2019 Supreme(SC) 1253

SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., S.A. BOBDE, D.Y. CHANDRACHUD, ASHOK BHUSHAN, S. ABDUL NAZEER, JJ.
M. Siddiq (D) Thr. Lrs. – Appellants
Versus
Mahant Suresh Das & Ors. – Respondents
Civil Appeal Nos 10866-10867 of 2010 With Civil Appeal Nos. 4768-4771, 2636, 821, 4739, 4905-4908, 2215, 4740, 2894, 6965, 4192, 5498, 7226 & 8096 of 2011
Decided On : 09-11-2019

Important Points :
(1) Shree Ram Janmbhumi in Ayodhya belongs to Lord Ram and Ram temple can be built over there.
(2) Hindus have established a clear case of a possessory title to outside courtyard by virtue of long, continued and unimpeded worship at Ramchabutra and other objects of religious significance.
(3) Five acres of land to be allotted to Muslim parties in a prominent place in Ayodhya for construction of mosque.
(4) Court can take into consideration Gazetteers under Evidence Act, 1872, even though statement in Gazetteers will not be treated as conclusive evidence but presumption of correctness is attached to it.

Headnote:

(A) Acquisition of Certain Area at Ayodhya Act 1993 – Sections 6 and 7 – Constitution of India – Article 142 – Title Declaratory Suit – Shree Ram Janmbhoomi – Allahabad High Court ordered three-way bifurcation of disputed site, one third each being assigned to Muslims, Hindus and Nirmohi Akhara – High Court was not seized of a suit for partition – High Court was called upon to decide question of title – High Court has adopted a path which was not open to it – It granted reliefs which were not subject matter of prayers in suits – In the process of doing so, it proceeded to assume jurisdiction of a civil court in a suit for partition, which suits before it were not – Having come to conclusion that Suit 3 (filed by Nirmohi Akhara) and Suit 4 (filed by Sunni Central Waqf Board) were barred by limitation, High Court proceeded to grant relief in Suit 5 to plaintiffs in Suits 3 and 4 – This defies logic and is contrary to settled principles of law – On balance of probabilities, there is clear evidence to indicate that worship by Hindus in outer courtyard continued unimpeded in spite of setting up of a grill-brick wall in 1857 – Their possession of outer courtyard stands established together with incidents attaching to their control over it – As regards inner courtyard, there is evidence on a preponderance of probabilities to establish worship by Hindus prior to annexation of Oudh by British in 1857 – Muslims have offered no evidence to indicate that they were in exclusive possession of inner structure prior to 1857 since date of construction in sixteenth century – During pendency of suits, entire structure of mosque was brought down in a calculated act of destroying a place of public worship – Dividing land will not subserve interest of either of parties or secure a lasting sense of peace and tranquillity – Suit 5 has been held to be maintainable at behest of first plaintiff (Deity of Lord Ram) who is a juristic person – Third plaintiff (next friend) has been held to be entitled to represent first plaintiff – On one hand a decree must ensue in Suit 5, Suit 4 must also be partly decreed by directing allotment of alternate land to Muslims for construction of a mosque and associated activities – Allotment of land to Muslims is necessary because though on a balance of probabilities, evidence in respect of possessory claim of Hindus to composite whole of disputed property stands on a better footing than evidence adduced by Muslims, Muslims were dispossessed upon desecration of mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992 – Justice would not prevail if Court were to overlook entitlement of Muslims who have been deprived of structure of mosque through means which should not have been employed in a secular nation committed to rule of law – Constitution postulates equality of all faiths – Tolerance and mutual co-existence nourish secular commitment of our nation and its people – Land admeasuring 5 acres directed to be allotted to Sunni Central Waqf Board either by Central Government out of acquired land or by Government of Uttar Pradesh within city of Ayodhya – This exercise and consequent handing over of land to Sunni Central Waqf Board, shall be conducted simultaneously with handing over of disputed site comprising of inner and outer courtyards as a consequence of decree in suit. (Paras 789, 791, 794, 797, 798, 799, 800 and 801)

(B) Constitution of India – Article 25 – Freedom of religious practices – Apex Court, as a secular institution, set up under a constitutional regime must steer clear from choosing one among many possible interpretations of theological doctrine and must defer to safer course of accepting faith and belief of worshipper – Practice of religion, Islam being no exception, varies according to culture and social context – That indeed is strength of our plural society – Cultural assimilation is a significant factor which shapes the manner in which religion is practised – In plural diversity of religious beliefs as they are practised in India, cultural assimilation cannot be construed as a feature destructive of religious doctrine – On the contrary, this process strengthens and reinforces true character of a country which has been able to preserve its unity by accommodating, tolerating and respecting a diversity of religious faiths and ideas. (Para 77)

(C) Places of Worship (Special Provisions) Act 1991 – Sections 3, 5, 6 and 8 – Legislative intent – Act do not apply to Ram Janmabhumi – Babri Masjid and to any suit, appeal or any proceeding relating to it – There is a specific exception which has been carved out by provisions of Places of Worship Act in respect of present dispute – Places of Worship Act which was enacted in 1991 by Parliament protects and secures fundamental values of Constitution – Preamble underlines need to protect liberty of thought, expression, belief, faith and acceptance of equality of all religious faiths is a fundamental precept of fraternity – Law addresses itself to State as much as to every citizen of nation – Its norms bind those who govern ffairs of nation at every level – Those norms implement Fundamental Duties under Article 51A and are positive mandates to every citizen as well – State, has by enacting the law, enforced a constitutional commitment and operationalized its constitutional obligations to uphold equality of all religions and secularism which is a part of basic features of Constitution – Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment to secularism under Indian Constitution – Non-retrogression is a foundational feature of fundamental constitutional principles of which secularism is a core component – Law speaks to our history and to future of nation. (Paras 78, 79, 80, 82 and 83)

