Krishna Janmabhoomi Case | Plea In Supreme Court Seeks Scientific Survey Of Shahi Eidgah Mosque In Mathura

The Shri Krishna Janmabhoomi Mukti Nirman Trust has moved the Supreme Court praying for a scientific survey of Shahi Eidgah Masjid premises, which is claimed to be built over Krishna Janmabhoomi. This development comes a month after the Allahabad High Court dismissed the writ petition filed by the trust seeking a direction to a local court to decide an application for a scientific survey of the premises of the mosque in Uttar Pradesh's Mathura.

The trust has approached the top court after being aggrieved by the high court's order upholding the civil judge's decision to first consider an application filed by the mosque committee under Order VII Rule 11 urging the court to reject the plaint on the ground of non-maintainability, before examining the plaintiff's application for "an office for a survey and scientific commission to be constituted through an independent and competent authority" to inform the court about the 'correct position' with respect to the disputed site.

The special leave petition reads:

"The controversy in the present petition relates to the identification, location, or measurement of the land at this age before the application under Order VII Rule 11 is decided. A local investigation is necessary at this stage. Once there is a controversy as to the identification, location, or measurement of the land, a local investigation should be done at an early stage so that the parties are aware of the report of the commissioner. The trial court ought to have considered the appointment of a commissioner for the purpose of identification and thereafter should have ordered for deciding on the application under Order VII Rule 11."

Background

The Shahi Eidgah mosque was built on the orders of Mughal Emperor Aurangzeb adjacent to the Krishna Janmasthan Temple, which is believed to be the place where the Hindu god Krishna was born. In 1968, a 'compromise agreement' was brokered between the Shri Krishna Janmasthan Seva Sansthan, which is the temple management authority, and the Trust Shahi Masjid Eidgah allowing both places of worship to operate simultaneously. However, litigants who have sought various forms of relief in court with respect to the Krishna Janmabhoomi, including the trust that has now approached the Supreme Court, insist that the compromise agreement was made fraudulently and is invalid in law.

The current controversy is over whether an application questioning the maintainability of the plaint filed by the Shri Krishna Janmabhoomi Mukti Nirman Trust ought to be considered before deciding on an application seeking a scientific survey. In a civil suit filed in a Mathura court, the petitioner-trust, seeking to represent the rights of the Hindu community over the mosque which was allegedly constructed after demolishing Hindu temples, prayed for the relief of injunction and a declaration that such a construction cannot be a mosque and that the compromise in 1968 on the basis of which a decree was passed, was a 'sham' and 'fraud' which was played on the court, making both the compromise and the subsequent decree 'null and void'. The petitioner-trust had also claimed the right to worship at the site where the mosque stands today, and accordingly, sought its removal.

The local court decided to consider the aspect of maintainability raised by the mosque committee in an application under Order VII Rule 11 of the Code of Civil Procedure before considering the petitioner's application for rejection of the respondent's plaint, as well as for "an office for a survey and scientific commission to be constituted through an independent and competent authority" to inform the court about the 'correct position' with respect to the disputed site. Aggrieved by this order, the trust moved the Allahabad High Court, but a single-judge bench dismissed its writ petition. In appeal, the petitioner-trust has now approached the top court.

The petitioner-trust contended before the high court that the civil judge should adjudicate its application before deciding an Order VII Rule 11 CPC application of the Mosque Committee and UP Sunni Central Waqf Board objecting to the suit filed by Bhagwan Shrikrishna Virajman and others. However, a bench of Justice Jayant Banerji held that it was settled law that where in a suit, its maintainability has been questioned, then that fact has to be determined first and no other pleading nor any evidence may be considered by the court while adjudicating in respect of an application under Order VII Rule 11. The court remarked: