri Masjid should
           be ousted) directing the Police Sub-Inspector Avadh that in
                                                                             G
           case the Faqir is not removed from the spot, he must be
           arrested and presented in court;
      (vii) On 6 December 1858, a report was submitted by Sheetal
            Dubey, Thanedar Oudh recording the appearance of the
            Faqir in court; and
                                                                             H
706            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A          (viii) On 10 December 1858, an order was passed recording that
                  the Jhanda (flag) was uprooted from the masjid and the
                  Faqir residing therein was ousted.
             684. Case no 223 filed on 5 November 1860 by Mir Rajjab
      Ali: On 5 November 1860, an application was filed by Mir Rajjab Ali
B     against Askali Singh in Case number 223 complaining about a new
      “Chabootra” being constructed in the graveyard. In this application it
      was stated that:
              a) A small “Chabootra” had been constructed in the graveyard
                  adjacent to Babri Masjid by one Nihang. He was told not
                  to do so but he did not refrain and became violent;
C
              b) Previously, about a year and a half earlier, Hari Das (Mahant
                  of Hanuman Garhi) tried to build a house forcibly and was
                  made to execute a bond/undertaking for non-interference.
                  The said undertaking is still available in the files;
              c) The Commissioner also found a flag which had been pitched
D                 within the grounds of Babri Masjid and upon seeing it, got
                  the flag removed;
              d) Nowadays, when the Moazzin recites Azan, the opposite
                  parties begin to blow conch shells; and
              e) The newly built “Chabootra” should be directed to be
E                 demolished and an undertaking/ bond should be taken from
                  the opposite party that they will not unlawfully and illegally
                  interfere in the masjid property and will not blow conch
                  shells at the time of Azaan;
             685. On 12 March 1861, an application was filed by Mohd
F     Asghar, Rajjab Ali and Mohd Afzal, in furtherance of the previous
      application, stating that Imkani Sikh had illegally occupied the lands of
      the plaintiffs and had erected a “Chabootra” without permission near
      Babri Masjid. Even though on the previous application, orders were
      issued to evict Imkani Sikh from the “Chabootra”, but the hut where
G     he was staying still remained. It was submitted that whenever a Mahant
      will go there or stay in the hut, a cause for dispute will arise. It was
      therefore prayed that an order be issued to the Sub-Inspector that after
      the eviction of Imkani Sikh, the hut/kutir should also be demolished and
      precaution should be taken so that a foundation of a new house is not
      allowed to be laid;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         707


       (i) On 18 March 1861, the Subedar tendered a report regarding      A
           the execution of an order dated 16 March 1861. It was
           stated that not only has Imkani Sikh been evicted from the
           Kutir (hut) but the hut has also been demolished; and
      (ii) Thereafter on 18 March 1862, the application dated 12
           March 1861 preferred by Mohd Asghar, Mir Rajjab Ali and        B
           Mohd Afzal was directed to be consigned to the records.
      686. Application against Tulsidas and other Bairagis
(Included in case number 223 already decided on 18 April 1861):
On 25 September 1866, an application was filed by Mohd Afzal
(mutawalli Masjid Babri) against Tulsidas and other Bairagis, praying     C
for demolishing a Kothri which had been newly constructed “for placing
idols etc.” inside the door of the Masjid where the Bairagis had
constructed a “Chabootra”. In this application it was stated that:
       a) Babri Masjid situated near Janmasthan in Oudh Khas was
          constructed by Shah Babur;                                      D
       b) For the last few days, Bairagis were attempting to build
          Shivalaya near the masjid, but due to the vigilance of the
          Muslims and timely reporting of the matter, the authorities
          imposed restrictions and prevented a dispute;
                                                                          E
       c) Now about a month ago, the defendants, Tulsidas/Bairagis
          with the intention of placing idols, had constructed a Kothri
          in the compound of the mosque. The construction was done
          illegally within a few hours;
       d) The police had already been informed but no orders              F
          regarding the demolition of the Kothri have been issued by
          the government. Owing to this Kothri, there is an
          apprehension of a daily clash;
       e) Previously they had constructed a Ramchabutra overnight
          and because of this construction, riots happened. Now a         G
          small Kothri had been constructed within a short span of
          time. There was a possibility that they could increase such
          constructions gradually; and
       f) Accordingly, it was prayed that the mosque may be
          protected from the Bairagis and orders for dismantling the      H
708            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                Kothri may be passed.
             g) On 12 October 1866 the Deputy Commissioner, Faizabad
                passed an order on the application of Mohd Afzal (included
                in case number 223) against Tulsidas, directing its
                consignment to records.
B
            687. Niyamat Ali and Mohd Shah v Gangadhar Shastri: On
      26 August 1868, an order was passed by Major J Reed, Commissioner,
      Faizabad in an appeal against the order dated 25 June 1868 passed by
      the Officiating Deputy Commissioner, Faizabad in the case of Niyamat
      Ali and Mohd Shah v Gangadhar Shastri. This case was filed by
C     the Muslims against one Ganga Dhar alleging that he was encroaching
      on the north-western corner of the masjid. The order dismissed the
      appeal as no encroachment was proved. However, the following
      observations were made:
             (i) The maps show that the house of Ganga Dhar touched the
D                wall of the masjid, and there was no encroachment;
            (ii) There could be no encroachment until the wall of the Masjid
                 itself had been dug into, however it had not been so alleged;
                 and
            (iii) The previous order of the Commissioner dated 27 February
E
                  1864 directed that Hindus should not encroach on the
                  boundaries of the mosque and Ramchabutra. However, since
                  so encroachment was proved, there was no reason to
                  interfere.
             688. Mohd Asghar v Government: On 22 February 1870, a
F     suit was filed by Mohd Asghar (Mutawalli of Babri Masjid) seeking to
      evict the defendant who was a Faqir from occupation of the trees of
      Imli (Bagh Imli), Khandhal and graveyard. It was stated that:
             (i) 21 Imli trees had always been in possession of the
                 applicants and their ancestors since ancient times;
G
            (ii) The Faqir who was their servant was earlier residing there
                 with the permission of the ancestors of the plaintiffs;
            (iii) During the ‘Shahi’ period, the Faqir turned against the
                  plaintiffs’ ancestors and was therefore ousted from the
H                 premises; and
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                         709


         (iv) Hence, a decree for eviction be passed against the Faqir        A
              from the trees and the graveyard.
          (v) On 22 August 1871, an order was passed, dismissing the
              claim of Mohd Asghar regarding ownership of the
              Qabaristan in the vicinity of ‘Masjid Babar Shah Mauja Kot
              Ram Chandar’ while decreeing the claim over the trees. The      B
              order contained the following observations:
                   “Possession of Plaintiffs over the tamarind trees was
                   established, but right of ownership cannot be of the
                   Plaintiffs as this is general graveyard and courtyard in
                   front of the door of the Masjid Janamsthan. Therefore,     C
                   such an Arazi (piece of land) cannot be private
                   property.”
      689. Placing of Idol in 1873: In November 1873, an idol was
placed on the ‘platform of Janmasthan’ (referred to in the Deputy
Commissioner’s report dated 14 August 1877 and Commissioner’s order           D
dated 18 December 1877);
          (ii) On 7 November 1873, an order was passed in the case of
               Mohd Asghar v Mahant Baldeo Das directing the
               removal of the Charan Paduka which was not complied
               with; and                                                      E
         (iii) On 10 November 1873, Baldeo Das was directed by the
               Deputy Commissioner to remove an image placed on the
               Janmasthan platform. A report was submitted stating that
               an officer had gone to the house of Baldeo Das who was
               not found. The order was explained to other priests who        F
               said they could not carry out the order. These orders were
               not complied with and the image was not removed.
      690. Opening up of the northern gate (Singh Dwar in 1877)
- Mohd Asghar v Khem Dass: On 3 April 1877, the Deputy
Commissioner, Faizabad granted permission to the Hindus to open a
                                                                              G
new door (Singh Dwar) in the northern outer wall of the disputed
building. This permission was challenged by Mohd Asghar by filing an
appeal358, where he claimed that:


358
      Misc Appeal No.56                                                       H
710            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            a) Each place within the boundary wall of the mosque is the
                mosque;
             b) The general principle is that the matters relating to a masjid
                should be ‘handed over’ to Muslims while matters relating
                to the temple should be handed over to the Hindus. Thus,
B               the permission accorded to the defendants for opening the
                gate was in contravention of this basic principle;
             c) Previously, on 7 November 1873, an order was passed
                directing the Hindus to remove the idols. Therefore, when
                there is no permission to install idols, a right over the wall
C               of the masjid could not be given to the defendants;
             d) On the door of the outer wall of the masjid, the word Allah
                is engraved;
             e) When the appellant himself had requested that he be
                permitted to open the said door at his own expense and he
D               was ready and willing to open it, the defendants who
                belonged to another religion could not have been accorded
                permission to open the additional door; and
              f) The defendant with the intention of occupying the area
                 continued to indulge in several activities and on being
E                restrained by anyone, becomes aggressive and was bent to
                 fight with him.
             On 14 May 1877, a report was submitted by the Deputy
      Commissioner, stating that if the other door was not opened, human
      life would be endangered as there was a great rush. Ultimately, on 13
F     December 1877, the appeal was dismissed on the ground that the outer
      door was in the interests of public safety. The order states that the
      petition was merely an attempt to annoy the Hindus by making them
      dependent on the pleasure of the ‘mosque people’ to open or close the
      second door.
G            691. The sequence of events emanating from the installation of
      an idol in 1873, the specific permission to the Hindus to open an
      additional access on the northern side and the observations in the appeal
      that the objections to the opening were baseless are significant. The
      presence and worship of the Hindus at the site was recognised and
      the appellate order rejected the attempt to cede control over the entry
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           711


door to the Muslims as this would make the Hindu community dependent            A
on them. The administration in other words recognised and accepted
the independent right of the Hindu worshippers over the area as a part
of their worship of the idols.
       692. Mohd Asghar v Musammat Humaira Bibi and Sunder
Tiwari (1878): On 3 June 1878, a decree was passed in favour of                 B
Mohammed Asghar in claim petition no 2775 of 1877 in the matter of
Mohd Asghar v Musammat Humaira Bibi and Sunder Tiwari and
Bhola Tiwari and Kanshi Ram, claiming 3/8th part of Zamindari rights
of Mauza Bahoranpur Pargana Haveli Oudh. The petition was allowed
in favour of Mohammad Asghar, the plaintiff who had prayed for
evacuation and cancellation of a sale deed dated 10 August 1876 for             C
part of Mauza Zamindari Bahoranpur.
       693. Mohd Asghar v Raghubir Das Mahant and Nirmohi
Akhara: On 8 November 1882, Suit no 374/943 of 1882 was filed by
Mohd Asghar (who was the Mutawalli of Babri Masjid) against
Raghubar Das claiming rent for the use of the Chabutra and Takhat               D
situated near the door of Babri Masjid. In this plaint the Chabutra has
been described to have been situated near the door of Babri Masjid or
before the masjid. By an order dated 18 June 1883, the Sub-Judge
Faizabad dismissed this suit. The necessary consequence was that
Raghubar Das was not required to pay compensation to the Mutawalli              E
for occupation.
      694. Mohd Asghar v Mahant Raghubar Das 359 : On 2
November 1883, Sayyed Mohd Asghar filed case number 19435 before
the Assistant Commissioner, stating that he is entitled to get the wall of
the mosque white-washed but is being obstructed by Raghubar Das.                F
The following points in the application are important:
           a) Plaintiff is unable to explain the complaints of defendant that
              the birth-place Chabutara within the Ahata of the Masjid
              belongs to the defendant. Thus the defendant has no relation
              with the outer wall of Ahata, kathera and Phatak and all          G
              these relate to the Masjid;
           b) Allah is written on the outer wall;


359
      Case No. 19435                                                            H
712            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            c) Whenever any need for repairing/renovation/white washing
                of the mosque has arisen, only the applicant has got it done;
             d) The applicant/plaintiff has purchased the material, but the
                defendant came there for doing the work and therefore a
                dispute has arisen; and
B            e) The defendant has no right whatsoever, except over the
                Chabutra and Sita Rasoi.
              f) On 12 January 1884, an order was passed to maintain status
                 quo and to leave the outer door open;

C            g) On 22 January 1884, the Assistant Commissioner, Faizabad
                passed an order.
                  a) Restricting Raghubar Das from carrying out repairs in
                     the inner as well as the outer part of the compound; and
                  b) Mohd Asghar was advised not to lock the outer door of
D                    the mosque as it was necessary that old existing orders
                     be observed and complied with and there should be no
                     interference in it.
             h) Subsequently on 27 June 1884, Raghubar Das, filed an
                application in requesting the Assistant Commissioner,
E               Faizabad to make a spot inspection of the premises
                complaining that Muslims were violating the order of
                restraint.
            Impact of Suit of 1885
             695. Mahant Raghubar Das instituted the Suit of 1885 against
F     the Secretary of State for India seeking permission to construct a temple
      at the Chabutra admeasuring 17 x 21 feet where the Charan Paduka
      were affixed and worshipped. In the section on res judicata, the nature
      of the suit has been analysed and a finding has been arrived at that the
      decision does not attract the provisions of Section 11 of the CPC 1908.
G           696. However, certain salient aspects of the proceedings may
      be noted:
             (i) The cause title mentioned the name of Mahant Raghubar
                 Das as “Mahant Janmasthan Ayodhya”. Conspicuous by its
                 absence was any reference to Nirmohi Akhara in the plaint;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          713


       (ii) The suit was not based on a claim of title;                    A
      (iii) The only relief that was sought was the grant of permission
            simpliciter to construct the temple on the Chabutra;
      (iv) In the absence of any plea of title, the adjudication in the
           suit must necessary be construed as being confined to what
           was prayed namely permission to construct a temple on the       B
           Chabutra;
      (v) The map that was annexed to the suit does indicate the
          existence of the Masjid. But it equally indicates of worship
          by Hindus in the outer courtyard. The map submitted by
          Gopal Sahai, as a Court Commissioner appointed in the suit,      C
          together with his report dated 6 December 1885 shows the
          existence of the Masjid on the western side of the Chabutra;
      (vi) The suit was contested by Mohd Asghar as Mutawalli of
           Babri Masjid who claimed inter alia that:
                                                                           D
           (a) Babur had got the mosque constructed on which the
               word ‘Allah’ was inscribed;
           (b) The Chabutra was built in 1857 and was opposed by
               Muslims; and
           (c) Previously, a restraint was imposed on construction         E
               activities.
     (vii) The Sub-Judge while dismissing the suit noted that:
           (a) After the construction of a wall with a railing, Muslims
               were praying inside the Masjid and the Hindus, outside
               at the Chabutra;                                            F
           (b) Before this, both Hindus and Muslims were worshipping
               in the place but to avoid any controversy, the wall had
               been erected; and
           (c) The Chabutra was in the possession of and belonged to
               the Hindus.                                                 G

      697. The Sub-Judge in declining permission indicated that to
permit the construction of the temple would essentially alter the status
quo resulting in a breach of peace. The order of the Sub-Judge
dismissing the suit was affirmed in first appeal primarily on the ground
that any breach of the status quo would seriously impinge upon the         H
714             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     maintenance of peace. Hence, the findings in regard to the possession
      and ownership of the Chabutra were redundant and were deleted. In
      a second appeal, the order of the First Appellate Court was affirmed.
      While the Judicial Commissioner considered it unfortunate that a
      mosque had been constructed on a site which the Hindus attributed as
      the birth-place of Lord Ram, he was of the view that a breach of the
B     status quo at that stage was undesirable.
             698. All the findings in the Suit of 1885 must be read in the context
      of the nature of the proceedings, the party who had moved the court
      for relief and its outcome. The suit was not of a representative nature.
      No permission to sue in a representative capacity was sought or
C     obtained. The Mahant of the Janmasthan claimed relief personal to him.
      Neither was a declaration of title sought nor was the objective of the
      suit anything beyond seeking permission to construct a temple on the
      Chabutra in order to obviate inconvenience to faqirs and worshippers.
      Hence, the outcome of the suit would have no impact or bearing on
      the parties to the present proceedings or on the issue of title.
D
            Incidents between 1934 and 1950
            Communal riots of 1934
             699. In 1934, as a result of the communal riots, substantial damage
      was sustained to the domes of the disputed structure. The structure
E     was renovated at the cost of the British through a Muslim contractor.
      In this context, the following documents have been relied upon:
             (a) An application was moved by Mohd. Zaki and others for
                 compensation of the losses caused in the riots on 27 March
                 1934. In this application it was mentioned that:-
F                     The Bairagis of Ayodhya and Hindus attacked the Babri
                      Masjid intentionally and caused great damage.
                      The repair of the masjid will require a huge sum of
                      money.
                      It was therefore prayed that the estimated cost of
G
                      repairs, i.e. Rs.15000 be recovered from the Bairagis
                      and other Hindus of Ayodhya as per Section 15 of the
                      Police Act 1861.
             (b) The Dy. Commissioner Faizabad on 6.10.1934 allowed the
                 aforesaid amount of compensation to be paid for damages
H                to the Babri Mosque subject to any other objections.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           715


      (c) Thereafter on 22.12.1934, Notice was published by District        A
          Magistrate, Faizabad with respect to fine imposed under
          section 15A(2) of the Police Act and for its realization from
          the Hindu residents of Ayodhya.
      (d) Meanwhile by an Order dated May 12, 1934 the Muslims
          were permitted to start the work of cleaning of Babri             B
          Mosque from May 14, 1934, so that it could be used for
          religious purposes.”
       700. During the course of the communal riots which took place
in 1934, the domes of the disputed structure were damaged. Renovation
was carried out at the cost of the British Government through a Muslim      C
contractor and a fine was imposed on the Bairagis and Hindus of
Ayodhya to recover the cost of repair. On 12 May 1934, the Muslims
were permitted to commence the cleaning of the mosque in order for
it to be used for religious purposes.
      Repairs to the mosque                                                 D
       701. Following the decision to allow repairs to be conducted, the
documentary evidence produced by the Sunni Central Waqf Board
includes:
       (i) Claims by the contractor who repaired Babri Masjid for the
           payment of his outstanding bills and orders for verifying the    E
           work which was done towards effecting payment between
           1935 and April 1936; and
       (ii) Resolution of the claim for the arrears of salary of the Pesh
            Imam of Babri Masjid between July 1936 and August 1938.
                                                                            F
      The suit between Nirmohis
       702. The next stage in the developments which took place post
the riots of 1934 consists of Suit 95/1941, instituted by Mahant
Ramcharan Das against Raghunath Das and others. This suit pertained
to properties claimed by Nirmohi Akhara including the Ramchabutra
described as “Janmabhumi Mandir”. Babri Masjid is adverted to in the        G
list of properties provided in the suit. A report was submitted by the
Commissioner on 18 April 1942. The suit was disposed of by a
compromise dated 4 June 1942 in terms of which a decree was drawn
up. The suit pertained to a dispute inter se between the Nirmohis. The
                                                                            H
716            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     Muslim parties have relied on the compromise as indicating the existence
      of Babri Masjid and the graveyard.
            The suit between Shias and Sunnis
             703. In 1945, there was a litigation between the Shias and Sunnis
      in Suit 29/1945 which was decided on 30 March 1946. The grievance
B     of the Shias, as stated in their notice dated 11 April 1945 that the
      Commissioner of Waqfs included Babri Masjid in the list of Sunni
      mosques. The plaint notes that the Masjid was located at Janmasthan
      Ayodhya. The suit was dismissed by holding that the mosque was a
      Sunni mosque. The Sunni Central Waqf Board, by a letter dated 25
C     November 1948 sought an explanation as to how, upon the death of
      the previous Mutawalli another individual was working in the mosque.
            O.8 Proof of namaz
             704. Several witnesses who deposed on behalf of the plaintiffs
      in Suit 4 stated that they had visited the Babri Masjid to offer namaz.
D     Their evidence is of relevance to determine whether namaz was being
      offered at the disputed property as well as the frequency of the namaz.
            705. Mohammad Hashim (PW-1): The age of the witness was
      stated to be about 75 years. In the affidavit filed in lieu of the
      Examination-in-Chief, the witness stated that Tabari was read only in
E     Babri Masjid. He had sometimes read five times namaz and the namaz
      of Jumme and Tabari. He claims to have read the last namaz on 22
      December 1949. In his cross-examination the witness stated that it was
      in 1938 that he first went to read namaz. He further stated in his cross-
      examination that namaz was offered five times daily at the disputed
F     site.
             During the course of his cross-examination, the witness gave a
      description of the structure of the mosque. The witness states that there
      was no door in the east, but he later stated that the door at the east
      was three feet higher than him. In his cross-examination, the witness
      stated that he had read the Namaz Isha at 8 pm on 22 December 1949
G
      in Babri Masjid. He stated that he remembered that the eastern gate
      was locked when Gopal Singh Visharad filed the suit on 15 January
      1950 but did not know about the other gate. In his cross-examination
      PW-1 stated that the disputed building was unlocked on 2 February 1986
      and a Writ Petition was instituted pursuant to the opening of locks in
H     February 1986.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            717


     PW-1 was unable to recollect information accurately. In his cross-      A
examination, he stated:
      “I do not remember that I mentioned my age 55 years in the
      affidavit submitted in 1986 with Writ Petition” (the Affidavit of
      the Writ Petition was shown to the witness).”
       When asked about the Writ Petition filed pursuant to the opening      B
of the lock, the witness stated the following in the cross-examination:
      “It is correct that my memory is weak due to the old age but
      our Advocate may be knowing about it.”
       The witness was unable to recall when his two marriages took          C
place. He was not able to recall the age of his daughter. The lapses in
the memory of the witness under cross-examination cast doubt on the
statements contained in the affidavit in lieu of the Examination-in-Chief.
       706. Haji Mehmood Ahmed (PW-2): The date of the
Examination-in-Chief of the witness is 17 September 1976. The witness        D
was about 58 years old. The witness stated that he had offered namaz
more than a hundred times at the disputed property. The witness stated
that he had been offering five times namaz, except Friday namaz at
Babri Masjid. Namaz was last offered by him on 22nd December, 1949.
According to his account, there was no restriction on namaz till he was
offering it; he had never seen a puja performed inside the mosque.           E
       In his cross-examination, the witness stated that when he “came
to his senses” (at the age of 10-11 years) he noticed that people
frequently visited the disputed property. He stated however that he did
not use that way, so he could not say whether there were any
restrictions on people’s movements. In his cross-examination, the            F
witness stated that he passed the High School examination in 1961 when
he was 21 years old, and the certificate shows his date of birth as 1944.
In his cross-examination, he admitted that his statement of age as 21
years when he finished High School was due to some misunderstanding.
       There is an evident discrepancy in the statement of PW-2 in           G
relation to his age, which casts a cloud of doubt on his testimony. If
the year of his birth is 1944 as stated in his High School certificate, it
is difficult to believe that in 1949 when the mosque was attached, a
person who visited the mosque as a five-year old child would have
accurate recollections of a mosque he visited 47 years ago.
                                                                             H
718            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            707. Farooq Ahmed (PW-3): The age of the witness was stated
      to be about ninety years. The witness stated that he used to offer namaz
      at Babri Masjid. The witness stated that whenever he heard the Azaan,
      while going to Faizabad or coming back, he went for namaz, whatever
      be the time. He had last offered namaz in December 1949. After being
      informed that there may be some trouble, was asked to lock the door.
B
      He locked the door and kept the keys with him.
             The witness stated in his cross-examination that he started offering
      namaz at the age of 28 along with his father. The witness further stated
      that he has been seeing people coming to offer namaz at the disputed
      property 10 years prior to the incident of 22 December 1949. The
C     witness stated in his cross-examination that his father used to manage
      the mosque.
             In his cross-examination, the witness stated that it was Jumme-
      raat on 22 December 1949, when he went to offer prayer as it was a
      ‘Magrib Namaz’ which gives 27-fold blessings on reciting it. The
D     witness stated that he also went to offer namaz in a group, early
      morning. He participated in daily Magrib and Isha namaz. He used to
      go to offer group namaz early morning at Babri Masjid. In cross-
      examination, he stated that the last namaz called was Isha namaz, which
      took place on around 20/22 December,1949. He further stated that the
E     Moazzin was sleeping on the floor when he went to lock the door. The
      witness clarified that in his earlier statement, he had stated by mistake
      that he locked the middle door. He stated that he had put separate locks
      on both the doors.
             The witness stated in his cross-examination that he had filed a
F     petition to be a party in the case in 1990. He further stated that he had
      seen the affidavit which bears his thumb impression, but the signature
      does not belong to him. Significantly, the witness stated that the age
      was written as 65, but he had mentioned an approximate age.
            In cross-examination, the witness admitted that in an application
G     dated 18 March 1986, his age may have been recorded in the affidavit
      as 60 years:
            “In my affidavit I got my age recorded as 60 years approximately.
            At present my age is about 90 years. The statement about my
            age is correct. The advocate may have recorded my age in the
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          719


      affidavit approximately. My applications, submitted in 1896 were     A
      rejected there only.”
       The statement of the witness was that he had started going to
the mosque at the age of twenty eight. If the approximate age of the
witness as stated in the second affidavit (i.e. sixty years in 1986) is
accepted, the witness would have been 28 years old in 1954. He             B
categorically stated that he had commenced going to the mosque for
offering namaz at the age of twenty-eight. In that case, the witness
would have been unable to offer namaz at the mosque in 1954, when
the mosque was admittedly attached in 1949.
       708. Mohd Yaseen (PW-4): The date of Examination-in-Chief           C
of the witness was 17 October 1996. The age of the witness was stated
to be 66 years. The witness states that he read Jumme Ki Namaz in
Babri Masjid. Significantly, the witness states that he has been reading
the Friday prayers at the spot continuously and has not read any other
namaz except Jumma Namaz at the disputed property. In his cross-
examination, the witness stated that he had started going to the mosque    D
five years before Independence. According to the witness’s testimony,
his father used to go to Babri Masjid to offer Friday namaz. According
to the witness, Friday namaz is offered at big mosques in the city.
Before 1949, Friday namaz was either offered at Babri Masjid or at
Keware wali mosque. He states that 400-500 people used to offer            E
Jumme ki Namaz at Babri Masjid. If the number exceeded, then about
1000 people could offer namaz together.
       The witness has given descriptions of the disputed property as
well as the rituals performed there. During cross-examination, when
the attention of the witness was drawn towards the map in the suit of      F
1989, he stated that he had seen the map, but did not know anything
about the map and could not say anything about it. The witness states
that when India got Independence, he was 11-12 years old (then said
that he was 17 years at that time). He stated that though his memory
has weakened, it does not mean that he is unable to remember old
incidents.                                                                 G
       709. Justice Agarwal has pointed out several contradictions in
the statements of PW-4 and the statements of other witnesses:
      “2484. When his statement was found contradictory to the
      statement of PW 1 who is plaintiff no. 7 in Suit-4 he justified
                                                                           H
720            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           himself by stating that PW 1 must have given wrong statement
            as is evident from the following:
               “If Mr. Hashim has given any such statement that priests used
               to sit under said thatched roof, then his statement
               is wrong.”
B           If Hazi Mahboob has stated that the recluses had surrounded
            this place from one side for last 15-20 days, then his statement
            is wrong.”
               “Mr. Zaki was the Mutwalli till the incident of 1949. Mr.
               Javvad became Mutwalli after him…If Mr. Farooq
C              has made any such statement that Mr. Zahoor used to manage
               the mosque at time of the incident, then the responsibility for
               its correctness or incorrectness lies with him. I know only this
               much that the mosque was managed by Mr. Zaki.”
               “If Mr. Hashim has given a statement that he had carried out
D              tailoring work only between 1966 to 1976, then it is his wrong
               statement.”
            In the light of his own admissions about his weak memory as
      well as other contradictions, the contents of the affidavit filed by way
      of Examination-in-Chief must be read with circumspection.
E
             710. Abdul Rehman (PW 5): The age of the witness was stated
      to be 71 years. The witness stated that he had recited the Holy Quran
      in Babri Masjid in 1945 and 1946. PW-5 is not a resident of Ayodhya
      and his village is 18-19 kilometers away. The witness stated that he
      recited the Holy Quran in Ayodhya over two continuous years. When
F     he visited to recite the Holy Quran, he used to read Friday namaz in
      Babri Masjid. In his cross-examination, the witness first stated that he
      does not recollect when he went to Ayodhya for the first time. Later,
      during the course of cross-examination, the witness stated:
            “When I went to recite Quran Sharif for the first time, it was
G           the 1st day of the month of Ramzan (then said he used to reach
            there on 29th Shahban if the moon appeared and I recited Quran
            Sharif on the same night.) I do not exactly recollect which
            particular day (then said he reached Ayodhya on 29 th of
            Shahban).”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            721


       The witness stated in his cross-examination that when he visited      A
Ayodhya to recite Quran Sharif, he stayed with his relative Hazi Pheku
(father of PW-2) for twelve days. The witness stated that on both the
occasions when he visited Ayodhya, it was summer and he could not
enter the building to recite the Holy Quran due to the intense heat. The
outer courtyard was used to recite the Holy Quran. The witness also
                                                                             B
stated that inside the Masjid, he recited Quran Sharif in the second inner
courtyard. The witness stated that he had offered namaz in Babri Masjid
once a day.
        The witness stated in his cross-examination that he went to
Ayodhya to recite the Holy Quran for the first time during British rule.
He further stated in his cross-examination that besides these two            C
occasions when he recited the Holy Quran for twelve days, he has
never visited Babri Masjid. In 1946, when he went to recite Quran
Sharif, he started at 9 pm and about 80-100 people used to come to
listen.
       The witness stated in his cross-examination that he cannot tell       D
the year of his visit to the masjids where he has read the Holy Quran
and it will be guesswork. The testimony of the witness on the offer of
namaz does not throw light on when in point of time namaz was being
offered. In the absence of an approximate reference to the year or
years when he prayed at the mosque, the evidence has to be read with         E
this caveat.
       711. Mohd. Unis Siddiqi (PW-6): The date of the Examination-
in-Chief of the witness is 28 November 1996. The age of the witness
was stated to be 63 years. The witness was enrolled as an advocate
on 9 July 1955 in Lucknow. The witness states that he went inside Babri      F
Masjid for the first time with his elder brother, when he was 12-13 years
old in the night of Shabe-raat. He states:
      “After that I used to go to the Masjid in the night of every Shab-
      e-raat. I have been to the mosque during day time also. I have
      offered Namaz only once during day time but have offered Nafle         G
      on the occasion of Shabe-raat. I had offered Namaz during the
      day time on the same day, when statues were placed there.
      Before that Namaz was offered in group on Jumma (Friday)”
      In cross-examination, he admitted that he had been involved in
the present suit but stated that he was only engaged as a stand-by by
                                                                             H
722            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     the plaintiffs in the suit. He did not get an opportunity to see the papers
      related to the case before 1961. The witness stated that he has never
      seen Hindu worship there before 1949.
            With regard to his memory, the witness made the following
      admission in cross-examination:
B           “…my memory is weak. This weakness has started since 1986.
            It is correct that now I sometimes forget the names of my
            sons also. I have 5 sons, I recognize them. From that very time
            i.e. from 1987 my vision has weakened. I was hurt in my head
            at that time.”
C                                                          (Emphasis supplied)
             712. Hasmat Ullah Ansari (PW-7): The date of the
      Examination-in-Chief of the witness was 5 December 1996. The age
      of the witness was stated to be about 65 years. The witness stated
      that he was born at Ayodhya in 1932. He stated that his date of birth
D     is mentioned as 8 January 1934, but it is wrong. With respect to his
      date of birth, the witness made the following statement in his cross-
      examination:
            “When I got a certificate from the Phofas College on completion
            of my education, I came to know that my date of birth was
E           wrongly mentioned. I have not taken any steps to rectify the
            mistake.”
             The witness has stated his age as 65 in 1996 and in accordance
      with that, his year of birth would be 1931. He stated that he has offered
      namaz at Babri Masjid hundreds of times and he had first offered namaz
F     in 1943. The witness stated that a week before the placement of idols,
      he had been regularly offering namaz there. He stated in his cross-
      examination:
            “I did not offer namaz at this mosque on 22nd December,1949.
            I had not offered namaz there even on 21st December, 1949 too.
G           I have corrected my statement that I had been rarely offering
            namaz there up to a week before the placing of the idol there. I
            did not offer all the five Namazes there but certainly offered
            Namaz of Asar.”
            The witness stated that namaz was offered at the disputed
H     property prior to 22 December 1949. The witness stated that Jumma
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           723


Namaz as well as namaz of all five times was also offered at this           A
mosque. During Ramzan, Tarabi Namaz was offered at Babri Masjid.
Until 22 December, the witness states that he had not seen any idol in
the Masjid nor did he see anyone worshipping there. He stated that he
did not see any Hindus going there for worship. In his cross-examination,
the witness stated that he had been offering namaz regularly at the
masjid. When he offered namaz for the first time in 1943, he was 11-        B
12 years old.
       The witness stated in his cross-examination that two days before
the placement of idols, he had performed namaz of Asar and 8-10 people
were present. Before offering the namaz of Asar, had offered Jumma
Namaz wherein 400-500 people were present. The witness gave a               C
detailed description of the disputed property in his cross-examination.
       713. Shri Abdul Aziz (PW-8): The date of the Examination-in-
Chief was 20 January 1997. The age of the witness was stated to be
70 years. The witness states that he was born in 1926 and must have
been about 10 years old when first offered namaz at the mosque. He          D
states that he has offered namaz hundreds of times. The witness states
that he has offered “Friday Namaz”, “Johar Namaz”, “Asar Namaz”
and “Namaz of Shabe-raat” at the mosque. The witness states that
the offering of namaz was discontinued after an idol was placed there
in 1949.
                                                                            E
       In his cross-examination, the witness stated that he had offered
the last namaz on the Friday immediately before 22 December. Had
also offered the namaz of Shabe-raat in this mosque after two-three
years of offering the first namaz in the mosque. According to the
witness, until Independence, he had been offering namaz for the previous
13-14 years.                                                                F

      714. Shri Saiyad Akhlak Ahmed (PW-9): The age of the
witness was stated to be about 60 years. The witness stated that he
offered Jumma namaz and the Panchwakti namaz at the mosque.
Maulana Abdul Ghaffar was the Imam of Babri Masjid and Mian Ismail
was the Moazzin. He stated in his cross-examination that as far as he       G
remembers, the first namaz he offered at the mosque was after
Independence and it was Namaz-e-magrib. He stated in his cross-
examination that he had gone to offer namaz at the mosque five or six
days before 22-23 December, 1949. The number of persons present
could be 200 to 400, or even 500. According to the witness’s statement      H
724            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     in his cross-examination, he would have been 13-14 years old when he
      had gone to offer Namaz-e-magrib for the first time. He further stated
      that when he offered his last Namaz-e-jumma in the mosque, he was
      14 years old. Though the witness stated that he had offered namaz after
      1947, he could not state even the approximate period during which
      namaz was offered. Justice Agarwal noted that the witness was unable
B
      to recollect events from memory.
             715. Jaleel Ahmed (PW-14): The date of Examination-in-Chief
      of the witness was 16 February 1999. The age of the witness was stated
      to be 78 years old. The witness stated that he has offered namaz at
      Babri Masjid. In his cross-examination, it emerged that Ayodhya is at
C     a distance of 2 kms from his house. The witness stated that he has
      offered both Isha and Jumma Namaz at the Masjid. According to his
      statement, the witness looks after the Jinnati Masjid located at Mohalla
      Nivava at Faizabad. The witness stated in his cross-examination that
      he last offered namaz at Babri Masjid at the age of 24-25. He stated
D     that he had offered Juma Namaz at the disputed site on several
      occasions. He stated that he did not offer Tarabi Namaz at the disputed
      site. In his cross-examination, the witness gave a description of the
      disputed property.
             In his cross-examination, the witness stated that he is about 78
E     years old and cannot tell how long he has been offering namaz before
      the placing of the idol and offering of Juma Namaz. He stated that he
      cannot tell if it was two months or the last five to six years since he
      was offering namaz at the disputed property. He further stated that he
      had offered Isha Namaz at the disputed site once.