(D) Juristic Personality – Courts in India have held that Hindu idols are legal persons – To be a legal person is to be recognised by law as a subject which embodies rights, entitlements, liabilities and duties – Law may directly regulate behaviour of legal persons and their behaviour in relation to each other – Who or what is a legal person is a function of legal system – Ability to create or recognise legal persons has always varied depending upon historic circumstances – Power of legal systems to recognise and also to deny legal personality has been used over history to wreak fundamental breaches of human rights – Legal systems have also extended concept of legal personality beyond natural persons – This has taken place through creation of artificial legal person or juristic person, where an object or thing which is not a natural person is nonetheless recognised as a legal person in law – Conferral 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. (Paras 86, 88 and 89)

(E) Legal Personality – Import – An artificial legal person is a legal person to the extent law recognises rights and duties ascribed to them, whether by statute or by judicial interpretation – Legal personality is not human nature – Legal personality constitutes recognition by law of an object or corpus as an embodiment of certain rights and duties – Rights and duties which are ordinarily conferred on natural persons are in select situations, conferred on inanimate objects or collectives, leading to creation of an artificial legal person – At a purely theoretical level, there is no restriction on what legal personality may be conferred – What is of significance is 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, legal personality is usually conferred on objects which are already subject of personification or anthropomorphisms – Character of legal personality conferred is determined by purpose sought to be achieved by conferring legal personality – There is a distinction between legal personality and physical corpus which then comes to represent legal personality – By act of conferring legal personality, corpus is animated in law as embodying a distinct legal person possessing certain rights and duties – It is important to understand circumstances in which legal personality has been conferred and consequently rights and duties ascribed to inanimate objects on which this conferment takes place. (Paras 90, 91 and 92)

(F) Legal Personality – Corporations and Ships – A maritime lien may arise in case of a wrongdoing or damage caused by a ship which gives claimant a charge on ‘res‘ of ship – Charge is crystallised by an ‘action in rem‘ under which ship is directly proceeded against, as a legal person – There is direct nexus between conferral of a limited legal personality and adjudicative utility achieved by conferral – Courts treat physical property of ship as a legal person against which certain actions may be taken – Independent legal personality of a corporation has never been dependent on recognition by courts – Legal personality of corporation was originally granted by a positive act of government – Legal personality does not denote human nature or human attributes – Legal personality is a recognition of certain rights and duties in law – By ascribing rights and duties to artificial legal persons (imbued with a legal personality), law tackles and fulfils both necessity and convenience – By extension, courts ascribe legal personality to effectively adjudicate upon claims of natural persons deriving benefits from or affected by corpus upon which legal personality is conferred. (Paras 93 to 100)

(G) Hindu Religion – Idols of Deities – Hindu law does not make distinction between religious and charitable purposes – However, clear parallel exists in case of Hindu endowments – Artificial or juridical person represents or embodies a pious or benevolent purpose underlying its creation – Legal personality is conferred on pious purpose of individual making endowment – Where endowment is made to an idol, idol forms material representation of legal person – Conferral of legal personality on a Hindu idol is not conferral of legal personality on divinity itself, which in Hinduism is often understood as Supreme Being – Supreme Being defies form and shape, yet its presence is universal – Legal personality is not conferred on Supreme Being itself – Hinduism understands Supreme Being as existing in every aspect of universe – Supreme Being is omnipresent – Idea of a legal person is premised on the need to identify subjects of legal system – An omnipresent being is incapable of being identified or delineated in any manner meaningful to law and no identifiable legal subject would emerge – Legal personality is not conferred on Supreme Being – Divinity in Hindu philosophy is seamless, universal and infinite – Divinity pervades every aspect of universe – In Hinduism, physical manifestations of Supreme Being exist in form of idols to allow worshippers to experience a shapeless being – Idol is a representation of Supreme Being – Idol, by possessing a physical form is identifiable. (Paras 102, 104, 109 and 111)

(H) Hindu Religion – Idols of Deities – Idol as an embodiment of a pious or benevolent purpose is recognised by law as a juristic entity – State will protect property which stands vested in idol even absent establishment of a specific or express trust – Idol constitutes embodiment or expression of pious purpose upon which legal personality is conferred – Destruction of idol does not result in termination of pious purpose and consequently the endowment – Even where idol is destroyed, or presence of idol itself is intermittent or entirely absent, legal personality created by endowment continues to subsist – In our country, idols are routinely submerged in water as a matter of religious practice – It cannot be said that pious purpose is also extinguished due to such submersion – Establishment of image of idol is manner in which pious purpose is fulfilled – Conferral of legal personality on idol is, in effect, recognition of pious purpose itself and not method through which that pious purpose is usually personified – Pious purpose may also be fulfilled where presence of idol is intermittent or there exists a temple absent an idol depending on deed of dedication – In all such cases pious purpose on which legal personality is conferred continues to subsist – Idol forms material manifestation of pious purpose and consequent centre of jural relations – Beneficiaries of endowment are worshippers and proper maintenance of worship to idol is to enable worshippers to achieve spiritual benefit of being in communion with divine. (Paras 115, 116, 117, 121 and 123)

