Allahabad High Court
Unknown vs Nem on 30 April, 1992
1
2001
place surrounding it, to be the sanctum sanctorum. The
sanctum sanctorum encompassed the land beneath the
three domes and the entire land of the circumambulation
path." (E.T.C.)
^^jketUeHkwfe LFky ds laca/k esa iwjs nqfu;k ds fgUnqvksa dh vkLFkk
mlh izdkj ls gS tSls eqfLye lEiznk; dh vkLFkk dkck ds lanHkZ esa gSA
jketUeHkwfe eafnj iwjh nqfu;k esa dsoy ,d LFkku ij gS tcfd jke ds
eafnj gtkjksa dh la[;k esa gksaxsaA** ¼ist 54½
"Hindus of the whole world have the same faith in
reference to the place of Ramjanmbhumi as the Muslim
community has in reference to Kaba. The Ramjanmbhumi
temple is only on one place in the whole world but Rama
temples are thousands in number." (E.T.C.)
^^tUeHkwfe LFky ckgjh rFkk Hkhrjh LFkku rFkk mlds pkjks rjQ
dh Hkwfe dks eS ekurk gwWa ;g lHkh LFkku iwT; LFky gSaA ;g iwjk LFkku
Hkxoku jke dk tUeLFkku gksus ds dkj.k esjs fy, fu"Bk rFkk vkLFkk dk
izrhd gSA** ¼ist 66½
"The Janmbhumi site is considered by me to be the
outer and inner part and the land surrounding it from all
four sides. All these are revered places. This entire place is
a symbol of faith and belief for me on account of being the
birthplace of Lord Rama." (E.T.C)
^^1934 ds iwoZ esa jkepcwrjk ds n'kZu ds ckn chp ds f'k[kj ds
uhps fLFkfr xHkZx`g dk n'kZu djrk Fkk blds vfrfjDr [kEHkksa ij tks
ewfrZ;ka vafdr Fkh mudk n'kZu djrk Fkk rFkk Qwy rqylh iRrh vkfn
p<+krk FkkA - - - - - if'peh fnokj ds lehi ,d vyekjhuqek pht cuh
gqbZ Fkh ml LFkku ij Hkh yksx iwtk lkexzh p<+krs Fks rFkk og LFkku Hkh
xHkZx`g ls lacaf/kr FkkA** ¼ist 97½
"Prior to 1934, after having darshan of
Ramchabutara, I used to have darshan of 'Garbh-grih'
(sanctum sanctorum) situated beneath the mid dome.
2002
Besides this, I used to have darshan of the idols existing
over the pillars and used to offer flower, Tulsi (Holy Basil)
leaves etc. over them. . . . . . . . .. There was a almirah
shaped structure near the western wall. People used to
offer worship articles over there and that place was also
related to 'Garbh-grih' (sanctum sanctorum)." (E.T.C)
^^izR;sd og LFkku] tgka ij ewfrZ jgrh gS] mls xHkZx`g ugha dgk
tkrk gS] ftl LFkku ij nsork fo'ks"k izdV gksrk gS] ml LFkku dks
xHkZx`g dgrs gSaA** ¼ist 134½
"Every such place, where idols exist, is not called
'Garbh-grih' (sanctum sanctorum). The place of descension
of a particular God, is called the 'Garbh-grih' (sanctum
sanctorum)." (E.T.C)
OPW-5, Ramnath Mishra alias Banarasi Panda
^^fookfnr Hkou dh rhu rjg dh ifjdzek gksrh gS] igyh pkSng
dkslh] nwljh ikap dkslh vkSj rhljh vUrx`Zgh vFkkZr fookfnr Hkou ds
pkjksa rjQA**¼ist 42½
"Three types of circumambulation are performed at
the disputed structure, the first one being '14 kosi'
(circumambulation of 14 kosas), the second one being '5
kosi' (circumambulation of 5 kosas) and the third one
being the inner circumambulation, that is, round the
disputed structure."(E.T.C.)
^^lu~ 1932 ls 1970 rd eSa cjkcj n'kZu djus fookfnr LFky ij
tk;k djrk FkkA lu~ 1932 ls 1970 rd eSa ;kf=;ksa dks ysdj ogka n'kZu
djkus tkrk Fkk] blfy, ljljh rkSj ij ns[krk Fkk] vkSj eSa muds iwtk
djkus] n'kZu djkus vkSj viuh nf{k.kk esa T;knk /;ku nsrk FkkA^^
¼ist 44½
"From 1932 to 1970, I used to go to have darshan at
the disputed structure. From 1932 to 1970 I used to take
along pilgrims to that place for darshan; hence, I used to
2003
see things cursorily and used to pay more attention to
arranging Pooja and darshan for them and to taking
'Dakshina' (gift for religious services)." (E.T.C)
^^fookfnr ifjlj ds vUnj eSa rhu txg n'kZu djrk Fkk] igys
ck;sa okys pcwrjs ij n'kZu djrk Fkk fQj f'k[kj okys xHkZx`g dk ckgj
taxys ls n'kZu djrk Fkk vkSj fQj mRrj dh vksj lhrk jlksbZ ds n'kZu
djus tkrk FkkA ogka lhrk jlksbZ ls dHkh eSa mRrjh QkVd ls fudy
tkrk Fkk] vkSj dHkh okil vkdj iwohZ }kj ls ckgj fudy tkrk Fkk] tc
T;knk HkhM+ gksrh FkhA**¼ist 45½
"Inside the disputed structure I used to have darshan
at three places; I used to have darshan first at the left
Chabutra, then at the domed 'Garbh-Grih' (sanctum
sanctorum) through the outer grill and then at Sita Rasoi in
the north. I sometimes came out of Sita Rasoi from the
northern gate and sometimes returned to the eastern gate
to go out through it, particularly when there were sizeable
crowds." (E.T.C.)
^^geus mu ;tekuksa dks dsoy tUe Hkwfe ds iwtk o n'kZu djk;k
FkkA** ¼ist 78½
"I had helped said 'Yajmans' in worship and
darshan of Janmbhumi only." (E.T.C)
OPW-7, Ram Surat Tiwari
^^eSaus lu~ 1942 ls ysdj 15 fnlEcj 1949 ds chp esa fookfnr
Hkou ds vUnj xHkZx`g esa tkdj dHkh n'kZu ugha fd,A fookfnr Hkou ds
xHkZx`g esa dksbZ ewfrZ;ka ugha FkhaA lh[kpksa dh nhokj ds ckgj ls gh Qwy]
izlkn vkSj nO; p<+k fn;k djrs FksA** ¼ist 10½
"Between 1942 to 15th December, 1949, I never had
darshan by going into the sanctum sanctorum inside the
disputed structure. There were no idols in the sanctum
sanctorum of the disputed structure. I used to offer flowers,
'Prasad' and other materials only from outside the grill
2004
wall." (E.T.C.)
^^v;ks/;k esa tgkWa ij jke tUe Hkwfe eafnj fLFkr gS] mlh dks dqN
eqlyeku yksx rFkkdfFkr ckcjh efLtn dgrs gSaA** ¼ist 22½
"That very place in Ayodhya where Ramjanmbhumi
is situated, is called the so called Babri mosque by some
Muslims." (E.T.C.)