F           716. Dr Hashim Qidwai (PW-21): The date of Examination-
      in-Chief of the witness was stated to be 22.11.01. The age of the witness
      was stated to be about 80 years. The witness stated that he visited
      Faizabad for the first time in December 1939, when his father was
      posted at Faizabad. That month, he went to see the Babri Masjid with
      members of his family and performed Magrib Namaz at the site. The
G     witness stated that upto 1941, he used to go to Faizabad every vacation.
      In October 1941, the father of the witness was transferred to Lucknow
      as Additional City Magistrate. The witness stated that during the period,
      he offered Magrib-ki- Namaz 15-20 times, Aasir Namaz 4 to 5 times
      and Friday Namaz 2-3 times in the mosque. About 100 persons attended
H     the Magrib-ki-Namaz, 40-50 persons attended the Aasir Namaz and
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            725


about 250-300 persons performed Jumma Namaz. The witness stated              A
that In 1984, he was elected as a member of the Rajya Sabha and
remained a Member of Parliament for six years.
       He stated in his cross-examination that when he went to offer
namaz for the first time in 1939, he did not make any specific enquiry
with regard to the damaged portions of the mosque. He stated that it         B
was 27 December, 1939 when he had first gone to the disputed
structure. The witness later stated that when he went to the disputed
property for the first and second time, he saw every part of the building,
inside and outside. He gave a detailed description of the domes and
pillars present. He stated that namazis were present in the domed
structure as well as courtyard.                                              C

       In his cross-examination, the witness stated that he could not go
to Faizabad or Ayodhya since May 1941. Between December 1939 and
May 1941, he was not permanently living at Faizabad and used to go
there intermittently during vacations. In cross-examination, the witness
stated that he has seen the disputed property from outside and inside,       D
but cannot tell about the boundary in detail, since a long period of 60-
62 years had elapsed.
       717. Mohd. Qasim Ansari (PW-23) (Brother of PW-1): The
date of the Examination-in-Chief was 16 January 2002. The age of the
witness was stated to be 74 years. The witness stated that he had            E
knowledge of the disputed property, which was located at a distance
of 3 furlongs from his house. The witness stated that he had recited
namaz at the mosque for about 8-9 years. He had recited the namaz
of Fazir Zohar, Asir, Magrib, Isha and Tavri. He stated that he had
recited namaz for the last time on 22 December, 1949 when he recited         F
the Isha Namaz. He stated that four years after the placing of idols,
the Muslims gave a notice to the government that they would perform
a farewell namaz there. When they went to perform the farewell namaz,
the police stopped and arrested them. Stated in the cross-examination,
when he went to recite namaz for the first time, he was in the first
grade.                                                                       G
       In his cross-examination the witness stated that the disputed site
is a waqf, but he has no knowledge about who the waqif of the mosque
is. In his cross-examination, the witness stated that he had performed
Isha Namaz at the disputed mosque on 22 December, 1949 at about
                                                                             H
726            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     7:30 pm. Later he stated that he could not tell when he recited namaz
      for the last time at the disputed structure.
            It is of relevance to refer to the observations of Justice Agarwal
      with respect to the statements of PW-23. He noted the following
      statement made by PW-23:
B           “Farooq was with me when I had gone to offer Isha namaz at
            the disputed structure for the last time…I was also accompanied
            by Hashmat Ullah at the ‘Isha’ namaz offered on 22nd
            December, 1949.”
            Justice Agarwal noted that the statement was not corroborated
C     by Farooq (PW-3) and Hashmat Ullah (PW-7).
            PW-3 had stated:
            “Rahman Saheb and Unus Saheb were with me at the Isha namaz
            on 22nd December, 1949.”
D           PW-3 therefore, did not corroborate the statement of PW-23.
            PW-7 had stated thus:
            “I had for the last time offered namaz at the mosque two days
            before the incident in which the idol was placed there.”
E           “I did not offer namaz at this mosque on 22nd         December,
            1949.”
            “I did not offer namaz there on 22nd December, 1949 as well.”
             718. Sibte Mohd Naqvi (PW-25): The date of Examination-
      in-Chief of the witness was 5 March 2002. The age of the witness
F     was stated to be 76 years. The witness had seen the structure from
      afar. He stated that he had been visiting Ayodhya since 1948 and had
      seen namazis going to Babri Masjid. The witness stated that he had
      not seen anyone performing namaz at the disputed property. Since the
      witness has not himself visited the disputed property or actually seen
G     anyone perform namaz at the site, the evidence tendered by PW-25 is
      hearsay.
             The evidence of some of the witnesses deposing for the plaintiff
      in Suit 4 have contradictions and inconsistencies as noted earlier. The
      court must however assess the staements in a robust manner, making
      due allowance for the normal failings of memory. Many of the
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           727


statements in the affidavits filed by the witnesses in their Examination-   A
in-Chief have sweeping claims and generalisations which are not
validated during the course of cross-examination. Assessing the
statements it cannot be concluded that namaz was not being offered
at all at the disputed property. The oral statements in evidence have to
be evaluated with the documentary evidence. The report dated 10
                                                                            B
December 1949 of Muhammad Ibrahim, Waqf Inspector notes:
      “It came to my knowledge that the fear of Hindus and
      Sikhs, no person offers prayers in the mosque. If any person
      stays back in the mosque during night he is very much harassed
      by Hindus. There is a temple of the Hindus outside the courtyard
      where many Hindus live. They abuse any Muslim who goes to             C
      the Masjid. I visited the site and on enquiry found that whatever
      is stated above is correct. People also said that there is danger
      to the mosque from Hindus in the form of weakening its walls.
      It appears proper to submit in writing to the Deputy
      Commissioner, Faizabad that Muslims offering prayers in the           D
      mosque should not be harassed…”
                                                    (Emphasis supplied)
       The report indicates that the offering of prayers by the Muslims
at the mosque was being obstructed by the Hindus and Sikhs and no
namaz was being offered. There is another report dated 23 December          E
1949 of the Waqf Inspector, who stated that he had gone to inquire
into the condition of the Babri Masjid and Qabrastan on 22 December
1949. He noted that it had been three months since Baba Raghunath’s
visit to the Janmasthan; a month after his departure, thousands of
Hindus, pujaris and pandits gathered there for Ramayan Path. It was         F
stated in the report:
      “…Now the Masjid remains locked. No azaan is allowed nor
      Namaaz performed except on the day and time of Jumaah.
      The lock and the keys remain with Muslims. But the police
      does not allow them to open the lock. The lock is opened on the       G
      day of Jumaah, i.e. Friday for two or three hours. During this
      period, the Masjid is cleaned and Jumaah prayers are offered.
      Thereafter it is locked as usual…It is Jumaah-Friday-today…”
                                                    (Emphasis supplied)
                                                                            H
728            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           The report of the Waqf Inspector belies the claim of several
      witnesses that they had offered namaz on 22 December 1949. It is
      stated in the above report that 23 December 1949 was the day of
      Jumma. It can be reasonably concluded that the last Jumma namaz must
      have been held on Friday, 16 December 1949. There is evidence on
      record to hold that Muslims offered Friday namaz at the mosque and
B
      had not completely lost access to or abandoned the disputed property.
            O.9 Placing of idols in 1949
             719. On the night intervening 22/23 December 1949, about fifty
      to sixty persons belonging to the Hindu community placed idols below
C     the central dome of Babri Masjid. The events preceding and following
      upon this incident are set out below:
             (i) The posting of a police picket on 12 November 1949;
            (ii) A letter dated 29 November 1949 of the Superintendent of
                 Police, Faizabad to K K Nayar, Deputy Commissioner and
D                District Magistrate apprehending that Hindus were likely
                 to force an entry into the mosque with the object of installing
                 the idols of the deity;
            (iii) A report dated 12 December 1949 of the Waqf Inspector
                  that Muslims were being harassed by Hindus when they
E                 sought to pray in the mosque;
            (iv) A communication dated 6 December 1949 of the Deputy
                 Commissioner and District Magistrate to the Home
                 Secretary, Government of Uttar Pradesh requesting the State
                 Government not to give credence to the apprehensions of
F                the Muslims regarding the safety of the mosque;
            (v) The lodgment of an FIR after the incident of 22/23
                December 1949;
            (vi) A letter dated 26 December 1949 of K K Nayar to the
                 Chief Secretary expressing surprise over the incident which
G                had taken place. The District Magistrate declined to carry
                 out the orders of the State Government to have the idols
                 removed from the mosque;
           (vii) A letter dated 27 December 1949 of K K Nayar stating that
                 he would not be able to find any Hindu who would undertake
H                the removal of the idols and proposing that the mosque
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          729


           should be attached by excluding both the Hindus and             A
           Muslims with the exception of a minimum number of pujaris
           and parties should be referred to the civil judge for
           adjudicating of rights; and
     (viii) The passing of a preliminary order under Section 145 on
            29 December 1949 in pursuance of which the receiver took       B
            charge on 5 January 1950 and made an inventory of the
            attached property.
      The Sunni Central Waqf Board contended in para 11 of their plaint
in Suit 4 that on 23 December, 1949, the mosque was desecrated by
the installation of idols of Lord Ram under the central dome of the        C
mosque. The plaintiffs in Suit 4 and 5 did not dispute that the idols of
the deity were placed within the central dome during the intervening
night of 22/23 December, 1949. Nirmohi Akhara however, denied the
occurrence of the event to suggest that the idols were always present
below the central dome of the mosque.
      The following issues were framed by the High Court in Suits 1,       D
4 and 5:
      In Suit 1, Issue 2 reads:
      “Are there any idols of Bhagwan Ram Chandra Ji are his Charan
      Paduka situated in the place of suit?”                               E
      In Suit 4, Issue 12 reads:
      “Whether idols and objects of worship were places inside the
      building in the night intervening 22nd and 23rd December, 1949
      as alleged in paragraph 11 of the plaint or they have been in
      existence there since before? In either case, effect?                F
      In Suit 5, Issue 3A reads:
      “3(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     G
      Order 10 Rule 2 CPC.”
      Justice S U Khan and Justice Sudhir Agarwal held that the idols
were placed under the central dome of the disputed structure within
the inner courtyard during the intervening night of 22/23 December,
                                                                           H
730             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     1949. Justice DV Sharma also held that Nirmohi Akhara had failed to
      establish that the idols had been in existence under the central dome
      prior to the intervening night of 22/23 December 1949.
             In Suit 1, a written statement was filed by defendant nos 1 to 5,
      where it was pleaded in paragraph 22 that untill 16 December, 1949
B     when namaz was offered, no idol existed under the central dome. In
      the written statement filed by defendant No 6, it was stated that the
      idols of Lord Ram were surreptitiously and wrongly installed in the
      mosque on the night of 22 December 1949.
               In Suit 4, defendant nos 1 and 2 filed their written statements
C     denying that the plaintiffs in Suit 4 were in possession of the disputed
      site. It was stated that assuming the plaintiffs had possession, this ceased
      in 1934, after which the defendants have been in settled possession. In
      the written statement filed by defendant nos 3 and 4 (Nirmohi Akhara
      and Mahant Raghunath Das respectively), the averment in paragraph
      11 of the plaint in Suit 4 was denied. It was contended that the plaintiffs
D     in Suit 4 have wrongly referred the building as Babri mosque whereas
      it has always been the temple of Janmabhumi where idols of Hindu
      Gods were installed. The relevant extract reads:
            “11. That the contents of para 11 of the plaint are totally false
            and concocted. The alleged mosque never existed nor does it
E           exist even now and the question of any Muslim or the Muslim
            community having been in peaceful possession of the same and
            having recited prayers till 23.12.1949 does not arise. The building
            which the plaintiffs have been wrongly referring as Babari
            Mosque is and has always been the Temple of Janam Bhumi with
F           idols of Hindu Gods installed therein. The plaint allegation
            regarding placing of idols inside any mosque is a pure falsehood.”
            In Suit 5, para 27 of the plaint states:
            “…Ultimately, on the night between the 22nd 23rd December, 1949
            the idol of Bhagwan Sri Rama was installed with due ceremony
G           under the central done of building also.”
           In his statement under Order 10 Rule 2 of the CPC recorded on
      30 April, 1992, plaintiff No 3 in Suit 5 stated:
            “In the early hours of December 23, 1949, the idol of Bhagwan
            Sri Ram Lal, which was already on Ram Chabutra was
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           731


      transferred to the place where he presently sits, that is, under      A
      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 the Paramhans Ram Chandra Das of Digamber
      Akhara. This transfer of the idol was done by Paramhans
      Chandra Das and Baba Abhi Ram Das and certain other persons
                                                                            B
      whose names I do not remember the moment…”
      With regard to the witnesses who were examined on behalf of
the plaintiffs of Suit 4, the High Court recorded that none of the
witnesses were present on the spot at the relevant time. Hence, their
statements would not be relied upon for a determination on this issue.
OPW-1 and OPW-2 who appeared on behalf of the plaintiffs in Suit 5          C
had, in their statement, stated that the idols were shifted from the
Ramchabutra on 22/23 December 1949. OPW-1 (Mahant Paramhans
Ramchandra Das) in his statement stated that the idols were placed
on 23 December 1949 after being removed from the platform:
      “The place termed as ‘Garbh-grih (sanctum sanctorum) by me,           D
      is the birthplace of Ramchandra according to my belief and all
      the Hindus. The very place where the idols were placed on 23
      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
      The statement of OPW-2 was to a similar effect.
       The witnesses who have been examined on behalf of Nirmohi
Akahra supported the case that the idols were present under the central
dome prior to the intervening night of 22/23 December, 1949. The
plaintiffs in Suit 3 examined 20 witnesses (DW - 3/1 - DW. 3/20). DW-       F
3/1 (Mahant Bhaskar Das) stated that no incident occurred in the
intervening night of 22/23 December 1949. He further stated that he
was sleeping in the premises on that date.
       The statements made by DW 3/1 have been examined and
rejected in another part of this judgment. The explanation of the witness   G
that he was asleep in the disputed premises on 22/23 December 1949
and that no incident had taken place is a figment of his imagination.
      On the night of 22 December 1949, the idols of Lord Ram were
placed inside the mosque imperilling. Acting on an FIR, the Additional
City Magistrate, Faizabad-cum-Ayodhya issued a preliminary order            H
732            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     under Section 145 on 29 December 1949, treating the situation to be
      of an emergent nature. Simultaneously, an attachment order was issued
      and Priya Datt Ram, the Chairman of the Municipal Board of Faizabad
      was appointed as the receiver of the inner courtyard. On 5 January
      1950, the receiver took charge of the inner courtyard and prepared an
      inventory of the attached properties.
B
             The stance of the plaintiffs in Suit 4 and 5 and the statements of
      the witnesses on record belie the claim of the Nirmohi Akhara that the
      idols existed under the central dome prior to the incident of 22/23
      December 1949. It was following this incident, that the property was
      attached. On a preponderance of probabilities which govern civil trials,
C     the finding of the High Court that the idols of the deity were installed
      in the intervening night of 22/23 December 1949 commends itself for
      our acceptance.
             720. Dr Dhavan’s assertion of the claim of the Sunni Central
      Waqf Board to the disputed site is based on the Janmasthan temple of
D     the Hindus being outside the courtyard and the offering of namaz by
      the Muslim in the mosque. The submission that the temple of the Hindus
      “was outside the courtyard” is ambiguous and contrary to the evidence.
      If the expression “courtyard” is used to denote both the inner and outer
      courtyards, the submission is belied by the fact that there was a
E     consistent pattern indicating possession and worship by the Hindus at
      the outer courtyard after the setting up of the railing in 1856-7. The
      offering of worship at Ramchabutra which was situated in close
      proximity to the railing coincided with the attempt by the colonial
      administration, post the communal incident of 1856-7, to conceive of
      the railing as a measure to maintain peace and order. The extensive
F     nature of worship by the Hindus is indicated by the existence of specific
      places of worship and the permission by the administration for the
      opening of an additional point of entry in 1877 due to a large rush of
      devotees. In the face of a consistent pattern of worship by the Hindus
      in the outer courtyard after 1856-7, the documentary material does not
G     indicate either settled possession or use of the outer courtyard by the
      Muslims (except for the purpose of gaining access to the mosque). The
      presence of the Hindus in the outer courtyard and their occupation was
      not merely in the nature of a prescriptive right to enter for the purpose
      of worship. On the contrary, the occupation and possession of the
      Hindus is evident from: (i) the exclusive presence of Hindu places of
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           733


worship in the disputed property which lay beyond the railing; (ii)         A
evidence of worship by the Hindus at these places of worship; (iii)
recognition by the administration of the need to open an additional entry
gate on the northern side occasioned by the large presence of devotees;
(iv) absence of any evidence to indicate that the Muslims had asserted
any right of possession or occupation over the area of the disputed
                                                                            B
property beyond the railing; (v) occurrence of incidents during which
the use of the mosque inside the railing became contentious; (vi) report
of the Waqf Inspector complaining of Muslims being obstructed in
proceeding to the mosque for namaz; (vii) access to the outer area of
the disputed property beyond the railing being exclusively with the
Hindus; and (viii) the landlocked nature of the area inside the railing.    C
       721. In so far as the inner courtyard is concerned, it appears
that the setting up of the railing was a measure to ensure that peace
prevailed by allowing the worship of the Muslims in the mosque and
the continuation of Hindu worship outside the railing. In so far as the
worship by the Muslims in the inner courtyard is concerned, the             D
documentary material would indicate that though obstructions were
caused from time to time, there was no abandonment of the structure
of the mosque or cessation of namaz within.
      722. In order to determine the question of title one needs to
analyse the nature of the use of the disputed premises by both Muslims      E
and Hindus.
      O.10 Nazul land
       723. Before the High Court, it was not disputed by the litigating
parties that the plot of land in which the disputed structure existed was
recorded as Nazul land (i.e. land which is owned by the government),        F
bearing plot No. 583, Khasra of 1931 of Mohalla Kot Ram Chandra
known as Ram Kot, City Ayodhya, Nazul Estate Ayodhya. The number
of the plot in which the disputed structure was situated was not disputed
and it was admitted that the plot was recorded as Nazul land in the
first settlement of 1861 and continued as such on the date of the           G
institution of the suit.
     724. In fact, in paragraph 24(B) of the written statement of the
UP Sunni Central Board of Waqf in Suit 5, it has been stated:
      “The land in question undoubtedly belonged to the State when
      the mosque in question was constructed on behalf of the State         H
734            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           and as such it cannot be said that it could not be dedicated for
            the purposes of the mosque.”
             Justice Sudhir Agarwal has traced the historical context by
      referring to two orders issued under the authority of the Lt. Governor
      of the North-Western provinces in October 1846 and October 1848
B     wherein, after the words of ‘Nazul property’ its English meaning was
      indicated as “escheats to the government”. On 20 May 1845, the Sadar
      Board of Revenue issued a circular order in reference to Nazul land
      stating:
            “The Government is the proprietor of those land and no valid title
C           to them can be derived but from the Government.”
             725. Under the circular dated 13 July 1859 issued by the
      Government of North-Western Provinces, every Commissioner was
      required to maintain a final confiscation statement of each district and
      to present it before the government for orders. The Kingdom of Oudh
D     was annexed by the East India Company in 1856. After the revolt broke
      out in May 1857, a substantial area of the North Western Provinces
      vested in the Government. As a consequence of the failure of the revolt,
      Lord Canning as the Governor General issued a proclamation on 15
      May 1858 confiscating proprietary rights in the soil with the exception
      of 5 or 6 persons who had supported the colonial government. This land
E     was initially resettled for three years and then permanent proprietary
      rights were given to talukdars and zamindars by the grant by sanad
      under the Crown Grants Act. With effect from 1 November 1858, the
      entire territory under the control of the East India Company was placed
      under the British Crown. In the first settlement of 1861, the land in
F     dispute was shown as Nazul, a status which was continuously
      maintained.
            726. Sri Ram Sharan Srivastava (DW 2 /1-2), who was the
      Collector at Faizabad between July 1987 and 1990 has deposed in the
      following terms:
G           “The records of three revenue settlements of year 1861,1893-
            94 &1936-37 were available in the revenue record room under
            me. These records included khasra, khatauni, khewat and the
            reports of the three settlements were available separately besides
            them. The survey report of 1931 in respect of nazul land, was
            also included besides the three settlements and reports. The
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             735


      khasra, khatauni & khewat prepared on basis of survey of 1931,          A
      were also available. In the records of all the three settlements
      and the nazul survey, the disputed site has been mentioned as
      Janmsthan and at places Ramjanmbhumi has also been
      mentioned.”
      The witness further stated:                                             B
      “The numbers of the last settlement were 159, 160 and 160A,
      which I do not remember. Janamsthan was written against all
      these numbers. The plot number changes in every settlement.
      The plot numbers 159 and 160 given by me, were the numbers
      of the last settlement. The numbers concerned to it in the Nazul        C
      survey were 583, 586, which are within my memory.”
       He then made a reference to certain interpolations in the record
as follows:
      “In no number of the records of first and second settlement, there
      was any mention of mosque, royal mosque or Janmsthan mosque.            D
      In certain records of khasra, khatauni & khewat of the third
      settlement, there were interpolations and Janmsthan Masjid or
      Jama Masjid were interpolated in certain numbers of the disputed
      site. I had sent its report. I had sent this report in the behalf to
      the Board of Revenue in 1989. An enquiry was held on my                 E
      report. Some officer of Board of Revenue had come. The
      investigator was an officer subordinate to the Secretary, Board
      of Revenue and was not a member. The records in which
      interpolation had been made and whose report I had submitted,
      were never corrected because the matter was pending in Court.”
                                                                              F
       727. There can be no dispute about the status of the land as
Nazul land. However, while recording this, it is necessary to bear in
mind that the state government indicated during the course of the trial
before the High Court that it was not asserting any interest in the subject
matter of the dispute and was not contesting the suit. It was in these
circumstances that the High Court held that though the land is shown          G
to be continued as Nazul plot No. 583 of the Khasra of the year 1931
of Mohalla Kot Ramchandra, it would effectively not impact upon the
claims of the two communities each of whom has asserted title to the
land.
                                                                              H
736            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           O.11 Waqf by user
             728. The documentary evidence relied upon by the plaintiffs in
      Suit 4 to demonstrate that the mosque stood on dedicated land originates
      after the colonial annexation of Oudh and after the year 1856. This
      was fairly admitted by Dr Dhavan, learned Senior Counsel appearing
B     in behalf of the plaintiffs in Suit 4. The plaintiffs in Suit 4 were unable
      to establish a specific grant of the land as a foundation of legal title
      prior to the annexation of Oudh or upon the transfer of power to the
      colonial administration after 1857.
             729. An attempt was made at an advanced stage of the hearing
C     to contend that the disputed site marked out by the letters A B C D is
      waqf property, not by virtue of a specific dedication, but because of
      the long usage of the property as a site of religious worship by the Muslim
      community. Dr Dhavan, learned senior counsel appearing on behalf of
      the plaintiffs in Suit 4 contended that the concept of a waqf has a broad
      connotation in Islamic Law. Hence, it was urged that even in the
D     absence of an express dedication, the long use of the disputed site for
      public worship as a mosque elevates the property in question to a ‘waqf
      by user’.
             To support this proposition, Dr Dhavan contended that since the
      construction of the mosque by Emperor Babur in 1528 till its desecration
E     on 22/23 December 1949, namaz has been offered in the mosque.
      Hence, the disputed property has been the site of religious worship.
      Further, he urges that the Muslims have been in settled possession of
      the disputed property and had used the mosque for the performance
      of public religious worship. Thus, despite the absence of a deed of
F     dedication, the disputed site has been used for public religious worship
      for over four centuries, resultingly constituting its character as waqf
      property by long use.
             730. This contention raises two points for determination: First,
      whether the notion of a waqf by user is accepted as a principle of law
G     by our courts; and second, as a matter of fact, whether its application
      is attracted in the present case.
            Pleadings in Suit 4
             731. In the first paragraph of the plaint, the plaintiffs set up the
      case that on its construction in 1528 AD by or at the behest of Babur,
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             737


the mosque was dedicated as a site of religious worship for the Muslims       A
to offer namaz:
      “1. That in the town of Ajodhiya, pargana Haveli Oudh there exists
      an ancient historic mosque, commonly known as Babri Masjid,
      built by Emperor Babar more than 443 years ago, after his
      conquest of India and his occupation of the territories including       B
      the town of Ajodhiya, for the use of the Muslims in general, as
      a place of worship and performance of religious ceremonies.”
       There being no specific document to establish a dedication, the
plaintiffs, during the course of submissions, fall back upon the pleading
in regard to long use of the mosque as a site for religious worship. In       C
paragraph 2 of the plaint, the pleading is as follows:
      “2. That in the sketch map attached herewith, the main
      construction of the said mosque is shown by letters A B C D
      and the land adjoining the mosque on the east, west, north and
      south, shown in the sketch map attached herewith, in the ancient        D
      graveyard of the Muslims, covered by the graves of the Muslims,
      who lost the lives in the battle between emperor Babr and the
      previous ruler of Ajodhiya, which are ahown in the sketch map
      attached herewith. The mosque and the graveyard is vested in
      the Almighty. The said mosque has since the time of its
      construction been used by the Muslims for offering                      E
      prayers and the graveyard are in Mohalla Kot Rama Chander
      also known as Rama Kot Town, Ayodhya. The Khasra number
      of the mosque and the graveyard in suit are shown in the
      schedule attached which is part of the plaint.”
                                                     (Emphasis supplied)      F
        732. A waqf is a dedication of movable or immovable property
for a religious or charitable purpose recognised by Muslim law. Ordinarily,
a waqf is brought into existence by an express act of dedication in the
form of a declaration. Upon pronouncing the declaration, the property
sought to be dedicated is divested from the wakif as the person making        G
the dedication and vests in the Almighty, Allah. A waqf is a permanent
and irrevocable dedication of property and once the waqf is created,
the dedication cannot be rescinded at a later date. The property of a
validly created waqf is inalienable and cannot be sold or leased for
private gain.
                                                                              H
738              SUPREME COURT REPORTS                               [2019] 18 S.C.R.


A           733. Muslim law does not require an express declaration of a
      Waqf in every case. The dedication resulting in a waqf may also be
      reasonably inferred from the facts and circumstances of a case or from
      the conduct of the wakif. In the absence of an express dedication, the
      existence of a waqf can be legally recognised in situations where
B     property has been the subject of public religious use since time
      immemorial. This concept of a waqf by user has also found statutory
      recognition in Section 3(r) of the Waqf Act,360 1995 which defines a
      “waqf” as:
             “(r) “waqf” means the permanent dedication by any person, of
C            any movable or immovable property for any purpose recognised
             by the Muslim law as pious, religious or charitable and includes
             –
                    (i) a waqf by user but such waqf shall not cease to be
                        a waqf by reason only of the user having ceased
D                       irrespective of the period of such cesser;
                   (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any
                        other name entered into a revenue record;
                   (iii) “grants”, including mashrat-ul-khimdat for any purpose
                         recognised by the Muslim law as pious, religious or
E                        charitable; and
                  (iv) a waqf-alal-aulad to the extent to which the property is
                       dedicated for any purpose recognised by Muslim law
                       as pious, religious or charitable, provided the then the
                       line of succession fails, the income of the waqf shall be
F                      spent for education, development, welfare and such other
                       purposes as recognised by Muslim law,
                        and “waqif” means any person making such dedication”
                                                                  (Emphasis supplied)
G           The statutory definition of a waqf recognises the validity of a
      waqf established by use and not by dedication. Similarly, Mulla in his
      book on “Mahomedan Law” states:

      360
        Title changed from ‘Waqf Act’ to the ‘Auqaf Act’ by virtue of the Waqf (Amendment)
H     Act 2013
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           739


        “…if land has been used from time immemorial for a religious            A
        purpose, e.g., for a mosque, or a burial ground or for the
        maintenance as a mosque, then the land is by user wakf although
        there is no evidence of an express dedication”.361
      In his submissions on waqf by user, Dr Dhavan has adverted to
several authorities that establish the contours of the doctrine of waqf         B
by user.
       734. The doctrine of waqf by user received judicial recognition
in the decision of the Privy Council in The Court of Wards for the
property of Makhdum Hassan Bakhsh v Ilahi Bakhsh.362 The case
concerned a public graveyard in Multan where a prominent Muslim saint           C
was buried. The Court of Wards, acting for the property of Makhdum
Bakhsh, proposed to sell certain property within the area of the
graveyard on which no graves existed. The Muslim residents of Multan
sought an injunction restraining the proposed sale on the ground that
the entire graveyard was inalienable waqf property due to its long use
as a public graveyard of the Muslim community. Lord Macnaghten held:            D

        “Their Lordships agree with the Chief Court in thinking that the
        land in suit forms part of a graveyard set apart for the Mussulman
        community, and that by user, if not by dedication, the land is
        Waqf.”
                                                                                E
      The Privy Council recognised that absent an express deed or act
of dedication, a waqf can be recognised by long use.
       735. The above decision was followed by the Oudh Chief Court
in Abdul Ghafoor v Rahmat Ali.363 The plaintiffs sought a declaration
that the suit property was a public graveyard and the defendant was             F
not entitled to construct any structure on it. The graveyard in question
had been closed to the public by the Municipal Board for forty years.
The defendant argued that the plaintiffs had not established the use of
the graveyard till the suit in question, and that by non-use for forty years,
it had lost its characteristic as a waqf. In holding that the graveyard
continued to be a public waqf, Justice Srivastava, speaking for the Oudh        G
Chief Court held:

361
    Mulla’s Mahomedan Law, 14th Edition at page 173
362
    ILR (1913) 40 Cal 297
363
    AIR 1930 Oudh 245                                                           H
740                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A               “4. … It is well settled that a wakf may, in the absence of
                direct evidence of dedication, be established by evidence
                of user. The land in suit was recorded at the time of the first
                regular settlement as a qaburistan but there is no direct evidence
                to establish the dedication. … in light of the evidence of a number
                of witnesses examined on behalf of the plaintiffs, whose evidence
B
                he [the Subordinate Judge] has believed has come to the
                conclusion that the Mohamedan public used the land as their burial
                ground until the Municipal Board prohibited further interments
                in that land about 40 years ago. Thus, in the present case,
                the finding about the land in suit being a public graveyard
C               is based upon the evidence of long user… The rule which
                allows evidence of user to take the place of dedication is
                a rule of necessity. In the case of old wakf it is not possible
                to secure direct evidence of dedication and also it has been
                ruled that even in the absence of such direct evidence, a
                Court can hold a wakf to be established on evidence of
D
                long user…”
                                                             (Emphasis supplied)
             736. In some cases, courts were faced with a situation where
      property was used as waqf property since time immemorial and it was
E     not practical to seek formal proof in the form of a deed of declaration.
      A specific document of dedication may be unavailable after a long lapse
      of time but the use of the property for public religious or charitable
      purpose may have continued since time immemorial. Hence, despite
      the absence of an express deed of dedication, where the long use of
      the property as a site for public religious purpose is established by oral
F     or documentary evidence, a court can recognise the existence of a waqf
      by user. The evidence of long use is treated as sufficient though there
      is no evidence of an express deed of dedication.
             737. In Miru v Ram Gopal364 the plaintiff was a zamindar of
      the property. One Rahim Baksh had occupied the property and built a
G     makeshift or ‘katcha’ platform for offering prayers. As of 1904, prayers
      were being offered by local Muslim residents at this ‘katcha’ mosque.
      The Muslim residents, who were the defendants sought to build a
      permanent structure of a mosque at the site. This was resisted by the
      plaintiff, who sought an injunction for restraining construction of the new
      364
H           AIR 1935 All 891
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          741


mosque. The court observed that the khasra for the plot stated,            A
“masjid”. Justice Bennet, speaking on a Division Bench of the Calcutta
High Court, stated:
      “…[In] The present case there is a finding that the plot has
      long been used for a mosque and that the use has been
      by the Muhammadan inhabitants of the locality and not                B
      merely by a particular tenant who allowed other people to come
      there for the purpose of prayer…
      It has also been held by their Lordships of the Privy Council in
      the case of the Court of Wards v. Ilai Bakhsh (2) that a
      graveyard by user became wakf. We do not think that the              C
      provisions of the Easement Act or of any part of chapter IV in
      regard to license apply where a zamindar allows the
      Muhammadan population to use a building as a mosque. … In
      such a case we consider that where there is a finding that
      a mosque exists, this necessarily implies that there is no
      longer any question of easement or use of license. Under             D
      Muhammadan law, the mosque is the property of God and
      not the property of the zamindar. Learned counsel for the
      plaintiff objected that there was no case of a transfer as is
      necessary for transfer of property, but we consider that consent
      of the zamindar to use of a building as a mosque is sufficient.”     E
                                                   (Emphasis supplied)
       The long use of the ‘katcha’ mosque led the court to recognise
the existence of a public waqf. This was not a case involving a few
isolated instances of worship, but the persistent use of the mosque by
the resident Muslim community prior to 1904. This was demonstrated         F
by documentary evidence showing the existence of a mosque at the
plot. Significantly, public worship at the mosque was permitted by the
zamindar himself. In these circumstances, the Allahabad High Court
held that the land was not the private property of the zamindar, but a
public waqf by user. There are prescient words in the concurring opinion   G
of Chief Justice Sulaiman in the case:
      “But where a building has stood on a piece of land for a long
      time and the worship has been performed in that building, then it
      would be a matter of inference for the court which is the Judge
      of facts, as to whether the right has been exercised in that
                                                                           H
742                 SUPREME COURT REPORTS                    [2019] 18 S.C.R.


A               building for such a sufficiently long time as to justify the
                presumption that the building itself has been allowed to be
                consecrated for the purpose of such rights being performed…”
             The question whether the use of a building or property for public
      religious worship has satisfied the legal requirements to be recognised
B     as a public waqf is a matter of evidence. It is a “matter of inference”
      for the court, having examined the evidence on record, to determine
      whether the use of the property has been for sufficiently long and
      consistent with the purported use to justify the recognition of a public
      waqf absent an express dedication. Given the irrevocable, permanent
      and inalienable nature of a waqf, the evidentiary threshold for
C     establishing a waqf by user is high, as it results in a radical change in
      the characteristics of ownership over the property.
             738. The principle of a waqf by user has also found recognition
      in the jurisprudence of this Court. The decision in the case of Faqir
      Mohamad Shah v Qazi Fasihuddin Ansari365 concerned two distinct
D     time periods: the period from circa 1681 to 1880 and the period from
      1880 to 1956. As of 1880, there existed an ‘old mosque’ which the
      contesting parties admitted was waqf property. Subsequent to 1880, the
      defendant, being the mutawalli of the ‘old mosque’, increased its size
      and built various structures on adjacent properties. Some were used
E     by him in his personal capacity and some of these structures were used
      by the public for worship. Cumulatively, these structures constituted the
      ‘new mosque’. The resident Sunni community, as plaintiffs, sought a
      declaration that both the ‘old mosque’ and the ‘new mosque’ were waqf
      properties. The defendant resisted these claims and argued that the
      ‘new mosque’ was his own personal property. Justice Vivian Bose,
F     speaking for a three judge Bench of this Court, held:
                “20. … It is evident that there was no proof of express
                dedication up to the year 1880 nor has any been produced
                since, therefore the only question is whether there is
                evidence of user and if so, user of what.
G
                …
                70. After a careful survey of the evidence, we have reached the
                following conclusions:

      365
H           AIR 1956 SC 713
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          743


          (1) that the old mosque as it stood in 1880 is proved            A
              to be wakf property but that nothing beyond the
              building and the site on which it stood is shown to have
              been wakf at that date;
          (2) that this property has been added to from time to time
              and the whole is now separately demarcated and that          B
              the additions and accretions form a composite and
              separate entity as shown in the plaintiffs’ map. This is
              the area marked ABCD in that map;
          (3) that this area is used by the public for religious
              purposes along with the old mosque and as the                C
              area has been made into a separately demarcated
              compact unit for a single purpose, namely
              collective and individual worship in the mosque,
              it must be regarded as one unit and be treated as
              such. The whole is accordingly now wakf;
                                                                           D
               …
          (7) that the rest of the property in suit is not shown
              to be wakf or accretions to the wakf estate. It is
              separately demarcated and severable from the
              wakf portion ABGD and the shops to the west of the           E
              mosque;
               …
      73. … It is now admitted, and was so found in the 1880 litigation,
      that the old mosque was wakf property. It can be assumed that
      the rest was not wakf at that date and indeed that is also our       F
      conclusion on a review of the evidence. But much has
      happened since the 1880 litigation and there have been
      subsequent additions and accretions to the original estate
      so that now the whole of those additions and accretions
      form part and parcel of the original Waqf.”
                                                                           G
                                                   (Emphasis supplied)
      739. Our jurisprudence recognises the principle of waqf by user
even absent an express deed of dedication or declaration. Whether or
not properties are waqf property by long use is a matter of evidence.
The test is whether the property has been used for public religious        H
744            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     worship by those professing the Islamic faith. The evidentiary threshold
      is high, in most cases requiring evidence of public worship at the
      property in question since time immemorial. In Faqir Mohamad Shah,
      it was admitted that the old mosque was waqf property. The court
      subsequently examined the evidence on record to determine whether
      the structures forming the ‘new mosque’ built on property adjoining the
B
      ‘old mosque’ had also been used for public religious worship. It is on
      this basis that this Court held portions of the ‘new mosque’, in
      conjunction with the ‘old mosque’, to be a composite waqf property.
            Application to the present case
C            740. Having set out the legal principles on waqf by user as
      recognised by our courts, the next question is whether the principle is
      attracted in the present case. The contention urged on behalf of the
      plaintiffs in Suit 4 must be read in conjunction with the relief prayed
      for in Suit 4. The relief sought is:
D          “(a) A declaration to the effect that the property indicated by
                letters A B C D in the sketch map attached to the plaint is
                public mosque commonly known as ‘Babari Masjid’ and that
                the land adjoining the mosque shown in the sketch map by
                letters E F G H is a public Muslim graveyard as specified
                in para 2 of the plaint may be decreed.
E
            (b) That in case in the opinion of the Court delivery of
                possession is deemed to be the proper remedy, a decree for
                delivery of possession of the mosque and graveyard in suit
                by removal of the idols and other articles which the Hindus
                may have placed in the mosque as objects of their worship
F               be passed in plaintiff’s favour, against the defendants.
                                         Amendment/ Addition made as per
                                            Court’s order dt. 25.5.95 Sd./-
                (bb) That the statutory Receiver be commanded to hand over
                     the property in dispute described in Schedule ‘A’ of the
G
                     Plaint by removing the unauthorized structures erected
                     thereon.”
             The claim of waqf by user raised in Suit 4 relates to both the
      inner and the outer courtyard. According to the plaintiffs the mosque
      vests in the Almighty, Allah. It has been contended that by virtue of
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             745


the long and continuous use by the resident Muslim community of the           A
disputed site marked by the letters A B C D, the disputed site must be
recognised as a waqf by user.
       741. Dr Dhavan, learned Senior Counsel appearing on behalf of
the plaintiffs in Suit 4, admitted that there is no evidence of possession,
use or offering of worship in the mosque prior to 1856-7. No evidence         B
has been produced to establish worship at the mosque or possessory
control over the disputed property marked by the letters A B C D over
the period of 325 years between the alleged date of construction in 1528
until the erection of railing by the colonial government in 1857. Hence
in the absence of evidence on record, no conclusion can be drawn that
prior to 1857, the disputed site was used for worship by the resident         C
Muslim community. Following the events in 1856-57, the colonial
government erected the railing to bifurcate the areas of worship into
the inner courtyard and the outer courtyard. Shortly thereafter, the
Ramchabutra was constructed in the outer courtyard. Worship at the
Ramchabutra and at the pre-existing Sita Rasoi led to the worship of          D
the Hindus being institutionalised within the property marked by the
letters A B C D.
       742. The construction of the railing was not an attempt to settle
proprietary rights. It was an expedient measure to ensure law and order.
Disputes between 1858 and 1883 indicated that the attempt to exclude          E
the Hindus from the inner courtyard by raising a railing was a matter
of continuing dispute. Significantly, the activities of the Hindu devotees
in the outer courtyard continued. An important indicator in this regard
was the decision of the colonial administration to allow the opening of
an additional door to the outer courtyard in 1877 to facilitate the entry
of Hindu devotees against which objections were raised and rejected.          F
The need for an additional point of entry for Hindu devotees is an
indicator of the extensive nature of their use to offer worship. On
gaining entry, the Hindu devotees offered worship at several structures
such as the Ramchabutra and Sita Rasoi. The Bhandar was also under
their control in the outer courtyard. This indicated that insofar as the      G
outer courtyard was concerned, the Hindu devotees were in settled
possession and actively practicing their faith. This possession of the
Hindu devotees over the outer courtyard was open and to the knowledge
of the Muslims. Several incidents between 1857 and 1949 have been
adverted to in another part of the judgment which indicate that the
                                                                              H
746                SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A     possession of the inner courtyard was a matter of serious contest. The
      Muslims did not have possession over the outer courtyard. There is a
      lack of adequate evidence to establish that there was exclusive or
      unimpeded use of the inner courtyard after 1858.
             743. The contention of the plaintiffs in Suit 4 is that the entire
B     property of the mosque, including both the inner and outer courtyards
      is waqf property. Once a property is recognised as waqf, the property
      is permanently and irrevocably vested in the Almighty, Allah from the
      date the waqf is deemed to be in existence. The land is rendered
      inalienable and falls within the regulatory framework of waqf legislation
      and Islamic law. The doctrine of waqf by user is well established in
C     our law. However, as noted by the precedents detailed above, it is a
      doctrine of necessity to deal with cases where a property has been
      the site of long and consistent religious use by members of the Islamic
      faith but the original dedication is lost to the sands of time. Given the
      radical alterations to the characteristics of ownership of the property
D     consequent upon a recognition of a waqf by user, the evidentiary burden
      to prove a waqf by user is high. The pleadings in the plaint in Suit 4
      are deficient. No particulars of the extent or nature of the use have
      been set out. A stray sentence in paragraph 2 of the plaint cannot sustain
      a case of waqf by user. Moreover, the contention that the entire property
      was a single composite waqf cannot be assessed in a vacuum. The
E     Court cannot ignore the evidence of established religious worship by
      Hindu devotees within the premises of the disputed site. If the contention
      urged by the plaintiffs in Suit 4 that the entire disputed property is a
      waqf by user is accepted, it would amount to extinguishing all rights
      claimed by the Hindus in the disputed property as a site of religious
F     worship.
             744. In the decisions adverted to above in which claims of a waqf
      by user have been recognised, the claims were not made in the context
      of another religious community also utilising the property for the conduct
      of religious worship. It flows that the consequence of recognition of a
G     waqf by user in the facts of these cases did not lead to the extinguishing
      of competing and legally tenable rights of another religious community.
      In Miru v Ram Gopal,366 the Allahabad High Court held that the public
      religious use of the zamindar’s property extinguished the zamindar’s
      secular title to the property. However, this decision was in the context
      366
H           1935 AIR All 891
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                  747