(K) Hindu Religion – Ayodhya as birth place of Lord Ram – Ram Janmabhumi is undoubtedly of religious significance to Hindus based on faith and belief that it is birth-place of Lord Ram – Determination by this Court of whether or not disputed site is a juridical person will not in any manner detract from significance of faith and belief of Hindu – Faith and belief of Hindu devotees is a matter personal to their conscience and it is not for this Court to scrutinise strength of their convictions or rationality of their beliefs beyond a prima facie examination to ascertain whether such beliefs are held in good faith – Oral and documentary evidence shows that Hindu devotees of Lord Ram hold a genuine, long standing and profound belief in religious merit attained by offering prayer to Lord Ram at the site they believe to be his birthplace – Continued faith and belief of Hindu devotees in existence of Janmasthan below three domed structure is evidenced by activities of Nirmohis, individual devotees and endless stream of Hindu devotees over the years who visited disputed site – This is testament to long-held belief in sanctity of disputed site as a place of worship for Hindu religion – Factum of Hindu belief in sanctity of disputed site is established by evidence. (Paras 125, 126, 127, 128, 129, 136, 138 and 140)

(L) Hindu Religion – Swayambhu deity – Manifestation – In order to provide a sound jurisprudential basis for the recognition of a Swayambhu deity, manifestation is crucial – A Swayambhu deity is revelation of God in a material form which is subsequently worshipped by devotees – Recognition of a Swayambhu deity is based on notion that God is omnipotent and may manifest in some physical form – This manifestation is worshipped as embodiment of divinity – In all these cases, very attribution of divinity is premised on manifestation of deity in a material form – A deity may exist without a physical manifestation, example of this being worship offered to Sun and Wind – But a Swayambhu is premised on physical manifestation of Divine to which faith and belief attaches – Absent that manifestation which distinguishes land from other property, juristic personality cannot be conferred on land. (Paras 191 and 192)

(M) Hindu Religion – Juristic Personality – Conferral of legal personality on idols stemming from religious endowments is a legal development applicable only to a practice of Hindu community – Performance of Parikrama is a method of worship confined largely to Hinduism – Where law is capable of adequately protecting interests of devotees and ensuring accountable management of religious sites without conferral of legal personality, it is not necessary to embark on journey of creating legal fictions that may have unintended consequences in future – Method of worship on the basis of which a proprietary claim may be sustained is relatable to a particular religion – Law has till today yet to accept conferral of legal personality on immoveable property – Religiosity has moved hearts and minds – Court cannot adopt a position that accords primacy to faith and belief of a single religion as the basis to confer both judicial insulation as well as primacy over legal system as a whole. (Paras 200 to 205)

(N) Criminal Procedure Code, 1973 – Section 145 – Invocation of – Provisions of Section 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 – Magistrate has been vested with authority to meet urgency of situation and maintain peace – Determination of Magistrate is confined to which party was in actual possession on date of order – Real purpose is to decide who has actual physical possession and not legal possession supported by title over land – To initiate proceedings under Section 145, Magistrate has to be satisfied of existence of a dispute which is likely to cause a breach of peace – Enquiry by Magistrate is of a summary nature. (Paras 235 and 236)

(O) Criminal Procedure Code, 1973 – Section 145 – Ram Janmbhoomi dispute – Proceedings under Section 145 are not in nature of a trial before a civil court and are merely in nature of police proceedings – Magistrate‘s order cannot adversely impact substantive rights of parties – Upon attachment of property and after appointment of Receiver, property became custodia legis and Receiver held property for benefit of true owner – Receiver so appointed could not be described as a party interested in dispute – After Magistrate‘s order dated 29 December 1949 for attachment of property, nothing prevented Nirmohi Akhara from filing a declaratory suit for possession and title – Magistrate‘s order did not decide or adjudicate upon contesting rights to possess or merits of conflicting claims of any of parties – Substantive rights with respect to title and possession of the property could have been dealt with only in civil proceedings before a civil court – Magistrate did not have jurisdiction to determine questions of ownership and title – Proceedings under Section 145 could not have resulted in any adjudication upon title or possession of rightful owner as that is within exclusive domain of civil courts – Nirmohi Akhara cannot take defence that no final order had been passed in Section 145 proceedings and as a result limitation did not commence – Magistrate simply complied with directions given by civil court with respect to maintaining status quo in suit and accordingly, deferred proceedings under Section 145. (Para 237 and 239)

(P) Limitation Act 1898 – Article 142 – Limitation – Suit for possession of immovable property – Dispossession presupposes pre-existing possession of person at a given time who was subsequently dispossessed – A person who is not in possession cannot be said to be dispossessed – Article 142 has not confined description of suit to simply a suit for possession of immoveable property – The provision incorporates a requirement of prior possession of plaintiff and either dispossession or discontinuance of possession while plaintiff was in possession – Period of limitation is 12 years and time begins to run from date of dispossession or discontinuance – Suit by Nirmohi Akhara was a suit for restoration of management and charge so as to enable Akhara to have benefit of usufruct in discharge of its obligations towards deity – Suit was not a suit for possession within meaning of Article 142 – Magistrate who attached property holds it for true owner who obtains an adjudication of rights before court of competent jurisdiction – Nirmohi Akhara sought no declaration of its status or rights – It merely sought a decree against a Magistrate for 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 handing over of management and charge against Magistrate – Such a suit was not maintainable. (Paras 240, 241, 243, 251 to 254)