^^rhu xqEcn okys Hkou esa lh[kps okyh nhokj ds ckgj ls eSaus
dsoy mijksDr LFky dk gh n'kZu fd;k Fkk] vkSj mlh dks iz.kke fd;k
Fkk vkSj ogka fdlh pht dk n'kZu ugha fd;k FkkA** ¼ist 71½
"From outside the grill wall in the three domed
structure, I had 'darshan' only of the aforesaid place and
paid obeisance to that very place."(E.T.C.)
OPW-16, Jagadguru Ramanandacharya Swami Ram
Bhadracharya
^^'kk'or iwT; LFkyksa esa egarks dh vko';drk ugha gksrh gSA ,sls
'kk'or iwT; LFkyksa esa jkes'oje] txUUkkFkiqjh] }kfjdk/kke] cnzh ukjk;.k
Hkh gSa] tgkWa egar ugha gSaA eFkqjk ds Jhd`".k tUeHkwfe eafnj ij Hkh dksbZ
egar ugha gSA** ¼ist 56½
"Mahantas are not required at the eternally revered
places. Among such eternally revered places are
'Rameshwaram', 'Jagannath', Dwarikadhaam', and 'Badri
Narayan' as well, where there are no Mahantas. There is
no Mahanta even at Mathura situated Sri Krishna Janam
Bhumi temple."(E.T.C.)
^^iwtk vpZuk dh ckr lu~ 1528 ls ysdj lu~ 1949 rd
ijEijkvksa ds vk/kkj ij ge lqurs pys vk jgs gSa vkSj ;g ijEijk
yxkrkj lquh gqbZ ckrksa ij vk/kkfjr gSA mijksDr ijEijk eSaus vius
thoudky esa vius iwoZtksa ls lquh vkSj ;g esjs fo'okl dh ckr gS
fd ;g ckr esjs iwoZtksa ls lquh vkSj ;g esjs fo'okl dh ckr gS fd ;g
ckr esjs iwoZtksa dks muds iwoZtksa us crkbZ gksxhA Lo;a dgk fd
^^vfofPNUu tuJqfr** dk gh uke ijEijk gSA** ¼ist 63½
2005
"We have been hearing of 'Pooja- Archana' (worship
and prayer) from 1528 to 1949 on the basis of traditions
and this tradition is based on the things heard consistently.
I have heard of the aforesaid tradition from my forefathers
in my life time and it is my belief that my forefathers may
have been told this thing by their forefathers. (Himself
stated) 'Avichchhhinna Janshruti' (anything being heard
consistently) itself is called tradition." (E.T.C.)
DW-3/9, Shri Ram Ashrey Yadav
^^rhu xqEcn okys fookfnr Hkou ds chp ds xqEcn ds uhps Hkxoku
jke dk tUe gqvk Fkk] ,slk fgUnw yksx ekurs gSaA fgUnqvksa dh ;g ekU;rk
gS fd jke tUe Hkwfe dk n'kZu djus ls eks{k feyrk gSA** ¼ist 13½
"The Hindus so believe that Lord Rama was born
under the mid dome of the three dome disputed structure. It
is the belief of the Hindus that 'Moksha' (salvation) is
obtained by 'Darshan' (offering of prayer by sight) of
Ramjanmbhumi." (E.T.C.)
DW-3/14 Swami Haryacharya
^^eSa rhu xqEcn okys Hkou esa n'kZu djus igys tkrk FkkA --------
eSaus n'kZu blhfy, fd;k Fkk D;ksafd esjk ;g fo'okl gS fd ogkWa n'kZu
ek= ls eks{k dh izkfIr gksrh gSA** ¼ist 25½
"Earlier I use to go for darshan to the three domed
building. ....... I had the said sight because I believe that
one can attain liberation by merely having sight of the said
place." (E.T.C.)
^^v;ks/;k esa dsoy tUeHkwfe ij xHkZx`g gSA blds vfrfjDr
v;ks/;k ds vU; fdlh efUnj esa xHkZx`g ugha gSA** ¼ist 107½
"In Ayodhya, the 'Garbh-grih' (sanctum santoram)
exists only at the Janmbhumi. Apart from this, Garbh-grih
is not found in any other temple at Ayodhya." (E.T.C.)
1916. As long back as in 18th century even Tieffenthaler in
2006
his work "Description : Historique Et Geographique :
Del'Inde" (supra), Exhibit 133 (Suit-5) (Register 21, pages
273-289) has recognised the belief of Hindus with respect to the
place on which they continue to worship despite its being razed
as is evident from the following:
"The Hindus call it Bedi i.e. 'the cradle. The reason for this
is that once upon a time, here was a house where Beschan
was born in the form of Ram. . . . . Subsequently,
Aurengzebe or Babor, . . . got this place razed in order to
deny the noble people, the opportunity of practising their
superstitions. However, there still exists some superstitious
cult in some place or other. For example, in the place
where the native house of Ram existed, they go around 3
times and prostrate on the floor. . . . ."
1917. He also recognised the celebration of the birthplace of
Rama on 24th of the month of Chaitra.
1918. In view of the above, we find force in the submissions
of the learned counsels that the plaintiffs 1 and 2 are juridical
person and considering the fact that they are being visited as a
matter of right by Hindus for Darshan and worship believing the
Place as birthplace of Lord Rama, and the idols being the image
of Supreme Being having divine powers which may cherish
their wishes, provides happiness and salvation. This faith and
belief cannot be negatived on the challenge made by those who
have no such belief or faith. How it was created, who created,
what procedure of Shastrik law was followed are not the
questions which need be gone at their instance. We find that
such faith and belief is writ large by a long standing practice of
Hindus of visiting the place for Darshan and worship.
1919. Now the question is what should be the procedure
2007
where an idol is to be sued or sue. The suit in the name of the
idol can be filed by Shebait. Similarly, idol can be made a
defendant through Shebait. In certain circumstances, however, a
suit can be allowed to be filed or defended through next friend.
1920. The term 'next friend' has been used in Order 32 Rule 1
CPC. This brings into picture Order 32 Rule 1 CPC which reads
as under:
"1. Minor to sue by next friend.- Every suit by a minor
shall be instituted in his name by a person who in such suit
shall be called the next friend of the minor.
Explanation.- In this Order, "minor" means a person
who has not attained his majority within the meaning of
section 3 of the Indian Majority Act, 1875 (9 of 1875),
where the suit relates to any of the matters mentioned in
clauses (a) and (b) of section 2 of that Act or to any other
matter."
1921. Meaning of the expression "a next friend" in Order 32
Rule 1 CPC came to be considered in Amar Chand Vs. Nem
Chand AIR (29) 1942 All.150 where an Hon'ble Single Judge
(Hon'ble Braund J.) observed :
"The expression "a next friend" originally denoted
the person through whom an infant acts without any
necessary reference to litigation but in modern times it has
come to assume a technical meaning of the person by
whom a minor or an infant, as the case may be, is
represented as a plaintiff in litigation. The real object of
having a next friend is that there may be somebody to
whom the defendant or the opposite party may be able to
look for costs. The next friend himself does not actually
become a party to the litigation. It is the minor who is the
2008
party and the next friend is a person- so to speak in the
background- who can act on the minor's behalf and to
whom the opposite party can look for costs.
1922. The Court also considered the difference between
"guardian" and "a next friend" and said:
"As every one knows, a minor who is a defendant to a suit
is represented by a guardian ad litem. There is this
difference between a guardian ad litem and a next friend
that, whereas a guardian ad litem is constituted by an
order of the Court, a next friend automatically constitutes
himself by taking steps in the suit."