where there existed a katcha mosque on the land and the zamindar                   A
consented to the continued use of his land for Muslim prayers. The
High Court observed:
       “The documentary evidence consisted of three documents, firstly,
       there was a khasra Ex. A of the year 1311 Fasli (1903-04). This
       khasra states that plot No. 119 was entered as “masjid”… If the             B
       zamindar had an objection to that entry he could have made an
       application to the court under section 111 of the Land Revenue
       Act. The fact that he did not make any objection to the entry
       shows that he acquiesced in the entry.
       …                                                                           C
       It is not stated that the zamindar dedicated the property for the
       mosque. It is stated that the zamindar allowed the defendants
       to dedicate the building as a mosque by their user of the
       building for the purpose of a mosque with the consent,
       express or implied, of the zamindar.”                                       D
                                                         (Emphasis supplied)
       In that case, the zamindar had acquiesced to the continued
prayers by the Muslims at this property and the high evidentiary
threshold of continuous and longstanding religious worship was satisfied.
The consent of the zamindar, express or implied was a distinguishing               E
factor. The present case is materially different. There is no
acquiescence by any of the parties concerned. To the contrary, the
Hindu devotees of Lord Ram have consistently asserted their rights to
the disputed property.
       745. The evidence adduced does not demonstrate that the entire              F
disputed property was utilised by the resident Muslim community for
public religious worship. It is evident that the outer courtyard was in
fact used by and was in the possession of the devotees of Lord Ram.
These portions of the property were admittedly not used for religious
purposes by the members of the resident Muslim community and cannot
                                                                                   G
be waqf property by long use. Further, the consequences that stem from
recognising the entire disputed property marked by the letters A B C
D in the present case as waqf by user is a mirror image to the claim
of the plaintiffs in Suit 5 of recognising the land itself as a juristic person.
The consequence would be the destruction of the rights of another
community to offer worship by virtue of the internal tenets of a specific          H
748            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     religion which have been recognised for a specific purpose. The law
      recognises that where, since time immemorial, worship has been offered
      at a land with a mosque, the land is presumed to have been dedicated
      for a religious purpose and even absent a dedication, is waqf by user.
      However, this may not be extended to the extinguishment of competing
      and established religious rights of another community in the same
B
      property particular in the face of the evidence noted above. Accepting
      the contention urged on behalf of the plaintiffs in Suit 4 would have
      this effect and cannot be countenanced by law.
            O.12 Possession and adverse possession
C            746. The plaintiffs in Suit 4 plead adverse possession in the
      alternative. The basis for claiming adverse possession has been set up
      in paragraph 11(a) of the plaint (as amended) which reads as follows:
            “11(a). That assuming, though not admitting, that at one time
            there existed a Hindu temple as alleged by the defendants
D           representatives of the Hindus on the site of which emperor Babar
            built the mosque, some 433 years ago, the Muslims, by virtue of
            their long exclusive and continuous possession beginning from the
            time the mosque was built and continuing right upto the time some
            mosque, some mischievous persons entered the mosque and
            desecrated the mosque as alleged in the preceding paragraphs
E           of the plaint, the Muslims perfected their title by adverse
            possessions and the right, title or interest of the temple and of
            the Hindu public if any extinguished.”
             The pleadings in paragraph 11(a) are based on assumption: that
      in the event that there existed a Hindu temple, as alleged by the
F     defendants on the site of which the mosque was constructed; the
      Muslims claim to have perfected their title by adverse possession by
      long, exclusive and continuous possession and that the right, title and
      interest of the temple and of the Hindu public, if any, stands
      extinguished. The plea of adverse possession is subsidiary to the main
G     plea of the mosque being dedicated upon its construction by Babur for
      public worship by Muslims.
            747. A plea of adverse possession is founded on the acceptance
      that ownership of the property vests in another against whom the
      claimant asserts a possession adverse to the title of the other. Possession
      is adverse in the sense that it is contrary to the acknowledged title in
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             749


the other person against whom it is claimed. Evidently, therefore, the        A
plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of
adverse possession against the Hindus or the temple would amount to
an acceptance of a title in the latter. Dr Dhavan has submitted that
this plea is a subsidiary or alternate plea upon which it is not necessary
for the plaintiffs to stand in the event that their main plea on title is
                                                                              B
held to be established on evidence. It becomes then necessary to assess
as to whether the claim of adverse possession has been established.
       748. A person who sets up a plea of adverse possession must
establish both possession which is peaceful, open and continuous -
possession which meets the requirement of being ‘nec vi nec claim
and nec precario’. To substantiate a plea of adverse possession, the          C
character of the possession must be adequate in continuity and in the
public because the possession has to be to the knowledge of the true
owner in order for it to be adverse. These requirements have to be
duly established first by adequate pleadings and second by leading
sufficient evidence. Evidence, it is well settled, can only be adduced        D
with reference to matters which are pleaded in a civil suit and in the
absence of an adequate pleading, evidence by itself cannot supply the
deficiency of a pleaded case. Reading paragraph 11(a), it becomes
evident that beyond stating that the Muslims have been in long
exclusive and continuous possession beginning from the time when the
Mosque was built and until it was desecrated, no factual basis has been       E
furnished. This is not merely a matter of details or evidence. A plea of
adverse possession seeks to defeat the rights of the true owner and
the law is not readily accepting of such a case unless a clear and cogent
basis has been made out in the pleadings and established in the evidence.
       749. Though, paragraph 11(a) dates the commencement of the             F
possession of the Muslims from the date of the construction of the
mosque, it has emerged that no records are available with respect to
possession for the period between 1528 and 1860. Moreover, setting
up the plea of adverse possession in the alternative or as a subsidiary
plea seems to be a distinct improvement in the manner in which the            G
presentation of the plea has evolved. In Suit 2 (which was withdrawn
subsequently), a written statement was filed by the first defendant who
is also plaintiff no 10 in Suit 4. In the course of the written statement,
the first defendant asserted that if at any time any plaintiffs to the suit
or any other Hindus prove that prior to the construction of the Masjid
                                                                              H
750            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     there existed any temple on the spot, even in that case the Muslims
      were in possession for over 400 years, and their possession was in the
      knowledge of the Hindus. Consequently, there is no title in the Hindus.
             750. Subsequently, by the time that Suit 4 was instituted, the plea
      of adverse possession was relegated to a subsidiary contention, the main
B     contention being that there was a dedication to public worship upon the
      construction of the mosque by Babur. In fact, even during the course
      of these proceedings, there has been a certain amount of ambivalence
      about the manner in which the plea of adverse possession has been
      addressed in the course of the proceedings. Dr Rajeev Dhavan in the
      course of his written arguments on adverse possession has adduced
C     the following submissions:
            “7.1 In suit 4 the principal claim of adverse possession has been
            made by the Hindu parties with special emphasis by the Nirmohi
            Akhara (Plaintiff in Suit 3 and defendants in Suits 4 and 5) and
            by the Plaintiffs in suit 5 to assert that no adverse possession
D           can be claimed against the Janma Bhumi (Plaintiff No. 2).
            7.2 As mentioned above, Mr Jilani Senior Advocate has already
            shown with reference to documents even without the support of
            witness statements to establish that the claim of adverse
            possession from 1939-49 is unfounded.”
E
             The above extract from the submissions in fact seeks to
      emphasize that the principal claim of adverse possession in Suit 4 has
      been made by the Hindu parties with special emphasis by the Nirmohi
      Akhara and deities in Suit 5. What the above submission misses is that
      the case of adverse possession in Suit 4 has been set up by the plaintiffs
F     themselves, led by the Sunni Central Waqf Board. Instead, the
      submission while addressing arguments in Suit 4 has been inverted to
      appear as though it is a submission which is being asserted only by
      Nirmohi Akhara and the deities. Paragraph 11(a) which has been
      extracted above is the pleading of the Sunni Central Waqf Board and
G     the other supporting plaintiffs which specifically seeks to set up a plea
      of adverse possession.
             751. Any attempt to define possession must be context specific.
      A uniform formulation of principle of universal application is elusive to
      the grasp. The difficulty lies in converting myriad factual situations,
      replete with their complexities, into a legal paradigm. The doctrine
H
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            751


coalesces a fact – that of being in possession – and an intent, the animus       A
of being in possession.
       752. In Supdt. and Remembrance of Legal Affairs, West
Bengal v Anil Kumar Bhunja367, Justice R S Sarkaria, speaking for
a three judge Bench of this Court noted that the concept of possession
is “polymorphous” embodying both a right (the right to enjoy) and a              B
fact (the real intention). The learned judge held:
          “13. “It is impossible to work out a completely logical and precise
          definition of “possession” uniformly applicable to all situations in
          the contexts of all statutes. Dias and Hughes in their book on
          Jurisprudence say that if a topic ever suffered from too much          C
          theorising it is that of “possession”. Much of this difficulty and
          confusion is (as pointed out in Salmond’s Jurisprudence, 12th
          Edn., 1966) caused by the fact that possession is not purely a
          legal concept. “Possession”, implies a right and a fact; the right
          to enjoy annexed to the right of property and the fact of the real
          intention. It involves power of control and intent to control.         D
          (See Dias and Hughes, ibid.)”
      These observations were made in the context of possession in
Section 29(b) of the Arms Act 1959.
      In P Lakshmi Reddy v L Lakshmi Reddy 368 , Justice
Jagannadhadas, speaking for a three judge Bench of this Court dwelt              E
on the “classical requirement” of adverse possession:
          “4. Now, the ordinary classical requirement of adverse possession
          is that it should be nec vi nec clam nec precario. (See Secretary
          of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78,
          82] ). The possession required must be adequate in continuity, in      F
          publicity and in extent to show that it is possession adverse to
          the competitor.”
    The court cited the following extract from U N Mitra’s “Tagore
Law Lectures on the Law of Limitation and Prescription”:
          “7…An adverse holding is an actual and exclusive appropriation         G
          of land commenced and continued under a claim of right, either
          under an openly avowed claim, or under a constructive claim
          (arising from the acts and circumstances attending the
367
      (1979) 4 SCC 274
368
      1957 SCR 195                                                               H
752               SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A             appropriation), to hold the land against him (sic) who was in
              possession. (Angell, Sections 390 and 398). It is the intention to
              claim adversely accompanied by such an invasion of the rights
              of the opposite party as gives him a cause of action which
              constitutes adverse possession.”369
B             This Court held:
              “7…Consonant with this principle the commencement of adverse
              possession, in favour of a person implies that the person is in
              actual possession, at the time, with a notorious hostile claim of
              exclusive title, to repel which, the true owner would then be in a
C             position to maintain an action. It would follow that whatever may
              be the animus or intention of a person wanting to acquire title
              by adverse possession his adverse possession cannot commence
              until he obtains actual possession with the requisite animus.”
             In Karnataka Board of Wakf v Government of India370,
      Justice S Rajendra Babu, speaking for a two judge Bench held that:
D
              “11…Physical fact of exclusive possession and the animus
              possidendi to hold as owner in exclusion to the actual owner
              are the most important factors that are to be accounted in
              cases of this nature. Plea of adverse possession is not a pure
              question of law but a blended one of fact and law. Therefore, a
E             person who claims adverse possession should show: (a)
              on what date he came into possession, (b) what was the
              nature of his possession, (c) whether the factum of
              possession was known to the other party, (d) how long his
              possession has continued, and (e) his possession was open
F             and undisturbed.”
                                                           (Emphasis supplied)
            The ingredients must be set up in the pleadings and proved in
      evidence. There can be no proof sans pleadings and pleadings without
      evidence will not establish a case in law.
G
            In Annakili v A Vedanayagam371, this Court emphasized that
      mere possession of land would not ripen into a possessory title. The
      possessor must have animus possidendi and hold the land adverse to
      369
          6 th Edition, Vol. I, Lecture VI, at page 159
      370
          (2004) 10 SCC 779
H     371
          (2007) 14 SCC 308
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             753


the title of the true owner. Moreover, he must continue in that capacity          A
for the period prescribed under the Limitation Act.
       753. In the decision of the Privy Council in Masjid Shahidganj
v. Shiromani Gurdwara Prabandhak Committee, Amritsar372, there
was a structure of a mosque in Lahore which had been built in 1722.
From 1762 or thereabouts the building and adjacent land had been in               B
the occupation and possession of Sikhs. At the time of annexation by
the British in 1849, the mosque and the property dedicated to it were
in the possession of the Mahant of the Sikh Gurudwara and the building
of the mosque had been used by the custodians of the Sikh institution.
Under the Sikh Gurdwaras Act 1925, the old mosque building and
appurtenant adjacent land were included as belonging to the Gurudwara.            C
The Muslims initiated litigation before the Sikhs Gurudwaras Tribunal
in 1928 which resulted in a finding that their claim was defeated by
reason of adverse possession.
       A suit was instituted by 18 plaintiffs including by the mosque itself
suing through a next friend while the others claimed a right of worship.          D
The suit was for a declaration against the Shiromani Gurdwara
Prabandhak Committee that the building was a mosque in which the
followers of Islam had a right to worship. The suit was dismissed by
the District Judge and his decision was affirmed in a split verdict by a
Full Bench of the High Court. Sir George Rankin speaking for the Privy            E
Council held:
          “It was for the Plaintiffs to establish the true position at the date
          of annexation. Since the Sikh mahants had held possession for a
          very long time under the Sikh state there is a heavy burden on
          the Plaintiffs to displace the presumption that the mahants’            F
          possession was in accordance with the law of the time and
          place.”
       Dealing with the argument that in the case of a mosque, like a
graveyard, the waqf property is intended to be used in specie and not
to be let or cultivated, the Privy Council held:                                  G
          “…But the Limitation Act is not dealing with the competence of
          alienations at Mahomedan law. It provides a rule of procedure
          whereby British Indian Courts do not enforce rights after a
          certain time, with the result that certain rights come to an end.
372
      AIR 1940 PC 116                                                             H
754                SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A               It is impossible to read into the modern Limitation Acts
                any exception for property made waqf for the purposes of
                a mosque whether the purpose be merely to provide money
                for the upkeep and conduct of a mosque or to provide a
                site and building for the purpose. While their Lordships have
                every sympathy with a religious sentiment which would ascribe
B               sanctity and inviolability to a place of worship, they cannot under
                the Limitation Act accept the contentions that such a building
                cannot be possessed adversely to the waqf, or that it is not so
                possessed so long as it is referred to as “mosque,” or unless the
                building is razed to the ground or loses the appearance which
C               reveals its original purpose.”
                                                              (Emphasis supplied)
             754. In a judgment rendered in 2015, one of us (Justice Abdul
      Nazeer) as a Single Judge of the Karnataka High Court succinctly
      identified and laid down373 the pre-requisites of a claim to adverse
D     possession in the following terms:
                “27. The concept of adverse possession contemplates a
                hostile possession i.e., a possession which is expressly or
                impliedly in denial of the title of the true owner.
                Possession to be adverse must be possession by a person,
E               who does not acknowledge others’ rights but denies them.
                Possession implies dominion and control and the
                consciousness in the mind of the person having dominion
                over an object that he has it and can exercise it. Mere
                possession of the land would not ripen into possessory title.
                Possessor must have animus possidendi and hold the land adverse
F               to the title of the true owner. Occupation only implies bare use
                of the land without any right to retain it. In order to constitute
                adverse possession, there must be actual possession of a person
                claiming as of right by himself or by persons deriving title from
                him. To prove title to the land by adverse possession, it is
G               not sufficient to show that some acts of possession have
                been done. The possession required must be adequate in
                continuity, in publicity and in extent to show that it is
                adverse to the owner. In other words, the possession must
                be actual, visible, exclusive, hostile and continued during

H     373
            Smt. Pilla Akkayyamma v Channappa ILR 2015 Kar 3841
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               755


          the time necessary to create a bar under the statute of                   A
          limitation.
          30. In a suit falling under Article 65 of the Limitation Act, plaintiff
          must establish his title to the property. He need not prove that
          he was in possession within 12 years. If he fails to prove his
          title, the suits fails, and the question of adverse possession does       B
          not arise in such a case. When the plaintiff has established his
          title to a land, the burden of proving that he has lost that title by
          reason of the adverse possession of the defendant lies upon the
          defendant. If the defendant fails to prove that he has been in
          adverse possession for more than 12 years, the plaintiff is entitled
          to succeed simply on the strength of his title. A person alleging         C
          that he has become owner of immovable property by adverse
          possession must establish that he was in possession of the
          property peaceably, openly and in assertion of a title hostile to
          the real owner. Stricter proof is required to establish acquisition
          of title by adverse possession for the statutory period”                  D
                                                          (Emphasis supplied)
        In Ravinder Kaur Grewal v Manjit Kaur374, a three judge
Bench of this Court of which one of us, Justice Abdul Nazeer, was a
part, further developed the law on adverse possession to hold that any
person who has perfected their title by way of adverse possession, can              E
file a suit for restoration of possession in case of dispossession. In this
view, adverse possession is both a sword and a shield.
        755. The plaintiffs have failed to adopt a clear stand evidently
because they are conscious of the fact that in pleading adverse
possession, they must necessarily carry the burden of acknowledging                 F
the title of the person or the entity against whom the plea of adverse
possession has not been adequately set up in the pleadings and as noted
above, has not been put-forth with any certitude in the course of the
submissions. Above all, it is impossible for the plaintiffs to set up a case
of being in peaceful, open and continuous possession of the entire                  G
property. Dr Dhavan repeatedly asserted that the Muslims were
obstructed in their offering worship at the mosque as a result of the
illegalities of the Hindus. For this purposes, Dr Dhavan refers to the
incidents which took place in 1856-7, 1934 and 1949 – the last of them
374
      (2019) 8 SCC 729                                                              H
756             SUPREME COURT REPORTS                              [2019] 18 S.C.R.


A     leading up to the preliminary order under Section 145. The events which
      are associated with each of the above incidents constitute indicators in
      the ultimate finding that in spite of the existence of the structure of the
      mosque, possession as asserted by the Muslims cannot be regarded as
      meeting the threshold required for discharging the burden of a case of
      adverse possession. The evidence in the records indicate that Hindus,
B
      post the setting up of the railing have, in any event, been in possession
      of the outer courtyard. On this basis alone, the plea of adverse
      possession set up by the plaintiffs in respect of the entirety of the area
      represented by the letters A B C D must fail.
            For the reasons indicated above, the plaintiffs in Suit 4 have failed
C     to meet the requirements of adverse possession.
             O.13 Doctrine of the lost grant
            756. During the course of arguments, Dr Rajeev Dhavan, learned
      Senior Counsel appearing on behalf of the Sunni Central Waqf Board,
D     urged that by virtue of the doctrine of lost grant, the plaintiffs in Suit 4
      sought a declaration on the basis of a dedication of the mosque, upon
      its construction by Babur in 1528 for the worship of the Muslim
      community.
             Decisions on the doctrine
E           757. Under the doctrine of lost grant, a long-continued use or
      possession can raise a legal presumption that the right exercised was
      previously conveyed to the user or possessor and that the instrument
      of conveyance has been lost.375
               According to Halsbury Laws of England –
F
             “The courts first laid down the rule that from the user of a
             lifetime the presumption arose that a similar use had existed from
             remote antiquity. As it could not but happen that in many cases,
             such a presumption was impossible, in order to support possession
             and enjoyment, which the law ought to have invested with the
G            character of rights, recourse was had to the theory of lost modern
             grants...”376


      375
          Jerome J. Curtis, “ Reviving The Lost Grant” Real Property, Probate And Trust
      Journal 23, No. 3 (1988) at pages 535-60.
      376
H         Halsbury Laws of England, Vol 14, Fourth Edition para 90
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               757


       The doctrine only applies where the enjoyment or use of land                 A
cannot otherwise be reasonably accounted for.377 In the absence of an
instrument of conveyance, enjoyment since the time of legal memory
is to be viewed as an indication that the right claimed had been
conferred on the claimant (or his predecessors) by a grant. 378 The grant
maybe expressed or presumed.379 The onus of proving continued and
                                                                                    B
uninterrupted enjoyment of property through long use is on the plaintiff.
The court will not presume a lost grant in cases where there was no
person who could ever have made such a grant, or where there was
no person or persons competent to receive a particular grant.380 As there
is a legal presumption of a grant, the doctrine is not applicable unless
throughout the necessary period there existed some person or persons,               C
alone or together, capable of conveying the interest claimed to have
been transferred by the lost grant.381 For valid application of the doctrine,
the only conclusive evidence is that possession must be uninterrupted
for a sufficient length of time. The doctrine of lost grant is not based
upon evidence of long use but for default of evidence.382 A person
                                                                                    D
seeking to establish a claim to an easement under this doctrine should
plead lost grant, but need not state in his pleadings the date and names
of the parties to the alleged modern grant.383
       79. In a Privy Council decision in Chockalingam Pillai v
Mayandi Chettiar384, Lord Buckmaster explained the presumption of
a lawful origin in support of proprietary rights long and quietly enjoyed           E
in the following terms:
        “When every party to the original transaction has passed away
        and it becomes completely impossible to ascertain what were the
        circumstances which caused the original grant to be made, it is
        only following the policy, which the courts always adopt, of                F
        securing, as far as possible, quiet possession, to people who are

377
    Halsbury Laws of England, Vol 14, Fourth Edition, para 91
378
    Jerome J. Curtis, “ Reviving The Lost Grant” Real Property, Probate And Trust
Journal 23, No. 3 (1988) at pages 535-60.
379
    Jerome J. Curtis, “Reviving The Lost Grant” Real Property, Probate And Trust
                                                                                    G
Journal 23, No. 3 (1988) at pages 535-60.
380
    Halsbury Laws of England, Vol 14, Fourth Edition, para 94
381
    Halsbury Laws of England, Vol 14, Fourth Edition, para 94
382
   Attorney General v Horner (No.2) [1913] 2 Ch. 140
383
    Halsbury Laws of England, Vol 14, Fourth Edition, para 96
384
    ILR 19 Madras 485                                                               H
758                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A               in apparent lawful holding of an estate, to assume that the grant
                was lawfully and not unlawfully made.”
           In the decision of the House of Lords in Harris and Earl of
      Chesterfield385, Lord Loreburn LJ held:
                 “... But the principle is surely based upon good sense. The lapse
B
                of time gradually effaces records of past transactions, and it
                would be intolerable if any body of men should be dispossessed
                of property which they and their predecessors have enjoyed
                during all human memory, merely upon the ground that they
                cannot show how it was originally acquired. That is the reason
C               why the law infers that the original acquisition was lawful, unless
                the property claimed is such that no such body of men could
                lawfully acquire it, or the facts show that it could not have been
                acquired in the only ways which the law allows.”
            In the above decision, the question before the court was whether
D     a presumption of lost grant could be made by virtue of the parishes
      exercising fishery rights admittedly for several centuries over a river.
      The House of Lords held by a majority that no presumption of lost grant
      was available in the case, inasmuch as the free holders of several
      parishes who were an indefinite and fluctuating body of persons could
E     not be proper grantees in law.
             759. The above decision was referred to in a decision of the
      Calcutta High Court in Asrabulla v Kiamatulla Haji Chaudhury386,
      where the plaintiffs claimed that since time immemorial the inhabitants
      of a village had been grazing their cattle in a disputed land openly and
F     without any interruptions and thereby, they had acquired a right of
      pasturage by virtue of the doctrine of presumption of lost grant. Justice
      B K Mukherjea (as he then was), speaking for the Division Bench held
      thus:
                “... in order that there may be a presumption of lawful origin, it
G               is necessary to establish that there was no legal bar in the way
                of valid grant at its inception, and that not only there was a
                capable grantor but there was a capable grantee also in whose
                favour the grant could have been made. If for any reason a valid
      385
            [1911] A.C. 623
      386
H           AIR 1937 Cal 245
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            759


          grant could not have been made no presumption of such a grant          A
          can arise.”
       760. The Privy Council in N Sankaranarayana Pillayan v
Board Of Commissioners For The Hindu Religious
Endowments, Madras387, dealt with a case where the parties claimed
that they were the owners of the suit properties, comprising of both             B
inam (rent free) and ryotwari or ayan (assessed) lands, and that only a
part of the income was subject to a charge for meeting the expenses
of the midnight kattalai according to a prescribed scale in the Sri
Papavinasaswami Temple at Papanasam in Madras. The question
before the court was whether the suit properties had been wholly
dedicated to the religious charity or whether there had been merely a            C
charge on the income of the properties in favour of the charity. The
court found that the endowment was founded by the Carnatic Rajas
and not by the ancestors of the appellants, who were mere managers
or supervisors of the endowment. The properties and the income
therefrom were absolutely dedicated to the temple, and mainly for the            D
purposes of the midnight services, and the appellants had no beneficial
interest in any surplus income. Discussing the documentary evidence
for the purpose of determining the true nature of the endowment, Justice
M R Jayakar held thus:
          “As there was no deed or grant or any document throwing light          E
          on the nature or terms of the endowment, the High Court, in their
          Lordships’ opinion, was justified in relying on other documentary
          evidence for the purpose of determining what the true nature of
          the endowment. Such documentary evidence consisted, inter alia,
          of inam-registers, title deeds, statements in survey and settlement
          registers, pattas and orders of various revenue authorities to their   F
          subordinates in connection with the endowment in question.”
          ...
          In the present case no such arrangement is in evidence with
          which the possession or enjoyment of the appellants’ family could      G
          be said to have commenced. The only arrangement mentioned
          is the compromise between the members of the family to which
          the endowment was not a party.”

387
      AIR 1948 PC 25                                                             H
760                SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            The Privy Council referred to the decision in Chockalingam
      Pillai and discussed the applicability of doctrine of lost grant in cases
      involving absence of the existence of actual evidence. It was held thus:
             “... The other case relied on was Mahammad Mazaffar-al-
             Musavi v. Jabeda Khatun (AIR 1930 PC 103) where the rule
B            was affirmed, relating to the presumption of a lawful origin in
             support of proprietary rights long and quietly enjoyed, as it was
             explained in an earlier case [Chockalingam Pillai v Mayandi
             Chettiar ILR 19 Madras 485] by Lord Buckmaster…But it was
             explained in the same case that this rule is applicable where there
             is absence or failure of actual evidence. The presumption, it was
C            stated, of an origin in some lawful title which the courts have so
             often readily made in order to support possessory rights long and
             quietly enjoyed, arises where no actual proof of title is
             forthcoming, and the rule has to be resorted to because of the
             failure of actual evidence. In the present case, where there is
             ample and convincing proof of the nature of the grant, the object
D
             of the endowment and the capacity of the persons claiming the
             user and enjoyment, the rule can hardly have any application.”
             761. In a later decision of the Privy Council in Lakshmidhar
      Misra v Rangalal388, the appellants in a representative capacity on
      behalf of the villagers claimed a parcel of land as a cremation ground
E     since time immemorial. The respondent on the other hand claimed the
      land for the purpose of a private industry. The Subordinate Judge in
      first appeal held that the reservation of land amounted to a dedication
      or a grant by the landlord. The High Court in second appeal set aside
      the decision of the Subordinate Judge on the ground that there existed
      no valid grant and dismissed the appellant’s suit. In appeal, the Privy
F
      Council held that the issue of whether the land had been used as a
      cremation ground was a mixed question of fact and law and the
      appellant’s claim that the disputed property was the village cremation
      ground was based on customary practice attracting a legal custom.
      Hence the doctrine of lost grant was held to have no applicability.
G     Explaining the applicability of doctrine of lost grant, Lord Radcliffe held
      thus:
             “... It is essentially a suit to establish the rights of the villagers in
             the disputed area. No one claimed or spoke of the land as subject
             to the rights of the general public nor indeed would it be easy to
H     388
            AIR 1950 PC 56
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            761


  give a meaning to such a conception as applied to a cremation            A
  ground in a particular village. But dedication is only known to
  English law as something equivalent to an irrevocable licence
  granted by the owner of soil to the use of the public. Dedication
  of a piece of land to a limited section of the public, such as the
  inhabitants of a village, is a claim unknown in law, and evidence        B
  limited to such special user would not justify a finding of dedication
  [see Poole v. Huskinson, Hildreth v. Adamson and Bermondsey
  v. Brown. Much the same result might well be achieved by the
  creation of a charitable trust binding the land, but that is not
  dedication, nor is it in question here. At no stage of the hearing
  is there any record of a claim that the village community                C
  constitutes a corporation administering a trust for some classes
  of its inhabitants, nor was any such argument advanced before
  their Lordships.
  This doctrine originated as a technical device to enable title to
  be made by prescription despite the impossibility of proving             D
  “immemorial user.” By English common law prescription had to
  run from time immemorial which, by convention, began in the
  year 1189. If it was possible to demonstrate that the user in
  question, though ancient, originated since 1189 the proof of title
  by the prescription of immemorial user failed. To get round this         E
  difficulty judges allowed, or even encouraged, juries to find that
  the right in question, though less ancient than 1189, originatel in
  a lost grant since that date. Thus the right acquired the necessary
  legal origin. But such a right, just as much as an easement,
  had to be attached to and to descend with an estate:
  moreover, since it originated in grant, its owners, whether              F
  original or by devolution, had to be such persons as were
  capable of being the recipients of a grant under English
  law. A right exercisable by the inhabitants of a village from
  time to time is neither attached to any estate in land nor
  is it such a right as is capable of being made the subject               G
  of a grant. There are no admissible grantees. In fact, the
  doctrine of lost grant has no application to such rights as
  those of the inhabitants of a particular locality to continue
  an ancient and established user of some piece of land.”
                                                 (Emphasis supplied)       H
762                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            762. In a three judge Bench decision of this Court in Raja Braja
      Sundar Deb v Moni Behara389, it was claimed that the principal
      defendants and their ancestors had long remained in undisturbed actual
      physical possession of a fishery on a fixed annual rental and had
      acquired this right in all possible ways i.e. by grant, custom, adverse
      possession and easement. A suit for injunction was brought by the
B
      plaintiff on behalf other fishermen residing in nine villages on the ground
      that being the proprietors of the fishery, they were the exclusive owners
      of the fishery and the defendants were interfering with the plaintiff’s
      right of enjoyment and causing losses. The Trial Court passed a decree
      in favour of the plaintiff which was later modified in appeal by the High
C     Court, where it was held that the defendants by virtue of lost grant
      had exclusive rights as tenants to fish in the fishery only during the Hilsa
      season. Reversing the decision of the High Court Justice Meher Chand
      Mahajan (as he then was), speaking for the Bench held thus:
                “12. ...We find it difficult to uphold the view of the High Court
D               that the defendants were in possession of the disputed fishery
                under a lost grant. This doctrine has no application to the
                case of inhabitants of particular localities seeking to
                establish rights of user to some piece of land or water. As
                pointed out by Lord Radcliffe in Lakshmidhar Misra v. Rangalal
                [AIR 1950 PC 56] the doctrine of lost grant originated as a
E               technical device to enable title to be made by prescription despite
                the impossibility of proving immemorial user and that since it
                originated in grant, its owners, whether original or by devolution,
                had to be such persons as were capable of being the recipients
                of a grant, and that a right exercisable by the inhabitants of a
F               village from time to time is neither attached to any estate in land
                nor is it such a right as is capable of being made the subject of
                a grant, there being no admissible grantees. Reference in this
                connection may be made to a Bench decision of the Calcutta
                High Court in Asrabulla v. Kiamatulla [AIR 1937 Cal 245]
                wherein the law on this subject has been examined in some detail.
G               In that case the question arose whether the right of pasturage
                claimed by a whole body of villagers could be acquired by grant,
                express or presumed. After an examination of a number of
                English and Indian cases it was held that no lost grant could

      389
H           AIR 1951 SC 247
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              763


          be presumed in favour of a fluctuating and unascertained                 A
          body of persons who constitute the inhabitants of a village
          and that such a right could only be acquired by custom.
          The defendants in this case are a fluctuating body of
          persons and their number increases or decreases by each
          birth or death or by influx or efflux of fishermen to or from
                                                                                   B
          these villages...”
                                                             (Emphasis supplied)
          763. According to “Halsbury Laws of England”:
          “The presumption can only be rebutted by evidence that the
          existence of such a grant is impossible; nothing short of such           C
          evidence will suffice and a judge is not entitled to refuse to
          presume a grant merely because he is convinced that it was never
          in fact granted.”390
       A two judge Bench of this Court in Buddu Satyanarayana v
Konduru Venkatapayya391, dealt with an appeal arising out of a suit                D
for recovery of possession of certain immovable properties. A suit was
instituted by the Executive Officer appointed by government for
ejectment of the defendants on the allegation that the properties
belonged to the temple, having been given to it by a zamindar in 1770
AD. It was contended that the defendants were in possession by virtue              E
of being the Archakas and were wrongfully claiming the properties as
their own. The suit was instituted giving notice to the defendants to
make over possession of the suit properties to the plaintiff as the
Executive Officer of the temple. The High Court upheld the order of
the Subordinate Judge decreeing the plaintiff’s suit. On behalf of the
defendants, it was argued before this Court that, by virtue of the                 F
defendants and their predecessors being in possession of the properties
from ancient times, a valid presumption of some lawful title should arise
by virtue of doctrine of lost grant. Justice S R Das speaking for the
Bench rejected the contention and held thus:
          “2. ... There is no doubt, on the authorities, that a presumption        G
          of an origin in some lawful title may in certain circumstances be
          made to support possessory rights long and quietly enjoyed where
          no actual proof of title is forthcoming but it is equally well
390
      Halsbury Laws of England, Vol 14, Fourth Edition, para 90
391
      AIR 1953 SC 195                                                              H
764                SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A               established that that presumption cannot be made where
                there is sufficient evidence and convincing proof of the
                nature of the grant and the persons to whom it was made.
                It is true that the original grant is not forthcoming but
                turning to the evidence we find two documents which
                appear to us to be decisive on the question of title... It will
B
                be noticed that neither in the Inam Register Ex. P-3 nor in the
                statement Ex. D-3 is there any mention of the Archakas as the
                grantee or for the matter of that, having any the least interest,
                personal or otherwise, in the subject-matter of the Inam grant.
                The two exhibits quite clearly indicate that the Inam grant
C               was made in favour of the temple by the grantor and that
                in the face of this definite evidence and proof of the nature
                of the grant, no presumption of a lost grant can be made
                in favour of the Archakas. We, therefore, in agreement with
                the High Court, hold that the deity was the grantee and the first
                question raised before us must be answered against the
D
                appellants.”
                [See also C Periaswami Goundar v Sundaraesa Ayyar392]
             764. A Constitution Bench of this Court in Monohar Das
      Mohanta v Charu Chandra Pal393, had to deal with a suit for recovery
E     of possession of various plots of land filed by the appellant, a Mahant
      of a religious institution against the defendants. In the alternate, the
      appellant sought for assessment of fair and equitable rent. The
      respondents contested the suits, and pleaded that the disputed lands did
      not form part of the zamindari but a grant had been made in favour of
F     their predecessors-in-title long prior to the permanent settlement and
      that neither the Maharaja of Burdwan nor the plaintiff claiming under
      him had any title to them. The District Court upheld the decision of the
      Munsif and held that the defendants and the predecessors had been in
      possession for a very long time without payment of rent and a
      presumption of lost grant could be made in their favour. The High Court
G
      dismissed the appeal against the decision of the District Court. The issue
      before this Court was whether on the materials on record the courts
      below were right in presuming a lost grant in favour of the defendants.

      392
            AIR 1965 SC 516
      393
H           AIR 1955 SC 228
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               765


This Court held that no presumption of a lost grant could be made in                A
favour of the defendants, and that the plaintiff was entitled to assessment
of fair and equitable rent on the holdings in their possession. Speaking
for the Bench, Justice T L Venkatarama Ayyar, explained the
applicability of the doctrine of lost grant in the following terms:
          “7. The circumstances and conditions under which a presumption            B
          of lost grant could be made are well settled. When a person was
          found in possession and enjoyment of land for a considerable
          period of time under an assertion of title without challenge, Courts
          in England were inclined to ascribe a legal origin to such
          possession, and when on the facts a title by prescription could           C
          not be sustained, it was held that a presumption could be made
          that the possession was referable to a grant by the owner entitled
          to the land, but that such grant had been lost. It was a
          presumption made for securing ancient and continued possession,
          which could not otherwise be reasonably accounted for. But it             D
          was not a presumptio juris et de jure, and the Courts were not
          bound to raise it, if the facts in evidence went against it. “It cannot
          be the duty of a Judge to presume a grant of the non-existence
          of which he is convinced” observed Farwell, J. in Attorney-
          General v. Simpson [(1901) 2 Ch D 671, 698] . So also the
          presumption was not made if there was any legal impediment to             E
          the making of it. Thus, it has been held that it could not be made,
          if there was no person competent to be the recipient of such a
          grant, as where the right is claimed by a fluctuating body of
          persons. That was held in Raja Braja Sundar Deb v. Moni Behara
          [1951 SCR 431, 446] . There will likewise be no scope for this            F
          presumption, if there is no person capable of making a grant:
          (Vide Halsbury’s Laws of England, Vol. IV, p. 574, para 1074);
          or if the grant would have been illegal and beyond the powers
          of the grantor. (Vide Barker v. Richardson [4 B & Ald 579: 106
          ER 1048 at 1049] and Rochdale Canal Company v. Radcliffe [18              G
          QB 287: 118 ER 108 at 118] ).”
       765. In Konda Lakshmana Bapuji v Government of A P394,
the respondent claimed that the land in dispute was shown as Maqta
land and later as Inam land. The appellant claimed to be an assessee
394
      (2002) 3 SCC 258                                                              H
766                SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     of one of the successors to the said Maqta and he had occupied the
      land in 1958 and constructed a building upon it. It was argued that the
      principle of lost grant would apply as the appellant has been in
      possession of the land in dispute for a considerable length of time under
      an assertion of title. It was alleged by the respondent that the claim of
      the appellant was not lawful because the land never belonged to the
B
      said Maqta; even otherwise it vested in the Government with effect
      from the said date and the order of the Collector, correcting entries in
      the record of rights, had become final. A two judge Bench of this Court,
      while rejecting the claim of doctrine of lost grant, referred to the decision
      of Monohar Das Mohanta and held that a presumption of lost grant
C     will not be available to the appellant who traced his possession from
      1954 under an unregistered perpetual lease from the erstwhile Inamdar
      (Maqtedar).
             766. A two judge Bench of this Court in Braja Kishore Jagdev
      v Lingraj Samantaray395, dealt with the respondent’s claim to be a
D     hereditary trustee of a public religious institution based on the contention
      that his ancestors had been entrusted with the management of affairs
      of the religious institution which had been established long ago by an
      unknown founder. It was contended by the respondent that their family
      had been performing seva and puja without any interruption whatsoever
      as marfatdars and the office of marfatdar was hereditary and regulated
E     by custom. The appellants contested the claim of the respondent and
      the Assistant Commissioner rejected the claim of the respondent.
      However, the High Court in appeal allowed the respondent’s claim and
      held him to be a hereditary trustee based on the doctrine of lost grant.
      Justice S Rajendra Babu while setting aside the High Court’s decision
F     held thus:
                “6. The other basis upon which the High Court passed its
                judgment is that the requirements of law that they are hereditary
                trustees “since the time of founder” occurring in the definition
                of “hereditary trustee” is lost in antiquity and therefore it is not
G               possible to have any direct evidence to establish the line of
                succession but could be derived in the doctrine of “lost grant”.
                It is open to the court to infer grant from immemorial use when
                such user is open, as of right and without interruption but grant
                will not be inferred if the user can be explained otherwise. The
      395
H           (2000) 6 SCC 540
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           767


     fiction of a “lost grant” is a mere presumption from long              A
     possession and exercise of user by easement with acquiescence
     of the owner, that there must have been originally a grant to the
     claimant, which had been “lost”. There can be no such
     presumption of a “lost grant” in favour of a person who
     constitutes trustees in succession. We do not think that, with the
                                                                            B
     material on record, any such interference (sic inference) is
     possible. Firstly, the contention had been advanced before the
     courts that the deity is a private trust and not covered by the
     enactment; having failed in that regard now they want to hang
     on to the fact that they are hereditary trustees. In establishing
     the same they have miserably failed by not producing evidence          C
     of any kind...”
      767. From the analysis of the precedent on the subject, the
following principles can be culled out:
      (i) The doctrine of lost grant supplies a rule of evidence. The
          doctrine is applicable in the absence of evidence, due to a       D
          lapse of time, to prove the existence of a valid grant issued
          in antiquity. However, the court is not bound to raise the
          presumption where there is sufficient and convincing
          evidence to prove possession or a claim to a land in which
          case the doctrine of lost grant will have no applicability;       E
      (ii) Where it is impossible for the court to determine the
           circumstances under which the grant was made, an
           assumption is made about the existence of a valid and positive
           grant by the servient owner to the possessor or user. The
           grant maybe express or presumed. Once the assumption is          F
           made, the court shall, as far as possible, secure the
           possession of those who have been in quiet possession;
     (iii) For a lawful presumption there must be no legal
           impediments. For the applicability of the doctrine it is
           necessary to establish that at the inception when the grant      G
           was made not only was there a valid grant but also capable
           grantees in whose favour the grant could have been made.
           In the absence of defined grantees, there will be no
           presumption of lost grant;

                                                                            H
768            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           (iv) For the applicability of the doctrine of lost grant, there must
                 be long, uninterrupted and peaceful enjoyment of an
                 incorporeal right. Uninterrupted enjoyment includes
                 continuous use or possession. The requisite period of use
                 and possession is variable and to be determined from case
                 to case; and
B
             (v) A distinction has to be made between an assertion of rights
                 due to a prolonged custom and usage and that by doctrine
                 of lost grant.
            Analysis
C            768. In the present case, the plaintiffs in Suit 4 have set up a
      claim of declaration on the basis of a dedication of the mosque
      constructed by Babur in 1528 for the worship of the Muslim community
      and, in the alternate, on adverse possession, if it is established that the
      mosque was constructed on the site of a Hindu temple. There is no
D     pleading by the plaintiffs to support the application of the doctrine of
      lost grant. The specific case of the plaintiffs is that of a dedication of
      the mosque for public worship by Muslims. This must be evaluated on
      the basis of the evidence which has been adduced. In fact, the alternate
      plea of adverse possession is destructive of a valid legal basis to apply
      the doctrine of lost grant as a rule of evidence. Adverse possession
E     postulates the vesting of title in one person and the existence of a long
      continued and uninterrupted possession of another, to the knowledge
      of and in a manner hostile to, the true title holder. The plea of adverse
      possession would lead to an inference against the application of the
      doctrine of lost grant as a plea of adverse possession is premised in
F     title vesting in someone other than the alleged grantee. The decisions
      of this Court and those of the Privy Council recognising the doctrine
      as a rule of evidence show that the principle must be applied with
      caution. The doctrine does not constitute an independent, substantive
      head for the recognition of titles but is a rule of evidence. Section 110
      of the Evidence Act 1872 speaks of the burden of proof as to ownership
G     : when a question arises as to whether a person in possession of
      anything is the owner of such thing, the burden of proving that he is
      not the owner is cast on the person who avers that he is not the owner.
      In the process of applying the doctrine of lost grant as a rule of
      evidence, the court must be circumspect about not travelling beyond
H     the limits set for it by the legislature.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           769