(Q) Limitation Act, 1923 – Sections 22 and 23 – Continuing Wrong – For a continuing wrong to arise, there must in first place be a wrong which is actionable because in absence of a wrong, there can be no continuing wrong – It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise – Without a wrong there cannot be a continuing wrong – A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature – Mere fact that effect of injury caused has continued is not sufficient to constitute it as a continuing wrong. (Paras 267, 268, 306 and 307)

(R) Hindu Religion – Idols of Hindu Deities – Law recognises legal personality of idol to facilitate protection of rights and duties owed to idol – Natural personality of Shebait is human agency through which needs and concerns of idol are fulfilled – Position of a Shebait in Hindu Law is distinct from position of a trustee in English Law – Recognition of a person or a group of persons as Shebaits is a substantive conferment of right to manage affairs of deity – A necessary adjunct of status of a Shebait, is right to brings actions on behalf of an idol and bind it and its properties to outcomes – Purpose for which legal personality is conferred upon an idol as material embodiment of pious purpose is protected and realised through actions of human agent, that is Shebait – Shebait is entrusted with power and duty to carry out purpose of donor in respect of idol and its properties – In vast majority of cases, Shebait is appointed in accordance with terms of a deed of dedication by which property is endowed to an idol – It is for protection of this property that law recognises either donor or a person named in deed of endowment as Shebait – In absence of an expressly appointed or identified Shebait, law has ensured protection of properties of idol by recognition of a de facto Shebait – Where a person is in complete and continuous management of deity‘s affairs coupled with long, exclusive and uninterrupted possession of appurtenant property, such a person may be recognised as a Shebait despite absence of a legal title to rights of a Shebait – Ordinarily, a deed of dedication will not contain a provision for duties of Shebait – However, an express stipulation or even its absence does not mean that property of idol vests in Shebait – A Pujari is a servant or appointee of a Shebait and gains no independent right as a Shebait despite having conducted ceremonies for a long period of time – Mere presence of Pujaris does not vest in them any right to be Shebaits – As appointees of Shebait, they are liable to be removed from office and cannot claim right to continue in office. (Paras 322, 324, 326, 327, 328, 329, 331, 332 and 333)

(S) Hindu Law – Legal Status of Pujari – A Pujari is appointed by founder or by a Shebait to conduct worship – This appointment does not confer upon Pujari status of a Shebait – They are liable to be removed for any act of mismanagement or indiscipline which is inconsistent with performance of their duties – Where appointment of a Pujari has been at will of testator, fact that appointees have performed worship for several generations does not confer independent right upon appointee or members of their family and will not entitle them as of right to be continued in office as priests – Nor does mere performance of work of a Pujari in and of itself render a person a Shebait. (Paras 333, 334 and 335)

(T) Hindu Law – Idols of Hindu Deities – Legal status and legal rights – In law, idol is capable of suing and being sued in its own name – However, for all practical purposes any suit by idol must necessarily be brought by a human actor – Ordinarily, right to sue on behalf of idol vests in Shebait – This does not mean that idol is deprived of its inherent and independent right to sue in its own name in certain situations – Property vests in idol – Right to sue for recovery of property is an inherent component of rights that flow from ownership of property –Shebait is merely human actor through which right to sue is exercised – As immediate protector of idols and exclusive manager of its properties, suit on behalf of idol must be brought by Shebait alone – Where there exists a lawfully appointed Shebait who is able and willing to take all actions necessary to protect deity‘s interests and to ensure its continued protection and providence, right of deity to sue cannot be separated from right of Shebait to sue on behalf of deity – In such situations, idol‘s right to sue stands merged with right of Shebait to sue on behalf of idol – A suit by a Shebait on behalf of an idol binds idol – Question of who can sue on behalf of an idol is a question of substantive law – When a lawful Shebait sues on behalf of deity, question whether deity is a party to proceedings is merely a matter of procedure – As long as suit is filed in capacity of a Shebait, it is implicit that such a suit is on behalf of and for benefit of idol. (Paras 336, 337 and 338)

(U) Civil Procedure Code, 1908 – Section 92 – Rights of strangers/worshippers to sue – Where an action against a stranger to trust is contemplated, remedy is not a suit under Section 92 of Civil Procedure Code 1908 but a suit in general law – In certain cases, where Shebait itself is negligent or sets up a claim hostile to idol, it is open for a worshipper or a next friend interested in protecting properties of idol to file a suit to remedy the situation – A worshipper can institute a suit to protect interests of deity against a stranger where a Shebait is negligent in its duties or takes actions that are hostile to deity – As next friend, worshipper directly exercises deity‘s right to sue – However, suit by a worshipper in their personal capacity cannot canvas range of threats the idol may face at hands of a negligent Shebait and it may be necessary for court to permit next friend to sue on behalf of idol itself to adequately protect interests of idol – What is required is a suit by a next friend on behalf of idol for recovery of possession of property – Where fitness of next friend is in dispute court should scrutinise bona fides of next friend – However, bare allegation that is not substantiated with any evidence does not constitute a contest to bona fides of next friend – Enquiry is not necessary where next friend has been appointed under orders of Court – Even absent an averment of mismanagement by Shebait, a person may institute proceedings under Section 92 of CPC against a de facto Shebait for settling of a scheme – In this view, legal certainty and sustained interest of deity would be served by circumscribing claim of a de facto Shebait to continue, as a matter of right, in perpetuity. (Paras 339, 341, 344, 346, 348, 349, 350, 351, 355 and 357)