1923. About the procedure of filing a suit under Order 32
Rule 1 C.P.C. the Court said:
"Now, O. 32, R. 1 provides for the manner in which a
suit is to be instituted by a minor. It says that every suit by
a minor shall be instituted in his name by a person who in
that suit shall be called his next friend. From that it is quite
clear that a person who does, in fact, institute a suit in the
name of a minor becomes his next friend and, according to
the Code, that would apparently happen at the instant a
plaint is presented on a minor's behalf."
1924. In Annapurna Devi Vs. Shiva Sundari Dasi, AIR
1945 Cal 376 a different view was taken holding that the
appointment of next friend by the Court was not necessary.
1925. For the purpose of procedure, recourse was taken to
Order 32 CPC but not accepted by this Court in Doongarsee
Shyamji vs. Tribhuvan Das, AIR 1947 All 375 observing where
the Shebait of a temple has done something which is obviously
adverse to the interest of the institution, the Court may allow a
disinterested third party to file a suit, but such a suit must be
2009
filed in the interest of the foundation or the deity, as the case
may be. This proposition was expanded and enlarged by a
Division Bench of this Court in Bihari Lal Vs. Thakur Radha
Ballabh Ji and another AIR 1961 Allahabad 73 holding that
the person who has beneficial interest in the temple property can
take steps to see that the temple property is preserved to the idol
and may file a suit for that purpose as the next friend of the
deity, bringing the suit in the name of the deity himself.
1926. This Court in Dongarsee Syamji Joshi (supra) held :
"The analogy of a deity being treated as a minor is
a very imperfect analogy and we cannot carry it far
enough to make O. 32, Civil P.C. applicable. In cases
where the sebaits of a temple have done something which is
obviously adverse to the interest of the institution it may be
that the Courts would allow a disinterested third party to
file a suit, but such suits must be filed in the interest of the
foundation or the deity, as the case may be. the cases relied
on by learned counsel where a sebait transferred property
belonging to the deity and a stranger was allowed to file a
suit as next friend can be distinguished on that ground."
(para 8)
"The result of accepting the argument of learned
counsel would be that any person can constitute himself as
the next friend of a deity and file a suit in the name of the
deity for possession of the property by the dispossession of
a de facto sebait who may be managing the property and
looking after the deity to the satisfaction of everybody and
get hold of the property in the name of the idol till such
time as he is dispossessed again by somebody else. We are
not prepared to hold that such is the law that any third
2010
person can constitute himself as next friend and file a suit
and claim an absolute right to possession of the property
simply because he has filed the suit in the name of the
deity." (para 12)
"An idol, though it is a juristic person, is in charge of
its sebait who, for all practical purposes, represents it. But
there maybe cases where the right of the sebait and the
right of the idol are at conflict and in such a case it may be
that the idol may bring a suit for the vindication of its
rights through a disinterested third party as its next friend.
We do not think we can accept the contention of learned
counsel for the respondent that an idol has no right of suit
at all, though we agree with him that a suit in the name of
the idol can be filed only in the interest of the idol and not
with the object of getting hold of its property by the person
purporting to act as next friend." (para 13)
"There is really no such thing as an idol which is the
private property of an individual or a family or which
belongs to the public. According to Hindu philosophy, an
idol, when it is installed in a temple is the physical
personification of the deity and after consecration the stone
image gets its soul breathed into it. Before an idol can be
installed in a temple, the temple must be dedicated to it and
it becomes its private property. The books of ritual contain
a direction that before removing the image into the temple
the building itself should be formally given away to God for
whom it is intended. The sankalpa, or the formulae of
resolve, makes the deity himself the recipient of the gift
which, as in the case of other gifts has to be made by the
donor taking in his hands water sesamum, the sacred kush
2011
grass and the like. It is this ceremony which divests the
proprietorship of the temple from those who had built it
and vests it in the image which by the process of
vivification has acquired existence as a juridical
personage. A temple building, therefore, under the strict
Hindu law is the property of God and the idol and cannot
be the private property of an individual or a family or a
section the public. The property dedicated to an idol in an
ideal sense vests in the deity, though no Hindu professes to
give the property to God. He only dedicates it to the
worship of God and under the strict Hindu law the King,
who is the servant and the protector of the deity, is the
custodian of the property." (para 15)
1927. In Sri Nitai Gour Radheshyam Vs. Harekrishna
Adhikari and others AIR 1957 Cal. 77 it was held that non-
filing of application seeking permission to prosecute a suit on
behalf of an idol as Shebait is only an irregularity and such
application if filed later on and allowed by the trial court, the
suit cannot be held to be filed wrongly or not maintainable for
this reason alone.
1928. When a suit can be filed by an idol through a next
friend was considered by a Single Judge in Angoubi Kabuini
and another Vs. Imjao Lairema and others AIR 1959
Manipur 42 wherein it was held:
"Similarly, there is no force in the contention that
such a next friend must be appointed as the next friend by
the Court before he can institute a suit on behalf of the
idol. No provision of law was shown in support of it, rather
the provisions in this respect in the Civil Procedure Code
do not make such a course necessary. It is a different
2012
matter that the defendants can question that suitability of
the next friend after the suit is instituted and then the Court
will have to decide that point, but that is no authority for
the proposition that a next friend must be appointed by the
Court before the suit can be instituted by him. This point
was dealt with in Sri Annapurna Debi v. Shiva Sundari,
AIR 1945 Cal 376 at some length and I am in respectful
agreement with the view taken by the learned Judge in that
case. The case reported in Kalimata Debi v. Narendra
Nath, 99 Ind Cas 917: (AIR 1927 Cal 244) which was
relied upon on the side of the petitioners also does not
support their contention. What was stated in that case was
that the Shebait alone can maintain a suit on behalf of an
idol except perhaps in a case where the Shebait has refused
to institute a suit. The observations in Sri Sri Sridhar Jew
v. Manindra K. Mitter, AIR 1941 Cal 272 were also to the
same effect, namely, that when the interests of the Shebait
are adverse to that of the idol then the idol should be
represented through a disinterested next friend. It will be
thus clear that in a case like the present one it is
permissible for a person who is not the Shebait to bring
such a suit." (Para 4)
1929. It was contended in Bhagauti Prasad Khetan Vs.
Laxminathji Maharaj etc. AIR 1985 All. 228 that no suit
through next friend is maintainable unless an application is filed
seeking leave of the Court to sue as a next friend of the idol. The
Court found that no such procedure is prescribed in Order 32. It
also concurred with a similar view that no such application is
necessary, expressed in Ram Ratan Lal Vs. Kashi Nath
Tewari, AIR 1966 Patna 235 and Angoubi Kabuini vs. Imjao
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Lairema (supra). It is true that the two decisions of the Calcutta
High Court in Smt. Sushma Roy Vs. Atul Krishna Roy AIR
1955 Cal 624 and Iswar Radha Kanta Jew Thakur V.
Gopinath Das (supra) in which it was held that if anybody else
other than Shebait has filed suit on behalf of of the idol, he must
be appointed as next friend by the Court on filing of such an
application by him, have been dissented by this Court and it
pointed out contradictory authorities of the Calcutta High Court
in Annapurna Devi (supra).