      In the present case, absent any pleadings and of evidence on          A
the basis of which a presumption could be raised of the application of
the doctrine, it must necessarily follow that the doctrine of lost grant
has no application.
      O.14 The smokescreen of the disputed premises – the wall
of 1858                                                                     B
       769. The disputed site has witnessed a medley of faiths and the
co-existence of Hindu and Muslim practices, beliefs and customs. A
blend of Hindu and Muslim elements emerges from the religious and
architectural tradition associated with the erstwhile structure which
embodied features both of a temple and a mosque. While, the distinctive     C
architectural elements overlapped they were yet easily recognisable.
They were symbols of a syncretic culture. Specific sculptured finds
such as the black Kasauti stone pillars along with the presence of the
figurines of Varah, Garud, Jai and Vijay suggest that they were primarily
meant for decoration of a Hindu temple facade and served as deities
to be worshipped. At the same time, the distinctive appearance of a         D
mosque emerged from the three domes, the Vazoo, the stone inscription
with ‘Allah’, the mimbar and the mehrab. These features indicate that
the disputed premise was constructed as a mosque. Within the premises
of the same complex there existed two religious faiths. Their co-
existence was at times, especially before 1856, accepting and at others,    E
antagonistic and a cause of bloodshed. Yet, the distinctive features of
the site, embodying both Hindu and Islamic traditions led to the creation
of a space with an identity of its own. The real significance attached
to the composite structure is evidenced by the nature and the length of
use by both of the parties.
                                                                            F
        770. The accounts from travellers (chiefly Tieffenthaler and
Montgomery Martin) corroborated by both Hindu and Muslim
witnesses indicate identifiable places of offering worship and the
prevalence of worship by Hindu pilgrims at the disputed site. The setting
up of a railing in 1858 by the British around the disputed structure of
the mosque took place in the backdrop of a contestation over the claim      G
of the Hindus to worship inside the precincts of the mosque. One of
the earliest instances evidencing namaz being carried out at the disputed
site is documented in an application dated 5 November 1860, filed by
one Rajab Ali for removal of the construction of the Hindu Chabutra.
The application indicated that the Azaan of the Moazzin was met with        H
770             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     the blowing of conch shells by the Hindus. The railing which comprised
      of a brick grill-wall was neither a sub-division of the disputed site, which
      was one composite property, or a determination of title by the colonial
      administration. This is evident from - (i) the immediate setting up of
      the Ramchabutra by the Hindus right outside three domed structure upon
      the setting up of the railing; (ii) the continued assertion of rights to the
B
      inner courtyard by Hindus; and (iii) offering of worship by devotees
      towards the ‘Garbh Grih’ standing outside the railing. The construction
      of Ramchabutra and the worship offered there was an event which
      coincided with the setting up of the railing. The railing was an effort to
      maintain peace at the site. However, peace remained elusive.
C
             771. The oral witness accounts of the Hindus show their faith
      and belief that the ‘Garbh-Grih’ was the birth-place of Lord Ram and
      the existence of long continued worship by the Hindus at the disputed
      site. As regards namaz within the disputed site, the evidence on record
      of the Muslim witnesses, indicates that post 1934 namaz was being
D     offered until 16 December 1949. However, the extent of namaz would
      appear to have been confined to Friday namaz particularly in the period
      preceding the events of December 1949. Both Hindu and Muslim
      witnesses state that active measures were being taken by the Sadhus
      and Bairagis to prevent the Muslims from approaching the disputed
E     premises and from offering prayers. This primarily shows that the
      disputed site witnessed use by worshippers of both the faiths.
      Obstructing Muslims from accessing the mosque did not mean that they
      had had no claim to or had abandoned the disputed site. However, it
      needs to be remembered that the present case relates to title or
      ownership of this composite place of worship. In the absence of
F     historical records with respect to ownership or title, the court has to
      determine the nature and use of the disputed premises as a whole by
      either of the parties. In determining the nature of use, the court has to
      factor in the length and extent of use.
             772. In assessing the title of the Muslims, the physical structure
G     of the mosque is one fact to be taken into consideration. But a claim
      to possessory title has to be based on exclusive and unimpeded
      possession which has to be established by evidence. As shown above,
      the disputed premises are characterised by distinct architectural
      characteristics of Hindu and Islamic cultures. The claim to title will have
H     to be judged from the perspective of long and continued possession. It
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                771


becomes relevant to note the extent to which the Muslims have asserted           A
their claim to the entirety of the property, which forms a composite
whole, comprised of the inner and outer courtyards in comparison with
the contesting claims of the Hindus. In relation to the outer courtyard,
both Hindu and Muslim witnesses have admitted the presence of the
Ramchabutra and other places of religious significance which were
                                                                                 B
being continuously worshipped by the Hindus. The access of Hindus
to and their possession of the outer courtyard was unimpeded.
       773. Despite the setting up of the grill-brick wall in 1857, the
Hindus never accepted the division of the inner and the outer courtyard.
For the Hindus, the entire complex as a whole was of religious
significance. A demarcation by the British for the purposes of                   C
maintaining law and order did not obliterate their belief in the relevance
of the ‘Garbh-Grih’ being the birth-place of Lord Ram. This is evident
from the witness testimonies which indicate that pilgrims offered prayer
standing at the railing by looking towards the sanctum sanctorum.
Another relevant piece of evidence is the admission of the Moazzin of            D
the Babri Mosque in his complaint dated 30 November 1858 against
Nihang Singh. The Moazzin admitted that previously the symbol of
Janamsthan had been there for hundreds of years and Hindus did puja
inside the three domed structure. Absent any division of the site, the
Hindus had multiple points and forms of worship within the disputed
premises which included the Ramchabutra and Sita Rasoi and the                   E
parikrama of the disputed premises. Even after the railing was set up,
Hindu worship at Ramchabutra, Sita Rasoi and of the idols placed below
the fig and neem tree clearly indicated their exclusive and unimpeded
possession of the outer courtyard. All the evidence indicates that a
reasonable inference based on a preponderance of probabilities can be
made that there was continuum of faith and belief of the Hindus that             F
the ‘Garbh-Grih’ was the place of birth of Lord Ram both prior to and
after the construction of the wall. The use of the area within the railing
by the Muslims was contentious and their access to the inner courtyard
was landlocked; the only access being through the two gates to the
outer portion and the area which were in the control of the Hindus.              G
       O.15 Analysis of evidence in Suit 4
       774. The case of the plaintiffs in Suit 4 is that upon its construction
at the behest of Babur in 1528, there was a dedication of the mosque
for the purpose of worship by Muslims. With respect to title, no
documentary evidence exists or has been adduced for the period prior             H
772                SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     to 1860. Before the High Court, as noticed earlier submissions
      proceeded on the basis that there was no evidence either in regard to
      possession or the offering of namaz prior to 1860 or at any rate before
      1856-7. The evidence which has been adduced, must be analysed
      bearing in mind the fundamental principle of law that revenue records
      do not confer title. In Jattu Ram v Hakam Singh396, a two judge Bench
B
      held:
                “3…The sole entry on which the appellate court placed implicit
                reliance is by the Patwari in Jamabandi. It is settled law that the
                Jamabandi entries are only for fiscal purpose and they create
                no title.”
C
            This decision was followed in Suraj Bhan v Financial
      Commissioner397, where Justice C K Thakker speaking for a two
      judge Bench held:
                “9…It is well settled that an entry in revenue records does not
D               confer title on a person whose name appears in record-of-rights.
                It is settled law that entries in the revenue records or jamabandi
                have only “fiscal purpose” i.e. payment of land revenue, and no
                ownership is conferred on the basis of such entries. So far as
                title to the property is concerned, it can only be decided by a
                competent civil court (vide Jattu Ram v. Hakam Singh [(1993) 4
E               SCC 403 : AIR 1994 SC 1653]).”
             775. No documentary evidence has been brought on the record
      indicating the conferment of title in a form of the grant of the land
      underlying the mosque. The documentary evidence on which reliance
      has been placed essentially consists of grants which were made by the
F     British Government for the upkeep and maintenance of the mosque.
      These grants are stated to be in continuation of those which have been
      made previously prior to the annexation of Oudh by the colonial
      government. The register Mafiat which bears government orders dated
      13 March 1860 and 29 June 1860 has been noticed in the judgment of
G     Justice Sudhir Agarwal as a document which is torn and the contents
      of which were not legible. The grant for the upkeep and maintenance
      of the mosque was “so long the masjid is kept up and the
      Mohammedans conduct themselves properly.” This document even if

      396
            (1993) 4 SCC 403
      397
H           (2007) 6 SCC 186
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             773


it is accepted as authentic indicates a grant for specific purposes and       A
does not confer the title to the disputed land. The register of enquiry
dated 14 March 1860 contains certain details of a rent-free grant and
is stated to be “based on testimonies”. However, it shows that “the year
and date are not known”. As regards the date of the grant, it has been
stated to be of “no knowledge”. There is a reference in the register to
                                                                              B
an enquiry into the rent-free land (which) began in the year 1264 Fasli
when riots broke out. The reference to 1264 Fasli corresponds to 1856-
7 A.D. While the name of the donor is stated to be Babur, this account
is based on testimony. Register no. 6(e) – conditional exemption dated
29 June 1860-only indicates the names of individuals who were holding
the rent-free lands.                                                          C
       776. The next stage in the documentary evidence relates to the
conversion of the cash grant into the grant of revenue free land. As
noted earlier, there is a serious problem in regard to the lineage and
this Court cannot proceed on the basis of a claim made in the fourth
generation with an unexplained break in the intervening period of nearly      D
325 years. There is nothing to indicate that there was any investigation
into the correctness of the claim. Eventually, the cash payment of Rs.
302.3.6 was commuted by the grant of lands in two villages in lieu of
the erstwhile payment. This is evidenced by the letter dated 25 August
1863 of the Chief Commissioner Oudh to the Commissioner Faizabad
Division and the order dated 31 August 1863 of the Deputy                     E
Commissioner. The grant of 1870 states that the cash nankar was being
maintained so long as the assignee surrenders all the previous sanads,
titled deeds, and other documents relevant to the grant in question.
      The Nakal Khasra Abadi of 1931 indicates that Arazi number
583 is Nazul land. While it makes a reference to the Masjid Pokhta            F
Waqf Ahde Shahi, it also adverts to the Chabutra which is prominently
known as the Janmabhumi.
       777. The documentary evidence indicates that the riots of 1856-
7 led to the colonial government erecting a wall with railings to bifurcate
the areas of worship: the Muslims within the inner courtyard and the          G
Hindus in the outer courtyard. Evidently, prior to the setting up of the
railing, there was no such clear-cut demarcation and the Hindus and
Muslims had offered worship within the structure. The setting up and
offering worship at the the Chabutra immediately outside the railing and
in close proximity to it is an indicator that the Hindus asserted their       H
774            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     right to worship at what they believed is the birth-place of Lord Ram.
      The setting up of the Chabutra is proximate both in terms of distance
      and time. In terms of time, the establishment of the Chabutra is an event
      which was an immediate consequence of the setting up of the railing
      to bifurcate a contiguous and consolidated area into the inner courtyard
      and outer courtyard. Prior to the railing being erected there was no
B
      restriction on access for the Hindus to offer worship inside the domed
      structure. The documentary evidence also shows that the setting up of
      the railing did not as a matter of fact result in an absolute division of
      the inner and outer courtyards as separate and identified places of
      worship for the two communities. Soon after the incident of November
C     1858 in which the Nihang Singh is alleged to have organised a hawan
      puja and to have erected a symbol of “Sri Bhagwan” within the premises
      of the mosque is the commencement of a series of episodes indicating
      that the exclusion of the Hindus from the inner courtyard was neither
      accepted nor enforced as a matter of ground reality. Resistance was
      met to the removal of the Nihang Singh. Eventually, in December 1858
D
      it was recorded that the flag had been uprooted from the masjid and
      the Nihang Singh had been ousted. Within a short span of time in
      November 1860 came a complaint of Mir Rajjab Ali complaining of a
      new chabutra being constructed in the graveyard. The complaint
      recorded that when Azaan is called by a Moazzin, the Hindus begin to
E     blow conch shells. The area was thus rife with contesting claims over
      religious worship. Consistent with those claims, the record of
      contemporary date does not indicate the total exclusion of the Hindus
      from the inner courtyard despite the construction of the railing. In March
      1861, Mohd Asghar and Rajjab Ali joined in complaining against the
      erection of a chabutra without permission near Babri Masjid. This led
F
      to the Subedar tendering the report of the eviction of the individual who
      have done so. Again in 1866, there was a complaint by the Mutawalli
      seeking the demolition of a new Kothari which was constructed for
      placing idols inside the door of the Masjid where Bairagis had
      constructed a chabutra. On this application, the Deputy Commissioner
G     passed an order in October 1866 for its consignment to the records.
             778. In 1868, the Muslims alleged encroachment on the north
      western corner of the Masjid which was held not to have been proved.
      In 1870, the Mutawalli sought an order of eviction against a Faqir from
      the graveyard and complained of certain encroachments around the
H     trees. An order was passed thereon in August 1871, stating that the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            775


plaintiff had no right of ownership over the graveyard in the courtyard      A
in front of the door of the Masjid. In 1873, there appears to have been
a dispute in regard to the placing of an idol on the chabutra.
      779. In April 1877, the grant of permission by the Deputy
Commissioner for the construction of a new gate on the northern side
(in addition to the pre-existing gate on the eastern side) again led to a    B
dispute. The creation of an additional entry was justified by the Deputy
Commissioner to safeguard human safety since it appears that there
was a rush of devotees. The complaint of the Muslims was dismissed
and the opening of an additional door on the northern side was justified
as being in the interest of public safety.
                                                                             C
       780. When in November 1883, the Mutawalli asserted the right
to have the wall of the mosque painted, the Assistant Commissioner,
while restricting Raghubar Das from carrying out repairs in the inner
and outer part of the compound directed the Mutawalli not to lock the
outer door of the mosque on the ground that the old existing orders
must be complied with. The course of the disputes between 1858 and           D
1883 thus indicates that the setting up of the railing as a measure of
allowing Muslim worship inside to the railing and exclusion of Hindus
from worshipping in the inner courtyard was a matter of continuing
dispute. The Muslims on their part had complained of the setting up of
the chabutra. However, the activities of the Hindus in the outer courtyard   E
continued and an important indicator of the presence of Hindu devotees
in large number was the opening of an additional door in 1877. As
regards the inner courtyard, it is evident this was a matter of
contestation between Hindus and Muslims, the Muslims asserting it to
be a place of worship and the Hindus periodically contesting it by seeking
entry as they had obtained prior to the setting up of the railing. The       F
riot of 1934 resulted in a considerable damage being caused to the
domes of the mosque and led to the imposition of fines on the Hindus
and Bairagis. The work of restoration was carried out at the cost of
the British Government by a Muslim contractor. This coupled with the
documentary evidence pertaining to the arrears of salary of the Pesh         G
Imam would indicate that post 1934 there was no abandonment by the
Muslims of the mosque as a place for offering namaz. This would have
continued until 1949 though, as the Waqf Inspector notes in his report
dated 12 December 1949, Muslims who went to pray in the mosque
were being harassed by the Hindus in the outer courtyard where many
of them resided. Eventually, the events immediately preceding the            H
776            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     intervening night of 22/23 December 1949 led to the placement of the
      idols on the pulpit below the central dome of the mosque.
            781. From the documentary evidence, it emerges that:
                 (i) Prior to 1856-7 there was no exclusion of the Hindus
                     from worshipping within the precincts of the inner
B                    courtyard;
                 (ii) The conflagration of 1856-7 led to the setting up of the
                      railing to provide a bifurcation of the places of worship
                      between the two communities;

C               (iii) The immediate consequence of the setting up of the
                      railing was the continued assertion of the right to worship
                      by the Hindus who set up the Chabutra in the immediate
                      proximity of the railing;
                (iv) Despite the existence of the railing, the exclusion of the
D                    Hindus from the inner courtyard was a matter of
                     contestation and at the very least was not absolute;
                (v) As regards the outer courtyard it became the focal point
                    of Hindu worship both on the Ramchabutra as well as
                    other religious structures within the outer courtyard
                    including Sita Rasoi. Though, the Hindus continued to
E
                    worship at the Ramchabutra which was in the outer
                    courtyard, by the consistent pattern of their worship
                    including the making of offerings to the ‘Garbh Grih’
                    while standing at the railing, there can be no manner of
                    doubt that this was in furtherance of their belief that the
F                   birth-place of Lord Ram was within the precincts of and
                    under the central dome of the mosque; and
                (vi) The riots of 1934 and the events which led up to 22/23
                     December 1949 indicate that possession over the inner
                     courtyard was a matter of serious contestation often
G                    leading to violence by both parties and the Muslims did
                     not have exclusive possession over the inner courtyard.
                     From the above documentary evidence, it cannot be said
                     that the Muslims have been able to establish their
                     possessory title to the disputed site as a composite
                     whole.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             777


      O.16 The Muslim claim to possessory title                               A
      782. Dr Rajeev Dhavan, learned Senior Counsel appearing on
behalf of the plaintiffs in Suit 4, urged submissions on the effect of the
existence and destruction of a temple on the title asserted by the Sunni
Central Waqf Board. The submissions of Dr Dhavan have been
formulated thus:                                                              B
       (i) The existence of a temple below the mosque pertaining to
           an earlier time period is irrelevant to the question of title;
       (ii) The ASI report, in any event is inconclusive on the question
            whether:
                                                                              C
           (a) an earlier structure existed at the site and was
               demolished for the construction of a mosque; and
           (b) whether or not that structure is a temple.
      (iii) The High Court has also accepted that the ASI report had
            not furnished a categorical finding on whether the mosque         D
            was constructed by demolition of a pre-existing structure;
      (iv) No adverse inference could have been drawn against the
           Muslim parties for failing to plead whether there was an
           earlier idgah or kanati masjid below the structure of the
           mosque since:                                                      E
           (a) Such an enquiry could not have been conducted by
               Babur before having the mosque constructed; and
           (b) The High Court directed the ASI to conduct an
               investigation only because the material which emerged
               from the gazetteers and historical accounts was                F
               inconclusive.
     Buttressing the submissions on the law pertaining to title, Dr
Dhavan commended following propositions for acceptance by the court:
       (i) Possession creates a presumption of title, particularly if there   G
           is no better title or any other claim is barred by limitation;
       (ii) Where a person has possession with title, this will continue
            with use or the inability to use;
      (iii) In certain circumstances, possession may be sufficient to
            decide title;                                                     H
778            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           (iv) The burden of proof is upon the person who asserts
                 possession without title, particularly having regard to the
                 provisions of Section 110 of the Evidence Act;
            (v) If a person concedes or acts in a manner that indicates a
                lack of possession and performs of an act or makes an
B               omission, this will amount to estoppel under Section 115 of
                the Evidence Act;
            (vi) Possession is sustained by animus possidendi; and
           (vii) The absence of a prayer or lesser prayer would not result
                 in a loss of title and title can be lost only on adverse
C                possession beyond limitation;
            In sum and substance, the basis of the claim of title, as alleged
      before this Court by Dr Dhavan can be formulated thus:
             (i) Babri masjid was constructed in 1528 under the command
D                of Babur. The maintenance and upkeep of the mosque was
                 realised by a cash grant payable by the royal treasury during
                 the rule of Babur and the British administration continued
                 the grant;
            (ii) Several attempts of trespass and encroachment by Sikhs and
                 Hindus were repulsed by the Muslims and even the
E
                 authorities of the state protected their rights by directing -
                 (a) Eviction of Hindu / Sikh squatters from the mosque; and
                 (b) Removal of offending constructions;
            (iii) At least in 1885, the general belief of the Hindus was that
F                 the birth-place of Lord Ram was at the Ramchabutra. This
                  belief was noted in the Suit of 1885 in which there was a
                  finding that the Hindus had no title over the Chabutra and
                  their rights at the highest were prescriptive in nature;
            (iv) The Hindus have always referred to the disputed structure
G                as a mosque and recognised it as such;
            (v) Muslims continuously offered prayers in the disputed
                structure, as is evident from:
                 (a) The agreement dated 25 July 1936 for payment of
                     arrears and salary of the Pesh Imam;
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           779


           (b) Testimonies of witnesses recorded in the Shia/Sunni suit     A
               of 1941; and
           (c) Acceptance, during the course of the arguments by the
               plaintiffs of Suit 5, that namaz was offered in the mosque
               until 16 December 1949;
      (vi) The rights which the Hindus claim are based purely on illegal    B
           acts:
           (a) Preventing or harassing Muslims when they proceeded
               to the mosque to offer namaz;
           (b) Destroying a part of the mosque in 1934 leading to           C
               repairs and the imposition of fines on the Hindus;
           (c) Desecration of the mosque on 22/23 December 1949;
               and
           (d) Demolition of the mosque on 6 December 1992 in
               violation of the status quo orders of this Court;            D
     (vii) The disputed structure has in consequence always been a
           mosque which remained in possession of Muslims from 1528
           until its desecration on 22/23 December 1949.
       783. This limb of the submission of Dr Dhavan is essentially
                                                                            E
founded on possessory title. In the earlier analysis on the claim of an
independent title, it has been found that the Muslims have been unable
to establish a specific grant of the land underlying the mosque as a
foundation of legal title during Muslims rule or upon the transfer of
power to the colonial administration after 1857. The documentary
evidence which has been relied upon consists of revenue records             F
pertaining to grants for the upkeep and maintenance of the mosque.
Dr Dhavan has however urged for the acceptance of the claim of the
Muslims that they were in possession of the inner and outer courtyard
and the continuous nature of that possession creates a presumption of
title which the Hindus cannot displace.
                                                                            G
      784. Section 110 of the Evidence Act 1872 provides thus:
      “Section 110.- Burden of proof as to ownership - 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
                                                                            H
780                SUPREME COURT REPORTS                      [2019] 18 S.C.R.


A               not the owner is on the person who affirms that he is not the
                owner.”
             Section 110 deals with the burden of proof. Where the provision
      applies, the burden of proving that another person who is in possession
      is not the owner lies on the person who affirms against the ownership
B     of that other person. But, for Section 110 to be attracted, there must
      be a question as to whether any person is the owner of anything and
      the ownership claimed must be that of which he is shown to be in
      possession. Section 110 is based on the principle that title follows
      possession. That is why the provision postulates that where a person
      is shown to be in possession, and a question arises as to whether that
C     person is the owner, the law casts the burden of disproving ownership
      on the individual who affirms that the person in possession is not the
      owner.
            785. Several decisions of this Court have interpreted the
      provisions of Section 110. Section 110 is based on the principle that
D     possession in and of itself may raise a presumption of title. But this
      applies when the facts disclose no title in either of the disputants in
      which case, as it is said, possession alone decides. Hence, on the other
      hand, it is also well-settled that the presumption cannot be arise when
      the facts are known.
E            In Nair Service Society Ltd. v K C Alexander 398, Justice
      M Hidayatullah (as the learned Chief Justice then was) speaking for a
      three judge Bench of this Court held:
                “17…That possession may prima facie raise a presumption of
                title no one can deny but this presumption can hardly arise when
F               the facts are known. When the facts disclose no title in either
                party, possession alone decides.”
             In M S Jagadambal v Southern Indian Education Trust399,
      Justice K Jagannatha Shetty, speaking for a two judge Bench of this
      Court held that possession continues with the title holder unless and
G     until the defendant acquires title by adverse possession:
                “18…The possession continues with the title holder unless and
                until the defendant acquires title by adverse possession. There

      398
            AIR 1968 SC 1165
      399
H           1988 (Supp) SCC 144
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           781


          would be no continuance of adverse possession when the land           A
          remains submerged and when it is put out of use and enjoyment.
          In such a case the party having title could claim constructive
          possession provided the title had not been extinguished by adverse
          possession before the last submergence. There is no difference
          in principle between seasonal submersion and one which
          continues for a length of time.”                                      B

       In Chief Conservator of Forests, Govt of A P v Collector400,
Justice Syed Shah Mohammed Quadri, speaking for a two judge Bench
of this Court held:
          “20…presumption, which is rebuttable, is attracted when the           C
          possession is prima facie lawful and when the contesting party
          has no title.”
       In State of A P v Star Bone Mill & Fertiliser Company401,
this Court held that the object of Section 110 is based on public policy.
The object is to prevent persons from committing a breach of peace
                                                                                D
by taking the law into their own hands however good their title may be
over the land in question. This object underlies provisions such as Section
6 of the Specific Relief Act 1963, Section 145 of the Code of Criminal
Procedure 1973 and Sections 154 and 158 of the Indian Penal Code
1860. Justice B S Chauhan speaking for a two judge Bench of this Court
explained in the above decision that:                                           E
          “21…The said presumption is read under Section 114 of the
          Evidence Act, and applies only in a case where there is
          either no proof, or very little proof of ownership on either
          side. The maxim “possession follows title” is applicable in cases
          where proof of actual possession cannot reasonably be expected,       F
          for instance, in the case of wastelands, or where nothing is known
          about possession one way or another. Presumption of title as
          a result of possession, can arise only where facts disclose
          that no title vests in any party. Possession of the plaintiff is
          not prima facie wrongful, and title of the plaintiff is not proved.
          It certainly does not mean that because a man has title over some     G
          land, he is necessarily in possession of it. It in fact means, that
          if at any time a man with title was in possession of the said
          property, the law allows the presumption that such
400
      (2003) 3 SSC 472
401
      (2013) 9 SCC 319                                                          H
782            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           possession was in continuation of the title vested in him.
            A person must establish that he has continued possession of the
            suit property, while the other side claiming title, must make out a
            case of trespass/encroachment, etc. Where the apparent title is
            with the plaintiffs, it is incumbent upon the defendant, that in order
            to displace this claim of apparent title and to establish beneficial
B           title in himself, he must establish by way of satisfactory evidence,
            circumstances that favour his version. Even, a revenue record
            is not a document of title. It merely raises a presumption in regard
            to possession. Presumption of possession and/or continuity
            thereof, both forward and backward, can also be raised under
C           Section 110 of the Evidence Act.”
                                                           (Emphasis supplied)
            In assessing this limb of the submission on the applicability of
      Section 110 the crucial test is whether the disputed site represents
      “anything of which” the Muslim parties are “shown to be in possession”.
D     Unless the ‘shown to be in possession’ requirement is fulfilled, the
      presumption would not arise and there would be no question of placing
      the burden of establishing that the plaintiffs in Suit 4 are not the owners
      on the contesting Hindu parties.
            Analysis on the Muslim claim of possession
E
             786. The case of the plaintiffs in Suit 4 has to be evaluated on
      the basis of the entirety of the evidence on the record to deduce whether
      possession has been established on a preponderance of probabilities.
      The evidence reveals several significant features which must be noted:
             (i) Though, the case of the plaintiffs in Suit 4 is that the mosque
F                was constructed in 1528 by or at the behest of Babur, there
                 is no account by them of possession, use or offer of namaz
                 in the mosque between the date of construction and 1856-
                 7. For a period of over 325 years which elapsed since the
                 date of the construction of the mosque until the setting up
G                of a grill-brick wall by the British, the Muslims have not
                 adduced evidence to establish the exercise of possessory
                 control over the disputed site. Nor is there any account in
                 the evidence of the offering of namaz in the mosque, over
                 this period;

H
M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           783


   (ii) On the contrary, the travelogues (chiefly Tieffenthaler and       A
        Montgomery Martin) provide a detailed account both of
        the faith and belief of the Hindus based on the sanctity which
        they ascribed to the place of birth of Lord Ram and of the
        actual worship by the Hindus at the Janmasthan;
  (iii) William Finch (1608-11) and Tieffenthaler who visited             B
        India between 1743-1785 provided an account of Ayodhya.
        Conspicuous in both the accounts are references to worship
        by the Hindus to Lord Ram. The positive account of Hindu
        worship to Lord Ram is of probative value. Tieffenthaler
        specifically refers to Hindu places of worship including Sita
        Rasoi, Swargdwar and the Bedi or cradle symbolising the           C
        birth of Lord Ram. The account refers to religious festivals
        where during the course of which Hindu devotees would
        throng for worship. Tieffenthaler’s account in the eighteenth
        century is prior to the construction of the grill–brick wall in
        front of the mosque. Tieffenthaler refers to “a square box        D
        raised 5 inches above the ground with borders made of lime
        with the length of more than 5 ells and the maximum width
        of 4 ells”, which the Hindus called the Bedi or cradle. This,
        as he notes, was the site of the house where Lord Vishnu
        was born in the form of the Lord Ram. This, as he notes,
        is where it was believed that either Aurangzeb or (according      E
        to others) Babur got the place razed. Tieffenthaler,
        however, noted that in the place where the “native house”
        of Lord Ram existed the Hindus circumambulate three times
        and prostrate on the floor. This account of Tieffenthaler
        refers to a focal point of worship namely the birth-place of      F
        Lord Ram around which worship took place and the Hindus
        circumambulated and prostrated;
  (iv) The communal riots that took place in 1856-7 resulted in
       the colonial administration setting up a grill-brick wall to
       bring about a measure of peace between the conflicting             G
       claims of the two communities. The immediate aftermath
       of the railing led to the dispute over the Ramchabutra, which
       was erected right outside the railing and from where the
       Hindus sought to offer worship to Lord Ram. The time of
       the setting up of the Chabutra, the place of its location and
                                                                          H
784       SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           the offer of worship to Lord Ram on Chabutra are pointers
            in the direction of the Hindus continuing to offer worship
            immediately outside the railing when faced with a possible
            exclusion from the inner courtyard;
       (v) The construction of the grill-brick wall during the colonial
B          administration did not constitute any determination of title
           as between the Hindus and the Muslims but was a measure
           intended to maintain public peace and safety having regard
           to the incidents which had taken place in 1856-7 resulting
           in a loss of life;
C      (vi) That the setting up of a buffer in the form of the grill-brick
            wall did not amount to an absolute exclusion appears from
            sporadic incidents such as the incident involving the setting
            up of a flag and the performance of hawan and puja by the
            Nihang Singh within the precincts of the mosque. Nihang
            Singh was evicted following the intervention of the
D           authorities of the state;
      (vii) Until 1877, there was only one entry through which access
            could be gained to the inner courtyard which was the door
            on the eastern side called Hanumat Dwar. On gaining entry,
            the Hindus had several places of worship such as the
E           Ramchabutra and Sita Rasoi as well as the Bhandar which
            indicated that insofar as the outer courtyard is concerned,
            the Hindus were in settled possession;
      (viii) The opening of an additional door on the northern side which
             came to be known as Singh Dwar was warranted as a
F            measure to ensure the safe passage of a large number of
             pilgrims who entered the premises to offer worship.
             Objections to the opening of Singh Dwar were dealt with
             and resulted in their rejection as a consequence of which
             the opening of an additional door providing access became
G            an established fact;
       (ix) Disputes between the Hindus and the Muslims continued
            to persist, indicating the litigious nature of the respective
            claims, in respect of the inner courtyard;
       (x) In 1934, there was yet another communal riot during the
H          course of which the domed structure of the mosque was
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          785


           damaged. This led to the imposition of a fine on the Hindu      A
           residents of Ayodhya and the work of restoration being
           carried out at the expense of the colonial administration
           through a Muslim contractor. This indicates that while the
           Hindus had continued to offer worship continuously in the
           outer courtyard, there was no abandonment of the claim by
                                                                           B
           the Muslims of the status of the structure inside the inner
           courtyard as a mosque. After 1934, there is documentary
           material to indicate that arrangements were made for the
           appointment of a Pesh Imam and Mutawalli for the mosque
           which would belie the notion that there was an abandonment
           of the mosque;                                                  C
      (xi) After 1934, evidence indicates that Muslim worship in the
           form of namaz had reduced as a result of the obstructions
           in their access to the inner courtyard. By 16 December 1949
           (the last Friday namaz) the mosque was being used for the
           purposes of Friday namaz. The circumstances bearing upon        D
           the restoration of the damage which was done to the
           mosque in 1934, availing of the services of the Pesh Imam
           and the offering of namaz albeit to a reduced extent are
           circumstances which point to a reasonable inference that
           there was no total ouster of the Muslims from the inner
           structure prior to 22/23 December 1949 though their access      E
           was intermittent and interrupted; and
     (xii) On 22/23 December 1949, idols were installed below the
           central dome of the inner structure which, according to the
           Muslims, led to the desecration of the mosque. Prior to this,
           the last namaz was offered on Friday, 16 December 1949.         F
           The Friday namaz due on 23 December 1949 could not be
           offered due to the intervening desecration of the mosque.
       The Sunni Central Waqf Board’s case of possession to attract
the applicability of Section 110 of the Evidence Act must therefore be
assessed from two perspectives: First, insofar as the outer courtyard      G
is concerned, it is impossible to accept on the basis of a preponderance
of probabilities that the Muslims were in possession. On the contrary,
the establishment of Hindu places of worship in the outer courtyard
clearly belies such a claim. Second, insofar as the inner courtyard is
concerned, the claim of the Muslims must necessarily be assessed with      H
786             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     reference to various time periods namely (i) prior to 1856; (ii) between
      1856 and 1934; and (iii) after 1934.
             787. The Muslim account of worship prior to 1856 is conspicuously
      silent as opposed to the accounts of worship being offered by the
      Hindus. Post the setting up of the wall and railing, it is evident that there
B     were obstructions which arose in the continued worship of the Muslims
      in the inner courtyard which is evidenced by numerous proceedings as
      well as by the riots of 1934. Yet, the manner in which the restoration
      of the mosque took place after the riots and the arrangements in
      particular for the services of the Pesh Imam indicate that the obstruction
      notwithstanding, some form of namaz continued to be offered in the
C     mosque until 16 December 1949. While, as the Waqf Inspector
      indicated, the process of namaz was being obstructed and the
      worshippers were harassed, there is no evidence to show the
      abandonment of the claims by the Muslims. In fact, the documentary
      and oral evidence indicates that Friday namaz was intermittently being
D     offered until 16 December 1949. Though, the claim of the Muslims over
      the inner courtyard was not abandoned, yet as the evidence indicates,
      this was a matter of contestation and dispute.

