Ayodhya Verdict : How SC Dealt With Sunni Waqf Board's Pleas Of Lost Grant And Adverse Possession?

Among five suits which constitutes the Ayodhya Case, only one suit filed by Sunni Central Wakf Board, represented the Muslim side. Senior Advocate Rajeev Dhavan represented them.

The 1045 paged judgment in Ayodhya case seriously deals with only three suits filed by Nirmohi Akhara, the Sunni Board,and Ram Lalla, the deity. (Suit 3,4 & 5 respectively).

Nirmohi Akhara's suit was dismissed mainly on the ground that it was barred by limitation. The Suit by Ram Lalla was decreed and that of Sunni Board was partly decreed, invoking powers under Article 142 of the Constitution, to remedy the wrong done to the Community. This article is intended to examine how the Court dealt with the suit filed by the Sunni Board.

Reliefs Sought: Declaration of Title & Recovery of Possession

The relief sought in the suit filed by Sunni Board was a declaration to the effect that the disputed property is public mosque commonly known as 'Babri Masjid' and that the land adjoining the mosque is a public Muslim graveyard. A 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, was also sought. The court summed up the case of the Muslim side was as follows:

(i) The mosque was constructed by Babur 433 years prior to 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 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.

Suit Maintainable

For the Hindu side, Senior Advocate K Parasaran objected to the maintainability of Suit 4 on the ground that the Sunni Central Waqf Board had no locus to institute the proceeding and that the suit could have only been instituted at the behest of a Mutawalli . Rejected it at the outset, the Court observed:

"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 power, the Sunni Central Waqf Board has authority to institute legal proceedings."

Not Barred By Limitation

The High Court, by a majority (Justice Sudhir Agarwal and Justice D V Sharma), had held that the Suit was barred by limitation; Justice S U Khan had held otherwise.The court summarized the reasons given by the High Court to hold that the Suit was barred by limitation thus:

(i) The entire property which is the subject matter of the suit 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; (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 1908.

The court held that High Court was in error in applying the provisions of Article 120 and the suit in essence and substance was governed by Article 142.. It was held thus:

Though, the last namaz was held on 16 December 1949, the ouster of possession did not take place on that 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 Court holding that Suit 4 is barred by limitation, is hence incorrect. Suit 4 was filed within limitation.

The court added that 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 Article 144 in which event also, the suit would be within limitation.

Outcome of 1885 Suit has no impact on this suit

It was urged that the decision in the suit operates as res judicata on the ground that the matter directly and substantially in issue was: (i) The existence of Babri Masjid; and (ii) The rights of Hindus to construct on the land adjoining the mosque. However, the bench observed:

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 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.

Adverse Possession Plea Rejected

Plea of adverse possession was taken in the alternative. It was urged that, in the event that there existed a Hindu temple, as alleged by the 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 plea of the mosque being dedicated upon its construction by Babur for public worship by Muslims.

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, 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.

Taking note of the well settled principles regarding the law of Adverse Possession, the Court said that 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'. The court said that 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 furnished in the plaint. The plea of adverse possession was rejected with following observations

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. 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 374 and 1949 – the last of them 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, 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.

Doctrine of Lost Grant Has No Application

Another contention urged by Senior Advocate Dhavan was based on  the doctrine of lost grant. The doctrine was summarized by the Court as follows:

(i) The doctrine of lost grant supplies a rule of evidence. The doctrine is applicable in the absence of evidence, due to a 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;
(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 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 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;
(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
(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.

Examining the pleadings , the bench noted that there is no pleading by the plaintiffs to support the application of the doctrine of lost grant and the specific case of the plaintiffs is that of a dedication of the mosque for public worship by Muslims. 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, the Court added by observing thus:

"Adverse possession 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 title vesting in someone other than the alleged grantee."

While rejecting the contention based on doctrine of lost grant, the Court further added:

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 : 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 the limits set for it by the legislature. In the present case, absent any pleadings and of evidence on 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.

Appreciation of Evidence

With respect to title, no documentary evidence exists or has been adduced for the period prior to 1860. It said:

"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 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. "

From the appreciation of documentary evidence, the bench noted as follows:

(i) Prior to 1856-7 there was no exclusion of the Hindus from worshipping within the precincts of the inner 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;

(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 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 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 birth-place of Lord Ram was within the precincts of and under the central dome of the mosque;

(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 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.

Possessory Title of Muslims

While ascertaining the arguments based on Possessory title, the bench noted the following from the evidence on record.The court concluded that, insofar as the outer courtyard 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. It added that, insofar as the inner courtyard is concerned, the claim of the Muslims must necessarily be assessed with reference to various time periods namely (i) prior to 1856; (ii) between 1856 and 1934; and (iii) after 1934. To conclude this, following points were noted:

"Though, the case of the plaintiffs in Suit 4 is that the mosque 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 of a PART O 900 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;"

"On the contrary, the travelogues (chiefly Tieffenthaler and 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;"

"William Finch (1608-11) and Tieffenthaler who visited 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 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 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 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 Lord Ram around which worship took place and the Hindus circumambulated and prostrated";

"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 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 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";

"The construction of the grill-brick wall during the colonial 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";

"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 authorities of the state";

"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 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;"

"The opening of an additional door on the northern side which came to be known as Singh Dwar was warranted as a 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 an established fact;"

"Disputes between the Hindus and the Muslims continued to persist, indicating the litigious nature of the respective claims, in respect of the inner courtyard";

"In 1934, there was yet another communal riot during the course of which the domed structure of the mosque was damaged. This led to the imposition of a fine on the Hindu 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 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";

"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 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 was intermittent and interrupted";
"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. The Friday namaz due on 23 December 1949 could not be offered due to the intervening desecration of the mosque".

As regards post 1856 claim, the bench observed

"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 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 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 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".

Marshaling the Evidence on 'Possessory' Title

At this stage, the bench proceeded to marshal together the evidence on the claim of title in the suit filed by Sunni Board and that by Ram Lalla. The Court concluded 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. The 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;
(vii) The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on December 1992 constituted a serious violation of the rule of law;
(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.

The bench then held that 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 domed structure in the inner courtyard, it said.

Partly Decreed The Suit

The court said 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. On the balance of probabilities, the Court concluded, that 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. It added:

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.

Observing thus, the bench concluded that 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. Holding thus, the bench also partly decreed the suit to remedy the wrong committed to Muslims side by desecration and demolition of the mosque. It ordered the Government to allot 5 acres of land to Sunni Board within the city of Ayodhya.