(V) Shree Ram Janmbhoomi – Nirmohi Akhara and Shebait Rights – There is distinction between mere presence of Nirmohi Akhara at Ayodhya or around disputed site and actual possession and management of disputed site – Mere presence within an area or possession of an area is not sufficient to be vested with powers of a Shebait – Where a person claims to be a Shebait despite lack of a legal title, relevant enquiry before Court is whether person was in actual possession of Debutter property and was exercising all rights of a Shebait – Paramount interest in protection of Debutter property underlines recognition of a de facto Shebait – Where there is no de jure Shebait, court will not countenance a situation where a bona fide litigant who has exercised all managerial rights over Debutter property cannot be recognised in law as protector of property – A person claiming to be de facto Shebait must be in exclusive possession of Debutter property and must be only person in management of property – Where a de facto Shebait raises independent claim to Debutter property to idol, it assumes position of a trespasser and no action at its behest is maintainable – Stray or intermittent exercise of management rights does not confer upon a claimant position in law of a de facto Shebait – In light of the holding that Nirmohi Akhara is not the Shebait for idols of Lord Ram at disputed site, it was open for an interested worshipper to sue on behalf of deity – There existed no recognised Shebait in law – In such a situation idol‘s independent right to sue was exercised through its next friend, a worshipper interested in protection of idol and its interests – Suit 5 is maintainable as a suit instituted by a next friend on behalf of first and second plaintiffs in absence of a lawfully recognised Shebait. (Paras 360, 365, 367, 369, 371, 372, 373, 392, 401 and 402)

(W) Adverse Possession – Debutter Property – A person claiming to be a de facto Shebait can never set up a claim adverse to that of idol and claim a proprietary interest in Debutter property – Where a person claims to be de facto Shebait, right is premised on absence of a person with a better title i.e. a de jure manager – Recognition in public records as Manager would furnish evidence of being recognised as a manager – A manager may appoint one or several Pujaris to conduct necessary ceremonies – In ultimate analysis, right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in abstract and depends upon facts of each case – De jure Shebait and a de facto Shebait exercise similar rights in limited sense of acting for benefit of idol. (Paras 376, 377 and 378)

(X) Limitation Act, 1963 – Section 10 – Suits against express trustees and their representatives – Section 10 does not apply to suits by a trustee against third parties – Section 10 applies to suits filed against a person in whom property has become vested in trust for a specific purpose; and legal representatives and assigns of such a trustee – However, it does not cover assigns of such a trustee for valuable consideration – In present case, it has been established that there was no de-facto or de-jure Shebait acting on behalf of deity – Deity cannot on the ground of being a perpetual minor stand exempted from application of Limitation Act – Applicability of law of limitation cannot be ruled out on the basis of the theory of perpetual minority – Suit 5 filed on behalf of Deity contains a plea that by virtue of deity not being a party to earlier suits, its interests and concerns were not being adequately protected in earlier suits including those instituted by Hindu parties – Suit 5 on behalf of deities was instituted within period of limitation. (Paras 411, 422, 425 and 429)

(Y) Civil Procedure Code, 1908 – Section 11, Explanation VI – Res Judicata – Applicability – 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 who are interested in such a right would be deemed, for the purpose of the Section, to claim under persons so litigating – Suit of 1885 was instituted when CPC 1882 was in force – Deeming provision contained in Explanation V to Section 13 of CPC 1882 was expanded in corresponding provision contained in Explanation VI to Section 11 of 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 others – When 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 – Unless there was an explicit stipulation in CPC 1908 providing for principle of res judicata to apply to suits agitating a public right retrospectively, suit instituted in 1885 cannot fall within ambit of bar within Explanation VI of CPC 1908 – Plaintiff (Mahant Raghubar Das) was only asserting a right that was personal to him – Earlier suit was not instituted in a representative capacity; issues framed and reliefs sought were distinct and so were suit properties. (Paras 439, 440, 441 and 446)

(Z) Civil Procedure Code, 1908 – Order I Rule 8 and Section 11, Explanation VI – Representative suit – Provisions of Order I Rule 8 do not control the applicability of Explanation VI to Section 11 of CPC – Before a suit can be prosecuted or defended under Order I Rule 8, it is essential that there must be numerous persons having same interest in a suit – Before a person can be allowed to either prosecute or defend suit on behalf of others interested, specific permission of court is mandated. (Paras 442 and 443)

(AA) Shree Ram Janmbhoomi – Archaeological evidence – ASI team has carried out its task in presence of parties and their Counsel – Excavated material including antiquities, objects of interest, glazed pottery, tiles and bones recovered from trenches were sealed in presence of parties and their advocates and lodged in a strong room provided by Commissioner of Faizabad Division – ASI report contains a detailed analysis of as many as 47 pillars bases – Brick shrine which has been found as a result of the excavation is stated to be similar to findings of excavation carried out by ASI at Sravasti and at Rewa – On a comparative analysis, ASI has inferred that circular shrine can be dated to circa tenth century A.D. – Purpose of excavation was to enable court to determine as to whether excavation at disputed site suggested existence of prior structural activity over centuries and, if so, whether any part of it was of a religious nature – Features which were found in excavated shrine were of a non-Islamic origin – Idols depicted in photographs of pillars include depictions of Gods and Goddesses worshipped by Hindus such as Hanuman, Narsimha, Ganesh and Durga – Witnesses have also deposed about images of a peacock, Garuda and lotus – ASI excavated in glare of publicity, in presence of parties or their representatives – ASI is an expert authority – Its credentials and expertise are beyond reproach – Object and purpose of appointing ASI was to direct an excavation at disputed site so as to enable court to form an objective view on subject matter of dispute on the basis of material found and conclusions drawn by ASI – Work of excavation and its findings were documented by 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 completion of excavation – Ultimately, it lies within jurisdiction of court to decide whether findings that are contained in report of ASI subserve cause of truth and justice on the basis of relevance and preponderance of probabilities. (Paras 451, 454, 457, 459, 460, 463, 482 and 483)

(BB) Civil Procedure Code, 1908 – Order XXVI Rules 9, 10, 10A and 10B – Commission for local investigation – There is mandate of statute that report and evidence be treated as evidence in suit and that it shall form part of record – A party may also lead evidence of its own witnesses who seek to controvert methodology or findings of Commissioner appointed for conducting a scientific investigation – Right of a party to object to report of Commissioner is not abrogated merely because Commissioner is not called for cross-examination – Much will depend on nature of objections which are sought to be urged by a party before Court though Commissioner was not called for examination – A party which fails to take recourse to enabling power which is conferred by Rule 10(2) to request court to allow examination of Commissioner in court, may in a matter touching upon expertise of Commissioner face a peril. (Paras 475, 478 and 482)

(CC) Indian Evidence Act, 1872 – Section 45 – Expert opinion – Archaeology as a branch of knowledge draws sustenance from science of learning, wisdom of experience and vision which underlies 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 combines both science and art – As a science, it is based on principle of objective evaluation – As an art, it relies on a vision which is realised through years of commitment to pursuit of knowledge based on histories of eras – Archaeology as a discipline cannot be belittled as unreliable – Value of archaeology cannot be diluted by laying a claim to its being a weak form of evidence – Supposed distinction between science as embodying absolute truth and archaeology as unguided subjectivity is one of degree not of universes – Yet as in other disciplines of its genre, archaeology is as much a matter of process as it is of deduction – When law perceives an exercise of interpretation it must recognize margins of error and differences of opinion – Archaeological findings are susceptible of multiple interpretations – In present case, structured process was followed in course of excavation in order to ensure that process of excavation was documented both in electronic and conventional forms – What is excavated and found is a matter of fact – It would be unfair to reject conclusions which have been arrived at by an expert team which carried out excavation under orders of High Court and has carefully analysed recoveries from distinct perspectives. (Paras 487, 490, 496 and 504)

(DD) Ram Janmbhoomi – Archaeological evidence – There is adequate basis in material contained in ASI report to lead to conclusions that Babri mosque was not constructed on vacant land; excavation indicates presence of an underlying structure below disputed structure; underlying structure was at least of equal, if not larger dimensions than disputed structure; excavation of walls of underlying structure coupled with presence of pillar bases supports conclusion of ASI of presence of a structure underlying disputed structure; underlying structure was not of Islamic origin; foundation of disputed structure rests on walls of underlying structure; and Artefacts, including architectural fragments which have been recovered during excavation have a distinct non-Islamic origin – Conclusion cannot be rejected as unsupported by evidence or lying beyond test of a preponderance of probabilities which must govern a civil trial. (Paras 507, 508, 509 and 511)

(EE) Judicial Review – Scope and Ambit – Whether a belief is justified lies beyond ken of judicial inquiry – Once witnesses have deposed to the basis of belief and there is nothing to doubt its genuineness, it is not open to court to question the basis of belief – Scriptural interpretations are susceptible to a multitude of inferences – Court would do well not to step into pulpit by adjudging which, if any, of competing interpretations should be accepted – Faith is a matter for individual believer – Once court has intrinsic material to accept that faith or belief is genuine and not a pretence, it must defer to belief of worshipper – This applies across spectrum of religions and their texts, Hinduism and Islam being among them – Value of a secular constitution lies in a tradition of equal deference – Much cannot be attributed to negative inferences based on what a book does not contain – Absence of a reference to a temple may not be evidence of absence of a temple – Travelogues and Gazetteers are evidentiary materials which bear testimony to presence of temple. (Paras 555 and 559)

(FF) Ram Janmbhoomi – Joint Possession of Parties – While both Hindus and Muslims visited disputed property as worshippers, only distinction was that Hindus visited entire property while Muslims were confined to inner courtyard for the purposes of offering prayers – Muslims were not in possession over suit property and there is no reliable evidence to indicate that prayers were offered by them from time immemorial; and muslims have not established exclusive and continuous possession over suit property from 1528 A.D. or that they offered prayers in disputed structure since time immemorial – Whereas, Hindus have established exclusive possession over inner courtyard and that they were visiting it for offering prayers. (Paras 609 and 610)

(GG) Property Law – Title Declaratory Suit – Relief of possession is implicit – Declaration of title suffices because once property is custodia legis, possession would necessarily follow grant of declaration upon adjudication by court – To hold that a suit of this nature where property is custodia legis cannot possibly be held to be a suit for possession is a submission which has no valid basis. (Para 624)