1930. Dealing with the right of deity to file suit, the Division
Bench of this Court in Bhagauti Prasad Khetan (supra) in para
18 and 19 of the judgment said :
"18. The third point argued by the learned counsel for the
appellants in connection with the maintainability of the suit
is that in the present case Atma Ram did not apply for leave
of the Court to sue as a next friend of the idol and as such
the suit filed by him was not maintainable. In support of
this argument he placed reliance upon Smt. Sushma Roy v.
Atul Krishna Roy, AIR 1955 Cal 624 and Iswar Radha
Kanta Jew Thakur v. Gopinath Das, AIR 1960 Cal 741. It
was held in these cases that anybody other than Shebait
suing on behalf of the idol must be appointed as next friend
by the Court on application by him to that effect. After
having carefully gone through these cases we find
ourselves unable to agree with these observations. A
glance on the judgment reported in AIR 1955 Cal 624,
shows that the decisions of Calcutta High Court are not
uniform on the appointment of the next friend by the Court.
It has been held in Annapurna Devi v. Shiva Sundari Dasi,
AIR 1945 Cal 376 that appointment of the next friend by
2014
the Court is not necessary. Moreover in AIR 1960 Cal 741
it was observed at page 748 that :
"A worshipper or a member of the family has no
doubt his own right to institute a suit to protect his
right to worship and for that purpose to protect the
debutter property. That is, however, a suit by the
member of the family or worshipper in his personal
capacity and not a suit by the deity. The deity has
also a right of its own to have a suit instituted by a
next friend ....Anybody can act as such next friend,
but the law requires that anybody other than Shebait
instituting the suit in the name of deity must be
appointed as such by an order of the Court."
19. It indicates that no appointment is necessary, if the suit
is filed by a worshipper. Here Atma Ram has joined the suit
as worshipper also. Thus the maintainability of the suit
remains unaffected. Apart from this, in Ram Ratan Lal v.
Kashi Nath Tewari, AIR 1966 Pat 235 and Angoubi
Kabuini v. Imjao Lairema, AIR 1959 Manipur 42 it was
held that such an appointment is not necessary. The
Supreme Court has clearly held in Bishwanath vs. Sri
Thakur Radha Ballabhji, AIR 1967 SC 1044 that the
worshipper has an ad hoc power of representation of the
deity when the Shebait acts adversely. It follows from this
the worshipper having right to represent the deity can
represent the deity without any specific order from the
Court about his appointment. There is no definite
procedure laid down in the Civil P.C. relating to suits on
behalf of idol. The provisions of order 32 C.P.C. which
relate to minor do not specifically provide for the
2015
appointment of the next friend. It may also be added in this
connection that the defendants, appellants did not raise any
objection before the trial Court that Atma Ram should first
make an application for his appointment as next friend of
the deity and then the suit can proceed. Atma Ram clearly
alleged in para 1 of the plaint that he is representing the
deity as its next friend. The manner in which he was
allowed to continue the suit indicates that he should be
deemed to have been accepted as next friend of the deity.
Thus the suit cannot be held not maintainable because
Atma Ram did not make an application and was not
appointed as next friend of the idol plaintiff 1 in the trial
Court."
1931. As a proposition of law we are inclined to express our
respectful agreement with the above view taken in Bhagauti
Prasad Khetan (supra) and learned counsel for the parties
could not place before us any binding authority or otherwise
material to pursue us to take a different view.
1932. In Sri Thakur Kirshna Chandramajju vs.
Kanhayalal and others AIR 1961 Allahabad 206 another
Division Bench followed the view of this Court in Bihari Lal
Vs. Radha Ballabh Ji (supra) by observing in paragraph 39 of
the judgment, where the acts of the alleged Shebait are being
impugned, then the idol may sue through a next friend who has
beneficial interest in the property.
1933. In Sri Sri Gopal Jew Vs. Baldeo Narain Singh and
others, 51 CWN 383 the question of maintainability of suit of a
deity through a person who was not a Shebait came to be
considered in detail. Initially, the suit was filed in the name of
deity alone through one Sri Rajendra as its next friend.
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Subsequently, Rajendra was also impleaded as second plaintiff.
The Court referred to general rule enunciated by James, L.J. in
Sharpe Vs. San Paulo Railway Co., L.R. 8 Ch. App. 597 at
pp.609 and 610 (1873) observing :
".................... a person interested in an estate or trust fund
could not sue a debtor to that trust fund, merely on the
allegation that the trustee would not sue; but that if there
was any difficulty of that kind, if the trustee would not take
the proper steps to enforce the claim, the remedy of the
cestui que trust was to file his bill against the trustee for
the execution of the trust or for the realisation of the trust
fund and then to obtain the proper order for using the
trustee's name, or for obtaining a Receiver to use the
trustee's name, who would, on behalf of the whole estate,
institute the proper action, or the proper suit in this Court."
1934. Hon'ble Das J. in Gopal Jew (Supra) however,
proceeded to hold at page 390 of the judgment as under:
"In special circumstances, however, e.g., where the
trustee is unwilling or refuses to sue or has precluded
himself, by any act, omission or conduct, from suing, a
cestui que trust may himself institute the action adding as
Defendants every trustee and every other cestui que trust
as the cases cited in the notes in Halsbury's Laws of
England, 2nd Edn., Vol.33, paragraph 505 at pages 288
and 289 will show."
"............Can it be expected, in the circumstances, that the
trustees, who perpetrated the fraud on the deity, will
themselves come forward to take proceedings to get the
consent decree set aside on the ground of their own fraud ?
It may be that in law there is nothing to prevent the
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defaulting trustees from filing a suit as Plaintiffs, but from
a practical point of view will not their presence in the
category of Plaintiffs seriously jeopardise the chances of
success of such a suit? Will it not be said that the solicitude
now shown by them for the beneficiaries including a deity
whose interest they had not thought of for all these years is
a mere pretence. One of the major beneficiaries is a deity
of whom after the death of the daughter and grand
daughter of Sreegopal the trustees and their brothers
and/or their sons will be the shebaits. Will not the trustees,
if they themselves bring a suit lay themselves open to a
double charge of fraud, fraud on the deity in the first
instance and fraud on the purchasers now? Is there no risk
of there being personally made liable for costs? The
trustees may be penitent, as both Bonwari and Madho say
or pretend they are, or they may be unrepentant sinners as
the Defendants maintain they are; but will not the
considerations mentioned above weigh with them equally
in either case? However genuinely repentant they may be,
they may yet be not willing to face the Court as Plaintiffs
for fear of being made to pay the costs or of prejudicing the
deity. They may be willing or even anxious to render
assistance to the beneficiaries, yet they may be reluctant to
figure as Plaintiffs. On the other hand, if they are
unrepentant and their sole object is to benefit themselves
they will out of policy keep themselves behind the scenes.
In either case they cannot for a moment be expected to take
proceedings in their own name. Is the deity who is one of
the beneficiaries to suffer? The law recognises the deity as
a juridical entity capable of having legal rights. If a fraud
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has been perpetrated on the deity and its right, such as is
alleged in this suit, the deity is entitled to be reinstated in
its original rights. Such reinstatement may indirectly
benefit the very persons who perpetrated the fraud on the
deity. It may be - indeed, I am strongly inclined to think it
is - that the defaulting trustees are behind this litigation
and have set up a son of one of them to file this suit for
their own ends but their evil motive or rascality cannot
effect our extinguish the deity's rights. As long as the deity
is recognised as a legal entity capable of holding
properties, its right must necessarily be recognised on its
own merits. The Court cannot ignore the deity's rights or
deny protection to the deity merely because of the
misconduct of its unmeritorious trustees or shebaits or of
the possibility of those very unmeritorious persons
indirectly reaping the benefit of such protection. The fact
that the deity may be again defrauded can be no ground for
declining to remedy the fraud that has already been
perpetrated on its rights. In my judgement, in the
exceptional circumstances of the present case and in view
of the allegations in the plaint it must be held that the
trustees are unwilling or have refused or at any rate by
their act or conduct rendered themselves incompetent to
maintain a suit for setting aside the decree in 1926 and the
beneficiaries themselves must be allowed to take legal
proceedings.