             P. Analysis on title
E            P.1 Marshalling the evidence in Suit 4 and Suit 5
             788. A stage has now been reached to marshal together the
      evidence on the claim of title in Suit 4 and Suit 5 to pave the way for
      the ultimate determination of the relief to be granted.
             I The report of the ASI indicates the following position:
F
                  (i) Archaeological finds in the area of excavation reveal
                      significant traces of successive civilisations, commencing
                      with the age of the North Black Polished Ware traceable
                      to the second century B.C.;
                  (ii) The excavation by the ASI has revealed the existence
G
                       of a pre-existing underlying structure dating back to the
                       twelfth century. The structure has large dimensions,
                       evident from the fact that there were 85 pillar bases
                       comprised in 17 rows each of five pillar bases;
                 (iii) On a preponderance of probabilities, the archaeological
H                      findings on the nature of the underlying structure indicate
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           787


               it to be of Hindu religious origin, dating to twelfth        A
               century A.D.;
          (iv) The mosque in dispute was constructed upon the
               foundation of the pre-existing structure. The construction
               of the mosque has taken place in such a manner as to
               obviate an independent foundation by utilising the walls     B
               of the pre-existing structure; and
           (v) The layered excavation at the site of excavation has also
               revealed the existence of a circular shrine together with
               a makara pranala indicative of Hindu worship dating
               back to the eighth to tenth century.                         C
      A reasonable inference can be drawn on the basis of the standard
of proof which governs civil trials that:
       (i) The foundation of the mosque is based on the walls of a
           large pre-existing structure;
                                                                            D
      (ii) The pre-existing structure dates back to the twelfth century;
           and
      (iii) The underlying structure which provided the foundations of
            the mosque together with its architectural features and
            recoveries are suggestive of a Hindu religious origin
                                                                            E
            comparable to temple excavations in the region and
            pertaining to the era.
      II The conclusion in the ASI report about the remains of an
underlying structure of a Hindu religious origin symbolic of temple
architecture of the twelfth century A.D. must however be read
                                                                            F
contextually with the following caveats:
       (i) While the ASI report has found the existence of ruins of a
           pre-existing structure, the report does not provide:
           (a) The reason for the destruction of the pre-existing
               structure; and                                               G
           (b) Whether the earlier structure was demolished for the
               purpose of the construction of the mosque.
      (ii) Since the ASI report dates the underlying structure to the
           twelfth century, there is a time gap of about four centuries
           between the date of the underlying structure and the             H
788            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A                 construction of the mosque. No evidence is available to
                  explain what transpired in the course of the intervening
                  period of nearly four centuries;
            (iii) The ASI report does not conclude that the remnants of the
                  pre- existing structure were used for the purpose of
B                 constructing the mosque (apart, that is, from the construction
                  of the mosque on the foundation of the erstwhile structure);
                  and
            (iv) The pillars that were used in the construction of the mosque
                 were black Kasauti stone pillars. ASI has found no evidence
C                to show that these Kasauti pillars are relatable to the
                 underlying pillar bases found during the course of excavation
                 in the structure below the mosque.
             III A finding of title cannot be based in law on the archaeological
      findings which have been arrived at by ASI. Between the twelfth century
D     to which the underlying structure is dated and the construction of the
      mosque in the sixteenth century, there is an intervening period of four
      centuries. No evidence has been placed on the record in relation to
      the course of human history between the twelfth and sixteen centuries.
      No evidence is available in a case of this antiquity on (i) the cause of
      destruction of the underlying structure; and (ii) whether the pre-existing
E     structure was demolished for the construction of the mosque. Title to
      the land must be decided on settled legal principles and applying
      evidentiary standards which govern a civil trial.
           IV Historical records of travellers (chiefly Tieffenthaler and the
      account of Montgomery Martin in the eighteenth century) indicate:
F
             (i) The existence of the faith and belief of the Hindus that the
                 disputed site was the birth-place of Lord Ram;
             (ii) Identifiable places of offering worship by the Hindus
                  including Sita Rasoi, Swargdwar and the Bedi (cradle)
                  symbolising the birth of Lord Ram in and around the disputed
G
                  site;
            (iii) Prevalence of the practice of worship by pilgrims at the
                  disputed site including by parikrama (circumambulation) and
                  the presence of large congregations of devotees on the
                  occasion of religious festivals; and
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              789


      (iv) The historical presence of worshippers and the existence            A
           of worship at the disputed site even prior to the annexation
           of Oudh by the British and the construction of a brick-grill
           wall in 1857.
        Beyond the above observations, the accounts of the travellers
must be read with circumspection. Their personal observations must             B
carefully be sifted from hearsay – matters of legend and lore.
Consulting their accounts on matters of public history is distinct from
evidence on a matter of title. An adjudication of title has to be deduced
on the basis of evidence sustainable in a court of law, which has
withstood the searching scrutiny of cross-examination. Similarly, the
contents of gazetteers can at best provide corroborative material to           C
evidence which emerges from the record. The court must be
circumspect in drawing negative inferences from what a traveller may
not have seen or observed. Title cannot be established on the basis of
faith and belief above. Faith and belief are indicators towards patterns
of worship at the site on the basis of which claims of possession are          D
asserted. The court has evaluated the rival claims to possessory title in
a situation in which the state has expressly stated in its written statement
that it claims no interest in the land.
       V The evidence indicates that despite the existence of a mosque
at the site, Hindu worship at the place believed to be the birth-place of      E
Lord Ram was not restricted. The existence of an Islamic structure at
a place considered sacrosanct by the Hindus did not stop them from
continuing their worship at the disputed site and within the precincts of
the structure prior to the incidents of 1856-7. The physical structure of
an Islamic mosque did not shake the faith and belief of Hindus that
Lord Ram was born at the disputed site. On the other hand, learned             F
counsel fairly stated that the evidence relied on by the Sunni Central
Waqf Board to establish the offering of namaz by the Muslim residents
commences from around 1856-7;
      VI The setting up of a railing in 1857 by the British around the
disputed structure of the mosque took place in the backdrop of a               G
contestation and disputes over the claim of the Hindus to worship inside
the precincts of the mosque. This furnished the context for the riots
which took place between Hindus and Muslims in 1856-7. The
construction of a grick-brick wall by the colonial administration was
intended to ensure peace between the two communities with respect              H
790            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     to a contested place of worship. The grill-brick wall did not constitute
      either a sub-division of the disputed site which was one composite
      property, nor did it amount to a determination of title by the colonial
      administration;
             VII Proximate in time after the setting up of the railing, the
B     Ramchabutra was set up in or about 1857. Ramchabutra was set up in
      close physical proximity to the railing. Essentially, the setting up of
      Ramchabutra within a hundred feet or thereabouts of the inner dome
      must be seen in the historical context as an expression or assertion of
      the Hindu right to worship at the birth-place of Lord Ram. Even after
      the construction of the dividing wall by the British, the Hindus continued
C     to assert their right to pray below the central dome. This emerges from
      the evidentiary record indicating acts of individuals in trying to set up
      idols and perform puja both within and outside the precincts of the inner
      courtyard. Even after the setting up of the Ramchabutra, pilgrims used
      to pay obeisance and make offerings to what they believed to be the
D     ‘Garbh Grih’ located inside the three domed structure while standing
      at the iron railing which divided the inner and outer courtyards. There
      is no evidence to the contrary by the Muslims to indicate that their
      possession of the disputed structure of the mosque was exclusive and
      that the offering of namaz was exclusionary of the Hindus;
E            VIII Hindu worship at Ramchabutra, Sita Rasoi and at other
      religious places including the setting up of a Bhandar clearly indicated
      their open, exclusive and unimpeded possession of the outer courtyard.
      The Muslims have not been in possession of the outer courtyard. Despite
      the construction of the wall in 1858 by the British and the setting up of
      the Ramchabutra in close-proximity of the inner dome, Hindus continued
F     to assert their right to pray inside the three-domed structure;
             IX In or about 1877, at the behest of the Hindus, another door
      to the outer courtyard was allowed to be opened by the administration
      on the northern side (Sing Dwar), in addition to the existing door on
      the east (Hanumat Dwar). The Deputy Commissioner declined to
G     entertain a complaint against the opening made in the wall. The
      Commissioner while dismissing the appeal held that the opening up of
      the door was in public interest. The opening of an additional door with
      the permission of the British administration indicates recognition of the
      presence of a large congregation of Hindu devotees necessitating
H     additional access to the site in the interest of public peace and safety;
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              791


       X Testimonies of both Hindu and Muslim witnesses indicate that          A
on religious occasions and festivals such as Ram Navami, Sawan
Jhoola, Kartik Poornima, Parikrama Mela and Ram Vivah, large
congregations of Hindu devotees visited the disputed premises for
darshan. The oral testimony of the Hindu devotees establishes the
pattern of worship and prayer at Sita Rasoi, Ramchabutra and towards
                                                                               B
the ‘Garb Grih’, while standing at the railing of the structure of the brick
wall;
       XI Hindu witnesses have indicated that Hindus used to offer
prayer to the Kasauti stone pillars placed inside the mosque. Muslim
witnesses have acknowledged the presence of symbols of Hindu
religious significance both inside and outside the mosque. Among them,         C
is the depiction of Varah, Jai-Vijay and Garud outside the three domed
structure. They are suggestive not merely of the existence of the faith
and belief but of actual worship down the centuries;
       XII There can no denying the existence of the structure of the
mosque since its construction in the sixteenth century with the inscription    D
of ‘Allah’ on the structure. The genesis of the communal incident of
1856-7 lies in the contestation between the two communities over
worship. The setting up of the railing in 1856-7 was an attempt by the
administration to provide a measure of bifurcation to observe religious
worship – namaz by the Muslims inside the railing within the domed             E
structure of the mosque and worship by the Hindus outside the railing.
Attempts by the Sikhs or faqirs to enter into the mosque and set up
religious symbols for puja were resisted by the Muslims, resulting in
the administration evicting the occupier;
       XIII After the construction of the grill-brick wall in 1857, there      F
is evidence on record to show the exclusive and unimpeded possession
of the Hindus and the offering of worship in the outer courtyard. Entry
into the three domed structure was possible only by seeking access
through either of the two doors on the eastern and northern sides of
the outer courtyard which were under the control of the Hindu devotees;
                                                                               G
       XIV On a preponderance of probabilities, there is no evidence
to establish that the Muslims abandoned the mosque or ceased to
perform namaz in spite of the contestation over their possession of the
inner courtyard after 1858. Oral evidence indicates the continuation of
namaz;
                                                                               H
792            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            XV The contestation over the possession of the inner courtyard
      became the centre of the communal conflict of 1934 during the course
      of which the domes of the mosque sustained damage as did the
      structure. The repair and renovation of the mosque following the riots
      of 1934 at the expense of the British administration through the agency
      of a Muslim contractor is indicative of the fact the despite the disputes
B
      between the two communities, the structure of the mosque continued
      to exist as did the assertion of the Muslims of their right to pray. Namaz
      appears to have been offered within the mosque after 1934 though, by
      the time of incident of 22/23 December 1949, only Friday namaz was
      being offered. The reports of the Waqf Inspector of December 1949
C     indicate that the Sadhus and Bairagis who worshipped and resided in
      the outer courtyard obstructed Muslims from passing through the
      courtyard, which was under their control, for namaz within the mosque.
      Hence the Waqf Inspector noted that worship within the mosque was
      possible on Fridays with the assistance of the police;
D            XVI The events preceding 22/23 December 1949 indicate the
      build-up of a large presence of Bairagis in the outer courtyard and the
      expression of his apprehension by the Superintendent of Police that the
      Hindus would seek forcible entry into the precincts of the mosque to
      install idols. In spite of written intimations to him, the Deputy
      Commissioner and District Magistrate (K K Nayyar) paid no heed and
E     rejected the apprehension of the Superintendent of Police to the safety
      of the mosque as baseless. The apprehension was borne out by the
      incident which took place on the night between 22/23 December 1949,
      when a group of fifty to sixty persons installed idols on the pulpit of
      the mosque below the central dome. This led to the desecration of the
F     mosque and the ouster of the Muslims otherwise than by the due process
      of law. The inner courtyard was thereafter attached in proceedings
      under Section 145 CrPC 1898 on 29 December 1949 and the receiver
      took possession;
             XVII On 6 December 1992, the structure of the mosque was
G     brought down and the mosque was destroyed. The destruction of the
      mosque took place in breach of the order of status quo and an
      assurance given to this Court. The destruction of the mosque and the
      obliteration of the Islamic structure was an egregious violation of the
      rule of law;

H            XVIII The net result, as it emerges from the evidentiary record
      is thus:
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             793


       (i) The disputed site is one composite whole. The railing set          A
           up in 1856-7 did not either bring about a sub-division of the
           land or any determination of title;
       (ii) The Sunni Central Waqf Board has not established its case
            of a dedication by user;
      (iii) The alternate plea of adverse possession has not been             B
            established by the Sunni Central Waqf Board as it failed to
            meet the requirements of adverse possession;
      (iv) The Hindus have been in exclusive and unimpeded
           possession of the outer courtyard where they have continued
           worship;                                                           C

      (v) The inner courtyard has been a contested site with
          conflicting claims of the Hindus and Muslims;
      (vi) The existence of the structure of the mosque until 6
           December 1992 does not admit any contestation. The                 D
           submission that the mosque did not accord with Islamic
           tenets stands rejected. The evidence indicates that there
           was no abandonment of the mosque by Muslims. Namaz
           was observed on Fridays towards December 1949, the last
           namaz being on 16 December 1949;
                                                                              E
     (vii) The damage to the mosque in 1934, its desecration in 1949
           leading to the ouster of the Muslims and the eventual
           destruction on 6 December 1992 constituted a serious
           violation of the rule of law; and
     (viii) Consistent with the principles of justice, equity and good
                                                                              F
            conscience, both Suits 4 and 5 will have to be decreed and
            the relief moulded in a manner which preserves the
            constitutional values of justice, fraternity, human dignity and
            the equality of religious belief.
        XVIII The Hindus have established a clear case of a possessory
title to the outside courtyard by virtue of long, continued and unimpeded     G
worship at the Ramchabutra and other objects of religious signficance.
The Hindus and the Muslims have contested claims to the offering
worship within the three domed structure in the inner courtyard. The
assertion by the Hindus of their entitlement to offer worship inside has
been contested by the Muslims.                                                H
794             SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           Legality of the decree for partition by the High Court
             789. The High Court on a finding that Hindus and Muslims were
      in joint possession directed a three-way bifurcation of the disputed site,
      one third each being assigned to the Muslims, Hindus and Nirmohi
      Akhara. Justice S U Khan held that title follows possession and based
B     on the provisions of Section 110 of the Evidence Act came to the
      conclusion that the disputed site should be equally distributed between
      the three parties. Justice Sudhir Agarwal held that the area under the
      central dome of the disputed structure is believed to be and worshipped
      by the Hindus as the place of birth of Lord Ram. This part of the land,
      he held, constitutes the deity called ‘Sri Ramjanmsthan’ which has
C     specific significance to the Hindus. Insofar as the other land within the
      inner courtyard is concerned, Justice Agarwal held that it has been
      continuously used by members of both communities for prayer and
      worship, noticing that the prayer for relief in Suit 5 had been “worded
      in a manner showing that the same has not been asked from the Court
D     but has been left to the discretion of the Court if it finds expedient”.
      Justice Agarwal held that in order to do complete justice and to avoid
      a multiplicity of litigation, it was open to the court to mould the relief
      under Order VII Rule 7 of the CPC. Justice Agarwal therefore also
      joined in directing a three-way bifurcation in terms of a preliminary
      decree. Justice D V Sharma, decreed Suit 5 in its entirety.
E
             790. Mr K Parasaran, learned Senior Counsel, appearing for the
      plaintiffs in Suit 5, argued that in attempting to mould the relief “to do
      complete justice”, the High Court assumed a jurisdiction which did not
      vest in it; such a power, it was urged, lies in the exclusive jurisdiction
      of this Court under Article 142 of the Constitution.
F
             791. In assessing the correctness of the decree of the High
      Court, it must be noted at the outset that the High Court was not seized
      of a suit for partition. In a suit for partition, it is trite law that every
      party is both a plaintiff and defendant. The High Court was hearing:
      (i) a suit by a worshipper seeking the enforcement of the right to pray
G     (Suit 1); (ii) a suit by Nirmohi Akhara asserting shebaiti rights to the
      management and charge of the temple (Suit 3); (iii) a declaratory suit
      on title by the Sunni Central Waqf Board and Muslims (Suit 4); and
      (iv) a suit for a declaration on behalf of the Hindu deities in which an
      injunction has also been sought restraining any obstruction with the
H     construction of a temple (Suit 5). The High Court was called upon to
      M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             795


decide the question of title particularly in the declaratory suits, Suits 4       A
and 5.
        792. In Srinivas Ram Kumar v Mahabir Prasad402, a three
judge Bench of this Court held that it is not open to the court to grant
relief to the plaintiff on a case for which there is no basis in the pleadings.
Justice B K Mukherjea held:                                                       B
         “9...The question, however, arises whether, in the absence of any
         such alternative case in the plaint it is open to the court to give
         him relief on that basis. The rule undoubtedly is that the court
         cannot grant relief to the plaintiff on a case for which there was
         no foundation in the pleadings and which the other side was not          C
         called upon or had an opportunity to meet.”
     This principle was reiterated in the judgment of the Constitution
Bench in Sri Venkataramana Devaru v State of Mysore403, Justice
Venkatarama Aiyar, speaking for this Court held:
         “The object of requiring a party to put forward his pleas in the         D
         pleadings is to enable the opposite party to controvert them and
         to adduce evidence in support of his case. And it would be neither
         legal nor just to refer to evidence adduced with reference to a
         matter which was actually in issue and on the basis of that
         evidence, to come to a finding on a matter which was not in              E
         issue, and decide the rights of parties on the basis of that finding.”
        The High Court has adopted a path which was not open to it in
terms of the principles formulated above. It granted reliefs which were
not the subject matter of the prayers in the suits. In the process of doing
so, it proceeded to assume the jurisdiction of a civil court in a suit for        F
partition, which the suits before it were not.
         Order VII Rule 7 of the CPC provides thus:
         “7. Relief to be specifically stated- Every plaint shall state
         specifically the relief which the plaintiff claims either simply or
         in the alternative, and it shall not be necessary to ask for general     G
         or other relief which may always be given as the Court may think
         just to the same extent as if it had been asked for. And the same
         rule shall apply to any relief claimed by the defendant in his
         written statement.”
402
      1951 SCR 277
403
      1958 SCR 895                                                                H
796             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A             The above provision requires a plaintiff to specifically claim either
      simply or in the alternative the relief, which is sought. However, it
      clarifies that it is not necessary to ask for general and other reliefs which
      may always be given in the discretion of the court. This provision does
      not entitle the court in a civil trial to embark upon the exercise of
      recasting virtually the frame of a suit, which was undertaken by the
B     High Court. There was no basis in the pleadings before the High Court
      and certainly no warrant in the reliefs which were claimed to direct a
      division of the land in the manner that a court would do in a suit for
      partition.
           793. As Justice S B Sinha held while speaking for a two judge
C     Bench of this Court in Shiv Kumar Sharma v Santosh Kumari404:
             “27. A court of law cannot exercise its discretionary jurisdiction
             dehors the statutory law. Its discretion must be exercised in terms
             of the existing statute.”
          [See also in this context the judgment of Justice Ashok Bhan in
D     Shamsu Suhara Beevi v G Alex405].
            In Om Prakash v Ram Kumar406, Justice M Fathima Beevi
      speaking for a three judge Bench held:
             “4…A party cannot be granted a relief which is not claimed, if
             the circumstance of the case are such that the granting of such
E            relief would result in serious prejudice to the interested party and
             deprive him of the valuable rights under the statute.”
             The High Court has completely erred in granting relief which lay
      outside the ambit of the pleadings and the cases set up by the plaintiffs
      in Suits 3, 4 and 5.
F
             794. There is another serious flaw in the entire approach of the
      High Court in granting relief of a three-way bifurcation of the disputed
      site. Having come to the conclusion that Suit 3 (filed by Nirmohi
      Akhara) and Suit 4 (filed by Sunni Central Waqf Board) were barred
      by limitation, the High Court proceeded to grant relief in Suit 5 to the
G     plaintiffs in Suits 3 and 4. This defies logic and is contrary to settled
      principles of law. Moreover, the claim by the Nirmohi Akhara was as
      a shebait who claimed a decree for management and charge. On its
      404
          (2007) 8 SCC 600
      405
          (2004) 8 SCC 569 at paragraph 11
      406
H         (1991) 1 SCC 441
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              797


own case, Nirmohi Akhara could not have been granted an independent            A
share of the land. By this judgment, the finding of the High Court that
the suit of Nirmohi Akhara was barred by limitation has been upheld
but the finding in regard to the bar of limitation being attracted to Suit
4 has been reversed. This aspect will be dealt with while analysing the
final relief which will be granted.
                                                                               B
      P.2 Conclusion on title
         795. The facts, evidence and oral arguments of the present case
have traversed the realms of history, archaeology, religion and the law.
The law must stand apart from political contestations over history,
ideology and religion. For a case replete with references to                   C
archaeological foundations, we must remember that it is the law which
provides the edifice upon which our multicultural society rests. The law
forms the ground upon which, multiple strands of history, ideology and
religion can compete. By determining their limits, this Court as the final
arbiter must preserve the sense of balance that the beliefs of one citizen
do not interfere with or dominate the freedoms and beliefs of another.         D
On 15 August 1947, India as a nation realised the vision of self-
determination. On 26 January 1950 we gave ourselves the Constitution
of India, as an unwavering commitment to the values which define our
society. At the heart of the Constitution is a commitment to equality
upheld and enforced by the rule of law. Under our Constitution, citizens       E
of all faiths, beliefs and creeds seeking divine provenance are both
subject to the law and equal before the law. Every judge of this Court
is not merely tasked with but sworn to uphold the Constitution and its
values. The Constitution does not make a distinction between the faith
and belief of one religion and another. All forms of belief, worship and
prayer are equal. Those whose duty it is to interpret the Constitution,        F
enforce it and engage with it can ignore this only to the peril of our
society and nation. The Constitution speaks to the judges who interpret
it, to those who govern who must enforce it, but above all, to the citizens
who engage with it as an inseparable feature of their lives.
       796. In the present case, this Court is tasked with an adjudicatory     G
task of unique dimension. The dispute is over immovable property. The
court does not decide title on the basis of faith or belief but on the basis
of evidence. The law provides us with parameters as clear but as
profound as ownership and possession. In deciding title to the disputed
property, the court applies settled principles of evidence to adjudicate
upon which party has established a claim to the immovable property.            H
798             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A            797. On the balance of probabilities, there is clear evidence to
      indicate that the worship by the Hindus in the outer courtyard continued
      unimpeded in spite of the setting up of a grill-brick wall in 1857. Their
      possession of the outer courtyard stands established together with the
      incidents attaching to their control over it.
B            798. As regards the inner courtyard, there is evidence on a
      preponderance of probabilities to establish worship by the Hindus prior
      to the annexation of Oudh by the British in 1857. The Muslims have
      offered no evidence to indicate that they were in exclusive possession
      of the inner structure prior to 1857 since the date of the construction
      in the sixteenth century. After the setting up of the grill-brick wall, the
C     structure of the mosque continued to exist and there is evidence to
      indicate that namaz was offered within its precincts. The report of the
      Waqf Inspector of December 1949 indicates that Muslims were being
      obstructed in free and unimpeded access to mosque for the purposes
      of offering namaz. However, there is evidence to show that namaz was
D     offered in the structure of the mosque and the last Friday namaz was
      on 16 December 1949. The exclusion of the Muslims from worship and
      possession took place on the intervening night between 22/23 December
      1949 when the mosque was desecrated by the installation of Hindu idols.
      The ouster of the Muslims on that occasion was not through any lawful
      authority but through an act which was calculated to deprive them of
E     their place of worship. After the proceedings under Section 145 of CrPC
      1898 were initiated and a receiver was appointed following the
      attachment of the inner courtyard, worship of the Hindu idols was
      permitted. During the pendency of the suits, the entire structure of the
      mosque was brought down in a calculated act of destroying a place of
F     public worship. The Muslims have been wrongly deprived of a mosque
      which had been constructed well over 450 years ago.
              799. We have already concluded that the three-way bifurcation
      by the High Court was legally unsustainable. Even as a matter of
      maintaining public peace and tranquillity, the solution which commended
G     itself to the High Court is not feasible. The disputed site admeasures
      all of 1500 square yards. Dividing the land will not subserve the interest
      of either of the parties or secure a lasting sense of peace and tranquillity.
              800. Suit 5 has been held to be maintainable at the behest of the
      first plaintiff (the deity of Lord Ram) who is a juristic person. The third
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            799


plaintiff (next friend) has been held to be entitled to represent the the    A
first plaintiff. We are of the view that on the one hand a decree must
ensue in Suit 5, Suit 4 must also be partly decreed by directing the
allotment of alternate land to the Muslims for the construction of a
mosque and associated activities. The allotment of land to the Muslims
is necessary because though on a balance of probabilities, the evidence
                                                                             B
in respect of the possessory claim of the Hindus to the composite whole
of the disputed property stands on a better footing than the evidence
adduced by the Muslims, the Muslims were dispossessed upon the
desecration of the mosque on 22/23 December 1949 which was
ultimately destroyed on 6 December 1992. There was no abandonment
of the mosque by the Muslims. This Court in the exercise of its powers       C
under Article 142 of the Constitution must ensure that a wrong
committed must be remedied. Justice would not prevail if the Court
were to overlook the entitlement of the Muslims who have been
deprived of the structure of the mosque through means which should
not have been employed in a secular nation committed to the rule of
                                                                             D
law. The Constitution postulates the equality of all faiths. Tolerance and
mutual co-existnce nourish the secular commitment of our nation and
its people.
       801. The area of the composite site admeasures about 1500
square yards. While determining the area of land to be allotted, it is
necessary to provide restitution to the Muslim community for the             E
unlawful destruction of their place of worship. Having weighed the
nature of the relief which should be granted to the Muslims, we direct
that land admeasuring 5 acres be allotted to the Sunni Central Waqf
Board either by the Central Government out of the acquired land or by
the Government of Uttar Pradesh within the city of Ayodhya. This             F
exercise, and the consequent handing over of the land to the Sunni
Central Waqf Board, shall be conducted simultaneously with the handing
over of the disputed site comprising of the inner and outer courtyards
as a consequence of the decree in Suit 5. Suit 4 shall stand decreed in
the above terms.
                                                                             G
       802. Section 6 of the Acquisition of Certain Area at Ayodhya
Act 1993 empowers the Central Government to direct that the right,
title and interest in relation to the area or any part thereof, instead of
continuing to vest in the Central Government shall vest in the authority
or body or trustees of any trust which is willing to comply with the terms
                                                                             H
800               SUPREME COURT REPORTS                                    [2019] 18 S.C.R.


A     and conditions as government may impose.407 Section 7(1) provides that
      the property vested in the Central Government under Section 3, shall
      be maintained by the government or by any person or trustees of any
      trust, authorities in this behalf.408
             803. We are of the view that it would be necessary to direct the
B     Central Government to frame a scheme in exercise of the powers
      conferred upon it by Sections 6 and 7 to set up a trust or any other
      appropriate mechanism to whom the land would be handed over in terms
      of the decree in Suit 5. The scheme shall incorporate all provisions
      necessary to vest power and authority in relation to the management
      of the trust or the body chosen for the vesting of the land.
C
            804. Suit 3 filed by Nirmohi Akhara has been held to be barred
      by limitation. We have also rejected the objection of Nirmohi Akhara
      and of the Sunni Central Waqf Board to the maintainability of Suit 5
      which was based on their plea that Nirmohi Akhara is a shebait. Nirmohi
      Akhara’s claim to be a shebait stands rejected. However, having regard
D
      407
          6. Power of Central Government to direct vesting of the area in another
      authority or body or trust.—(1) Notwithstanding anything contained in Sections 3, 4,
      5 and 7, the Central Government may, if it is satisfied that any authority or other body,
      or trustees of any trust, set up on or after the commencement of this Act is or are
      willing to comply with such terms and conditions as that Government may think fit to
      impose, direct by notification in the Official Gazette, that the right, title and interest or
E     any of them in reason to the area or any part thereof, instead of continuing to vest in the
      Central Government, vest in that authority or body or trustees of that trust either on
      the date of the notification or on such later date as may be specified in the notification.
      (2) When any right, title and interest in relation to the area or part thereof vest in the
      authority or body or trustees referred to in sub-section (1), such rights of the Central
      Government in relation to such area or part thereof, shall, on and from the date of such
      vesting, be deemed to have become the rights of that authority or body or trustees of
F
      that trust.
      (3) The provision of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to
      such authority or body or trustees as they apply in relation to the Central Government
      and for this purpose references therein to the Central Government shall be construed as
      references to such authority or body or trustees.
      408
          7. Management of property by Government.—(1) Notwithstanding anything
G     contained in any contract or instrument or order of any court, tribunal or other authority
      to the contrary, on and from the commencement of this Act, the property vested in the
      Central Government under Section 3 shall be managed by the Central Government or
      by a person or body of persons or trustees of any trust authorised by that Government
      in this behalf.
      (2) In managing the property vested in the Central Government under Section 3, the
      Central Government or the authorised person shall ensure that the position existing
H     before the commencement of this Act in the area on which the structure (including the
   M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                         801


to the historical presence of Nirmohi Akhara at the disputed site and                      A
their role, it is necessary for this Court to take recourse to its powers
under Article 142 to do complete justice. Hence, we direct that in framing
the scheme, an appropriate role in the management would be assigned
to the Nirmohi Akhara.
        Q. Reliefs and directions                                                          B
        805. We accordingly order and direct as follows:
          1 (i) Suit 3 instituted by Nirmohi Akhara is held to be barred
                by limitation and shall accordingly stand dismissed;
              (ii) Suit 4 instituted by the Sunni Central Waqf Board and                   C
                   other plaintiffs is held to be within limitation. The
                   judgment of the High Court holding Suit 4 to be barred
                   by limitation is reversed; and
             (iii) Suit 5 is held to be within limitation.
       2 Suit 5 is held to be maintainable at the behest of the first                      D
plaintiff who is represented by the third plaintiff. There shall be a decree
in terms of prayer clauses (A) and (B) of the suit, subject to the
following directions:
              (i) The Central Government shall, within a period of three
                  months from the date of this judgment, formulate a                       E
                  scheme pursuant to the powers vested in it under
                  Sections 6 and 7 of the Acquisition of Certain Area at
                  Ayodhya Act 1993. The scheme shall envisage the
                  setting up of a trust with a Board of Trustees or any
                  other appropriate body under Section 6. The scheme to                    F
                  be framed by the Central Government shall make
                  necessary provisions in regard to the functioning of the
                  trust or body including on matters relating to the
                  management of the trust, the powers of the trustees
                  including the construction of a temple and all necessary,
                  incidental and supplemental matters;                                     G


premises of the inner and outer courtyards of such structure), commonly known as the
Ram Janma Bhumi-Babri Masjid stood in village Kot Ramchandra in Ayodhya, in
Pargana Haveli Avadh, in tehsil Faizabad Sadar, in the district of Faizabad of the State
of Uttar Pradesh is maintained.
                                                                                           H
802            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                (ii) Possession of the inner and outer courtyards shall be
                      handed over to the Board of Trustees of the Trust or to
                      the body so constituted. The Central Government will
                      be at liberty to make suitable provisions in respect of
                      the rest of the acquired land by handing it over to the
                      Trust or body for management and development in terms
B
                      of the scheme framed in accordance with the above
                      directions; and
                (iii) Possession of the disputed property shall continue to vest
                      in the statutory receiver under the Central Government,
                      untill in exercise of its jurisdiction under Section 6 of
C                     the Ayodhya Act of 1993, a notification is issued vesting
                      the property in the trust or other body.
              3 (i) Simultaneously, with the handing over of the disputed
                    property to the Trust or body under clause 2 above, a
                    suitable plot of land admeasuring 5 acres shall be
D                   handed over to the Sunni Central Waqf Board, the
                    plaintiff in Suit 4.
                 (ii) The land shall be allotted either by:
                    (a) The Central Government out of the land acquired
E                       under the Ayodhya Act 1993; or
                    (b) The State Government at a suitable prominent place
                        in Ayodhya;
            The Central Government and the State Government shall act in
      consultation with each other to effectuate the above allotment in the
F     period stipulated.
                (iii) The Sunni Central Waqf Board would be at liberty, on
                      the allotment of the land to take all necessary steps for
                      the construction of a mosque on the land so allotted
                      together with other associated facilities;
G               (iv) Suit 4 shall stand decreed to this extent in terms of the
                     above directions; and
                (v) The directions for the allotment of land to the Sunni
                    Central Waqf Board in Suit 4 are issued in pursuance
                    of the powers vested in this Court under Article 142 of
H                   the Constitution.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                803


      4 In exercise of the powers vested in this Court under Article             A
142 of the Constitution, we direct that in the scheme to be framed by
the Central Government, appropriate representation may be given in
the Trust or body, to the Nirmohi Akhara in such manner as the Central
Government deems fit.
      5 The right of the plaintiff in Suit 1 to worship at the disputed          B
property is affirmed subject to any restrictions imposed by the relevant
authorities with respect to the maintenance of peace and order and the
performance of orderly worship.
       806. All the appeals shall stand disposed of in the above terms.
Parties are left to bear their own costs.                                        C
       Acknowledgments
       In crafting this judgment, the forensic contest before this Court
has provided a valuable insight in navigating through the layers of
complexity of the case. The erudition of counsel, their industry, vision
and above all, dispassionate objectivity in discharging their role as officers   D
of the court must be commended. We acknowledge the assistance
rendered by Mr K Parasaran and Dr Rajeev Dhavan, learned Senior
Counsel who led the arguments. Their fairness to the cause which they
espouse and to their opponents as, indeed, to the court during the course
of the hearings has facilitated the completion of the hearings in the spirit     E
that all sides have ultimately been engaged in the search of truth and
justice.
       The other learned Senior Counsel whose efforts need to be
acknowledged are: Mr C S Vaidyanathan, Mr S K Jain, Mr Ranjit
Kumar, Mr Zafaryab Jilani, Ms Meenakshi Arora, Mr Shekhar Naphade                F
and Mr P S Narasimha. We also acknowledge the assistance rendered
to the court by Mr P N Mishra, Mr Mohd Nizamuddin Pasha, Mr V N
Sinha, Mr Hari Shankar Jain, Mr Jaideep Gupta (learned Senior
Counsel), Mr Vikas Singh (learned Senior Counsel), Mr M C Dhingra,
and Mr Anoop Bose. While acknowledging the scholarly contributions
made by the arguing counsel both in their oral arguments and written             G
submissions, we must equally notice the sincerity and dedication of the
learned assisting counsel and among them the industry of the junior
counsel.
       One of us, while being in agreement with the above reasons and
directions, has recorded separate reasons on: “Whether the disputed              H
804            SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A     structure is the birth-place of Lord Ram according to the faith and belief
      of the Hindu devotees”. The reasons of the learned judge are set out
      in an addendum.

                                     ADDENDA
B         Whether disputed structure is the holy birth place of Lord
      Ram as per the faith, belief and trust of the Hindus?

             1. It is necessary to notice the issues framed in all the suits related
      to the above and findings recorded by the High Court.
C
             In Suit No.1 following was the relevant issue:

             Issue No.1 was “Is the property in suit the site of Janam Bhumi
      of Sri Ram Chandra Ji ?”

D            In Suit No.3 following were the relevant issues:

             Issue No.1 : Is there a temple of Janam Bhumi with idols
      installed therein as alleged in para 3 of the plaint ?

            Issue No.5 : Is the property in suit a Mosque made by Emperor
E     Babar known as Babri Masjid ?

             In Suit No.4 relevant issues were:

            Issue No. 1(a) : When was it built and by whom-whether by
      Babar as alleged by the plaintiffs or by Meer Baqui as alleged by
F
      defendant No. 13?

              Issue No. 1(b) : Whether the building had been constructed on
      the site of an alleged Hindu temple after demolishing the same as alleged
      by defendant no. 13? If so, its effect?
G
             Issue No.11 : Is the property in suit the site of Janam Bhumi
      of Sri Ram Chandraji?

            Issue No.14: Have the Hindus been worshiping the place in
      dispute as Sri Ram Janam Bhumi or Janam Asthan and have been
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           805


visiting it as a sacred place of pilgrimage as of right since times         A
immemorial ? If so, its effect ?

      In Suit No.5 relevant issue was:

      Issue No.22: Whether the premises in question or any part
thereof is by tradition, belief and faith the birth place of Lord Rama as   B
alleged in paragraphs 19 and 20 of the plaint ? If so, its effect ?

       2. After noticing the issues relevant to the points under
consideration, it is necessary to notice the pleadings of the parties in
brief in the above respect.                                                 C

      3. In Suit No.1, the plaintiff, follower of Sanatan Dharam is the
resident of Ayodhya and as per his religion, he used to worship and
have the darshan of the deities and Idols. It was pleaded in paragraph
1 and 2:                                                                    D
      “1. That the original Plaintiff, follower of Sanatan Dharm and
          is the resident of Ayodhya and as per his religion, he used
          to worship and have the darshan of the deities and idols and
          the present plaintiff like his deceased father (original
                                                                            E
          Plaintiff) is the follower of Sanatan Dharma and performs
          the worship and has the darshan of the deities and holy
          places etc.

        2. That the plaintiff has been worshipping and having darshan
           of the idol of Lord Shri Ram Chandra Ji and Charan Paduka        F
           (foot impressions) etc., in that place of Janambhumi , details
           whereof has been given hereinbelow and he is entitled to
           perform worship and have darshan in that place without any
           obstruction or interference and forever in future also.”
                                                                            G
    4. In the written statement filed by the defendant No.1, Zahoor
Ahmed, para 2 of the plaint was replied in following manner:



                                                                            H
806            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                “2. The corresponding paragraph is denied. The property
                 of which the case has been filed is not Janambhumi but a
                 mosque constructed by emperor of India Babar Shah.”

            5. In paragraph 9, it was pleaded that Mosque was constructed
B     by emperor Babar Shah through its Minister, Mohammad Mir Baqi in
      the year 1528.

             6. In paragraph 27 it was pleaded that in Ayodhya there was a
      temple on the place of Janmasthan of Ram Janma Bhumi for quite long
      and still existing in which there are Idols of Ramchandraji etc. It was
C
      stated that the present suit claiming as Babri Masjid as the place of
      Janmasthan against the defendants and other persons is objectionable
      and is the result of achieving nefarious ends and to take advantage in
      the coming elections.
D           7. Plaintiff filed replication denying paragraph 9 of the written
      statement. It was denied that Mosque is the Babri Mosque. Paragraph
      27 of the written statement was also denied. It was stated that temple
      Janma Asthan mentioned by the defendant is another temple whose
      boundaries were also mentioned in the replication.
E
             8. Defendant Nos.6, 8 and 9, who were the State- parties also
      filed their written statement.

            9. U.P. Sunni Central Board of Wakf (hereinafter referred to as
F     “Sunni Board”), Defendant No.10, filed written statement pleading that
      building referred to in paragraph 2 in the plaint is not place of Janma
      Bhumi of Ram Chandra and plaintiff has no right and no Idols of Ram
      Chandra were ever installed in the said building. There is no question
      of any right and claim of the plaintiff to perform Puja and Darshan. It
G     was pleaded that property in suit known as Babri Masjid and same was
      constructed in the regime of emperor Babar. In the additional pleas in
      paragraph 10 following was stated:

            “That the property in suit is an old mosque constructed around
            the year 1528 AD during the regime of Emperor Babar under
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            807


      the supervision of Mir Baqi and the same has always been used          A
      as a mosque and it was never used as a temple or as a place of
      worship for any other community except muslims.”

        10. Plaintiff of Suit No.3 pleaded that Janma Asthan, now,
commonly known as Janma Bhumi, birth place of Ram is situate in              B
Ayodhya belonged to plaintiff No.1. The said Asthan, the Janma Bhumi
is of ancient antiquity and has existed since before the living memory
of man. The Muslims, Defendant Nos.6 to 8 filed written statement
where it was pleaded that property against which plaintiff has filed the
suit is Babri Masjid built by Babar Shah constructed in the year 1528        C
A.D. U.P. Sunni Central Board of Wakf had also filed written statement
claiming the suit property as Mosque constructed by emperor Babar in
1528 and existence of any temple was denied.

      11. A written statement was also filed by Defendant No.10,             D
Umesh Chandra Pandey. In his written statement he has stated that
Janma Asthan is holy place for worshiping the Deity of Ram Lalla
Virajman there.
       12. In Suit No.4, the plaintiff pleaded that in the town of Ayodhya
there exists an ancient historic Mosque commonly known as Babri              E
Masjid built by emperor Babar more than 433 years ago, after his
conquest of India and occupation of territories including the town of
Ayodhya. In Suit No.4, written statement was filed by Defendant Nos.1
and 2. In paragraph 25 it was pleaded that members of the Hindu
community have from time immemorial been worshiping the site as of
                                                                             F
the Janma Bhumi. A written statement was also filed by Defendant
No.3, Nirmohi Akhara and Defendant No.4, Mahant Raghunath Das.
The existence of Mosque claimed by the plaintiff was denied. It was
further pleaded that the alleged Mosque never existed, nor it exists now.
The building which the plaintiffs have been wrongly referring as Babri
Masjid is and has always been the temple of Janma Bhumi with Idols           G
of Hindu God installed therein. In the additional pleas it was pleaded
that the temple in question known as Janma Bhumi, the birth place of
Lord Ram Chandra, situate in Ayodhya belongs and will always belongs
to Defendant No.3.
                                                                             H
808            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            13. In Suit No.4, written statement was also filed by State,
      Defendant Nos.5 to 8 in which it was pleaded that the Government is
      not interested in the property which is in dispute and as such it is not
      proposed to contest the suit. Defendant No.10 filed a written statement
      and additional written statement. Few other defendants also filed written
      statement. In written statement filed by Dharam Das, Defendant No.13,
B
      it was pleaded that Mir Baqi, who was a Shia and commanded by Babar,
      demolished the ancient Hindu temple at the time of Raja Vikramaditya
      at Sri Ram Janma Bhumi. It was, further, pleaded that originally there
      was a temple erected. Few of the other defendants filed written
      statements. Defendant No.20, the convenor of Akhil Bharatiya Shri Ram
C     Janma Bhumi Punrudhar Samiti filed a detailed written statement and
      additional statement. Plaintiff also filed a replication.
            14. In Suit No.5 it was pleaded that premises in dispute is the
      place where Maryada Purushottam Ram Chandra Ji Maharaj was born.
      The Hindus worship divine which has no quality or shape or form. In
D     paragraph 19 and 20 following was pleaded:
           “19. That is manifestly established by public records of
                unimpeachable authority that the premises in dispute is the
                place where Maryada Purushottam Ji Maharaj was born as
                the son of Maharaja Dashrath of the solar Dynasty, which
E               according to the tradition and the faith of the devotees of
                Bhagwan Sri Rama is the place where HE manifested
                HIMSELF in human form as an incarnation of BHAGWAN
                VISHNU. The place has since ever been called Sri Rama
                Janma Bhumi by all and sundry through the ages.

F           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
G               personality of its own even before the construction of a
                Temple building or the installation of the idol of Bhagwan
                Sri Rama there at.”
            15. In paragraph 23 of the plaint, plaintiff also relied on ‘1928
      Edition of the Fyzabad Gazetteer published by the Government Press,
H     U.P.
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                               809


       16. It was further pleaded that disputed structure was raised on         A
the land belonging to the plaintiff-Deity after destroying the temple situate
there. In paragraph 24(C), it was further pleaded that in spite of all that
Mir Baqi tried to do with the Temple, the land always continued to vest
in the Plaintiff-Deities. Paragraph 24(C) is as follows:
       “24(C) That in spite of all that Mir Baqi tried to do with the           B
       Temple, the land always continued to vest in the Plaintiff Deities,
       and they never surrendered their possession over it. Their
       possession continued in fact and in law. The ASTHAN never
       went out of the possession of the Deity and HIS worshippers.
       They continued to worship HIM through such symbols as the
       CHARAN and SITA RASOI, and the idol of BHAGWAN SRI                       C
       RAM LALLA VIRAJMAN on the Chabutra, called the Rama
       Chabutra, within the enclosed courtyard of the building directly
       in front of the arched opening of its Southern dome. No one could
       enter the building except after passing through there can be no
       Idol worship within the courtyard of a mosque, and the passage           D
       to a mosque must be free and unobstructed and open at all times
       to the ’Faithful’. It can never be through Hindu place of worship.
       There can be no co-sharing of title or possession with ALLAH
       in the case of a mosque. His possession must be exclusive.”
      17. In paragraph 25 it was pleaded that worship of the Plaintiff-
                                                                                E
Deities has continued since ever throughout the ages at Sri Ram Janma
Bhumi. The place belongs to the Deities. No valid Waqf was ever
created or could have been created at the place or any part of it, in
view of the title and possession of the Plaintiff- Deities thereon.
     18. Defendant No.3, Nirmohi Akhara filed a written statement
wherein denying paragraphs 19 and 20 following was pleaded:                     F

      “19. That the contents of para-19 need no reply except that
           though the birth place of Bhagwan Ram is place where the
           temple known as Ram Janma Bhumi Temple is constructed
           but the dispute is not regarding the place of birth of Lord
           Rama but regarding the Temple known as Tample Shri Ram               G
           Janma Bhumi. The belief that Lord Ram is the son of Raja
           Dashrath of solar Dynasty is not disputed.
       20. That the contents of para-20 of the plaint are denied. They
           are products of imagination of the so called Next Friend of
           the plaintiffs 1 and 2. The plaintiffs studiously avoid to           H
810             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A                 mention the subject of dispute as the Ram Janma Bhumi
                  Temple for whose delivery of charge and management the
                  Nirmohi Akhara has filed the suit No.26 of 1959 and
                  maliciously uses the phrase Asthan Sri Ram Janma Bhumi
                  which is meaningless. The said Asthan is not a juridical
                  person.”
B
            19. Additional written statements were also filed by defendant
      No.3. In para-42 of the additional written statement it was pleaded that
      the outer Sahan carried a little temple of Bhagwan Ram Lallaji along
      with other Idols which was regularly worshipped according to the
C     customs prevailing amongst Rama Nandi Vairagies. The outer part with
      temple of Ram Lallaji and other Deities have ever been in management
      and charge of Nirmohi Akhara as Shebait. It was further pleaded that
      attachment made in 1949 was only in respect of main building of Garbh
      Grahya carrying three “Shikher” wherein the Deity of Bhagwan Sri
      Ram Chandraji is installed by Nirmohi Akhara from time beyond the
D     human memory.
             20. The written statement was filed by Sunni Board, Defendant
      No.4. In para-13, it was pleaded that building in dispute is not the Janam
      Bhumi of Sri Ram Chandraji and no Idols of Ram Chandraji were ever
      installed in the said building. In the second part of para-13 following
E
      was pleaded:
             “13…… It is further submitted that the building in dispute is not
             the Janam Bhoomi of Sri Ram Chandraji and no Idols of Sri Ram
             Chandraji were ever installed in the said building and as such
F            there arises no question of any right or claim of the defendant
             No.20 or of anyone else to perform Pooja and Darshan over
             there. The fact is that the property in suit is an old mosque known
             as Babri Masjid and the same was constructed during the regime
             of Emperor Babar.”