(HH) History of Ram Janmbhoomi – Applicable legal regime and Justice, Equity and Good Conscience – Human history is testament to rise and fall of rulers and regimes – Law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with course which history has taken – Courts of today cannot take cognisance of historical rights and wrongs unless it is shown that their legal consequences are enforceable in present – Where there is a change of sovereignty from a former sovereign to a new sovereign, municipal courts of new sovereign will not enforce legal rights of parties existing under former sovereign absent an express recognition by new sovereign of such legal rights – Recognition of property rights previously recognised in old regime by new sovereign need not be explicit and may be implied through conduct of new sovereign and established through circumstantial evidence – However, burden of proving existence of right in previous regime and recognition of right by new sovereign rested on party claiming such a right – Municipal courts will only recognise those rights and liabilities which have been recognised by new sovereign either expressly or impliedly through conduct established by evidence – For present purposes, there is both express and implied recognition that independent Indian sovereign recognised private claims over property as they existed under British sovereign unless expressly evidenced otherwise – Therefore, rights of parties to present dispute which occurred during colonial regime can be enforced by this Court today. (Paras 632, 633, 639, 641, 644 and 651)

(II) Doctrine – Justice, Equity and Good Conscience – Where positive law is silent and equity steps in to furnish a source of law, its content is informed by analogous provisions of law that furnish a useful guide – 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 court and ensure a just outcome – Common underlying thread is that justice, good conscience and equity plays a supplementary role in enabling courts to mould relief to suit circumstances that present themselves before courts with principle purpose of ensuring a just outcome – Where existing statutory framework is inadequate for courts to adjudicate upon dispute before them, or no settled judicial doctrine or custom can be availed of, courts may legitimately take recourse to principles of justice, equity and good conscience to effectively and fairly dispose of the case – Court cannot abdicate its responsibility to decide a dispute over legal rights merely because facts of a case do not readily submit themselves to application of letter of existing law. (Paras 656, 658, 659, 660 and 673)

(JJ) Constitution of India – Article 142 – Power of Supreme Court to do complete justice – Even where positive law is clear, deliberately wide amplitude of power under Article 142 empowers a court to pass an order which accords with justice – Equitable power under Article 142 of Constitution brings to fore intersection between general and specific – Courts may find themselves in situations where silences of law need to be infused with meaning or rigours of its rough edges need to be softened for law to retain its humane and compassionate face – Where rigidity is considered inadequate to address a situation, plenary power of this Court for doing complete justice is an appeal of last resort to inherent quality of equity that law is designed to protect, to ensure that Court is empowered to craft a relief that comports with both reason and justice – Article 142 embodies both notion of justice, equity and good conscience as well as a supplementary power to court to effect complete justice. (Paras 674, 675 and 676)

(KK) Waqf Act,1995 – Section 3(r) – Waqf Property – A Waqf is a permanent and irrevocable dedication of property and once Waqf is created, dedication cannot be rescinded at a later date – Property of a validly created Waqf is inalienable and cannot be sold or leased for private gain – 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 facts and circumstances of a case or from conduct of Wakif – In absence of express dedication, existence of a Waqf can be legally recognised in situations where property has been subject of public religious use since time immemorial – Statutory definition of a Waqf recognises validity of a Waqf established by use and not by dedication – A specific document of dedication may be unavailable after a long lapse of time but use of property for public religious or charitable purpose may have continued since time immemorial – Despite absence of an express deed of dedication, where long use of property as a site for public religious purpose is established by oral or documentary evidence, court can recognise existence of a Waqf by user. (Paras 732, 733, 736 and 737)

(LL) Adverse Possession – Acknowledgement of Title – Plea of adverse possession seeks to defeat rights of true owner and 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 – Any attempt to define possession must be context specific – Ingredients must be set up in pleadings and proved in evidence – There can be no proof sans pleadings and pleadings without evidence will not establish a case in law – Plaintiffs in Suit 4 (Sunni Central Waqf Board) have failed to adopt a clear stand evidently because they are conscious of fact that in pleading adverse possession, they must necessarily carry burden of acknowledging title of person or entity against whom plea of adverse possession has not been adequately set up in pleadings – Sunni Central Waqf Board have failed to meet requirements of adverse possession. (Paras 748, 751, 752, 754 and 755)

(MM) Doctrine – Doctrine of Lost Grant – Doctrine of lost grant is not based upon evidence of long use but for default of evidence – A person seeking to establish a claim to an easement under this doctrine should plead lost grant, but need not state in his pleadings date and names of parties to alleged modern grant – Doctrine only applies where enjoyment or use of land cannot otherwise be reasonably accounted for – In absence of instrument of conveyance, enjoyment since time of legal memory is to be viewed as an indication that right claimed had been conferred on claimant (or his predecessors) by a grant – Grant may be expressed or presumed – Onus of proving continued and uninterrupted enjoyment of property through long use is on plaintiff – There is no pleading by plaintiffs (Sunni Central Waqf Board) to support application of doctrine of lost grant – 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 – As there is legal presumption of a grant, doctrine is not applicable unless throughout necessary period there existed some person or persons, alone or together, capable of conveying interest claimed to have been transferred by lost grant – For valid application of doctrine, only conclusive evidence is that possession must be uninterrupted for a sufficient length of time – Alternate plea of adverse possession is destructive of a valid legal basis to apply doctrine of lost grant as a rule of evidence. (Paras 757, 767 and 768)