1935. The Court held in Gopal Jew (Supra) that the suit is
maintainable but it chose to rely on Order 32 Rule 4(1) of the
Code of Civil Procedure for the said purpose.
1936. Considering Order XXXII Rule 1 C.P.C., a Single
2019
Judge of Andhra Pradesh High Court in Duvvuri Papi Reddi
and others Vs. Duvvuri Rami Reddi AIR 1969 AP 362, held in
para 14:
"It must however, be remembered that Order XXXII deals
only with procedure. It does not confer on minors or
persons of unsound mind any right of any sort. Under Rule
1 of Order XXXII, every suit by a minor shall be instituted
in his name by a person who in such suit shall be called the
next friend of the minor. Where the suit is instituted without
the next friend, according to Rule 2, the defendant is
entitled to apply to have the plaint taken off the file, with
costs to be paid by the pleader or other persons by whom it
was presented. After hearing the objections, the Court is
empowered to pass such order as it thinks fit under Rule 2.
Order XXXII, Rule 1 states that along with such a suit an
application by the next friend should be filed for the
purpose of appointing him as the next friend it is
necessarily implied"
1937. Some of the judgments, which we have already
referred, show that the same were given by holding that a Deity
does not suffer any disability as it is not minor, in order to argue
that Order XXXII, Rule 1 has no application, drawing a parallel
with Section 6 of the Limitation Act. An attempt was made that
the Deity having been held not a minor for the purpose of
Section 6 of the Limitation Act and therefore for the purpose of
Order XXXII, Rule 1 C.P.C. also it cannot be treated to be a
minor and that provision will have no application.
1938. Relying on Privy Council's decision in Damodar Das
Vs. Adhikari Lakhan Das (supra) and a Division Bench
decision of Patna High Court in Naurangi Lal Ram Charan
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Das AIR 1930 Patna 455 an attempt was made to argue that a
Hindu idol/deity cannot be included within the term "minor". In
the context of Section 6 of the Limitation Act this view was
taken by the Patna High Court in Naurangi Lal (supra), hence
it was argued that on the same principle Order 32 Rule 1 has no
application in this case and an idol cannot be allowed to be sued
through next friend treating it to be a minor but with great
respect we find that the issue is already concluded by the
decision of the Apex Court in Bishwanath vs. Sri Thakur
Radha Ballabhji (supra). We also find that the Patna High
Court referred to an earlier decision of this Court in Chitar Mal
Vs. Panchu Lal AIR 1926 All.392 and the Oudh Chief Court in
Prakash Das Vs. Janki Ballabha Saran AIR 1926 Oudh 444
holding that property can be acquired as against an idol by
adverse possession which will run from the date of the
alienation inasmuch as an idol does not suffer from any
disability under the Limitation Act and in reference thereof it
was held that the idol cannot be treated to be a 'minor' so as to
suffer a disability under Section 6 of the Limitation Act.
1939. To the same effect is a Division Bench decision of
Orissa High Court in Radhakrishna Das Vs. Radha Ramana
Swami & others AIR (36) 1949 Orissa 1. In that case also there
was a family idol of Thakur Radharamna Swami. It belonged to
the family of Ranganath Deb Goswami whose father executed a
deed on 21st November 1909, transferring his Shebait right as
inam lands endowed for the service of the deity and the idol
itself to Mahant of the Gangamatha Math at Puri and put him in
possession of the plaintiff deity. The Government of Madras
resumed the inam grant on 4th November 1921 on the ground it
has been alienated. Hence, the purpose of grant has failed.
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Ranganath Deb Goswami requested the Government to hand
over the net assessment of the village so that Seva Pooja of the
deity may be continued. The Mahant of Gangamatha Math at
Puri raised an objection. The Government left the parties to
establish their rights in a Civil Court and collection from village
were kept in the treasury subject to final adjudication of the title.
Ranganath Deb Goswami filed a suit against the Mahant of
Gangamatha Math at Puri praying for a declaration that the
plaintiff idol has not been removed from the Goswami Math to
Gangamatha Math, as falsely stated in the deed executed on 21st
November 1909. The suit was decided against Goswami Math
as a result whereof the inam village was re-granted to
Gantamatha Math. Thereafter, a suit was filed by zamindars of
Takkali as next friend of the idol seeking a declaration that the
retention of idol at Gangamatha Math by its Mahant is wrongful
and a continuing wrong, the idol be restored to its original place,
i.e., Goswami Math. The next frient of the idol claimed to be the
successor of the original founder of the endowment, i.e.,
Goswami Math and as such interested in the location of the idol
at proper place and claimed that it is the will of the idol to be
returned at the original place and to be worshipped thereat. The
cause of action was claimed to be a continuing one. The Trial
Court formulated several issues and with respect to the validity
of the transfer from Goswami Math to Gangamatha Math
observed that the said transfer is not illegal and cannot be
questioned by the next friend of the idol. He held the retention
not illegal and the suit was held barred by limitation. The
judgment was reversed in appeal. The High Court allowed the
appeal and restored the judgment of the Trial Court in the
background of the above facts. High Court found that there was
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no difference in the customary mode of worship in Goswami
Math and Gangamatha Math. The plea of different of customary
mode of worship was found a pure myth and unsubstantiated.
Secondly, it held that the lower Appellate Court erred in
observing that the Mahant of Goswami Math being a married
person was capable of conducting worship though the Mahant of
Gangamatha Math, Sanyasi, could not have been capable
thereof. The Court observed that this finding is erroneous and
the lower Appellate Court has proceeded on some unfortunate
confusion between an "ascetic" and a 'Sanyasi. The aforesaid
words have been explained by the Court as under:
"There has been an unfortunate confusion in the
lower Courts between an "ascetic" and a 'Sanyasi.' The
only difference that I can find between defendants 1 and 2
is that the former is a perpetual Brahmachari or Virakta of
the Vaishnab sect while the latter is a Gruhi or married
man. Both worship deities, both perform the annual
ceremonies of their Gurus or ancestors, and also perform
other Vaidio Karmas. Sanyasi should have no Gods or
temple. Their only vocation is the contemplation of the
absolute truth and not the worship of any God. A
Brahmachari or student, according to Golap Chandra
Sarkar is of two descriptions, namely, Upakarvana or
ordinary student and Naishtika or life long student. The
former became a house-holder in due course, while the
latter was a student for life, devoted to the study of science
and theology, felt no inclination for marriage, did not like
to become a house-holder, and chose to life, as a perpetual
student, the austere life of celibacy. There are persons
belonging to certain religious sects of modern origin such
2023
as the Vaishnabs that do in some respect resemble lifelong
students and itinerant ascetics. They are connected with the
well-known Maths or Mahants.... Most of the Vaishnabite
Maths of Bengal, Bihar and Orissa were founded by
Bengalee Brahmins and Kayasthas who were the disciples
and followers of Chaitanya and they were not merely
founded by celibates but by house-holders. The three
Peabhus who are the chief spiritual preceptors or masters
of this order are Obaitanya, who is believed to be the
incarnation of Lord Krishna, Adwaitanand and Nityanand.
