In the Supreme Court of India Civil Appellate Jurisdiction Civil Appeal Nos
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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 10866-10867 OF 2010 IN THE MATTER OF: - M. Siddiq (D) Thr. Lrs. … Appellant VERSUS Mahant Suresh Das & Ors. etc. etc. … Respondents AND OTHER CONNECTED CIVIL APPEALS NOTE ON TITLE BY DR. RAJEEV DHAVAN, SENIOR ADVOCATE S.NO PARTICULARS PAGE NOS. 1. Preliminary 1 2. Pleadings 1-2 3. Issues 2-3 4. Findings in the Impugned Judgment 3-5 5. Submission on Facts & Exhibits 6-29 I. 1528-1857 6 II. Grants and Recognition 6-10 III. Disputes and Cases Affirming Possession & Title 10-19 IV. Significance of the 1885 Suit 19-22 V. Affirmation of Title and Possession not Dislodged 22-28 by Alleged Claims of Adverse Possession [1934- 1950] VI. Stand of State of Uttar Pradesh 28 VII. 1985-Ram Janmabhoomi Nyas formed 29 VIII. 1992- Demolition of Babri Mosque by Hindu 29 miscreants 6. Illegalities Form the Basis of the Claims of Hindus 30-31 7. Effect of Existence and Destruction of Temple on Title 32 8. Submission on Law 33-38 9. Conclusion 39-40 ADVOCATE ON RECORD: EJAZ MAQBOOL NOTE ON TITLE I. PRELIMINARY 1. The present suits concerning the disputed structure along with the inner and outer courtyard were all filed with different prayers. While Suit 1 was filed solely for claiming right to worship, Suit 3 was filed for ‘management & charge’ of the alleged temple. It is only in Suit 4 and Suit 5 that the parties claimed title of the disputed property. II. PLEADINGS 2. The relevant pleadings are as follows:- i. Suit No. 1 of 1989: a) The prayer herein was to seek a declaration that the Plaintiff is entitled to worship and darshan of by going near the idols and a permanent injunction restraining the defendants from removing the idols from the disputed structure. Thus, it can be seen that this suit did not concern the issue of title. [See prayer of Suit 1 @ pgs. 5-6/Vol. 72-Pleadings Volume] ii. Suit No. 3 of 1989: a) In this suit the prayer was for “management and charge of the temple”, however there was a casual statement made that the alleged temple always belonged to the Plaintiff- Nirmohi Akhara. It is submitted that this point has already been answered while replying to Suit 3, and it is reiterated that the use of the word ‘belong’ in a casual manner does not lead to the conclusion that the same had been used to make a claim of ownership. In any event, the Nirmohi Akhara, claiming as a shebait, cannot assert title in the disputed site as the title always vests in the deity and not in the shebait. [See para 2 of the Plaint @ pg. 49 and Para 14(a) @ pg. 53 of Vol. 72 of the Pleadings Volume] b) Further as recorded by the Hon’ble High Court in the Impugned Judgment, the Plaintiffs in Suit 3 have not produced even a single document to show their title and therefore their claim of title (if any) was negatived. [Para 4481-82 @ pg. 2846 of Vol. III of the Impugned Judgment] iii. Suit No. 4 of 1989: a) In this suit the following averments in the Plaint are relevant for the issue of title: Page 1 of 40 • The mosque and the graveyard vest in the Almighty. (Para 2 of the Plaint @ pg. 86/Vol. 72-Pleadings Volume) • On the basis of admission in the 1885 suit, it has been established the building now being claimed by the Hindu Parties to be the temple of Janamasthan, was a mosque and not a temple. (Para 6F @ pg. 88/Vol. 72-Pleadings Volume) • Assuming though not admitting, that at one time there did exist a Hindu Temple as alleged by the Hindu parties, since emperor Babur built a mosque on the site some 433 years ago, the Muslims have perfected their title by adverse possession (Para 11(a) @ pg. 89/Vol. 72-Pleadings Volume) • Since it had already been stated in the Plaint that the title of the mosque vests in the Almighty, it is relevant to note that the mosque being a Sunni Wakf is covered within the supervisory sphere of the Sunni Wakf Board and therefore the Sunni Wakf Board in its suit prayed for a declaration that the disputed site was a public mosque. It was further prayed that the idols and other articles of Hindu worship be removed from the disputed structure and the possession of the disputed site (i.e. the disputed structure alongwith the inner and outer courtyard) be handed over the Plaintiffs. [Para 24 (a) & (b) @ pg. 93/Vol. 72 – Pleadings Volume] iv. Suit No. 5 of 1989: In this suit it was prayed that a declaration maybe given that the entire suit property belonged to the Plaintiff deities. [Para 39(A) @ pgs. 258/Vol. 72] 3. It is relevant to note that the pleadings show that Nirmohi denies existence of any mosque built at the disputed site by either Babur or anywhere else. Equally, some parties have given credibility to the possibility of destruction of the temple by Aurangzeb. 