G            21. It was pleaded in para-19 that neither there is any public
      record, much less any record of unimpeachable authority showing that
      the premises in dispute is the place of birth of Sri Ram Chandraji nor
      there is any historical or judicial record to testify. It was further pleaded
      in para-19 that Hindu books as well as the writing of Hindu scholars
      themselves make it very doubtful as to whether the personality of Sri
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            811


Ram Chandraji is a historical personality. In para-24 it was pleaded that    A
at no point of time there ever existed any temple at the site of the Babri
Masjid and it is absolutely incorrect to say that the said Mosque was
constructed, after destroying any ancient temple, with the material of
the alleged temple. The Mosque in question has always been used as
a Mosque since its construction during the regime of Emperor Babar.          B
       22. Defendant No.5 also filed written statement. It was pleaded
in para 19 that there is no evidence, historic or otherwise, to indicate
that Sri Ram Chandra Ji was born there. Defendant Nos.4 and 5 also
filed an additional written statement.
        23. The reference of one more written statement is necessary         C
i.e. the written statement filed by Defendant No.24. Defendant No.24
is Prince Anjum, President, All India Shia Conference, Lucknow. In
reference to Lord Ram, Defendant No.24 has pleaded that Muslims
of India has highest regard for Lord Ram. Pleadings made in para-10
of the written statement in this regard are as follows:                      D
      “10. With reference to the statements made in paragraph 18, this
      defendant at the outset wishes to record the fact that he and
      the Muslims of India have the highest regard for Lord Rama.
      These sentiments of the Muslims are best reflected in the poem
      entitled “Ram” composed by the greatest Muslim thinker of India        E
      of the present century Allama Dr.Sir Muhammad Iqbal, who has
      summed up in just one verse of the long poem what Muslims of
      India think of Shri Ram Chanerji:
          “Hae Ram ke wajood pa Hindostan ko naaz Ahl-e Nazar
          Samajht-e hain usko Imam-e-Hind.”                                  F

      Meaning- India is proud of the existence of Ram. The
      intelligentsia consider him as the leader of India.”
      24. It was, however, denied that premises in dispute is the place
where Ram Chandraji was born. In paragraph 15 of the written                 G
statement he has referred to Maulana Syed Sabahuddin Abdur Rahman
who in his treatise “BABRI MASJID” had stated that if it is proved
that Babri Masjid has been built after demolishing Ram Janam Bhumi
Mandir on its place, then such a Mosque if built on such an usurped
land deserves to be destroyed. In paragraph 15 following was pleaded:
                                                                             H
812            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           “15………In this connection, the celebrated Muslim historian and
            scholar Maulana Syed Sabahuddin Abdur Rahman (since
            expired) in his well-known treatise “BABRI MASJID” wrote at
            page 5 at the very beginning of his preface thus: (translation from
            Urdu)
B
               “On behalf of Muslims I also have a right to say that if it is
               proved that Babri Masjid has been built after demolishing Ram
               Janam Bhoomi Mandir on its place, then such a mosque if
               built on such an usurped land deserves to be destroyed. No
               theologean or Aalim can give Fatwa to hold Namaz in it.”
C
             25. To the same effect pleadings were made in para-26 which
      are as follows:
            “26. That as regards the contents of paragraphs 34 and 35 of
            the Suit Plaint, the answering defendant being a representative
D           of the Shia Muslims of India is deadly against any form of
            sacrilegious actions. He is of the firm view that no place of
            worship of any religion should be destroyed and no place of
            worship should be constructed on the ruins of the destroyed one.
            The Answering defendant firmly believes that the Babri Masjid
E           was certainly not built after destroying the Vikramaditya Mandir
            or any temple. Yet, at the same time if it is unequivocally proved
            in this Hon’ble Court in the light of historical archaeological and
            expert scientific evidence that the Babri Masjid was really built
            after demolishing any Mandir on the Mandir land, only then this
F           defendant will withdraw his opposition.
            As a further concession to the Plaintiff No.3 and to the Hindu
            community of India whose religious sentiments the said Plaintiff
            and his party are trying to wrongly arouse since last 3 years, this
            Defendant is prepared to withdraw his opposition also if it is
G           unequivocally proved, in this Hon’ble Court that the belief, of Ram
            Janam Asthan being at the presently claimed spot inside the Babri
            Masjid, existed from before the Babri Masjid was built, existed
            from before the Babri Masjid was built. And that the Babri Masjid
            was knowingly built on the Ram Janam Asthan sport.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              813


       26. Defendant No.25 also filed written statement. It was pleaded        A
that the area and the places indicated in Annexure NO.1, 2 and 3 of
the plaint are neither Ram Janma Bhumi nor Ram Janma Asthan. It
was further stated that it is evident that there exists a Mosque known
as Babri Masjid, the existence of this Mosque is established by record,
Historic, Judicial and Revenue.                                                B
      27. The above is the relevant pleading of the parties on the points
under consideration.
        28. Faith and belief foster and promote the spiritual life of the
soul.                                                                          C
      29. This Court in Shastri Yagnapurushadji and others vs.
Muldas Bhudardas Vaishya and another, AIR 1966 SC 1119,
explaining the Hindu religion made the following observation in
paragraphs 29, 30 and 31:
                                                                               D
        “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         E
        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 without any content. Is           F
        it a museum of beliefs, a medley of rites, or a mere map, a
        geographical expression?” 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               G
        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            H
814            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           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 practised different rites (Kurma Purana)(“The Hindu
            View of Life” by Dr. Radhakrishnan, p.12).
B           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
C           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
            Hindus, who are not one people but many. It is based on the idea
D
            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”
E           by Monier Williams, p.57)”
             30. The concept of Hinduism has been defined by great scholars
      and jurists, but in this case, it is not necessary to dwell upon concept
      of Hinduism. The core of all religions and faith is one, i.e., quest for
      truth, quest for knowing more about soul and quest to know more about
F
      Supreme, who in one or other form is worshipped in all religions. Every
      religion, every faith revere and sings the glory of God with whom I all
      want to relate. Wordsworth in his beautiful poem has also echoed the
      same thought:-

G           “Our birth is but a sleep and a forgetting; The Soul that rises
            with us, our life’s star Hath had elsewhere its setting,
            And cometh from afar ; Not in entire forgetfulness, And not in
            utter nakedness,

H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             815


      But trailing clouds of glory do we come From god who is our             A
      home,”
       31. Reverting back to the point which are up for consideration,
i.e., whether the disputed structure is holy birthplace of Lord Ram as
per the faith, trust and belief of Hindus?
                                                                              B
      32. Ayodhya, which is associated with Ram is treated a holy city
by Hindu scriptures. In Brihad-dharmottara Purana, Ayodhya is referred
to one of seven holiest cities in following verse:-
            v;ks / ;k eFkqj k dk'kh dk ph ãofUrdkAA
            iqj h }kjkorh pS o lIrSr k eks{ knkf;dk%A                         C

              Ayodhya, Mathura, Maya (Haridwar), Kashi,
         Kanchi, Avantika (Ujjain) and Dvaravati (Dwaraka)
                   are seven most sacred cities.
        33. A long span of period, which spread into several centuries        D
fall for consideration. The case of plaintiff of Suit No.4 as noted above
is that Babri Mosque was constructed in 1528 by Mir Baqi on the order
of Emperor Babar. Dr. Rajeev Dhavan, learned senior counsel
appearing for plaintiff in Suit NO. 4 for Muslim Parties as well as Shri
Zafaryab Jilani, learned senior counsel have contended that there was
no faith and belief regarding the disputed site being Janma Asthan of         E
Lord Ram at any time before 1989, when Suit No.5 was filed. It is
submitted that theory of disputed site being called as Janma Asthan of
Lord Ram is of recent origin and there are no evidence of any earlier
time that Hindus had faith and belief that where the Mosque was
constructed was birth place of Lord Ram. Dr. Dhavan submits that the          F
argument that Ayodhya Mahatmya in Skanda Purana gives the location
of Ram Janma Bhumi, which matches with the site of Babri Masjid
has not been found correct. In support of his submission, he has relied
on “Historian Report to the Nation”, which has been exhibited by
plaintiff in Suit No.5 (Ext. No.44) as well as plaintiff in Suit No.4 (Ext.
No.62). It is submitted that the above report states that location            G
described in the Ayodhya Mahatmya in Skanda Purana does not match
with the present-day location of Babri Masjid. It is submitted that no
place in Ayodhya is associated with Lord Ram’s birth either in Eleventh
Century or even six centuries after. When a place is associated with
the birthplace of Lord Ram, possibly in the later Eighteenth Century, its
                                                                              H
816            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     location given in the various Mahatmyas does not tally with the Babri
      Masjid. The arguments based on book Ayodhya by Hans Bakker has
      also been refuted by Dr. Dhavan. He submits that no reliance can be
      placed on the Hans Bakker since (i) Hans Bakker proceeds on the
      presumption that Ayodhya is not a real city but a figment of the poet’s
      imagination; (ii) Bakker proceeds by equating Ayodhya to the city of
B
      Saketa; (iii) Bakker further states that even by mapping the birthplace
      from Ayodhya Mahatmya and ultimately states that Babri Masjid is built
      at the birthplace as is confirmed by local belief; (iv) even the impugned
      judgment records that Hans Bakker proceeds on the basis of conjectures
      without assigning any reason.
C            34. With regard to the statement recorded in various travelogues,
      Dr. Dhavan submits that statement in travelogues are all hearsay and
      those travellers were only story tellers on which no reliance can be
      placed. Insofar as Gazetteers are concerned, Dr. Dhavan submits that
      Gazetteers which were prepared during the period of East India
D     Company were the Gazetteers prepared to place before the Britishers
      and they being not under governmental authority cannot be relied. He
      submits that Gazettes prepared after 1858 when the British assumes
      sovereignty on the area in question, can be looked into, but those
      Gazettes cannot be stand alone evidence and needs corroboration by
      any other intrinsic evidence. He submits that the site of Babri Masjid
E     was constructed in 1528 A.D. being not the birthplace of Lord Ram,
      there is no question of treating construction of Babri Mosque on
      birthplace of Lord Ram.
              35. Above submission has been refuted by learned senior counsel,
      Shri K.Parasaran, Shri C.S. Vaidyanathan, Shri P.N. Mishra and Shri
F     P.S. Narsimha. Shri C.S. Vaidyanathan, learned senior counsel refuting
      the submissions of Dr. Dhavan contends that faith and belief of the
      Hindus in respect of place where disputed structure was put up during
      the Mughal period was the birthplace of Lord Ram and has been since
      ages worshipped as such the place being divine and of sacred character.
G     It is submitted that scriptures and sacred writings, which are of much
      earlier period than 1528 appropriately describes the Janma Asthan of
      Lord Ram at Ayodhya. Reliance has been placed on Skanda Purana,
      Vaisnavakhanda, Ayodhya Mahatmya specifically. It is submitted that
      Valmiki Ramayana, which is composition Before Christ also refers to
      Ayodhya as birthplace of Lord Ram, according to which Lord Ram was
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            817


born at the palace of King Dasratha at Ayodhya. ‘Ramcharit Manasa’           A
by Tulsidas has also been referred to wherein the birth of Lord Ram at
Ayodhya is mentioned, which is being celebrated on Chaitra Navami,
Shukla Paksha every year. Learned counsel appearing for the Hindu
parties also submits that travellers’ account, which relates to the period
prior to 1858 as well as after 1858, which are in form of published books
                                                                             B
are relevant and can be relied by the Court under Section 57 of Indian
Evidence Act, 1872. Coming to the Gazetteers, learned counsel submits
that Gazetteers are published work by Government authorities, which
has substantial evidentiary value. It is submitted that Gazetteers have
been relied by this Court in several cases and statements recorded in
Gazetteers has to be considered as substantial evidence and looked into.     C
Shri P.S. Narsimha elaborating his submission submits that the test, which
has to be applied for marshalling the evidence is the standard of
preponderance of probability. Referring to Section 3 of Evidence Act,
he submits that proof of fact depends upon the belief or probability of
the fact looking to the circumstances of the particular case. It is
                                                                             D
submitted that oral and documentary evidence submitted on behalf of
the Hindu parties proves the faith and belief of Hindus that disputed
site is birthplace of Lord Ram. He submits that Valmiki Ramayana
refers to birth of Shri Ram in Ayodhya, which is the epic of the East
and considered to have become the foundation of the culture and
tradition of our country. Skanda Purana is of Eighth Century A.D.,           E
which provides ample proof of faith that is instilled in the heart of
Hindus, i.e., visit to birthplace of Lord Ram, which is of extreme merit
which, for Hindus, is nothing but Moksha. It is further submitted that
repeated assertions and right to worship by the Hindus in the disputed
premises and the various fights by Hindus is ample proof of their
                                                                             F
undying faith that disputed site is the birthplace of Lord Ram. Shri P.N.
Mishra elaborating his submission has placed reliance on Holy Scriptures
Shrimad Valmiki Ramayana and Srimad Skandpuranam, Rudrayamala,
Sri Ramacharitamanasa and other scriptures like Srimad Narashingha
Puranam. Reliance has been placed on Verse 15 to 17 and 18 to 25
and particular pages of Ayodhya Mahatmya of Skanda Purana, he                G
submits that the above verses gives the geographical situation of
birthplace of Lord Ram, which is still verifiable. Shri Mishra took us to
the oral evidence of witnesses where according to him witnesses have
proved the locations as mentioned in the Skanda Purana with respect
to birthplace of Lord Ram. Referring to map prepared by Hans Bakker
                                                                             H
818            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     and the site plan prepared by Shiv Shankar Lal in Suit No.2 of 1950,
      he submits that several marks mentioned in Skanda Purana are still
      present, which certifies the location of birthplace as the disputed site.
              36. The faith and belief that disputed site is birthplace of Lord
      Ram has to be established since before 1528 when disputed structure
B     is said to have been constructed by Babar. The oral evidence, which
      has been led by the parties to support their respective cases can at best
      be the oral evidence of that which has been seen by the witnesses,
      who depose before the Court, which can at best be of things as existed
      in the Twentieth Century only. There are some Exhibits filed by the
      parties, which relates to Nineteenth Century. The Holy Scriptures relied
C     by Hindu Parties being of older period, the accounts of travelogues and
      Gazetteers belonging to different period, some before Nineteenth
      Century, the period of consideration have to be divided in three parts.
      First period before 1528, second period from 1528 to 1858 and the third
      period after 1858 to 1949. Although in the written statement filed by
D     Muslim Parties, Sunni Central Board under Suit No.5 pleaded that as
      a matter of fact, the religious books as well as the writings of Hindu
      Scholars makes it very difficult as to whether personality of Shri Ram
      Chandra Ji is a historical personality, but by making statements under
      Order X Rule 2 of the Civil Procedure Code, which statements have
      been recorded by the High Court and has been referred by the High
E     Court in its judgment, the stand of Muslim parties have been clarified.
      It is necessary to refer the above statements made under Order X Rule
      II C.P.C. The statement of Shri Zafaryab Jilani, counsel for plaintiff in
      Suit No.4 was recorded by the Full Bench of the High Court on
      22.04.2009, which is to the following effect:-
F           “STATEMENT OF SRI ZAFARYAB ZILANI, COUNSEL
            FOR PLAINTIFF IN O.O.S. 4 OF 1989 MADE UNDER
            ORDER X RULE 2 C.P.C. ON 22.04.2009.
            For the purpose of this case there is no dispute about the faith
            of Hindu devotees of Lord Rama regarding the birth of Lord
G           Rama at Ayodhya as described in Balmiki Ramayana or as
            existing today. It is, however, disputed and denied that the site
            of Babri Masjid was the place of birth of Lord Rama. It is also
            denied that there was any Ram Janam Bhoomi Temple at the
            site of Babri Masjid at any time whatsoever.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          819


      The existence of Nirmohi Akhara from the second half of              A
      Nineteenth Century onwards is also not disputed. It is, however,
      denied and disputed that Nirmohi Akhara was in existence and
      specially in Ayodhya in 16the Century A.D. or in 1528 A.D. and
      it is also denied that any idols were there in the building of the
      Babri Masjid up to 22nd December, 1949.
                                                                           B
                                                                    Sd/-
                                                         Z. Jilani, Adv.
                                                           22.04.2009"
      To the same effect was statement made by another learned
counsel Shri Mustaq Ahmad Siddiqui, who appeared for plaintiff in Suit     C
No.4 and Shri Syed Irfan Ahmad, counsel for defendant No.6/1 and 6/
2 in Suit No.
      3. All the three statement in identical words is extracted below:-
      “STATEMENT OF SRI MUSAQ AHMAD SIDDIQUI,
      COUNSEL FOR PLAINTIFF IN O.O.S. 4 OF 1989 MADE                       D
      UNDER ORDER X RULE 2 C.P.C. ON 22.04.2009.
      For the purpose of this case there is no dispute about the faith
      of Hindu devotees of Lord Rama regarding the birth of Lord
      Rama at Ayodhya as described in Balmiki Ramayana or as
      existing today. It is, however, disputed and denied that the site    E
      of Babri Masjid was the place of birth of Lord Rama. It is also
      denied that there was any Ram Janam Bhoomi Temple at the
      site of Babri Masjid at any time whatsoever.
      The existence of Nirmohi Akhara from the second half of
      Nineteenth Century onwards is also not disputed. It is, however,     F
      denied and disputed that Nirmohi Akhara was in existence and
      specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and
      it is also denied that any idols were there in the building of the
      Babri Masjid up to 22nd December, 1949.
                                                                  Sd/-     G
                                                   M.A. Siddiqui, Adv.
                                                           22.04.2009
      STATEMENT OF SRI SYED IRFAN AHMAD,
      COUNSEL FOR DEFENDANTS No.6/1 and 6/2 IN
      O.O.S.NO.34 OF 1989 MADE UNDER ORDER X RULE                          H
820            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           2 C.P.C. ON 22.04.2009.
            For the purpose of this case there is no dispute about the faith
            of Hindu devotees of Lord Rama regarding the birth of Lord
            Rama at Ayodhya as described in Balmiki Ramayana or as
            existing today. It is, however, disputed and denied that the site
B           of Babri Masjid was the place of birth of Lord Rama. It is also
            denied that there was any Ram Janam Bhoomi Temple at the
            site of Babri Masjid at any time whatsoever.
            The existence of Nirmohi Akhara from the second half of
            Nineteenth Century onwards is also not disputed. It is, however,
C           denied and disputed that Nirmohi Akhara was in existence and
            specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and
            it is also denied that any idols were there in the building of the
            Babri Masjid up to 22nd December, 1949.
                                                                          Sd/-
D                                                        S. Irfan Ahmad, Adv.
                                                                   22.04.2009"
             37. The stand of plaintiff of Suit No.4 with regard to faith and
      belief of Hindus regarding birth of Lord Ram at Ayodhya having been
      made clear and it having been accepted that there is no dispute about
E     the faith of Hindu devotees that Lord Ram was born at Ayodhya, our
      consideration is confined to only a limited submission as to whether site
      of disputed structure where Babri Masjid was constructed is the place
      of birth of Lord Ram or not. It will be necessary to consider the evidence
      led by the parties in respect of above aspect only.

F           Period earlier to 1528 A.D.
             38. Religious faith of a person is formed on traditions, religious
      scriptures and practices. Constitution Bench of this Court speaking
      through Justice B.K. Mukherjea in The Commissioner, Hindu
      Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha
      Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 held that religion is
G
      certainly a matter of faith with individuals or communities, in paragraph
      17, following has been observed:-
            “17. XXXXXXXXXXXXXXX
            Religion is certainly a matter of faith with individuals or
            communities and it is not necessarily theistic. There are well
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             821


       known religions in India like Buddhism and Jainism which do not        A
       believe in God or in any Intelligent First Cause. A religion
       undoubtedly has its basis in a system of beliefs or doctrines which
       are regarded by those who profess that religion as conducive to
       their spiritual well being, but it would not be correct to say that
       religion is nothing else but a doctrine or belief. A religion may
                                                                              B
       not only lay down a code of ethical rules for its followers to
       accept, it might prescribe rituals and observances, ceremonies
       and modes of worship which are regarded as integral parts of
       religion, and these forms and observances might extend even to
       matters of food and dress.”
       39. Religious scriptures, which are main source of Hinduism are        C
the foundation on which faith of Hindus is concretised. The epic Valmiki
Ramayana is the main source of knowledge of Lord Ram and his deeds.
The composition of Valmiki Ramayana dates back in the period Before
Christ (BC). The Valmiki Ramayana is of period earlier to Mahabharata
and Srimad Bhagwadgita. The period in which Valmiki Ramayana was              D
composed is much prior to beginning of Christian era. For the purposes
of this case, it is sufficient to notice the statement of Suvira Jaiswal
(PW-18), a witness produced by plaintiff of Suit No.4 as historian. She
in her statement states “the period of Valmiki Ramayana is recorded
as 300 BC - 200 BC”. Various scholars and others date the Valmiki
Ramayana to much older period but it is not necessary to dwell in the         E
said question since for our purpose, it is sufficient that Valmiki Ramayana
was composed in an era Before Christ.
       40. Valmiki Ramayan, Balakand, Canto XVIII Shlokas 8 to 12
refers to birth of Lord Ram with planetary situation. The above Shlokas
depict that Lord of the Universe, “Vishnu” was born as son of                 F
Kaushalya. Valmiki Ramayana contains ample description of birth of
Lord Ram as incarnation of Vishnu, as son of Dasratha and Kaushalya
at Ayodhya. Shlok 10 tells about birth of Lord Ram as son of Kaushalya,
which is extracted as below:-
             izk s| ekus txUukFka loZ y ks dueLd`r e~ A                       G
            dkS l Y;ktu;n~ jkea fnO;y{k.kla; q r e~ A A
                                         (Balakanda 18.10)
      Kaushalya gave birth to a son who was the Lord of the whole
world. He was a person adored by all the people. He was invested
with divine symptoms.                                                         H
822             SUPREME COURT REPORTS                            [2019] 18 S.C.R.


A            It was not birth of an ordinary man. Ayodhya was blessed with
      the arrival of the Lord of the whole world, even then Aligarh Historians
      say that Ayodhya was never sacrosanct because of the birth of Rama.
              41. The Epic, thus, associate the birth of Lord Ram with Ayodhya.
      It is, however, true that Valmiki Ramayana does not gives any
B     description of place of birth except that Lord Ram was born to
      Kaushalya at Ayodhya in the Palace of King Dasratha. The next
      religious text, which is referred to and relied by plaintiff of Suit No.5
      and other Hindu Parties is Skanda Purana. In Skanda Purana, reliance
      has been placed on Ayodhya Mahatmya of Vaisnavakhanda. The above
      Ayodhya Mahatmya of Vaisnavakhanda of Skanda Purana has been
C     filed as Ext. 93 in Suit No.5. The Skanda Purana has been translated
      into English by Dr. G.V. Tagare published from Motilal Banarasidass
      Publishers Private Limited, Delhi, which shall also be referred to while
      considering the relevant versus of Skanda Purana. Book II of Skanda
      Purana is Vaisnavakhanda. Different sections of Vaisnavakhanda deals
D     with Mahatmya of different subjects. Section VII deals with
      Vaisakhamasa-Mahatmya, Section VIII deals with Ayodhya-Mahatmya
      and Section IX deals with Vasudeva-Mahatmya. Skandamahapuranam
      was published by Khemraj Shrikrishnadas. (Ext. 93) published by Shri
      Venkateshwar Steam Press, Mumbai. Translation of Dr. G.V. Tagare
      is of the published Skanda Purana from Shri Venkateshwar Steam Press,
E     Mumbai. Chapter X of Ayodhya-Mahatmya contains 87 Shlokas. M/s.
      Khemraj Shrikrishnadas, proprietor, Shri Venkateshwar Steam Press,
      Mumbai reprinted by Nag Publishers, New Delhi. Shlokas 18 to 25,
      which are relevant are as follows:-

F
             rLekr~ LFkkur ,s'kkus jketUe iz o rZ rsA
             tUeLFkkufena iz k sD ra eks{ kkfnQylk/kue~ A A18AA
             fo?us'ojkr~ iwoZ H kkxs okfl"Bknq Ù kjs rFkkA
             ykS e 'kkr~ if'pes Hkkxs tUeLFkkua rr% Le` r eAA19AA
               To the north-east of that spot is the place of the birth of Rama.
G     This holy spot of the birth is said to be the means of achieving salvation
      etc. It is said that the place of birth is situated to the east of Vighnesvara,
      the north of Vasistha and to the west of Laumasa.
             ;n~ n` "V~o k p euq " ;L; xHkZ oklt;ks Hkosr ~A
H            fouk nkus u rilk fouk rhFkS ±foZ u k e[kS % AA20AA
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           823



      uoehfnols iz k Irs ozr /kkjh fg ekuo%A                                A
      Lukunkuiz Hkkos . k eq P ;rs tUecU/kukr~ A A21AA
       Only by visiting it a man can get rid of staying (frequently) in a
womb (i.e. rebirth). There is no need for making charitable gifts,
performing penance or sacrifices or undertaking pilgrimages to holy
                                                                            B
spots. On the Navami day the man should observe the holy vow. By
the power of the holy bath and charitable gifts, he is liberated from the
bondage of births.
      dfiykxks lglzk f.k ;ks nnkfr fnus fnus A
      rRQya leokIuksf r tUeHkwes % iz n 'kZ u kr~ A A22AA                   C
      vkJes olrka iq alka rkilkuka p ;r~ Qye~ A
      jktlw ; glz k f.k iz f ro"kkZ f Xugks = r%AA23AA
      By visiting the place of birth, one attains that benefit which is
obtained by the person who gives thousands of tawny- coloured cows
everyday. By seeing the place of birth, one attains the merit of ascetics   D
performing penance in hermitage, of thousands of Rajasuya sacrifices
and Agnihotra sacrifices performed every year.
      fu;eLFka uja n`" V~ o k tUeLFkkus fo'ks" kr%A
      ekrkfi=ksx qZ : .kk´p HkfDreq n ~ o grka lrke~ AA24AA                 E
      rRQya leokIuksf r tUeHkwes % iz n 'kZ u kr~ A A25AA
                                     (Adhyaya 10, p.293R.)
      By observing sacred rites, particularly at the place of birth, he
obtains the merit of the holy men endowed with devotion to their mother
                                                                            F
and father as well as preceptors.”
       42. The above Shlokas describes the location of Ram Janma
Asthan. Legends to identify the Ram Janma Asthan is mentioned in
the Shlokas, which is situated to the east of Vighnesvara to the north
of Vasistha and to the west of Laumasa. During arguments, Shri P.N.
Mishra, learned counsel had referred to Srimad Skandapuranam,               G
whether the above legends mentioned in the Ayodhya Mahatmya can
lead to verification of Ram Janma Bhumi is a contention between parties
where both the parties have taken divergent stand. Learned counsel
appearing for Hindu Parties submits that the present place where Ram
Janma Bhumi is claimed is the same as has been described in Ayodhya         H
824            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A     Mahatmya, which is the faith and belief carried by lakhs of Hindus from
      ancient time till date. In the oral evidence led by both the parties, the
      witnesses have deposed proving the legends mentioned in Ayodhya
      Mahatmya and they deposed that the place which is claimed as Ram
      Janma Bhumi by the Hindus is Ram Janma Asthan as per description
      given in Ayodhya Mahatmya. The belief and faith of Hindus that place
B
      of Ram Janma Bhumi as is worshipped on date is the place of worship,
      which is being spoken through ancient scriptures and lakhs of Hindus
      are carrying that belief from ancient period. O.P.W.1 Mahant Ram
      Chandra Das Digamber, appeared as witness for plaintiff in Suit No.5,
      he stated that birth of Lord Ram at Ayodhya is proved by the descriptions
C     in our Vedas, Upnishads, Smhitas, Smritis etc. The witnesses specifically
      referred to Ayodhya-Mahatmya of Skanda Purana and state that birth
      place of Lord Ram is the sanctum sanctorum, i.e., the disputed site
      where Ram Lalla is sitting at present. The statement of O.P.W.1 has
      been referred to and has been extensively relied by Justice Sudhir
      Agarwal in his judgment. Following is his statement where he relied
D
      on Ayodhya-Mahatmya of Skanda Purana:-
            “It is the same Ayodhya, which is the present site. Lord Rama
            was born at this place. While giving the boundary in its behalf,
            there is clear reference in all the above mentioned Hindu treatises.
            The paper No.107C/75 is before me. It contains clear mention
E           in this behalf in the Ayodhya Mahatmya under the Skanda
            Purana. The birthplace of Lord Rama and the sanctum
            sanctorum are the disputed site, where Ramlala is present at
            present.” (E.T.C.)
            43. O.P.W.16 Jagadguru Ramanandacharya Swami
F     Rambhadracharya states in his statement that disputed site is a Ram
      Janma Bhumi, which is being so believed from time immemorial by faith
      and tradition of Hindus. In his statement, he states:-
            “According to my studies and knowledge, the Ayodhya situated
            disputed site is Sri Ramjanmbhumi, which has been recognised
G           as the birthplace of Lord Rama by followers of Hinduism from
            time immemorial on basis of faith, tradition and belief and the
            said place has been continuously worshiped. “(E.T.C.)
          44. In his examination-in-chief Jagadguru Ramanandacharya
      Swami Rambhadracharya has also stated that in Ayodhya-Mahatmya
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          825


birthplace of Lord Shri Ram has been clearly described. Paragraph 25       A
of the examination-in chief is as follows:-
      “25. I am familiar with the Ayodhya Mahatmya of the Vaishnav
      Khand of Skand Puran published in 1966 in the press established
      by Shri Krishnadasatmaj Kshemraj Shresthi in which the
      birthplace of Lord Shri Rama has been clearly described. The         B
      photocopy of the cover page and the photocopy of Shloka Nos.
      1 to 25 on page No.292 of chapter 10 of this book is enclosed
      with this affidavit as enclosure-1 which is the true photocopy of
      the original book.”
      45. The witness was not put to any cross-examination regarding       C
non-existence of legends to identify Ram Janma Bhumi. Mahant Ram
Vilas Das Vedanti, DW-2/3 in his examination-in-chief has also relied
on Ayodhya Mahatmya, Vaisnavakhanda, Skanda Purana in paragraph
24. He states as under:-
      “24. That, Ayodhya Mahatamya has been described in Vaishnav-         D
      volume of Skand Puran, famous book of Hindus. Disputed land
      has been explicitly described as a birthplace of God Sri Rama in
      it. Relevant lines of Vaishnav Volume of Ayodhya Mahatamiya
      are as under:-
         “Vedvyas describing the importance of Ayodhya has written         E
         in Vaishnav Volume of Skand Puran that one should make
         darshan of Ayodhya with respect – devotion for the fulfilment
         of all desire. One should, visit the Ayodhya on the third
         Navratra, chanting bhazans in the month of Chaitra. Yatra of
         Shri Ram Navami in Ayodhya commence from the third
         Navratra of Chaitra month. This yatra is recognized for           F
         obtaining divine and progeny and pleasure. The scene with
         various types of music and dance is alluring and one is
         protected by it, there is no doubt in it. High ascetic, devotee
         person lives in the western side of Ramjanambhoomi, the land
         known as Pindarak. The land worshipable with flowers etc.         G
         Men get skill from this pooja. People perform pooja with due
         procedure. Worship of Pindarak should be done after taking
         bath in Saryu River. Sinful person should do its pooja for
         keeping the lust of the world away during holy nakshtra of
         Navratras. Worship of God Ganesh is performed in the
                                                                           H
826            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A              western side for removing obstacles. Ramjanambhoomi is
               situated at northeastern corner. This land which provides
               salvation is called Janambhoomi or Janamsthan. Vashishta
               Kund is in the east of Vigneshwari. Ramjanambhoomi is in
               the north side of Vasistha Kund and it becomes clear from
               the word that Ramjanambhoomi is in the north of Vasistha
B
               Kund. One should meditate Janamsthan in the western part
               of Lomas Ashram.”
            46. Swami Avimuktswaranand Sarswati, DW20/2 in his statement
      has referred to and relied on Ayodhya Mahatmya of Skanda Purana in
      his examination-in-chief in paragraph 35. He stated that “Ayodhya is
C     a holy place as was described in the Book Ayodhya Mahatmya”.
      This book contains “the details about the Ram Janma Bhumi, but did
      not mention about any mosque”. The witness was cross-examined with
      regard to his statement made in paragraph 35. He in his cross-
      examination has said that he has seen Bara Sthan, Nageshwar Nath
D     Temple, Lomash Rishi hermitage, Vighnesh Pindarak and Vashishta
      Kund. In his cross-examination, he states:-
            “Learned advocate cross examining the witness draw the
            attention of witness towards Para-35 of his examination in chief
            affidavit. Witness in reply to a question said that darshan of Shri
E           RamJanam Bhoomi Temple was referred therein. From “Other
            Temples” referred in this para. I mean Hnaumangarhi and Kanak
            Bhawan. Besides I have seen Bara Sthan, Nageshwar Nath
            Temple, Lomash Rishi hermitage, Vighnesh Pindarak and
            Vashishta Kund. Vighnesh and Pindarak are not temples. These
            are the name of places. Only a large piece of stones are there.
F           I have in Para-35 of my examination in chief affidavit stated that
            I have visited Ayodhya on a number of times. During these visits,
            I had taken darshan for a number of times, but not during every
            visit.”
             47. In his examination-in-chief, he has stated about visit to
G     Ayodhya following the procedure given in Skanda Purana and having
      darshan accordingly. He also referred in his examination-in-chief that
      he got great assistance from the stone boards fixed by Shri Edward
      during the time of British Rule. In paragraph 36 of the examination-in-
      chief, he stated as follows:-
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          827


      “36. That, I have also once visited Ayodhya following the            A
      procedure given in Skand Puran and took darshan of Shri
      RamJanam Bhoomi. During that visit, I got great assistance from
      the stone boards fixed by a higher officer Shri Edward, during
      the time of British Rule, which were fixed in accordance with
      the serial prescribed in Skand Puran and proves the then
                                                                           B
      geographical situation.”
      48.With regard to paragraph 36 of his examination-in- chief
witness was cross-examined in which cross- examination, he stated that
he had darshan of Ram Janma Bhumi following the legends in Ayodhya
Mahatmya. Referring to stone fixing by Shri Edward in British Rule
(1901-1902), he submits that he has seen stone fixed by legends at Bara    C
Sthan, Ram Janma Bhumi, Pindarak, Lomash, Vighnesh and
Vashishtkund. He further had stated that the stone at Lomash Ashram
was fixed in the east of Ram Janma Bhumi Mandir. In his cross-
examination, he states following:-
      “I have seen five-six stone boards. These stone boards were          D
      fixed at “Bara Sthan”, Ram Janam Bhoomi, Pindarak, Lomash,
      Vighnesh and Vashishtkund and Vighneshwara respectively. I
      have seen these stone in 2001 or 2002. I have seen these stones
      together in 2001 or 2002. I have seen these stones regularly
      whenever I visited there. Stone at Lomash Ashram was fixed in        E
      the east of east north corner of the Mandir. This stone was in
      the eastern side on the way back from Janam Bhoomi. Stone at
      Pindarak, is in the northern side of the Janam Bhoomi. There is
      a Sharma Ka Mandir located near this stone. Stone at Vighnesh
      was adjacent to Pindarak. This stone was at a height of four to
                                                                           F
      five feet from the ground level and buried in to ground up to two
      to two and half feet in depth. These stones were two to four
      feet in thickness. I do not remember as which number written
      on which stones. Stone at Vighneswara was in the western side
      of Janam Bhoomi and at some distance from Vashishta Kund. I
      have visited the Vashistha Kund. It is, perhaps at the south west    G
      corner of Janam Bhoomi. It is at a distance of about two to two
      and half hundred yards. I have seen this stone during my first
      visit and also during my last visit. The material engraved thereon
      was in both the languages i.e., English and Hindi.”
                                                                           H
828            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            49. Witnesses, thus, clearly proves the location of Ram Janma
      Bhumi as per legends given in Ayodhya Mahatmya of Skanda Purana.
      Another witness DW3/7, Mahant Ramji Das in his cross-examination
      has relied on Ayodhya Mahatmya, which mentioned about the birthplace.
      He testifies the situation of Ram Janma Asthan as per Ayodhya
B     Mahatmya. DW3/14 Jagat Guru Ramanandacharya Swami
      Haryacharya. In his examination-in-chief, he placed reliance on Ayodhya
      Mahatmya of Skanda Purana. In his examination-in-chief, he states that
      Lomas Rishi Ashram is in the east of the present Shri Ram Janma
      Bhumi. He further states that at place of Lomas Rishi Ashram, now,
      there is a Ramgulella Mandir and a stone in the name of Shri Lomasji.
C     In paragraph 31 of the examination-in-chief, he states:-
            “31. Lomas Rishi Ashram is in the east of the present Shri
            Ramjanm Bhoomi Mandir, about which a case is subjudice.
            Where there is a Ramgulella Mandir, there is a stone in the name
            of Shri Lomasji. Bighneshwar Bhagwan is in the west side of
D           Ram Janm Bhoomi Mandir, which is in the west side of Vasisth
            Bhawan Mandir. The proof is enclosed at list ‘A’ of an affidavit.”
             50. It is further relevant to notice that witness who appeared on
      behalf of the plaintiff of Suit No.4 were also cross-examined in reference
      to Ayodhya Mahatmya of Skanda Purana. PW13, Suresh Chandra
E     Mishra, appeared on behalf of plaintiff of Suit No.4 is a historian.
      PW15, Sushil Srivastav appeared as historian on behalf of Muslim
      Parties, plaintiff of Suit No.4 in his cross-examination with regard to
      Ayodhya Mahatmya, he shows his agreement about what is mentioned
      in the Ayodhya Mahatmya about birthplace of Lord Ram. In his cross-
      examination, he states, following:-
F
            “It is written about birth of Rama in Ayodhya Mahatmya. I agree
            with what is mentioned in Ayodhya Mahatmya about the birth
            place of Rama. The hermitage of sage Lomash has found mention
            in this book, that is, it is described therein. It also describes
            Vighneshwar sthan. The hermitage of seer Vashishtha has also
G
            found description in Ayodhya Mahatmya”. (ETC)
            From references about the hermitages of sage Lomash and seer
            Vashishtha in Ayodhya Mahatmya, the birthplace of Rama has
            been located. As per Ayodhya Mahatmya, Ram Janam Sthan is
            situated West of Lomash Rishi Ashram, east of the Vighneshwar
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             829


      temple and north of Vashishtha Muni Ashram. I did not come              A
      across the Vighneshwar temple; rather, I saw a pillar with the
      word “Vighneshwar” engraved thereon. I did not come across
      the hermitage of sage Lomash. I also did not see the hermitage
      of seer Vashishtha, but people told me about him”. (ETC)
       51. One Dr. Sita Ram Rai, PW-28 also appeared for plaintiff in         B
Suit No.4, who was cross-examined with regard to Skanda Purana. In
his statement, he states that it will not be correct to say that in Ayodhya
Mahatmya, the boundary of Ram Janma Bhumi and its position has been
given. He, however, states that it is true that legends Pindarak,
Vighneshwar, Vashishth and Lomesh are present. He stated in his
statement that Couplets in Ayodhya Mahatmya indicates about the visit         C
towards Janma Asthan and not the clarity of its boundaries. He stated
following in his cross- examination:-
      “In my view it will not be correct to say that in Ayodhya
      Mahatamya Chapter the boundary of Ram Janam Bhoomi and
      its position has been given. On this point the learned advocate         D
      drew attention of the witness to couplet 14 to 25 of Paper
      No.107- C 1/75 (On this the advocate of Plaintiff Shri Zaffaryab
      Jilani raised objection that the paper has not been proved and,
      as such permission to ask question thereon should not be given.
      (Reply to it will be given later on). After reading the above           E
      couplet the witness said that I have understood its contents and
      said that boundary of Ram Janam Bhoomi has not been clearly
      demarcated in it and afterwards said that boundary has not been
      given in it. The learned advocate again made the witness to read
      line 18-19 of the couplet and after reading it the witness said
      that the boundary of Ram Janam Bhoomi has not been clearly              F
      demarcated. There is no mention of all the four directions, which
      is necessary for the boundary. It is true that in the couplets
      Pindarak, Vighneshwar, Vashishth and Lomesh are mentioned in
      the above couplets. After listening first line of the 18th couplet
      from the learned advocate cross-examining, the witness replied          G
      that from this place on has to go towards, Eshan direction for
      Janam Bhoomi. The meaning of “Pravartate” is that one who
      goes. The meaning of ‘Vighneshwar purva bhage’ is that on the
      eastern side of Vighneshwar. ‘Vashishthth uttare’ means on the
      Northern side of Vashishth. ‘Lomsath Paschime’ means on the
                                                                              H
830            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           Western side of Lomesh. ‘Janmasthanam tathati” means from
            there to Janmasthan. What I have said above indicates about the
            visit towards Janamasthan and not the clarity of its boundary.”
             52. According to the above witness, clear boundaries have not
      been given of the Ram Janma Bhumi but indications have been given
B     about the legends situated on eastern, western and northern side and
      how to reach the Ram Janma Bhumi. Accordingly, the above are
      sufficient indication to locate the Ram Janma Bhumi. Boundaries as
      required to refer in a sale or lease documents were not contemplated
      to be given in such ancient Text as Ayodhya Mahatmya of Skanda
      Purana. As noted above, Dr. Rajeev Dhavan refuting the identification,
C     the marks given in Ayodhya Mahatmya of Skanda Purana has placed
      heavy reliance on the Historian’s reports to the Nation dated 13.05.1991.
             Dr. Rajeev Dhavan refuting the arguments based on the locations
      of Ram Janma Bhumi as given in Ayodhya Mahatmya of Skanda
      Purana rely on the Historian Reports to Nation. Arguments made by
D     Shri P.N. Mishra, relying on book Ayodhya by Hans Bakker has been
      refuted by making following submissions:-
            (a) Hans Bakker proceeds on the presump- tion that Ayodhya
                is not a real city but a figment of the poet’s imagina- tion;