Adwaitanand's descendants residing at Santipur are now
chief spiritual preceptors along with the male and female
descendants of Nityananda. Besides these three Prabhus,
the Vaishnabs of this order acknowledge six Goaains as
their original and chief teachers and founders, in some
instances of the families now existing, to whom as well as
to the Gokulashta Gosains, hereditary veneration is due.
These six are Rupa, Sanatan, Jeeva, Raghunath Bhat,
Baghunath Das, and Gopal Bhat. They appear to have
settled at Brundaban and Mathura. The post of spiritual
Guide is not confined only to the Brahmins: some of the
well-known Gosains' belong to the Vaidya caste.
Chaitanya, the founder of these cults, nominated
Adwaitacharya or Adwaitanand and Nityanand to preside
over the Bengal Vaishnabs, and Bupa and Sanatan over
those of Mathura: See Wilson's works, vol. I. It is said that
defendant 1 claims descent through Gadadhar Prabhu and
defendant 2 through Nityanand Prabhu who were both
followers of Lord Chaitanya. A reference to Chaityanya
Charitamruta and Baishnab Abidhana shows that
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Gadadhar who was also known as Pandit Prabhu
Gadadhar Pandit and Godai, was the disoiple of Pandarik
Bidyanidhi who was himself a disciple of Advaitanand.
Gadadhar came to Orissa along with Sri Chaitanya and
lived the life of a perpetual Brahmachari till his death in
1533. Gangamudri was an Oriya lady and was a disciple of
Gadadhar's branch. Gadadhar was a great scholar and
wrote commentaries on the Gita. Besides he was a life-long
associate of Lord Chaitanya and is regarded by the
Vaishnabs as one of the Pancha Tatva. The appellant's
Math is obviously named after Gangamudri, who was a
Vaishnab herself and is known as the Gangamatha Math."
1940. Coming to the question of limitation, the Court in
Radhakrishna Das Vs. Radha Ramana Swami (supra) has
dealt with this issue in paras 13 and 19 at length. Certain
propositions which it has accepted as well settled are:
(a) As a general rule according to Hindu law, property
given for the maintenance of religious worship is
inalienable. (Reliance is placed on Mac Naughton's
"Precedents of Hindu Law" Vol. II, p. 305; Sri Sri
Ishwar Lakshi Durga Vs. Surendra Nath Sarhar 45
C.W.N. 665 and Surendra Narayan Sarbadhikari Vs.
Bholanath Roy Choudhuri AIR (30) 1943 Cal. 613)
(b) The manager of an endowment has the same powers as
a guardian of an infant to incur loans for necessary
purposes and such loans will bind the idol's estate.
(c)Where the temple is a public temple, the dedication
may be such that the family itself could not put an end to
it, but in the case of a family idol the consensus of the
whole family might give the estate another direction.
2025
(Reliance is placed on Kunwar Darganath Vs.
Ramchunder 4 I.A. 52 (P.C.) and Tulsidas Vs.
Sidahinath (9) I.C. 650)
(d) It is only in an ideal sense that property can be said to
belong to an idol, and the possession and management of
it must in the nature of things be entrusted to some person
as the Shebait or Manager. (Reliance is placed on
Prosunno Kumari Debya v. Gulabahand (supra) and
Kunwar Darganath Vs. Ramchunder (supra).
(e) Person so entrusted must of necessity be empowered to
do whatever may be required for the service of the idol
and for the benefit and preservation of its properties, at
least to as great a degree as the manager of an infant heir.
(f) A Shebait can borrow for legal necessity and for
necessaries of the deity and bind the estate of the deity.
(g) Right to be worshipped at a particular place or by a
person may be regarded as intangible property (Reliance is
placed on Mahamaya Devi Vs. Hari Das Haldar AIR (2)
1915 Cal. 161)
1941. Having said so, the Court observed that in the eyes of
law, idols are property and placed reliance on Subbaraya
Gurukkal Vs. Chellappa Mudali 4 Mad. 315. It referred to a
Calcutta High Court decision in Bali Panda Vs. Jadumani 7
I.C. 475, wherein it was held that being a juridical person, the
idol is not movable property though it is property for which a
suit is governed by Article 120 Limitation Act. Having referred
to the above two decisions, the Orissa High Court proceeded not
to record any final opinion as to whether the idol can be
regarded as movable or immovable property as is evident from
para 13 of the judgment. However for our purpose, we find that
2026
this question needs some consideration. If an idol can be held to
be a property, it well be a judicial proposition to treat it as a
juridical person capable of holding the property as a right to sue
or be sued or other consequences in law which are available to a
legal person. It is inconceivable that a legal person, i.e., idol
itself is a property and can also hold property. What appears to
us is that the man made idols made of precious metals may have
their value in the economic sense, not in the form of image but
on account of the preciousness of the metal of which it consists.
In modern days, the Hindu religious idols of ancient period have
also become precious and antique market internationally though
it is a crime under some statutes of this Country. Therefore,
beyond India, antique Hindu idols by the persons of other
religions may have economic worth for different reasons but for
the worshippers it is a matter of faith and belief and not the
economic worth. Normally, a Hindu worshipper cannot think of
selling an idol being worshipped by all Hindus treating it to be a
property consisting of gold, silver or any other metal since it is
against the civilized motion of the Hindu society who believe
and have faith in the religion. But if the idol has lost its efficacy
as deity for one or the other reason and the precious metal of
which it was made for one or the other reason has converted into
form of that metal itself, obviously it will be a property of the
value that metal would be. In short, what we intend to say is that
a consecrated man made idol, irrespective of preciousness of the
metal of which it is made, is not treated to be property in any
manner by the worshippers of that deity and, therefore, it cannot
be said to be a property as a matter of legal proposition. But the
right to worship the idol and possession of the deity for the
purpose of its management, sewa, pooja etc. constitute the rights
2027
of Shebait, which is an office, and can be said to be an
intangible property right. The High Court further said that
Thakur Ji can be the subject of possession and adverse
possession. This wide proposition again is difficult to accept. A
person, whether legal or natural, by itself can be subject of
possession or adverse possession is a bit difficult to understand.
The property of an idol or deity may be subject of possession
and adverse possession in law if it is so permissible but the deity
itself, in our view, cannot be said to be subject of possession and
adverse possession in the manner it is being said and here also
what we have observed with respect to the concept of idol as
property can be read here also.
1942. Then comes the next proposition. The Orissa High
Court held, "An idol is no doubt in the position of an infant as it
can act only through a sebayat or a manager." Having said so, it
proceeded further to observe that there is no authority to show
that this infant can be treated to be a perpetual infant so that
transaction by or against him will not be governed by Limitatin
Act. It further proceed to hold that " The doctrine that an idol is
a perpetual minor is an extravagant doctrine as it is open to the
sebayat, or any person interested in an endowment, to bring a
suit to recover the idol's property for devottar purposes."
(Reliance for the said proposition has been placed on Damodar
Das Vs. Lakhan Das (supra) and Surendra Krishna Roy Vs.
Bhubaneswari Thakurani AIR (2) 1933 Cal. 295). The Court
further observed:
(i) An idol can also acquire rights by adverse possession
just as much as there can be adverse possession against the
idol. [Anand Chandra Vs. Brojalal (supra)]
(ii) A suit by the idol or the manager of the idol on
2028
behalf of the idol for recovery of possession must be
brought within 12 years from the date of alienation.
(iii) An idol is as much subject to the law of limitation
as a natural person and cannot claim exemption on the
ground that he is a perpetual infant, nor is a Hindu deity to
be regarded as a minor for all purposes. (reliance is placed
on Anantakrishna v. Prayag Das I.L.R (1937) 1 Cal. 84
(iv) A idol cannot claim exemption from the law of
limitation. (reliance is placed on Surendrakrishna Roy
Vs. Ishree Sree Bhubneswari Thakurani (supra) as
confirmed by Privy Council Bhubaneswari Thakurani
Vs. Brojanath Dey AIR (24) 1937 PC 185)
1943. Reliance is also placed on a Division Bench decision
on Orissa High Court in Jagannath vs. Tirthnanda Das AIR
1952 Orissa 312 where following Talluri Venkata Seshayya
and others Vs. Thadikonda Kotiswara Rao (supra) the Court
expressed its opinion against treating idol as perpetual minor
and said in para 11:
"......But it is well-settled that an idol cannot be
regarded as a perpetual minor and the special protection
given to a minor does not apply to an idol. The protection
of a minor against the negligent actings of a guardian is a
special one and statutory provision has been made for
safeguarding a minor's interest."
1944. In Tarit Bhusan Rai and another Vs. Sri Sri Iswar
Sridhar Salagram Shila Thakur (supra) the Court said:
"In view of the religious customs of the Hindus
which have been recognised by Courts of law a Hindu idol
like a juristic person under the English system has been
vested with the capacity of holding properties and with the
2029
powers of suing or being sued (Ibid). A juristic person
under the English system has no body or soul. It has no
rights except those which are attributed to it on behalf of
some human beings. The lump of metal, stone, wood or
clay forming the image of a Hindu idol is not a mere
moveable chattel. It is conceived by the Hindus as a living
being having its own interests apart from the interests of its
worshippers. It is a juristic person of a peculiar type.
The points of similarity between a minor and a Hindu
idol are :(1) Both have the capacity of owning property. (2)
Both are incapable of managing their properties and
protecting their own interests. (3) The properties of both
are managed and protected by another human being. The
manager of a minor is his legal guardian and the manager
of an idol is its shebait. (4) The powers of their managers
are similar. (5) Both have got the right to sue. (6) The bar
of S. 11 and Order 9, R. 9, Civil P.C., applies to both of
them.
The points of difference between the two are: (1) A
Hindu idol is a juristic or artificial person but a minor is a
natural person. (2) A Hindu idol exists for its own interest
as well as for the interests of its worshippers but a minor
does not exist for the interests of anybody else. (3) The
Contract Act (Substantive law) has taken away the legal
capacity of a minor to contract but the legal capacity of a
Hindu idol to contract has not been affected by this Act or
by any other statute. (4) The Limitation Act (an adjective
law) has exempted a minor from the operation of a bar of
limitation but this protection has not been extended to a
Hindu idol.
2030
From the above it is clear that there is some analogy
between a minor and a Hindu idol but the latter is neither a
minor nor a perpetual minor. Although in law an idol has
the power of suing it has no physical capacity to sue. This
absence of physical capacity is perhaps referred to by the
Judicial Committee when they said in 31 I.A. 203 that the
right of suit is not vested in the idol. Who is then entitled
to exercise the idol's power of suing? This is a matter of
substantive law:
Its (idol's) interests are attended to by the person
who has the deity in his charge and who is in law its
manager with all the powers which would in such
circumstances on analogy be given to the manager of the
estate of an infant heir: 52 I.A. 245.
"The manager of the estate of an infant heir"
apparently means the legal guardian of an infant. The
powers of the legal guardian of an infant include the power
to sue on behalf of the infant. The shebait of a Hindu idol is
its manager in law. On the analogy of the power of the
legal guardian of an infant the shebait of a Hindu idol has
the right to sue on behalf of the idol, for the protection of
its interests. In this sense it may be said as was said by the
Judicial Committee in 31 I.A. 203 that the right of suit vests
in the shebait." (page 103)
"A Hindu idol as has been already stated is a juristic
person having its own interests apart from the interests of
its worshippers. 31 I.A. 203 and 52 I.A. 245 are authorities
for the proposition that its power of suing for protecting its
own interests is to be exercised by it through its de jure or
de facto shebait. The worshippers of the idol are interested
2031
in the idol and as such are interested in the property
dedicated to it for its maintenance. Their right to sue for
the protection of the idol's property is founded upon their
own interest viz., the right of worship apart from and
independent of the idol's right to sue for the protection of
its own interests and properties. They have no right to
exercise the idol's power of suing." (page 104)
"The introduction of the idol and its recognition as a
juristic person are more a matter for the procedure and the
procedure in India recognises the idol as having a locus
standi in judicio." (page 119)
1945. All these propositions as laid down, wide as they are,
we find difficult to subscribe. Once it is held that an idol is in
position of an infant, we fail to understand as to how it is infant
or minor for one purpose and not for another. In our sense
whether a minor is entitled to act, not to act or protect it, that
would apply without any distinction to alike minor who is
looked after by his/her guardian, may be natural or otherwise
and manner in which his property can be dealt with by such
guardian all will apply to a deity also. To that extent, deity, once
a minor, will continue to be treated as minor for all purposes and
we find no authority to show as to how and in what
circumstances and why there can be a distinction between the
status of deity as minor and natural person as minor. If by nature
of thing, a deity is such kind of minor which can never attain
majority, this by itself would not deprive it from protections or
otherwise which are available to a natural minor. One can have
no dispute about the proposition that minor's estate can be
encumbrance by a person, who is entitled to manage his affairs,
may be a guardian in case of natural minor and Shebait in case
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of idol so long such encumbrance is necessary for the benefit of
the minor or the idol, as the came may be. The proposition that
an idol can claim somebody's property under possession
adversely and his property also can be subject to same
consequences has to be understood in the facts of the things.
Obviously, an idol cannot move on its own. If there comes a
question of unauthorized possession of some other's property by
an idol, this would have to be through some natural person. The
benefit may ultimately go to the idol if such unauthorized
possession completes the statutory period of limitation to be
converted into a title, but that does not mean that it has been
done by the idol on its own inasmuch if a suit for eviction is to
be filed before expiry of period of limitation, that will be against
the idol represented through a Shebait or the natural person who
is responsible for such possession. Similarly, the property of an
idol, if unauthorizedly possessed by a person there can be two
types of cases; where a caretaker, i.e, Shebait or whatever name
it is called is available, but does not take any action allowing the
unauthorized possession by another person to continue for the
period of limitation resulting in extension of rights of the minor
to the property,if inaction on the part of Shebait or caretaker, as
the case may be, is not found to be collusive, fraudulent or
deliberate mismanagement of the property of the minor, one
may raise the plea of limitation but we have serious doubt in
successful representation of such right for the reason that for
claiming adverse possession an open hostile possession to the
knowledge of owner is an integral constituent of the plea of
adverse possession. Such a knowledge to the owner of the
property, i.e., idol cannot be perceived for the reason such a
knowledge to the minor's inaction on his part is not recognised
2033
in law. It is this distinction which has been pointed out by the
Privy Council in the case of Masjid Shahid Ganj v. Shiromani
Gurudwira Parbandhak Committee, Amritsar, 67 Ind. App.