4. At this point it is relevant to stress that no destruction of Mosque has been noted even by the ASI in its report and this has been recorded in the Impugned Judgment at Para 3988 & 3990. (Pgs. 2445-2446/Vol. II of the Impugned Judgment) III. ISSUES 5. The issues arising from this part are as follows:- ❖ Issue No. 1:- Whether the building in question described as mosque in the sketch map attached to the plaint (hereinafter referred to as the building) was a mosque as claimed by the Plaintiffs? Page 2 of 40 ❖ Issue No. 2:- Whether the Plaintiffs were in possession of the property in suit upto 1949 and were dispossessed from the same in 1949 as alleged in the plaint? ❖ Issue No. 5:- Are the defendants estopped from challenging the character of the property in suit as a waqf under the administration of Plaintiff No. 1 in view of the provision of Section 5(3) of the U.P. Act 13 of 1936? ❖ Issue No. 7(c):-Whether in view of the judgment in the said suit (i.e. the 1885 suit), the members of the Hindu Community, including the contesting defendants are estopped from denying the title of the Muslim Community, including the plaintiffs of the present suit, to the property in dispute? If so, its effect? ❖ Issue No. 7(d):- Whether in the aforesaid suit, the title of the Muslims to the property in dispute or any portion thereof was admitted by plaintiff of that suit (i.e. 1885 suit)? If so its effect? ❖ Issue No. 10:- Whether the Plaintiffs have perfected their rights by adverse possession as alleged in the Plaint? ❖ Issue No. 15:- Have the Muslims been in possession of the property in suit from 1528 AD continuously, openly and to the knowledge of the defendants and Hindus in general? If so, its effect? ❖ Issue No. 19(a):- Whether even after construction of the building in suit deities of Bhagwan Sri Ram Virajman and the Asthan Sri Ram Janam Bhumi continued to exist on the property in suit as alleged on behalf of defendant No. 13 and the said places continued to be visited by devotees for purposes of worship? If so, whether the property in dispute continued to vest in the said deities? Note: Although, the property vests in the Almighty, a legal vehicle to claim such property vests in the Wakf Board- as a matter of right to claim title and possession. IV. FINDINGS IN THE IMPUGNED JUDGMENT:- 6. It is submitted that the majority judgment of the Hon’ble High Court proceeded to divide the premises in dispute into three portions – awarding 1/3rd each to the Muslim Parties, Plaintiffs of Suit 5 and Nirmohi Akhara. Justice Khan as well as Justice Agarwal, directed for a three-way partition of the property, while Justice Sharma decreed the entire property in favour of the Plaintiffs of Suit 5. 7. It is submitted that aforementioned three-way division by the Hon’ble High Court was done pursuant to a finding of joint possession. 8. Justice Khan has held that since both parties were in joint possession of the disputed property, and since according to Section 110 of the Evidence Act, title follows possession, both parties were joint title holders of the premises in dispute. [Pg. 107 & 109 /Vol. I of the Impugned Judgment] Page 3 of 40 9. The findings of Justice Sudhir Agarwal are as follows:- i. There is no evidence of possession by Muslims of the property in suit. They did not have possession of the outer courtyard at least since 1856-57, when the dividing wall was raised by the British. With respect of the outer courtyard, they could have at best only had a right of passage. [Pg. 1745 @ para 3107/Vol. II] ii. The possession of the Hindus over the Outer Courtyard was open and to the knowledge of the Muslims, which is evident from the documents of 1858 that the Mutawalli of the mosque in dispute made several complaints, however those structures continued in the said premises and the entry of the Hindus and their worship continued. [Pg. 1745 @ para 3107/Vol. II] iii. It cannot be said that the Muslims never visited the inner courtyard or no Namaz was offered there till 1949, but that by itself would not constitute ‘possession’ in law. This was a beneficiary enjoyment by Muslims shouldering with their Hindu brethren and visiting premises within the inner Courtyard worshipping in their own way.