(NN) Property Law – Title Suit – Shree Ram Janmbhoomi – In assessing title of Muslims, physical structure of 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 – Both Hindu and Muslim witnesses have admitted presence of Ramchabutra and other places of religious significance which were being continuously worshipped by Hindus – Access of Hindus to and their possession of the outer courtyard was unimpeded – Despite setting up of grill-brick wall in 1857, Hindus never accepted division of inner and outer courtyard – For Hindus, entire complex as a whole was of religious significance – Demarcation by British for the purposes of maintaining law and order did not obliterate their belief in relevance of Garbh-Grih being birth-place of Lord Ram – Absent any division of site, Hindus had multiple points and forms of worship within disputed premises which included Ramchabutra and Sita Rasoi and Parikrama of disputed premises – Even after the railing was set up, Hindu worship at Ramchabutra, Sita Rasoi and of idols placed below fig and Neem tree clearly indicated their exclusive and unimpeded possession of outer courtyard – Setting up and offering worship at Chabutra immediately outside railing and in close proximity to it is an indicator that Hindus asserted their right to worship at what they believed is birth-place of Lord Ram – Setting up of the Chabutra is proximate both in terms of distance and time – From documentary evidence, it cannot be said that Muslims have been able to establish their possessory title to disputed site as a composite whole. (Paras 771, 772, 773, 775, 777 and 781)

(OO) Indian Evidence Act, 1872 – Section 110 – Burden of proof as to ownership – Section 110 is based on principle that title follows possession – Such presumption cannot be arise when facts are known – There is no evidence to contrary by Muslims to indicate that their possession of disputed structure of mosque was exclusive and that offering of Namaz was exclusionary of Hindus – Hindus have established a clear case of a possessory title to outside courtyard by virtue of long, continued and unimpeded worship at Ramchabutra and other objects of religious significance. (Paras 784, 785, 786, 787 and 788)

(PP) Acquisition of Certain Area at Ayodhya Act 1993 – Sections 6 and 7 – Shree Ram Janmbhoomi Verdict – Nirmohi Akhara‘s claim to be a Shebait stands rejected – However, having regard to historical presence of Nirmohi Akhara at disputed site and their role, it is necessary for this Court to take recourse to its powers under Article 142 to do complete justice – In framing the scheme, an appropriate role in management would be assigned to Nirmohi Akhara – Judgment of High Court holding Suit 4 to be barred by limitation reversed – Scheme to be framed by Central Government shall make necessary provisions in regard to functioning of trust or body including on matters relating to management of trust, powers of trustees including construction of a temple and all necessary, incidental and supplemental matters. (Paras 803, 804 and 805)

(QQ) Hinduism – Sanctity of Ayodhya – 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. – Visit of Guru Nanak Devji in 1510-11 A.D. and to have darshan of Janma Bhumi of Lord Ram do support faith and beliefs of Hindus – Identity of Ayodhya has been attested and corroborated by Sanskrit Scriptures and corroboration from later Gupta period – Faith and belief of Hindus regarding location of birthplace of Lord Ram is from scriptures and sacred religious books including Valmiki Ramayana and Skanda Purana, which faith and beliefs, cannot be held to be groundless – It is found that in the period prior to 1528 A.D., there are sufficient religious texts which led Hindus to believe present site of Ram Janma Bhumi as birthplace of Lord Ram. (Paras 68, 71 and 72 of Addenda)

(RR) Indian Evidence Act, 1872 – Sections 57 and 81 – Facts of which Court must take judicial notice – All Gazettes published by Government authority repeats same statement that Babri Mosque was constructed at Janmasthan of Lord Ram – Admissibility of books and travelogues cannot be denied in view of Section 57 – Section 81 of Evidence Act also contemplate for a presumption of genuineness of every document purporting to be any official Gazette or Government Gazette – Babri Mosque is always mentioned as Babri Masjid situated at Janmasthan, Ayodhya – 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 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 appropriate evidences – Oral evidence of 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 faith and belief of Hindus that Janmasthan of Lord Ram is place where Babri Mosque has been constructed – Three-dome structure was treated as Birthplace of Lord Ram – Conclusion that place of birth of Lord Ram is three-dome structure can be reached. (Paras 81, 127, 166 and 167 of Addenda)

Facts of the case:

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 town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims. Hindu community claims it as the birthplace of Lord Ram, an incarnation of Lord Vishnu. Muslim community claims it as the site of the historic Babri Masjid built by first Mughal Emperor, Babur. This Court is tasked with the resolution of a dispute whose origins are as old as idea of India itself. The events associated with dispute have spanned Mughal empire, colonial rule and present constitutional regime. dispute in these appeals arises out of four regular suits which were instituted between 1950 and 1989. Before 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 these appeals.

Findings of Court:

Area under dispute decreed in favour of Ram Lalla Virajman. In order to do complete justice, five acres of land to be allotted to Muslim parties in a prominent place in Ayodhya for construction of mosque. A Trust to be constituted to wok out modalities for construction of Ram Temple at the site which was subject-matter of title declaratory suit. Even though Nirmohi Akhara was non-suited, it is to be included in the Trust to be constituted to wok out modalities for construction of Ram Temple.

Result : Appeals disposed of with observations and directions.