E           (b) He proceeds by equating Ayodhya to the city of Saketa;
            (c) Even while mapping the birthplace from Ayodhya
                Mahatmya, he cites considera- ble difficulties and ultimately
                states that Babri Masjid is built at the birthplace as is
                confirmed by local belief.
F           (d) Even the impugned judgment records that Hans Bakker
                proceeds on the basis of conjectures without assigning any
                reason.”
            53. The Historian’s Report to Nation, which is Ext. No.62 in Suit
      No.4 may be first considered. Report referred to as a Historian Report
G     to the Nation was their comments on the stand of Vishva Hindu
      Parishad in the Ayodhya dispute. The four Historian in their letter to
      the Government of India opined “Our study shows neither any evidence
      of the existence of a temple on the site of Babri Masjid nor of the
      destruction of any other structure there prior to the construction of the
      mosque.”
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            831


       54. The above observations in the report that the absence of any      A
such reference to ancient Sanskrit text makes it very doubtful that belief
in Ram Janma Asthan is of such respectable antiquity as is being made
out. The epic Valmiki Ramayana as noticed above which was a
composition before the start of Christian era states Ayodhya as birth
of Lord Ram at Ayodhya at King Dasratha’s palace. The report jumped
                                                                             B
to the conclusion that it is even doubtful that belief is earlier than the
late Eighteenth Century. Further observations were made in the report
regarding period of composition of Skanda Purana, the report comes
to the conclusion that Ayodhya Mahatmya has to be of period towards
the end of Eighteenth Century or the beginning of Nineteenth Century.
It is necessary to consider as to whether observations made in the           C
report that Ayodhya Mahatmya of the Skanda Purana is composition
of end of Eighteenth Century or the beginning of Nineteenth Century
or it belongs to an earlier period.
       55. P.V. Kane in History of Dharmasastra, Volume 5, Part II
published by Bhandarkar Oriental Research Institute, Poona (1962) has        D
elaborately dealt with Puranas and their date or period. P.V. Kane has
also referred to Skanda Purana in VII Khand as published from
Venkateshwar Press, referred to above. After elaborate discussion P.V.
Kane arrives at the conclusion that Skanda Purana cannot be placed
earlier than Seventh Century and not later than Ninth Century A.D.
Following is the discussion on Skanda Purana and its dating by P.V.          E
Kane in “History of Dharamasastra”:-
      “Skanda — This is the most extensive of Puranas and poses
      perplexing problems. It is found in two forms, one being divided
      into seven khandas, viz. Mahesvara, Vaisnava, Brahma, Kasi,
      Avantya, Nagara and Prabhasa, the other being divided into six         F
      samhitas, viz. Sanatkumara, Suta, Sankari, Vaisnavi, Brahmi and
      Saura. The Skanda in seven khandas has been published by the
      Venk. Press and the Sutasamhita with the commentary of
      Madhavacarya has been published by the Anan. Press, Poona.
      The extent of the Skanda is variously given as 81000 slokas, at        G
      100000 slokas (vide PRHR p. 158), at 86000 (in PRHR p. 159).
      The god Skanda does not figure prominently in this Purana named
      after him. The Skanda is named in the Padma V. 59. 2 Skanda
      I. 2. 6. 79 is almost in the same words as Kiratarjuniya (II. 30
      ‘sahasa vidadhita na kriyam’). Skanda, Kasikhanda 24 (8 ff) is
                                                                             H
832            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           full of Slesa and Parisankhya in the style of Bana as in ‘yatra
            ksa-panaka eva drsyante maladharinah’ (verse 21) or
            ‘vibhramoyatra narlsu na vidvatsu ca karhicit’ (verse 9).
            Natyaveda and Artha-sastras are mentioned in Kasikhanda
            (Purvardha 7. 4-5), Dhan- vantari and Caraka on medicine are
            mentioned in Kasikhanda (Purvardha 1.71); the word Jhotinga
B
            occurs in Kasikhanda 72.74 (Jhotinga raksasah krurah). Skanda
            is quoted on topics of Dharmasastra in early commentaries and
            digests. The Mit. on Yaj. II. 290 mentions it in connection with
            the status of vesyas (courtezans). Kalpataru on vrata quotes only
            15 verses from it, Kalpataru on tirtha (pp. 36-39, 32, 46, 130-
C           135) quotes 92 verses from it, on dana only 44, on niyatakala 63
            verses, 18 verses on Rajadharma (on Kaumudimahotsava), only
            4 in sraddhakanda and 3 in grhasthakanda. Apararka quotes only
            19 verses from it; one quotation indicates Tantrik influence (vide
            note). The Danasagara cites 48 verses on dana from it and the
            Sm. C. only 23 in all. Considering the colossal figure of slokas in
D
            the Skanda it must be said that it is rather sparingly quoted in
            the Dharmasastra works. A verse in it seems to echo the very
            words of Kalidasa and quotes the view of Devala. In such a huge
            work interpolations could easily be made. So it is difficult to
            assign a definite date to it. A ms. of the Skanda in the Nepal
E           Durbar Library is written in characters which belong to the 7th
            century A.D. according to Haraprasad Shastri (vide Cat. of
            Nepal Palm-leaf mss. p. LII.)
            It would be not far from the truth to say that the Skanda cannot
            be placed earlier than the 7th century A.D. and not later than
F           9th century A.D. on the evidence so far available.”
            56. There is no need of any further discussion regarding period
      of composition of Skanda Purana in view of evidence, which was led
      on behalf of plaintiff of Suit No.4 itself. PW20 Prof. Shirin Musavi in
      her statement has stated that geographical local of Ramkot found
G     description in the Skanda Purana. She clearly stated that Skanda Purana
      belongs to Ninth Century A.D. Following is her statement in above
      regard:-
            “I have read about a place called Ramkot in Ayodhya. The
            geographical location of Ramkot finds description in Skanda
H           Purana. But it is not clear. It is true that a certain place in
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            833


      Ayodhya is known by the name of Ramkot from the end of 16th            A
      century. Skanda Purana is attributed to, that is, stated to be
      belonging to the 9th century.” (E.T.C.)
       57. In above view of the matter, the opinion of four Historians
in their report that Ayodhya Mahatmya of Skanda Purana was prepared
towards the end of Eighteenth Century or the beginning of Nineteenth         B
Century cannot be accepted. It is further relevant to notice that Ayodhya
Mahatmya of the Skanda Purana, the witnesses examined in Suit No.5
on behalf of the Hindu Parties as well as other witnesses examined on
behalf of the Hindu parties were cross-examined on various Shlokas
of Ayodhya Mahatmya of Skanda purana but not even a suggestion was
made to any of the witnesses that Ayodhya Mahatmya in Skanda Purana          C
was composed in end of Eighteenth Century or beginning of Nineteenth
Century. Thus, the opinion of the Historian’s report that Skanda Purana
does not give support to any belief in Ram Janma Asthan extending
since long is unacceptable.
      58. Another mistake which has crept in the Historian’s report is       D
that while recording the legends mentioned in the Ayodhya Mahatmya,
the report refers to “Laumasa” with present Rin Mochan Ghat. With
regard to above report states following:-
      “According to local Hindus beliefs Laumasa or the place of
                                                                             E
      Laumasa is identical with the Rin Mochan Ghat.”
       59. The above conclusion was drawn by the report referring to
local Hindus beliefs whereas existence of Laumasa and its situation
and identification is well established since the year 1901-02, where stone
pillar has been placed, has been proved by the witnesses, who appeared       F
on behalf of plaintiff in Suit No.5. The statement of Swami
Avimuktswaranand Sarswati has already been referred to. Due to the
above error, the placement of Ram Janma Bhumi by the Four Historian
has been faulted. The identification of Lomas by four Historians as Rin
Mochan Ghat is palpably wrong. In Suit No. 2 of 1950, a site plan &
map were prepared by Shiv Shankar Lal, the Court Commissioner on             G
01.04.1950, which has been relied by the High Court and not questioned
by anyone. In the above site plan, which has been printed in the
judgment of Justice S.U. Khan at Page 30 of Volume I and as Appendix
2C of judgment of Justice Sudhir Agarwal mentions that ‘Lomas’ as
South Eastern corner of Janma Bhumi, which clearly negate the                H
834            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     placement of Lomas by four Historians as Rin Mochan Ghat on the
      bank of Saryu. There are few other observations, which have been made
      in the report, which cannot be approved. The report mentioned that
      Skanda Purana refers to Swargdwar Tirth on which 100 verses have
      been devoted to the description of Swargdwar whereas only 8 verses
B     have been devoted to Janma Asthan, which means that Swargdwar
      Tirth was more important than Janma Asthan. Whether describing
      Janma Asthan in 8 verses, its description and location shall lose its
      importance? Answer is obviously no. It may be further noticed that
      whole report is nothing but objection to the case of the Vishwa Hindu
      Parishad as has been mentioned in the report in very beginning. The
C     report, thus, has been prepared as the counter to the Vishwa Hindu
      Parishad case, which itself suggests that the four Historians had not
      treated the entire subject dispassionately and objectively.
            60. Justice Sudhir Agarwal in the impugned judgment has
      elaborately dealt with the above reports by four Historians and found
D     it unworthy of reliance. Very strong observations have also been made
      with regard to the report of Historian as well as of some witnesses in
      following words:-
            “3622. We may mention here that though the said report claims
            to have been written by four persons but in fact it was not signed
E
            by Sri D.N.Jha. The opinion of an alleged expert, which is not
            based on her own study and research work but reflection of
            other’s opinion, in our view, shall not qualify to be considered
            relevant under Section 45 of the Evidence Act as well as the
            law laid down by the Apex Court in State of Himachal Pradesh
F           Vs. Jai Lal (supra).
            3623. Normally, the Court does not make adverse comments on
            the deposition of witness and suffice it to consider whether it is
            credible or not but we find it difficult to resist ourselves in this
            particular case considering the sensitivity and the nature of dispute
G           and also the reckless and irresponsible kind of statements, and
            the material got published by the persons claiming to be Expert
            Historian, Archaeologist etc. without making any proper
            investigation, research or study in the subject.
            3624. This is really startling. It not only surprises us but we are
H           puzzled. Such kind of statements to public at large causes more
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            835


      confusion than clear the things. Instead of helping in making a        A
      cordial atmosphere it tends to create more complications, conflict
      and controversy. Such people should refrain from making such
      statements or written work. They must be extremely careful and
      cautious before making any statement in public on such issues.
      3625. The people believe that something, which has been said           B
      by a learned, well studied person, would not be without any basis.
      Normally they accept it as a correct statement of fact and affairs.
      Normally, these persons do not find a stage where their statement
      can be scrutinized by other experts like a cross-examination in a
      Court of law. In legal terminology, we can say that these
      statements are normally ex parte and unilateral. But that does         C
      not give a license to such persons to make statements whatsoever
      without shouldering responsibility and accountability for its
      authenticity. One cannot say that though I had made a statement
      but I am not responsible for its authenticity since it is not based
      on my study or research but what I have learnt from others that        D
      I have uttered. No one, particularly when he claims to be an
      expert on the subject, a proclaimed or self styled expert in a
      History etc. or the facts or events can express some opinion
      unless he/she is fully satisfied after his/her own research and
      study that he/she is also of the same view and intend to make
      the same statement with reasons.”                                      E

      61. One more aspect of the report needs to be noticed. In the
report, the refence to excavation made by Prof. B.B. Lal (of
Archaeological Survey of India) to identify sites of Ramayana have been
made. The said excavation was conducted by Shri B.B. Lal in 1975-
76.                                                                          F

       Towards south of the disputed structure, certain trench were
excavated and Shri B.B. Lal opined that certain pillar bases were found
sustaining pillars and show a structure in the south of Babri Masjid. In
the report, after referring to excavation by Shri B.B. Lal, the report
                                                                             G
concludes:-
      “Finally, there is nothing to show that the pillar bases existing at
      a distance of about 60 ft to the south of the Baburi Masjid
      structure are in alignment with the pillars used in the Baburi
      Masjid. In fact no importance can be attached to the structure
                                                                             H
836            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           postulated on the strength of the pillar bases. It could be a small
            verandah, which may have been used either as an animal shed,
            or just for living purposes. Such structures are found in that area
            even now.”
             62. The excavation of disputed site leaving the area on which
B     makeshift structure was situate was carried by Archaeological Survey
      of India (A.S.I.) under the orders of the High Court dated 05.03.2003.
      The detailed report by A.S.I. has been submitted which shall be
      separately considered. The opinion formed by four Historians on the
      basis of certain excavation made by Shri B.B. Lal in the year 1975-76
C     has now become not much relevant in view of elaborate exercises
      conducted by A.S.I. under the orders of High Court. Hence the
      Historian’s report cannot be relied due to above subsequent massive
      excavation conducted by A.S.I.
             63. The submissions have been made by Dr. Dhavan in reference
D     to book on Ayodhya by Hans Bakker. The book Ayodhya by Hans
      Bakker is a thesis submitted to University of Groningen by Dutch
      Scholar H.T. Bakker in 1984. The book has been published in 1986,
      which contains details which is in three parts. Three maps were also
      prepared of the Ayodhya including place like Ram Janma Bhumi, Babri
      Masjid and other legends of importance. Hans Bakker in his book has
E     elaborately considered the Ayodhya Mahatamya, which includes
      consideration of Ayodhya Mahatmya published by Venkateshwar Press,
      Mumbai as noted above as well as few manuscripts of Ayodhya
      Mahatmya received from different sources. He has compared the
      manuscripts, one received from Bodleain Library, Oxford, London,
F     Vrindawan Research Institute, Oriental Institute Baroda and Research
      Institute, Jodhpur. After elaborate comparison and considering all
      relevant aspects, Hans Bakker in Chapter XXI has opined that original
      location of the Janma Asthan is comparatively certain since it seems
      to be attested by the location. Following statement is made by Bakker:-
            “Notwithstanding all the difficulties discussed above, the original
G
            location of the Janmasthana temple is comparatively certain since
            it seems to be attested by the location of the mosque built by
            Babur, in the building of which materials of a previous Hindu
            temple were used and are still visible. The mosque is believed
            by general consensus to occupy the site of the Janmasthana.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           837


      After the destruction of the original temple a new Janmasthana        A
      temple was built on the north side of the mosque separated from
      it by a street.”
       64. As far as maps prepared after discussing the locations given
in Ayodhya Mahatmya, different versions of Ayodhya Mahatamya
including one contained in the published version from Venkateshwar          B
Press, Mumbai, at the end, Hans Bakker concludes that the five maps
containing the scared topography of Ayodhya and its ksetra according
to the tradition of Ayodhya Mahatmya based on survey carried out in
the autumn of 1980 and spring of 1983. In the end, he states following:-
      “The five maps enclosed present the sacred topography of              C
      Ayodhya and its ksetra according to the tradition of the
      Ayodhyamahatmya based on surveys carried out in the autumn
      of 1980 and spring of 1983. It was necessary to make a thorough
      revision of sheet 63 J/1 of the 1 : 50,000 series with regard to
      the topography of Ayodhya town (Map III, scale 1 : 10,000).”
                                                                            D
      65. To support his submission that Ayodhya is not a real city but
a figment of the poet’s imagination as was observed by Hans Bakker
himself, following passage from the book is referred by Dr. Dhavan:-
      “If it has thus become clear that the town of Ayodhya only figures
      in literature that is predominantly legendary in character, the       E
      question of the historicity of this town may well be raised. To
      settle this question we should first concentrate on the early
      historical period, say up to the second century of the Christian
      era. The name ‘Ayodhya’ is not attested by any archaeological
      or epigraphical evidence relating to this period.”
                                                                            F
      66. The above observation occurs in Chapter dealing with the
subject on “History of Saketa/Ayodhya from 600 BC to AD 1000”.
After making the aforesaid remarks, the conclusion which was drawn
by Hans Bakker is as follows:-
      “Hence we conclude that the information about Ayodhya in early
                                                                            G
      Epic literature does not furnish us with historical data concerning
      an old city of that name, let alone of the site AY.”
       67. Hans Bakker, however, when proceeded to examine the
history, Bakker also considered the Jains and Baudh’s Scriptures. Bakker
subsequently held that identity of Ayodhya and Saketa was started and
                                                                            H
838             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     completed in the age of Guptas. The further observations made in the
      book, which is to the following effect:-
            “The reification of the realm of saga finally resulted in a general
            acknowledgment of the identity of Ayodhya and Saketa, that is
            the site AY, a process which was completed in the age of the
B           Guptas. That the identification was not yet universally
            acknowledged during the rule of the early Guptas seems to follow
            from some Purana texts in which the Gupta rulers are credited
            with sovereignty over the real Saketa rather than over the
            marvelous Ayodhya.
C           The identification of Ayodhya with Saketa during this period is
            not only attested in the Jaina sources but also in Sanskrit saga
            to wit the Brahmandapurana 3.54.54 (Cp. Op.cit.3.54.5), and
            most consistently in Kalidasa’s Raghuvamsa. It is only from the
            period when the name Ayodhya was used to denote an existing
            township that we may expect to find corroborative archaeological
D           evidence. Such testimony is indeed found among the inscriptions
            of the later Guptas (5th century): an inscription dealing from AD
            436 describes the donees of a gift as ‘Brahmins hailing from
            Ayodhya’. A Gupta inscription of AD 533/4 mentions a nobleman
            from Ayodhya. The spurious Gaya copperplate inscription of
E           Samudragupta, probably a fabrication of the beginning of the 8th
            century, describes Ayodhya as a garrison town.”
             68. Thus, identity of Ayodhya has been attested and corroborated
      by Sanskrit Scriptures and the corroboration from the later Gupta period.
      Thus, the earlier observation made was only to the effect that Ayodhya
F     is not attested by any epic literature, but once it was identified by author
      himself, the earlier observation loses its importance. As far as
      observation of Bakker in which he equated the Ayodhya to the city of
      Saketa, no exception can be taken. Saketa and Ayodhya has been used
      as synonyms in other scriptures as well as historians. With regard to
      map of birthplace after considering the entire materials, Hans Bakker
G     attests the location of birthplace. The conclusions arrived by Hans
      Bakker cannot be said to be based on surmises or conjectures.
            69. One more aspect relevant for the period in question may be
      considered. DW2/1-1, Rajinder Singh, appeared as a witness for
      defendant No.2 in Suit No.4, as a person having interest in the study
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           839


of religious, cultural and Historical books of Sikh Cult. In examination-   A
in-chief, he has referred to several books about Sikh Cult and history.
He also stated in his examination-in-chief that Guru Nanak Devji had
sought darshan of Shri Ram Janma Bhumi Temple at Ayodhya. The
period during which Guru Nanak Devji went to Ayodhya and had
darshan stated to be is 1510-1511 A.D. In paragraph 11 of examination-
                                                                            B
in-chief, he states:-
      “11. Guru Nanak Devji, after getting the appearance of God on
      the auspicious day, Bhadrapad Poornima, 1564-Vikrami = 1507
      c.e. prepared him for going on pilgrimage. Then he went to
      Ayodhya via Delhi, Haridwar, Sultanpur etc. Almost 3-4 years
      have passed in this journey. Similarly Guru Nanak Dev went on         C
      pilgrimage to see Shri Ram Janam Bhoomi Mandir in 1567-1568
      Vikrami = 1510-11 Christian era. It is mentioned here that invader
      Babar has not invaded India by that time.”
       70. Alongwith his statement, he has annexed various Janma
Sakhies, which records visit of Guru Nanak Devji at Ayodhya and             D
Darshan of Ram Janma Bhumi. Justice Sudhir Agarwal in his judgment
has also referred to various Janma Sakhies, which were referred to
and relied by the witnesses. Detailed reference of Janma Sakhies, which
have been referred and relied by the witness is mentioned in paragraph
5 of the affidavit. In paragraph 5 of examination-in-chief, he states:-     E
      “5. I had studied a number of ancient books in the form of edited
      and published books about Sikh Cult and history which include
      “Aadhi Sakhies (1758 Vikrami 1701 Christian era), Puratan Janam
      Sakhi Guru Nanak Devji Ki (1791 Vikrami = 1734 Christian era),
      creation of Bhai Mani Singh (Life-time 1701-1791 Vikrami 1644-        F
      1734 Christian era) “Pothi Janmsakhi: Gyan Ratnawali”, Bhai
      Bale Wali” (Shri Guru Nanak Dev) Janamsakhi” (1940-Vikrami
      = 1883 Christian era) creation of Sodhi ManoharDas Meharban
      (Life time 1637-1697 Vikrami = 1580-1640 Christian era)
      “Sachkhand Pothi:Janamsakhi Shri Guru Nanak Devji, creation
      of Babu Sukhbasi Ram vedi (Eighth descendant of Shri Laxmi            G
      Chand younger son of Guru Nanak Devji) “Guru Nanak Vansh
      Prakash (1886 Vikrami = 1829 Christian era), creation of Shri
      Tara Hari Narotam (Life-time 1879-1948 Vikrami = 1822-1891
      Christian era) “Shri Guru Tirath Sangrahi” and famous creation
      of Gyani Gyan Sigh “Tawarikh Guru Khaira: Part-I (1948 Vikrami        H
840             SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           1891 Christian era) etc. It is fully evident from the information
            gained from these books that disputed land is a birth place of
            Shri Ramchanderji and Guru Nanak Dev had sought the darshan
            of Shri Ram Janam Bhoomi Temple at Ayodhya it is also proved
            from these books that with the passage of time Shri Guru Teg
            Bahadur and his son Shri Guru Govind Singh have also sought
B
            the darshan of Shri RamJanam Bhoomi Mandir at Ayodhya.”
             71. Janma Sakhies, which have been brought on the record
      contains a description of visit of Guru Nanak Devji to Ayodhya, where
      he had darshan of birthplace of Lord Ram. It is true that from the
      extracts of Janma Sakhies, which have been brought on the record,
C     there is no material to identify the exact place of Ram Janma Bhumi
      but the visit of Guru Nanak Devji to Ayodhya for darshan of Janma
      Bhumi of Ram is an event, which depicted that pilgrims were visiting
      Ayodhya and were having darshan of Janma Bhumi even before 1528
      A.D. The visit of Guru Nanak Devji in 1510-11 A.D. and to have
D     darshan of Janma Bhumi of Lord Ram do support the faith and beliefs
      of the Hindus.
             72. It can, therefore, be held that the faith and belief of Hindus
      regarding location of birthplace of Lord Ram is from scriptures and
      sacred religious books including Valmiki Ramayana and Skanda Purana,
E     which faith and beliefs, cannot be held to be groundless. Thus, it is found
      that in the period prior to 1528 A.D., there was sufficient religious texts,
      which led the Hindus to believe the present site of Ram Janma Bhumi
      as the birthplace of Lord Ram.
           Faith and belief regarding Janma Asthan during the period
F     1528 A.D. to 31.10.1858.
             73. During this period, “Sri Ramacharitmanasa” of Gosvami
      Tulasidasa was composed in Samvat 1631 (1574-75 A.D.). The
      Ramacharitmanasa enjoys a unique place and like Valmiki Ramayana
      is revered, read and respected by Hindus, which has acquired the status
G     of an Epic in Hindu faith. Gosvami Tulasidasa in Bala- Kanda has
      composed verses, which are spoken through Lord Vishnu. When
      Brahma appealed to Vishnu to relieve the Devas, Sages, Gandharvas
      and earth from the terror of Demon Ravana (Raavan), Lord Vishnu
      said that I will take a human form and born to Dasaratha and Kausalya
      in Kosalapuri. After Doha 186, Bala-Kanda in following three
H     chaupaiyas (Verses), Lord Vishnu says:-
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            841



      tfu Mjigq eq f u fl) lqj sl kA                                         A
      rq E gfg ykfx /kfjgm¡ uj cs l kAA
      val Ug lfgr euq t vorkjkA
      ys g m¡ fnudj cal mnkjkAA1AA
      “Fear not, O sages, Siddhas and Indra (the chief of gods); for         B
your sake I will assume the form of a human being. In the glorious
solar race I shall be born as a human being alongwith My part
manifestations.”
      dL;i vfnfr egkri dhUgkA
                                                                             C
      frUg dgq ¡ eSa iwj c cj nhUgkAA
      rs nljFk dkS l Y;k :ikA
      dks l yiq j ha iz x V ujHkw i kAA2AA
      “The sage Kasyapa and his wife Aditi did severe penance; to            D
      them I have already vouchsafed a boon. They have appeared in
      the city of Ayodhya as rulers of men in the form of Dasaratha
      and Kausalya.”
      frUg dsa x` g vorfjgm¡ tkbZ A
      j?kqd q y fryd lks pkfjm HkkbZ A A                                     E

      ukjn cpu lR; lc dfjgm¡ A
      ije lfDr lesr vorfjgm¡ A A3AA
      “In their house I shall take birth in the form of four brothers, the
      ornament of Raghu’s line. I shall prove the veracity of all that       F
      was uttered by Narada and shall descend with my Supreme
      Energy ( ijk'kfDr ).”
      74. The above chaupaiyas does not only refer to Vishnu taking
human form in Avadhpuri, i.e., Ayodhya but the verse specifically
mentions that he will take human form at the house of Dasaratha and          G
Kausalya. The above verses do not only refer to birth of Ram at
Ayodhya but points out to “a place”, where he will take human form,
which is clearly depicted in the words “tinha ke grha” (in their house
of Dasaratha and Kausalya).
                                                                             H
842            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A            75. Contesting parties have referred to and relied on various
      Gazetteers, travelogues books relating to this period. According to Hindu
      parties’ relevant books and Gazetteers during the relevant period amply
      proves the faith and belief of Hindus in the Janma Asthan of Lord Ram,
      which was worshipped by Hindus throughout. Dr. Rajeev Dhavan on
      the other hand contends that Gazetteers of period prior to 1858 cannot
B
      be looked into and Gazetteers prepared under the British Government
      after 1858 can be of some assistance. He submits that Gazetteers
      prepared during the regime of East India Company cannot be relied
      nor can be called Gazetteers. With regard to all travelogues account
      published in different books, Dr. Dhavan submits that no reliance can
C     be placed on the said accounts given by travellers, since they are only
      all hearsay and they were only by their account telling stories. It is
      necessary to first consider as to whether Gazetteers and travelogues
      books can be treated as an evidence by Court for considering the issue,
      which had arisen before the Court in the suit giving rise to appeals in
      question. The Evidence Act, 1872 consolidated, defined and amend the
D
      law of evidence. The evidence is defined in interpretation clause, i.e.,
      Section 3. The definition of evidence as amended by Act 21 of 2000 is
      as follows:-
             “Evidence”.— “Evidence” means and includes—
              (1) all statements which the Court permits or requires to be
E                  made before it by witnesses, in relation to matters of fact
                   under inquiry,
             such statements are called oral evidence;

             (2) all documents including electronic records produced for the
F
                  inspection of the Court,
             such documents are called documentary evidence.”
             76. Section 57 of the Evidence Act, enumerate the facts of which
      the Court must take judicial notice. Section 57 insofar as it is relevant
      for the present case is as follows:-
G
             “57. Facts of which Court must take judicial notice.—The
             Court shall take judicial notice of the following facts:—
             (1) All laws in force in the territory of India;
             xxxxxxxxxxxxx
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              843


       In all these cases, and also on all matters of public history,          A
       literature, science or art, the Court may resort for its aid to
       appropriate books or documents of reference.
       If the Court is called upon by any person to take judicial notice
       of any fact, it may refuse to do so, unless and until such person
       produces any such book or document as it may consider                   B
       necessary to enable it to do so.”
       77. The definition of facts, which Court must take judicial notice
is not an exhaustive definition. Phrase “on all matters of public history,
literature, science or art” are wide enough to empower the court to
take into consideration Gazetteers, travelogues and books. Gazetteers
are nothing but record of public history. The above provision is with a        C
rider that if the Court is called upon by any person to take judicial notice
of any fact, the Court may refuse to do so until and unless, such person
produces such book or any document. Both the parties have cited
several judgments of this Court, where this Court had occasion to
consider admissibility of Gazetteers and other books in evidence and           D
the value, which is to be attached on statements contained in Gazetteers,
travelogues and books. In Sukhdev Singh Vs. Maharaja Bahadur
of Gidhaur, AIR 1951 SC 288, this Court held that Gazetteer is an
official document of some value as it is compiled by experienced
officials with great care. Following observations were made in
paragraph 10:-                                                                 E
       “10. Xxxxxxxxxxxxxxxxxx
       The statement in the District Gazetteer is not necessarily
       conclusive, but the Gazetteer is an official document of some
       value, as it is compiled by experienced officials with great care
       after obtaining the facts from official records. As Dawson Miller,      F
       C.J. has pointed out in Fulbati case, AIR 1923 Patna 423, there
       are a few inaccuracies in the latter part of the statement quoted
       above, but so far as the earlier part of it is concerned, it seems
       to derive considerable support from the documents to which
       reference has been made.”                                               G
       78. In Gopal Krishnaji Ketkar Vs. Mahomed Jaffar
Mahomed Hussein, AIR 1954 SC 5, this Court had referred to and
relied on the Gazetteer of Bombay. In paragraph 4, the Court was
examining nature of a tomb which belong to Eighteenth Century. In
paragraph 4, this Court Stated:-
                                                                               H
844            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           “4. The shrine has a curious, and in some respects legendary,
            history. Its origin is lost in antiquity but the Gazetteer of the
            Bombay Presidency tells us that the tomb is that of a Muslim
            saint who came to India as an Arab missionary in the thirteenth
            century. His fame was still at its height when the English made
            their appearance at Kalyan, near where the tomb is situate, in
B
            the year 1780. As they only stayed for two years, their departure
            in the year 1782 was ascribed to the power of the dead saint.”
             79. A Constitution Bench of this Court in Mahant Shri Srinivas
      Ramanuj Das Vs. Surjanarayan Das and Another, AIR 1967 SC
      256 had occasion to consider Puri Gazetteer of O’Malley of 1908. In
C     the Gazetteer, the history of Emar Math was addressed. It was
      contended by the appellant before this Court that Gazetteer cannot be
      treated as an evidence. The Court held that Gazetteer can be consulted
      on matters of public history. In paragraph 26, following was laid down:-
            “26. It is urged for the appellant that what is stated in the
D           Gazetteer cannot be treated as evidence. These statements in
            the Gazetteer are not relied on as evidence of title but as providing
            historical material and the practice followed by the Math and its
            head. The Gazetteer can be consulted on matters of public
            history.”
E            80. This Court in Bala Shankar Maha Shanker Bhattjee and
      Others Vs. Charity Commissioner, Gujarat State, 1995 Supp. (1)
      SCC 485 had occasion to consider Gazetteer of the Bombay presidency,
      Vol. III published in 1879. This Court held that Gazette is admissible
      under Section 35 read with Section 81 of the Evidence Act, 1872. It
F     was held that the Court may in conjunction with the other evidence
      may take into consideration in adjudging the dispute in question though
      it may not be treated as conclusive evidence. The recitals in the Gazette
      with regard to location of temple of Kalika Mataji on the top of the hill
      was relied. In paragraph 22, following was laid down:-

G           “22. …………………………………..It is seen that the Gazette
            of the Bombay Presidency, Vol. III published in 1879 is admissible
            under Section 35 read with Section 81 of the Evidence Act, 1872.
            The Gazette is admissible being official record evidencing public
            affairs and the court may presume their contents as genuine. The
            statement contained therein can be taken into account to discover
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             845


      the historical material contained therein and the facts stated          A
      therein is evidence under Section 45 and the court may in
      conjunction with other evidence and circumstance take into
      consideration in adjudging the dispute in question, though may not
      be treated as conclusive evidence. The recitals in the Gazette
      do establish that Kalika Mataji is on the top of the hill, Mahakali
                                                                              B
      temple and Bachra Mataji on the right and left to the Kalika
      Mataji. During Mughal rule another Syed Sadar Peer was also
      installed there, but Kalika Mataji was the chief temple. Hollies
      and Bills are the main worshippers. On full moon of Chaitra
      (April) and Dussehra (in the month of October), large number
      of Hindus of all classes gather there and worship Kalika Mataji,        C
      Mahakali etc…......”
       81. In view of the above discussions, the law as noted above
clearly establish that Court can take into consideration the Gazetteers
under the Evidence Act, 1872, even though, the statement in Gazetteers
will not be treated as conclusive evidence but the presumption of             D
correctness of that statement is attached to it. The admissibility of books
and travelogues cannot be denied in view of Section 57. Section 81 of
the Evidence Act also contemplate for a presumption of genuineness
of every document purporting to be any official Gazette or the
Government Gazette. Section 81 of the Evidence Act is as follows:-
                                                                              E
      “81. Presumption as to Gazettes, newspapers, private Acts
      of Parliament and other documents.—The Court shall
      presume the genuineness of every document purporting to be the
      London Gazette, or any Official Gazette, or the Government
      Gazette of any colony, dependency of possession of the British
      Crown, or to be a newspaper or journal, or to be a copy of a            F
      private Act of Parliament of the United Kingdom printed by the
      Queen’s Printer, and of every document purporting to be a
      document directed by any law to be kept by any person, if such
      document is kept substantially in the form required by law and
      is produced from proper custody.”                                       G
       82. Now, remains the next contention of Dr. Dhavan that
Gazetteers prior to 1858, when the sovereignty of the area was not
under direct control of British, during the regime of East India Company,
cannot be relied. In the present case, the Gazetteers, which have been
relied are of the Gazetteers of Nineteenth Century. The East India            H
846            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     company by Charter from Queen Elizabeth on 31.12.1600 were
      permitted to trade in the East Indies. The Company initially setup a
      factory at Surat (State of Gujarat) in 1619. The jurisdiction and power
      of East India Company were enlarged by various charters issued by
      the Queen and subsequently by enactments made by the British
      Parliament. By 1805, several functions in Oudh area were also entrusted
B
      to the East Indies Company including establishment of Sudder Court in
      Oudh area. East India Company, by beginning of Nineteenth Century,
      was not only a trading company but had statutory and governmental
      power as entrusted by Charters and Acts of the British Parliament with
      agreement of Nawab of Avadh in 1801. In any view of the matter, the
C     Gazetteers, which were prepared during the regime of the East India
      Company in the Nineteenth Century contains a record of public history
      and they are clearly admissible under Section 57 of the Evidence Act.
      Therefore, there is no substance in the submission of Dr. Dhavan that
      Gazetteers prior to 1858 should not be looked into.
D            83. During the relevant period, the first important historical book,
      which contains the minutest details of administration in the regime of
      the Akbar is A-in- i-Akbari, which was completed in Sixteenth Century.
      The A-in-i-Akbari was work of Abul-Fazl Allami, who was one of the
      Ministers in the Akbar’s Court. The A-in- i-Akbari was translated by
      H. Blochmann from persian to English. Col. H.S. Jarrett translated Vol.
E     No.II. Shri Jadunath Sarkar, a Historian of repute corrected and further
      annotated Vol.II translated into English by Col. H.S. Jarrett. Shri
      Jadunath Sarkar in his Editor’s introduction has observed that Second
      volume was designated to serve as a Gazetteer of the Mughal Empire
      under Akbar. Jadunath Sarkar says that Third volume of the A-in-i-
F     Akbari was encyclopedia of the religion, philosophy and sciences of
      the Hindus. The above was stated by Jadunath Shankar in following
      words:-
            “The third volume of the Ain-i-Akbari is an encyclopedia of the
            religion, philosophy and sciences of the Hindus, preceded by the
G           chronology and cosmography of the Muslims, as required by
            literary convention, for comparison with the Hindu ideas on the
            same subjects. The second volume was designed to serve as a
            Gazetteer of the Mughal Empire under Akbar. Its value lies in
            its minute topographical descriptions and statistics about
            numberless small places and its survey of the Empire’s finances,
H           trade and industry, castes and tribes.”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                              847


       84. In second volume of the A-in-i-Akbari details have been given       A
regarding “The Subah of Oudh”, a description of Awadh (Ayodhya)
mentioned that Awadh (Ayodhya) is one of the largest cities of India.
The description refers to Oudh as residence of Ramchandra following
is the description given at page 182 Vol.2:-
      “Awadh (Ajodhya) is one of the largest cities of India. In is            B
      situated in longitude 118o 6’, and latitude 27 o, 22. It ancient times
      its populous site covered an extent of 148 kos in length and 36
      in breadth, and it is esteemed one of the holiest places of antiquity.
      Around the environs of the city, they sift the earth and gold is
      obtained. It was the residence of Ramachandra who in the Treta
      age combined in his own person both the spiritual supremacy and          C
      the kingly office.”
       85. Further Volume III, Chapter VI contains a heading “The
Eighteen Sciences”. The description refers to Vedas and 18 Puranas
and other religious texts. The book also refers to Avatars (incarnation
of the Deity) in the following words:-                                         D

