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- These appeals centre around a dispute between two religious communities both of whom claim ownership over a piece of land admeasuring 1500 square yards in the town of Ayodhya. The Hindu community claims it as the birthplace of Lord Ram. The Muslim community claims it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur.
- 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. The dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989.
- 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 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
The claim of adverse possession
- Any attempt to define possession must be context specific. The doctrine coalesces a fact – that of being in possession – and an intent, the animus of being in possession.
Supdt. and Remembrance of Legal Affairs, West Bengal v Anil Kumar Bhunja:
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.
P Lakshmi Reddy v L Lakshmi Reddy:
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) IA]. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor.
Karnataka Board of Wakf v Government of India :
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a 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 and undisturbed.‖
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.
Masjid Shahidganj v. Shiromani Gurdwara Prabandhak Committee Amritsar [1940 PC]
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 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.
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.
- 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 down [Smt. Pilla Akkayyamma v Channappa 2015 Kar] the pre-requisites of a claim to adverse possession in the following terms:
“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, 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 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 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 the time necessary to create a bar under the statute of limitation.”
- 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 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 property.
APPRECIATION OF EVIDENCE
A reasonable inference can be drawn on the basis of the standard of proof which governs civil trials that:
- The foundation of the mosque is based on the walls of a large pre-existing structure;
- The pre-existing structure dates back to the twelfth century; and
- The underlying structure which provided the foundations of the mosque together with its architectural features and recoveries are suggestive of a Hindu religious origin comparable to temple excavations in the region and pertaining to the era.
Evidence indicates that despite the existence of a 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.
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.
On 6 December 1992, the structure of the mosque 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;
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;
(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 possession;
(iv) The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship;
(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. 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 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.
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.
CONCLUSION ON TITLE
- 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.
- 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.
- 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.
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 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.
- The three-way bifurcation by the High Court was legally unsustainable. Even as a matter of maintaining public peace and tranquillity, the solution 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.
- 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. 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 construction of a mosque and associated activities.
Allotment of land to the Muslims is necessary because though on a balance of probabilities the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, Muslims were dispossessed upon desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992.
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 which should not have been employed in a secular nation committed to the rule of law.
- 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. 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.
RELIEFS AND DIRECTIONS
- We accordingly order and direct as follows:
1 Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation and shall accordingly stand dismissed;
2 Suit 5 is held to be maintainable at the behest of the first plaintiff represented by the third plaintiff. There shall be a decree subject to the following directions:
(i) Central Government shall, within a period of three months, 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 setting up of a trust with a Board of Trustees or any other appropriate body.
(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.
3 (i) Simultaneously, with the handing over of the disputed property to the Trust or body, a suitable plot of land admeasuring 5 acres shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit 4.
(ii) The land shall be allotted either by: (a) The Central Government out of the land acquired under the Ayodhya Act 1993; or (b) The State Government at a suitable prominent place in Ayodhya;
(iii) The Sunni Central Waqf Board would be at liberty, on the allotment of the land to take all necessary steps for construction of a mosque on the land so allotted together with other associated facilities;
(v) The directions for the allotment of land to the Sunni Central Waqf Board are issued in pursuance of the powers vested in this Court under Article 142.
4 In exercise of the powers vested in this Court under Article 142, 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.
[Ranjan Gogoi] [S A Bobde] [Dr Dhananjaya Y Chandrachud]
[Ashok Bhushan] [S Abdul Nazeer]
November 09, 2019.
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