      “Avataras
      or
      Incarnations of the Deity
                                                                               E
      They believe that the Supreme Being in the wisdom of His
      counsel, assumes an elementary form of a special character for
      the good of the creation, and many of the wisest of the Hindus
      accept this doctrine. Such a complete incarnation is called
      Purnavatara, and that principle which in some created forms is
      scintillant with the rays of the divinity and bestows extraordinary      F
      powers is called Ansavatara or partial incarnation. These latter
      will not be here considered.
      Of the first kind they say that in the whole four Yugas, ten
      manifestations will take place, and that nine have up to the present
      time appeared.”                                                          G
      86. The book have details of 9 avatars of Supreme Being (Lord
Vishnu) Ram Avatar or Ram incarnation has also been mentioned in
following words:-
      “Ramavatara, or
      Rama-Incarnation.                                                        H
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A             They relate that Ravana one of the Rakshasas two generations
              in descent from Brahma, had ten heads and twenty hands. He
              underwent austerities for a period of ten thousand years in the
              Kailasa mountain and devoted his heads, one after another in this
              penance in the hope of obtaining the sovereignty of the three
              worlds. The Deity appeared to him and granted his prayer. The
B
              gods were afflicted by his rule and as in the former instances,
              solicited his dethronement which was vouchsafed, and Rama was
              appointed to accomplish this end. He was accordingly born
              during the Treta Yuga on the ninth of the light half of the
              month of Chaitra (March-April) in the city of Ayodhya, of
C             Kausalya wife of Raja Dasaratha. At the first dawn of
              intelligence, he acquired much learning and withdrawing from all
              worldly pursuits, set out journeying through wilds and gave a
              fresh beauty to his life by visiting holy shrines. He became lord
              of the earth and slew Ravana. He ruled for eleven thousand
              years and Introduced just laws of administration.”
D
                                                           (Highlighted by us)
              87. The A-in-i-Akbari is attestation of the faith and beliefs held
      by Hindus in the period of Emperor Akbar. Ayodhya was mentioned
      as residence of Ramachandra, who was further described as Avatar,
      i.e., incarnation of Vishnu. Specific statement has been made that during
E     the Treta Yuga on the ninth of the light half of the month of Chaitra in
      the city of Ayodhya, of Kausalya wife of Raja Dasaratha, Lord Ram
      was born. The A-in- i-Akbari unmistakeably refers Ayodhya as one of
      the holiest places of antiquity. The above statement in A- in-e-Akbari
      clearly indicate that faith and belief of Hindus was that Ayodhya is a
F     holiest place and birthplace of Lord Ram, the incarnation of Vishnu,
      which belief was continuing since before period of Akbar and still
      continues as on date.
              88. William Finch visited India from 1607 to 1611 A.D., his travel
      account has been published by William Foster in his book “Early Travels
      in India”.
G
              89. William Finch mentioned about ruins of the Ramachandra’s
      castle and houses. The travel accounts also noticed the belief of Indians
      that Ramchandra was born, who took flesh upon him.
            90. Father Joseph Tieffenthaler visited India between 1766-1771
      A.D. He wrote historical and geographical description of India in latin.
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           849


All the latin work was translated in French. English translation of the     A
work was filed before the High Court as Ext. 133 (Suit-5) and has been
extensively relied on. In the description of the Province of Oudh,
following is stated:-
      “But a place especially famous is the one called Sitha Rassoi i.e.
      the table of Sita, wife of Ram, adjoining to the city in the South,   B
      and is situated on a mud hill.
      Emperor Aurengzebe got the fortress called Ramcot demolished
      and got a Muslim temple, with triple domes, constructed at the
      same place. Others say that it was constructed by ‘Babor’.
      Fourteen black stone pillars of 5 span high, which had existed at     C
      the site of the fortress, are seen there. Twelve of these pillars
      now support the interior arcades of the mosque. Two (of these
      12) are placed at the entrance of the cloister. The two others
      are part of the tomb of some ‘Moor’. It is narrated that these
      pillars, or rather this debris of the pillars skillfully made, were
      brought from the island of Lance or Selendip (called Ceylan by        D
      the Europeans) by Hanuman, King of Monkeys.
      On the left is seen a square box raised 5 inches above the ground,
      with borders made of lime, with a length of more than 5 ells and
      a maximum width of about 4 ells. The Hindus call it Bedi i.e.
      ‘the cradle’. The reason for this is that once upon a time, here      E
      was a house where Beschan was born in the form of Ram. It is
      said that his three brothers too were born here. Subsequently,
      Aurengzebe or Babor, according to others, got this place razed
      in order to deny the noble people, the opportunity of practicing
      their superstitions. However, there still exists some superstitious   F
      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. The two spots are surrounded by a low wall
      constructed with battlements. One enters the front hall through
      a low semi-circular door.”
                                                                            G
       91. The three important statements contained in the account need
to be noted:-
      First, that Emperor Aurengzebe got the fortress called Ramcot
demolished and got a Muslim temple, with triple domes, constructed at
the same place. It further states that fourteen black stone pillars of 5
                                                                            H
850            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     span high, which had existed at the site of the fortress, are seen there.
      Twelve of these pillars now support the interior arcades of the mosque.
      Two (of these 12) are placed at the entrance of the cloister.
              Second that, on the left is seen a square box raised 5 inches
      above the ground, with borders made of lime, with a length of more
B     than 5 ells and a maximum width of about 4 ells, which is called Bedi
      (i.e. the “cradle”) by the Hindus. The reason for the faith and belief
      was also that there was a house where Beschan (Vishnu) was born in
      the form of Ram.
            Third, that Aurengzebe or Babar got this place razed in order to
C     deny the noble people, the opportunity of practicing their superstitions.
      However, there still exists some superstitious cult in some place or other.
      Since in the place where the native house of Ram existed, the Hindus
      go around 3 times and prostrate on the floor.
            92. The first Gazetteer relied is East India Gazetteer of Walter
D     Hamilton, first published in 1828. The Gazetteer contained particular
      descriptions of the Empires, Kingdoms, Principalities, provinces, cities,
      towns, districts, fortresses, harbours, rivers and lakes of Hindostan.
             93. The Gazetteer mentioned reputed site of temples dedicated
      to Ram, Sita, Lakshman and Hanuman. The Gazetteer further noticed
E     that pilgrimage to Oudh are chiefly of the Ramata sect, who walk round
      the temples and Idols, bathe in the holy pools, and perform the customary
      ceremonies.
            94. The next Gazette relied is History, Antiquities, Topography
      and Statistics of Eastern India (1838). While noticing the history and
F     topography of Gorukhpoor, Montgomery Martin mentioned about
      Ayodhya and its glory.
             95. A Gazetteer was published by Edward Thornton “Gazetteer
      of India” (1854). In 1858, Edward Thornton published another Gazetteer
      namely “Gazetteer of the Territories under the Government of the East
      Indies Company of the native States on the Continent of India”, in which,
G
      a fairly large description of Oudh is contained.
            96. Reference of one more book which was filed as an exhibit
      needs a reference. The book Hadith-e-Sehba was written by Mirza
      Jaan in the year 1856. In the book it was mentioned that the place of
      worship called as birthplace of Lord Ram which was adjacent to ‘Sita-
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            851


Ki- Rasoi’, the Mosque was constructed by Babar in the year 923 Hijri.       A
The translated copy of the book as exhibit 17. The following extract
from the book is relevant to be noticed:-
      “The above mentioned place is called seat of father of Lord
      Rama. Places of Idol worshiping situated here were
      demolished and even a single piece of any Idol of Hindu                B
      religion was left there un-demolished. The place where was
      big temple of Hindu people, big Masjid was constructed and
      the place where was small temple of Hindu people, there
      small Masjid was constructed. The place of worship is called
      birthplace of Lord Rama and the place which is adjacent to
      it, is called “Sita Ki Rasoi” and Sita is called wife of Lord          C
      Rama. At that place Babar Shah got constructed a very big
      Masjid under the supervision of Sayyad Musha Ashiqan in
      the year 923 Hijri and its history is still maintained. Today
      the above-mentioned “Sita Ki Rasoi” is called the Masjid.”
        97. The book is relevant since it was written in the year 1856       D
which was the period of dissension between Hindus and Muslims with
regard to issue of Idol worship at Ayodhya. The book candidly accepts
that at the janamsthan of Lord Ram, Mosque was constructed by Babar.
    Faith and belief of Hindus regarding Janma Asthan of Lord
Ram during the period 1858 to 1949.                                          E

      98. During this period, there are several Gazetteers, reports of
A.S.I., books and other documentary evidence, which have been
exhibited in the Suits. Apart from documentary evidence, a lot of oral
evidence has been led by the parties.
                                                                             F
      99. At first, Firstly, notice may be had of the Gazetteers published
during the relevant period by the Government. All Gazettes, which were
published during the relevant period were under the full governmental
authority since the British had directly taken control over the area of
Oudh w.e.f. 01.11.1958 by Government of India Act, 1858.
                                                                             G
       100. At this juncture notice may be taken of one more relevant
aspect, which is, that after the British Government took over the area
w.e.f. 01.11.1858, in the official reports, correspondences and orders
issued by officers of British Government, the “Mosque” was always
referred to as “Mosque Janma Sthan”, which clearly indicates that
                                                                             H
852            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     Government officers at that time always treated the mosque as situated
      at Janma Sthan. Sufficient materials brought on record evidences the
      above aspect; which may be referred to. Sheetal Dubey, Thanedar Oudh
      has submitted a report on 01.12.1858, which is Ext. 21 of Suit No.1,
      which report also refers to “Masjid” as “Masjid Janma Sthan”. Report
      dated 01.12.1858 is already extracted.
B
            101. Similarly in his report dated 06.12.1858, Thanedar, Oudh,
      Sheetal Dubey, has again referred the “Masjid” as “Masjid Janam
      Sthan”. An order was passed on the application of Thanedar Sheetal
      Dubey on 10.12.1858, in which order, “Masjid” was referred as “Masjid
      Janam Sthan”. The said order is brought on record is Ext. A-69 (Suit
C     No.1), already extracted.
             102. Another important document, which has been much relied
      by Dr. Rajeev Dhavan in his submissions is Ext. A-14 (Suit-1), which
      is a copy of the letter dated 25.08.1863 sent by the Secretary, Chief
      Commissioner of Oudh to the Commissioner, Faizabad Division, where
D     “Mosque” was referred as “Janam Sthan Mosque”. The letter has
      already been extracted.
             103. The above also clearly proves that even the Government
      officers referred the Mosque as Janam Sthan Mosque, which is fully
      corroborates the statements in Gazetteers as noted and extracted above
E     that Babri Mosque was constructed at the Janam Sthan of Lord Ram.
             104. The next work to be noticed is Historical Sketch of Tehsil
      Fyzabad, Zilah Fyzabad, published by the Government in 1870. The
      Historical Sketch was prepared by P. Carnegy, Officiating Commissioner
      and Settlement Officer of Ayodhya and Fyzabad. P. Carnegy in his
F     sketch states that Ayodhya is to Hindu what Macca is to the
      Mohamedan and Jerusalem to the Jews. P. Carnegy description
      has been extracted.
            105. P. Carnegy has further referred to Janmasthan and other
      temples and has categorically stated that at the place of Janmasthan
G     Emperor Babar built a Mosque, which still bears his name in A.D. 1528.
            106. P. Carnegy has also noticed under the heading Hindu and
      Musalman differences about great rupture, which took place between
      the Hindus and Mahomedans, where Hindus were said to have taken
      control of Janmasthan after fierce fight. It further noticed that up to
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          853


that time the Hindus and Mahomedans alike used to worship in the           A
Mosque-Temple and since British rule a railing has been put up to
prevent the dispute.
      107. Another Gazetteer published in 1877 is Gazetteer of the
Province of Oudh. The Ayodhya has been elaborately dealt in the
Gazette. In above Gazetteer, a description with regard to Janamasthan      B
and other temples, is mentioned as extracted.
       108. Under heading “Babar ’s Mosque” and “Hindu and
Musalman Differences”, the same contents have been repeated under
the Gazetteer, which I have already extracted while noticing the
Historical Sketch of Tahsil Fyzabad, Zillah Fyzabad by P. Carnegy, which   C
are not being repeated for brevity.
     109. In 1880, A.F. Millitt prepared his “Report on Settlement of
Land Revenue of the Faizabad” which is extracted above.
       110. Next to be noticed is Report of A.S.I. of North West
Provinces and Oudh, published in 1889, which states that “The old          D
temple of Ramachandra at Janmasthanam must have been a very fine
one, for many of its columns have been used by the Musalmans in the
construction of Babar’s masjid, extracted earlier.
      111. One more report published by Archaeological Survey of India
published in 1889 needs to be noted, with heading “The Sharqi              E
Architecture of Jaunpur; with Notes on Zafarabad, Sahet-Mahet and
other places in the North-Western Provinces and Oudh” by A. Fuhrer
(extracted earlier).
    112. The A.S.I., thus, clearly state that Babar’s Masjid at
Ayodhya was built on the very spot where the old temple                    F
Janmasthan of Ramchandra was standing.
      113. Another Report was published by A.S.I. on the Monumental
Antiquities and Inscriptions in the North- Western Provinces and Oudh
by A. Fuhrer. Referring to Ramachandra, it mentioned that Lord Ram
was born there. The Report refers that Janmasthanam Temple was             G
demolished and a Masjid was constructed in 930 Hijri.
       114. The next Gazetteer, which has been referred and relied is
Gazetteer of Fyzabad, Vol. XLIII published in 1905 by the Government
of the United Provinces of Agra and Oudh (extracted earlier).
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A           115. In the “Imperial Gazetteer of India” published in 1908 with
      respect to Faizabad Division, extracted earlier.
           116. In 1928, publication of Faizabad, Gazetteer was undertaken
      by H.R. Nevill, extracted earlier.
              117. Archaeological Survey of India in volume “The Monumental
B     Antiquities and Inscriptions in the North- Western Provinces and Oudh”
      in the year 1891 while describing Faizabad district, dealing city of
      Ayodhya noted that in place of important Hindu temple namely
      ‘Janmasthan’, a ‘Mosque’ was built during the reign of Babur which
      still bears his name. It was further mentioned that old temple must have
C     been a very fine one, for many of its column have been utilised by the
      Musalmans in the construction of Babri Masjid.
             118. The Gazetteer of “Bara Banki”, volume 48(1921), of the
      District Gazetteers of the United Provinces of Agra and Oudh mentioned
      about a dispute which took place in the year 1853 between Hindu priests
D     and Musalmans of Ayodhya with regard to the ground on which formerly
      stood the Janmasthan temple, which was destroyed by Babar and
      replaced by a Mosque. Following has been stated at page 169 of the
      Gazette under the heading ‘History’ in chapter 5:-
            “...It would appear that the event happened in the year 1853. The
E           cause of the occurrence was one of the numerous disputes that
            have sprung up from time to time between Hindu Priests and
            the Musalmans of Ajodhya with regard to the ground on which
            formerly stood the Janamsthan temple, which was destroyed by
            Babar and replaced by a mosque. Other mosques had been built
            there by Aurangzeb and others and some of them had fallen into
F           decay. The ground, being peculiarly sacred to the Hindus, was
            at once seized by the Bairagis and others, thus affording a fertile
            source of friction...”
             119. The Gazetteer has further narrated details of a march by
      Amir Ali under whom large number of Muslims marched towards
G     Ayodhya but were intercepted by Colonel Barlow of First Regiment of
      Oudh in which large number of persons were slained and first infantry
      was almost destroyed. The Gazetteer reports that Amir Ali was also
      killed. In February 1856, the kingdom of Oudh was annexed by British
      government.
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  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                             855


       120. Apart from Gazetteers and books as referred above, there          A
are other documentary evidences brought on record by the parties of
the suits in question. Reference can be made to certain exhibits, certified
copies obtained from public record which are submitted in the suit. An
Application dated 28.11.1858 by Sheetal Dubey, Thanedaar Oudh is filed
as exhibit-19 in the Suit No. 1, extracted earlier.
                                                                              B
       121. Next documentary evidence brought on record is an
application dated 30.11.1858 submitted by Syed Mohammed Khatib
Moazzim Masjid Babri Sites in Oudh. In the complaint submitted by
Mohammed Khatib Moazzim of the Babri Mosque, it was mentioned
that a Nihang Singh is creating a riot at janamsthan Masjid situated in
Oudh. Complaint mentioned that near mehrab and mimber, he has                 C
constructed an earth chabutra inside the Mosque, ‘Puja’ and ‘Home’ is
continuing there and in whole of Masjid, “Ram Ram” is written. The
request in the complaint was to oust the Hindus from the Mosque
(extracted earlier).
        122. Another document filed as exhibit 21 dated 31.12.1828 which      D
is the report submitted by Sheetal Dubey, Thanedar, Oudh. In the report,
Sheetal Dubey has referred the ‘Mosque’ as ‘Mosque Janmasthan’
(extracted earlier).
      123. Next exhibit relied is exhibit 31 of Suit No.1 which is an
application filed by Mir Rajjabali khatib Masjid for removal of Chabutra      E
which was built in the Mosque(extracted earlier).
      124. The above Application itself is an evidence of Chabutra of
Hindus in the premise of Mosque and puja being performed by blowing
conch.
                                                                              F
       125. Another application was made by one Mohammed Asghar
on 12th February 1861 seeking removal of Chabutra and hut of the
Hindus from the Mosque premises. The application was filed as exhibit
54 in suit 4.
      126. The application was given on behalf of Mohammed Asghar,
Mir Rajjab Ali and muhammed Afzal, Khateeb and Muezzin of Babri               G
Masjid situated at Janmasthan, Ayodhya. The application dated 12th
March 1861 is extracted earlier.
      127. One important fact which may be noted from the above
application and some earlier applications which were made on behalf
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856            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     of khateeb and muezzin of Babri Mosque is that description of Babri
      Mosque is always mentioned as “Babri Masjid situated at
      Janmasthan, Ayodhya”.
             128. Exhibit A-55 filed in Suit No. 4 is report of Khem Singh
      subedar dated 16.03.1861 regarding demolition of Kutiya of Inkani
B     Singh.
            129. Exhibit A-30 filed in Suit No. 4, application dated 25.09.1866
      submitted by muhammed Afzal complaint mentioned that Tulsidas etc.
      Bairagis had placed an Idol inside the premises in 3 hours. Public
      complaint was made (extracted earlier).
C            130. Evidence has been brought on the record to the fact that
      Deputy Commissioner, Ayodhya by an order dated 03.04.1877 has
      granted permission to Khem Das, Mahant, janamsthan to open the door
      in the Northern wall in the premises of Mosque. An appeal was filed
      by Syed mohammed Asghar against the said order. Grounds of the
D     appeal have been brought on the record as exhibit 30 in Suit No. 1.
      The appeal also noticed that Idols on the premises have not yet been
      removed. The appeal also admits small Chulha in the premises. Ground
      6 of the appeal(exhibit-30) is as follows:-
            “Section 6. That there has been old controversy between the
E           respondent and the appellant and the Hon’ble Court has
            ordered that the respondent should not do anything new on
            that place. But because of Baldeo Dass bairagis being
            underground, the order dated November 7, 1873 would not
            be served upon him. That is to say, idol has not yet been
            removed as per orders. The respondent with the intention of
F           occupying it continues to indulge in several activities on the
            wall and on being restraint by someone, he becomes
            aggressive and is bent upon to fight with him. So he has
            made a chulha within the said compound which has never
            been done before. In the past, there was near a small
G           chulha(kitchen) for Puja which he has got extended.”
             131. In the above appeal, report of Deputy Commissioner,
      Faizabad was submitted. In the report, Deputy Commissioner mentioned
      that opening of the door was necessary to give a separate route on
      fair days to the visitors to the Janmasthan.
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  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                            857


      132. The above report by Deputy Commissioner clearly proves            A
that Hindus were visiting the janamsthan which was within the Mosque
premises. The Commissioner had ultimately dismissed the appeal of
Muhammed Asghar on 13.04.1877.
       133. Another important fact to be noticed is filing of suit by
Mahant Raghubar Das being case number 61 of 280 of 1885 before               B
sub-judge Faizabad where plaintiff has sought permission to construct
a temple on Chabutra existing inside the Mosque premises. The
permission to construct the temple was denied by dismissing the suit
on 24.12.1885. An appeal was filed by Mahant Raghubar Das before
District Judge Faizabad. The District judge dismissed the appeal on
18.12.1886.                                                                  C

      134. The second appeal against the said judgement was dismissed
by Judicial Commissioner, Oudh.
       135. There is further evidence which have been brought on
record to prove that in the year 1934 there was Hindu Muslim riot in         D
Ayodhya in which riot the Dome of Babri Mosque was damaged by
Hindus which was got constructed by Administration through a Muslim
contractor. Documents pertaining to repair of the Mosque by a Muslim
contractor, application for payment of his bills have been brought on
the record by plaintiff of Suit No. 4 which are testimony of differences
and dispute between the parties which took place in 1934 damaging            E
the Mosque which could be repaired after several months. The
documentary evidence referred above amply proves that within the
premises of Mosque which premises is bounded by boundary wall the
Hindus were visiting and worshipping in the period in question. The
application submitted by Khateeb and muezzin of Babri Mosque as noted        F
above clearly admits the worship and Puja by the Hindus, construction
of Chabutra by the Hindus, putting the Idols by the Hindus in the Mosque
premises. The reference of Babri Mosque as janamsthan Masjid in
several application also indicates that Mosque was situated at the
janamsthan of Lord Ram. The above documentary evidence are
testimonial of faith and belief of the Hindus that the Mosque was on         G
the janamsthan of Lord Ram. Their protest, persistence and actions to
worship within the Mosque is testimony of their continued faith and belief
that premises of the Mosque is Janmasthan of Lord Ram.

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858            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           ORAL EVIDENCES:-
             136. The parties led substantial amount of the oral evidence in
      the suits. Plaintiff of Suit No. 4 produced 32 witnesses which are
      descibed as PWs. Plaintiff of Suit No.5 produced 19 witnesses which
      are descibed as OPWs. Plaintiff of Suit No.3 also produced 20 witnesses
B     who are descibed as DWs. In Suit No.4, defendant No. 2/1 produced
      3 witnesses. Other defendants in Suit No.4 have also produced certain
      witnesses.
            137. The oral evidences of the witnesses need to be examined
      with regard to the aspect of faith and belief of Hindus about the
C     Janmasthan of Ram Janma Bhumi as well as evidene of worship and
      Puja there at.
            327. Mahant Paramhans Ramchandra Das OPW-1, aged about
      90 years (as on 23.12.1999), was examined by plaintiff of suit No.5.
      Mahant Ram chander Das is resident of Panch Ramanandi Akhil Bharti
D     Anni and Digambar Akhara, Ayodhya. He came to Ayodhya at the age
      of 14-15 years.
            In his examination in chief, Mahant Paramhans Ram Chander
      Das states:-
            “...Since the time I came to Ayodhya, I have always seen
E           people going for Darshan(glimpse) at seven places at Ram
            Janambhumi, Hanuman Garhi,Nageshwarnath, Saryu,
            Chhoti Devkali, Badi Devkali, Laxman Ghat, Sapt Sagar
            situated near Chhoti Devkali and kanak Bhawan temple. The
            seven places are unchangeable and their location cannot be
F           changed, which means that one place cannot be built at the
            place of other one. Mani Parvat is a famous place, bit is
            different from the seven places. There was an idol of Lord
            Ram at Ram Janam Bhoomi. There was Sita’s kitchen also.
            As per customs there was a special hall by the name of Ram
            Janam Bhoomi and on all the pictures and statues of many
G           Gods and Goddesses here engraved their own. Apart from
            statues. That place was also worshipped, which was said to
            be the birthplace of Lord Ram and where the Lord Ram has
            appeared. There was a platform also, known as the platform
            (chabutra) of Ram Lala and a hut of straws, in which priests
            of Nirmohi Akhada used to do worship and offer food,etc.
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  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                       859


      To the deity of Lord Ram...”                                      A
      138. In his cross examination he states:-
      “”...The place, which i describe as ‘Garbh Griha’, is
      according to my belief and according to the belief of all
      Hindus, birthplace of Ramchandra ji. I consider that place,
      where on 23rd December 1949 idol was installed after              B
      removing it from the chabutra, as birth place and I used to
      consider that place as birth place before the installation of
      Idol there.
      Question:-      Can thatplace, which you described as
                      birthplace according to your belief, be           C
                      10-15 hands away on either side of the
                      middle dome place?
      Answer:-        No. The place where the order is placed,
                      authentic place and the     whole     Hindu
                      community believes in that very place. There      D
                      is no scope of any doubt. There cannot be a
                      distance of even two-four feet find the
                      location of this place.
                      The basis of this belief is that Hindus have
                      been having Darshan of this place as              E
                      janambhoomi Since centuries...” ”
       139. Next statement to be noticed is of OPW-4, Shri Harihar
Prasad Tiwari. He was aged 85 years(as on 01.08.2002). He claims
to have lived in Ayodhya from 1934 to 1938 at Ram Niwas Mandir
which was only 250-300 steps from Ram Janma Bhumi. He has referred      F
to faith and belief of people that Bhagwan Vishnu has incarnated as
Bhagwan Shri Ram at that very place. In para 3 of his examination-in-
chief, he states:-
      “”3. Ayodhya is an ancient and The holiest Pilgrimage for
      Hindus where Parambharma Parmeshwar Bhagwan Vishnu                G
      incarnated as Shri Ram, son of king Dashratha. The
      followers of Hinduism have the faith from the time
      immemorial that bhagwan Vishnu incarnated at Ayodhya as
      Lord Shri Ram. This place is adorable. Owing to this trust
      and faith people used to visit for Darshan and
                                                                        H
860            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A           Parikrama(taking round) of Shri Ram Janm Bhoomi. My
            family members, my grandfather and elderly people, saints
            and hermits of Ayodhya, during my study there from 1934 to
            1938, used to say that Bhagwan Vishnu had incarnated as
            Bhagwan Shri Ram at this very place and this is Shri Ram
            Janam Bhoomi. Based on this faith and belief I have been
B
            going to Shri Ram Janam Bhoomi for Darshan. After
            completing my study, whenever I came to Ayodhya I used to
            go there for Darshan invariably. I mostly live in Sugreev
            Quila, ram kot, ayodhya for about last 8-9 years and usually
            go to the Ram Janmabhoomi for having Darshan. “”
C           140. Further in his cross examination he states: -
            “6....... The building having domEs was the holy sanctum
            sanctorum, where, it is believed that bhagwan Shri Ram had
            taken birth. Hindu pilgrims and Darshanarthies (viewers)
            you used to offer fruits, flowers and money there also, owing
D           to their faith.”
           141. Reiterating his faith in Ram Janam Bhumi in cross
      examination he further states: -
            “... It is right that in my above statement 1 had stated that
E           the disputed site is the Janam Bhoomi of Ram. This faith of
            mine is not by reading any religious book but is based on
            what I have heard from old and aged persons. I am having
            this faith well before I came to Ayodhya. That is to say when
            I gained consciousness I have such faith and this was by
            hearing from the people. In between 1934 to 38 when I was
F           at Ayodhya, possibly I would have gone to the janambhumi
            i.e. the disputed site thousands of times. During my studies I
            used to go to the Janam Bhoomi...”
            142. He in his statement also stated that there was Parikrama
      marg outside the west side wall of the disputed building and he used to
G     do Parikrama.
            “....Outside the west side wall of the disputed building there
            was a Parikrama Marg(route) close to the wall and walking
            on this route I used to perform Parikrama(religious round).
            This route was made walk able and some old brick were laid
H           on it.”
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                        861


      143. In his statement he also stated that he used to perform       A
Parikrama through the Parikrama Marg.
      144. Next statement to be noticed is the statement of OPW-5
Ram Nath Mishra who was aged 91 years(as on 06.08.2006). He
claimed to have come to Ayodhya in the Baisakh month of 1932. He
used to work as “Teerth Purohit”. In his cross-examination he states:-   B
      “.... According to elderly people, it was under the central
      dome the Lord Rama was born as the son of king Dashrath.
      It was on the basis of this faith and belief that I and all the
      Hindu devotees of Lord Rama used to have the darshan of
      Shri Ram Janam Bhoomi. It was considered to be sacrosanct          C
      place and a place worth worshipping.....”
      145. He further states: -
      “... All the Hindus have this old traditional belief that Lord
      Vishnu was born as the son of king Dashrath at this place
      only and that is why this place is so sacred and worthy of         D
      worship. It is on the basis of this faith and belief that lakhs
      of pilgrims have been coming to Ayodhya for the ‘Darshan’
      and ‘Parikrama’ of Lord Rama’s birth place and continue to
      do it till date. There is a stone of the times of the Britishers
      outside the main entry gate, on which is written                   E
      ‘Janambhoomi Nitya Yatra’ and the digit one of
      Hindi(‘ek’). ....”
      146. OPW-6, Housila Prasad Tripathi aged 80 years(as on
13.08.2002) claims to have come to Ayodhya in December 1935. In
his examination-in-chief, he states:-                                    F
      “7. We have this faith and believe that lord Shri Ram was born
      at Ayodhya and that place is famous as Shri Ram Janam
      Bhoomi where people in lakhs come from every nook and
      corner of the country and after having Darshan shri Ram
      Janmabhoomi do its Parikrama. It is on the basis of this faith
                                                                         G
      and believe that we also come to Shri Ram janam bhumi three
      to four times a year and make it a point to have darshan of
      Shri Ram janam bhoomi and then have its Parikrama.
      8. I am also of the firm faith and believe that Lord Shri Ram
      was born at the same very place at Ayodhya where thousands
                                                                         H
862            SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A           of Hindu pilgrims come for Darshan and Parikrama. It was
            on the basis of this belief that since 1935, I also went to
            Ayodhya three to four times every year and after a bath in
            the Saryu river had darshans of Kanak bhawan,
            Hanumangarhi and of Shri Ram Janam Bhoomi and had the
            Parikrama of Shri Ram Janam Bhoomi.””
B
            147. He further states:-
            “10.....There was a building of 3 shikhars to the west of the
            wall with iron-bars in which the place of the central Shikhar
            portion is Shri Ram Janmabhoomi which is called Sanctum-
C           Sanctorum, according to Hindu tradition, faith and belief.
            On the basis of this faith and belief, I also used to go for
            Darshan and Parikrama of the Shri Ram Janam Bhoomi.”
            148. Further he states: -
            “12. All the pilgrims - darshnarthees would enter the Sri Ram
D           Janam Bhoomi premises from the entry gate to the east and
            have darshans of the idols placed at Ram chabootra, of the
            idols placed under the neem and peepal tree located to its
            south- east corner and Sita Rasoi and the foot prints etc.,
            there and also have darshan of the sacosanct Sri Ram Janam
E           Bhoomi located inside the barred wall which is considered
            to be the Sanctum-Sanactorum. The pilgrims and those
            coming for darshans and we used to make offerings like fruit
            and cash according to our shardha. At the Sanctum-
            Sanctorum also, the pilgrims and we after the darshan of this
            used to make offerings through the barred wall as per our
F           belief.”
             149. In his cross-examination, he denied the fact that public
      opinion regarding Ram Janam Bhumi is of twentieth century. He states
      it to be since long as per tradition.
            “...However, the public opinion is that the birth place of Ramji is
G
            the same i.e. Ram Janam Bhoomi about which a dispute is going
            on. It is wrong to say that this public opinion is of the twentieth
            century. As a matter of fact, it has been there since long as per
            tradition...”
            150. OPW-7, Ram Surat Tiwari, 73 years of age(as on
H     19.09.2002), claims to have gone to Ayodhya for the first time in the
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                           863


year 1932 and thereafter has been going regularly. In his examination-      A
in-chief, he states: -
      “.....My elder brother told me that this was the birth place of
      Lord rama (this is Ram Janam Bhoomi) and from the very ancient
      times Hindus have trust, confidence and a popular faith that Lord
      Vishnu had incarnated in the name of Shri Ram son of Raja             B
      Dashrath below the middle dome and this is why it has been called
      ‘garbh griha’. After having the darshan of Ram Chabootra, the
      pilgrims and visitors used to go through doors of lattice wall to
      the three domed building and from there they got the darshan of
      ‘Garbh Griha’ and they offered flowers, prasad and coins towards
      the ‘Garbh Griha’.                                                    C

      151. He further stated in his cross-examination about his faith
and belief regarding Ram Janam Bhumi in following words:-
      “so far as 3-dome building is concerned, I had a faith which I
      maintained even today that it was the janam bhoomi of Ram Ji.”        D
       152. Further in his cross-examination, he stated that he after
offering flowers and prasad prostated himself on the ground below the
dome from outside.
      “...Before reaching the eastern gate, my brother from outside
      the wall fitted with iron bars offered flowers at the building with   E
      three domes and gave it to me also which I also offered. I offered
      the flowers through the iron bars from outside only. At the time
      when I offered flowers, prasad and money offered by others were
      also lying there. I prostrated myself on the ground below the
      dome from outside only. I had asked my brother why was he             F
      offering flowers at that place, on which he told that Lord Rama
      was born at the place under the middle dome of this building.
      The place which I had visited was the one below the middle
      dome...”
      153. OPW-12, Sri Kaushal Kishore Mishra, aged 75 years(as on
                                                                            G
16.12.2002) stated to have perform worship in Ram Janam Bhumi at
the age of 14-15 years. In his examination-in-chief he states:-
      “6. When I started to go to Ram Janam Bhoomi with my
      grandfather and father, I noticed that the pilgrims, devotees etc,
      who came to Ayodhya, used to visit Shri Ram Janam Bhoomi
                                                                            H
864            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           without fail. During the main festivals the gathering was very
            high, say more than lakhs and they used to worship and visit Ram
            Chabootra, Sita Rasoi, Shiv Chabootra and Sanctum-
            Sanactorum(where Lord Ram was born) below the middle dome
            of three domed building and make round of the premises
            (Parikrama) outside the walls only.”
B
            154. He futher states: -
            “12. I had been told by my grandfather and father that according
            to the faith and belief of Hindus since time immemorial, Lord
            Ram was born as a son of King Dashrath in Treta Era in this
C           Sanctum-Sanactorum situated under the building having three
            domes. This is the traditional belief and firm faith which makes
            the people of this country and the numerous pilgrims from outside
            to visit this birth place of Lord Shri Ram to pray and do parikrama
            of this place.”
D            155. In his cross-examination, he maintain “it is by belief that he
      got his birth at the place where Babri Masjid was established.”
            156. Next witness OPW-13, Narad Saran, age 76 years(as on
      27.01.2003) claims to have come to Ayodhya with a desire to become
      a Sadhu. In his examination-in-chief, he states:-
E           “When entering through the eastern gate there was a building
            with three domes west, just below the middle dome, there was
            sanctum-sanctorum which was worshipped. My preceptor had
            told me about this place that it was always the most worshipped
            as the birth place of Lord Ram since time immemorial. I have
F           also worshipped this place and found that it was thronged by
            thousands of pilgrims who paid their obeisance to this holy shrine.
            They also visited and worshipped Sita Kitchen, Ram chabutara
            etc., and made a full round of the entire premises after coming
            out of Hanumatdwar.”
            157. In his cross-examination he states:-
G
            “...Ayodhya is the Janam bhoomi of Lord Ram and we take the
            place below middle dome of the disputed structure as his
            Janamsthan. Janamsthan and Janambhoomi have the same
            meaning. “
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                          865


     158. DW-3/14, Jagad Guru Ramanand Acharya Swami                       A
Haryacharya, aged 69 years(as on 23.07.2004) stated in his cross-
examination:-
      “...I used to go to three domes Bhawan for darshan, earlier. I
      have also taken the darshan of Shri Ram Lalla. I took darshan
      because I believe that one could get salvation by doing the          B
      darshan. “
      159. DW-3/1, Mahant Bhaskar Das, aged 75 years(as on
29.08.2003). In his examination-in-chief, he states: -
      “..During my tenure from 1946 to 1949 till the date of attachment
      no Muslim ever visited the disputed site to offer Namaz and no       C
      Namaz was recited there. Hindu devotees used to offer money,
      sweets, fruits and other items to the deities seated within and
      out of the disputed site which were received by the Nirmohi
      Akhara through the priest..”
       160. The witnesses who were examined by plaintiffs of Suit No.4     D
also in their statement have admitted that what they call ‘Babri Masjid’
is called by Hindus as ‘Janmasthan’.
      161. Mohd. Hashim who appeared as PW-1 was aged 75
years(as on 24.07.1996). In his cross-examination he admits that the
place which was attached on 22nd/ 23rd December, 1949 is called Ram        E
Janam Bhumi by Hindus and Babri Masjid by Muslims.
      “...The place which was attached on 22nd/23rd December, 1949
      is called Ram janambhoomi by Hindus and Babri Masjid by
      Muslims. In the suit of Gopal Singh visharad also it has been
      called Ram Janam Bhoomi by Hindus and Babri Masjid by                F
      Muslims. “
       162. He further states that “as Mecca is important for Muslims
so is Ayodhya for Hindus due to Lord Ram.”
      163. PW-2 Haji Mehboob Ahmed aged 58 years, resident of Tedhi
Bazar, Ayodhya, states in his cross- examination:-                         G

      “...The grilled wall adjoined the wall of the mosque to the south.
      We call it a Masjid and the other party calls it a Mandir. The
      height of the entire boundary was the same. This was a fully
      constructed building to the west of the courtyard. This was a
      mosque to which others called a Mandir. “                            H
866            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A            164. Mohd. Yaseen PW-4, aged 66 years (as on 07.10.1996) also
      states following: -
            “...I live in Ayodhya, so I often meet some Hindus and Priests
            also. We also meet them in marriage ceremonies. They believe
            that this is the birth place of Lord Rama. (Then said they have
B           their own faith). Hindus consider it a sacred place and worship
            here...”
             165. PW-23, Mohd. Qasim, aged 74 years, admits in his cross-
      examination that what he call ‘Babri Masjid’ is called ‘Janamsthan by
      Hindus’. He states : “after that there is Babri Masjid on its one side. It
C     is true that the place I call ‘Babri Masjid’ is called ‘Janamsthan’ by
      Hindus.”
             166. The oral evidence as noticed above of the witnesses
      examined on behalf of plaintiffs of Suit No.5, plaintiffs of Suit No.3 and
      even witness examined on behalf of plaintiffs of Suit No.4 clearly proves
D     faith and belief of Hindus that Janmasthan of Lord Ram is the place
      where Babri Mosque has been constructed. Three-dome structure was
      treated as Birthplace of Lord Ram. People worship of the three-dome
      structure, parikrama of the entire premises by the devotees have been
      amply proved by oral evidences led in the Suit.

E            167. The statements noted in all Gazetteers as noticed above
      published under authority of government categorically and unanimously
      state that at Janmasthan of Lord Ram, Babri Mosque was constructed
      in 1528 by Babar. It is true that statements recorded in Gazette is not
      conclusive evidence but presumption of correctness of statements
      recorded have to be raised subject to being disproved by leading
F     appropriate evidences. All Gazettes published by the Government
      authority repeats the same statement that Babri Mosque was
      constructed at the Janmasthan of Lord Ram. There is no evidence worth
      name led of the plaintiffs of Suit No.4 to disprove the above statement
      and further, oral evidence as noticed above clearly supports the faith
G     and belief of Hindus that Lord Ram was born at the place where Babri
      Mosque has been constructed. The conclusion that place of birth of
      Lord Ram is the three- dome structure can, therefore, be reached.
            168. Dr. Rajeev Dhawan, learned senior counsel submits that
      although in oral statements it was stated by the witnesses that birthplace
      of Lord Ram is below the middle dome but infact Ram Chabutra which
H
  M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS                                867


was outside the three-dome structure on the left side in outer courtyard         A
was the birthplace of Lord Ram. He submits that in the judgment of
the suit filed in 1885 by Mahant Raghubar Das also the Janmasthan
was treated to be Ram Chabutra.
       169. The sequence of the events as noticed above clearly indicate
that faith and belief of Hindus was that birth place of Lord Ram was             B
in the three-dome structure Mosque which was constructed at the
janamasthan. It was only during the British period that grilled wall was
constructed dividing the walled premises of the Mosque into inner
courtyard and outer courtyard. Grilled iron wall was constructed to keep
Hindus outside the grilled iron wall in the outer courtyard. In view of
the construction of the iron wall, the worship and puja started in Ram           C
Chabutra in the outer courtyard. Suit of 1885 was filed seeking
permission to construct temple on the said Chabutra where worship was
permitted by the British Authority.
       Faith and belief of the Hindus as depicted by the evidence on
record clearly establish that the Hindus belief that at the birth place of       D
Lord Ram, the Mosque was constructed and three-dome structure is
the birth place of Lord Ram. The fact that Hindus were by constructing
iron wall, dividing Mosque premises, kept outside the three-dome
structure cannot be said to alter their faith and belief regarding the birth
place of Lord Ram. The worship on the Ram Chabutra in the outer                  E
courtyard was symbolic worship of Lord Ram who was believed to be
born in the premises.
      170. It is thus concluded on the conclusion that faith and belief
of Hindus since prior to construction of Mosque and subsequent thereto
has always been that Janmaasthan of Lord Ram is the place where                  F
Babri Mosque has been constructed which faith and belief is proved
by documentary and oral evidence discussed above.


Bibhuti Bhushan Bose                                      Appeals disposed of.
                                                                                 G




                                                                                 H