251 at p.264 (P.C.) where the plea of legal person qua a mosque
has been turned down by the Privy Council observing that
unlike a Hindu idol a mosque cannot be held to be a juristic
personality or a legal person in law. The Court held the Mosque
as property and, therefore, capable of adverse possession. The
property of a juristic personality cannot be said to be inalienable
in all circumstances, for example, it can be transferred by
Shebait for managing funds for managing the affairs of the idols
and so on, but not in all circumstances. This distinction has to be
understood in order to appreciate the concept of idol, deity, legal
personality etc. of Hindu law as recognised by British India
Courts before independence. Regarding the juristic personality
of the idol, virtually there was no difference but regarding the
statute of idol as a minor or perpetual minor, there appears to be
some difference among various Courts. The Apex Court in
Bishwanath Vs. Shri Thakur Radhaballabhji (supra) has
made it clear that a Hindu idol enjoy status of a minor. There is
no restriction in such declaration that such concept of minor of
the idol should be understood in a restricted manner and it
would be a minor only for certain purposes and not for other
purposes. In the light of the above discussion, respectfully we
are of the view that the wider observations of the Orissa and
Calcutta High Courts cannot be concurred by us.
1946. The matter thus now stand settled by the Apex Court
in Bishwanath & another Vs. Sri Thakur Radha Ballabhli &
others (supra) holding the Deity a minor, all the judgments
which have taken a different view of the High Courts or Privy
2034
Council cannot be treated to be a good law or a binding
precedent.
1947. This question that a Deity being minor can be
represented by a next friend has been reiterated by the Apex
Court in another case i.e. in Vemareddi Ramaraghava Reddi
Vs. Kondaru Seshu Reddi (supra) at page 440 the Court said:
"The legal position is also well-established that the
worshipper of a Hindu temple is entitled, in certain
circumstances, to bring a suit for declaration that the
alienation of the temple properties by the de jure Shebait is
invalid and not binding upon the temple. If a Shebait has
improperly alienated trust property a suit can be brought
by any person interested for a declaration that such
alienation is not binding upon the deity but no decree for
recovery of possession can be made in such a suit unless
the plaintiff in the suit has the present right to the
possession. Worshippers of temples are in the position of
cestui que trustent (Sic) or beneficiaries in a spiritual
sense.
.........................................
The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for 2035 other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment."
1948. An attempt was made to bring in Section 92 C.P.C. where the interest of Deity is not properly observed but we find that this issue also stand settled by the Apex Court in Bishwanath & another Vs. Sri Thakur Radha Ballabhli & others (supra) holding that Section 92 in such a matter has no application. The Court in para 9, 10, 11 and 12 held as under:
"9. Three legal concepts are well settled : (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense. It has also been held that persons who go in only for the purpose of devotion have according to Hindu law and religion, a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage see Kalyana Venkataramana Ayyangar v. Kasturi Ranga Ayyangar, ILR 40 Mad 212 at p. 225: (AIR 1917 Mad 112 at p. 118). In the present case, the plaintiff is not only a mere worshipper but is found to have been assisting the 2nd defendant in the management of the temple.
10. The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be 2036 clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaryab Ali v. Bakhtawar Singh, (1883) ILR 5 All 497 Chidambaranatha Thambirarn v. P. S. Nallasiva Mudaliar, 6 Mad LW 666 : (AIR 1918 Mad 464), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664:
(AIR 1917 Mad 112) (FB), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584, Manmohan Haldar v. Dibbendu Prosad Roy, AIR 1949 Cal 199.
11. There are two decisions of the Privy Council, namely, Pramatha Nath Mullick v. Pradyumna Kumar Mullick, 52 Ind App 245: (AIR 1925 PC 139) and 2037 Kanhaiya Lal v. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198 (1)), wherein the Board remanded the case to the High Court in order that the High Court might appoint a disinterested person to represent the idol. No doubt in both the cases no question of any deity filing a suit for its protection arose, but the decisions are authorities for the position that apart from a Shebait, under certain circumstances, the idol can be represented by disinterested persons. B. K. Mukherjea in his book "The Hindu Law of Religious and Charitable Trust" 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249 :
"(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might, therefore, be said to be merged in that of the Shebait.
(2) Where, however, the Shebait refuses to act for the idol, or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol, then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol."
This view is justified by reason as well by decisions.
12. Two cases have been cited before us which 2038 took a contrary view. In Kunj Behari Chandra v. Shyam Chand Jiu, AIR 1938 Pat 384, it was held by Agarwala, J., that in the case of a public endowment, a part of the trust property which had been alienated by the Shebait or lost in consequence of his action could be recovered only in a suit instituted by a Shebait. The only remedy which the members of the public have, where the property had been altenated by a person who was a Shebait for the time being was to secure the removal of the Shebait by proceedings under S. 92 of the Code of Civil Procedure and then to secure the appointment of another Shebait who would then have authority to represent the idol in a suit to recover the idol's properties. So too, a Division Bench of the Orissa High Court in Artatran Alekhagadi Brahma v. Sudersan Mohapatra. AIR 1954 Orissa 11, came to the same conclusion. For the reasons given above, with great respect, we hold that the said two decisions do not represent the correct law on the subject."
1949. We, therefore, answer Issue No. 1 (Suit-5) insofar as it relates to plaintiff no. 2 (Suit-5) that it is juridical persona and can sue or be sued through a next friend. However, this is subject to our further answer to the issues relating to birthplace of Lord Rama at disputed site in affirmance which we shall discuss separately.
1950. We could have answered about plaintiff no. 1 (Suit-5) also at this very stage but we intend first to consider the Issues No. 12 (Suit-4) and 3 (a) (Suit-5) and to find out their effect, if any, on the status of plaintiff 1 (Suit-5) and then shall give our final opinion thereon. The issue whether the idol in question and the object of worship were placed inside the disputed property 2039 or the building in the night of 22nd/23rd December, 1949 has to be considered in the light of the concept of the "building" or the "mosque" to the parties in the suit concerned. 1951. In para 2 of the plaint (Suit-4) the mosque has been denoted by the letters "A, B, C, D" which covers the entire area of outer and inner courtyard including the building (excluding the extreme south portion which is denoted by the word "Chabutara" on the west-south side and behind Ram Chabutara on east-south side on the map prepared by Sri Shiv Shankar Lal, Commissioner on 25.05.1950). No distinction has been made by the plaintiff (Suit-4) about the disputed building within the inner courtyard and the area and structure comprising the outer courtyard.
1952. This pleading has made the issue slightly complicated for the reason that onus lie initially upon the plaintiffs (Suit-4) to show that no idols whatsoever existed upto or before 22.12.1949 in this entire area A, B, C, D which they claim to be the "area of mosque". In fact to the same effect is their pleading in para 1 of the written statement in Suit-5 where defendant no. 4 (Sunni Board) says that, "As a matter of fact there has never been any installation of the deity within the premises of disputed place of worship known as Babari Mosque and the idol in question was stealthily and surreptitiously kept in the mosque in the night of 22nd/23rd December, 1949." The defendant no. 4 also deny the very existence of "Charan" or "Sita Rasoi" within the premises of Babari mosque but then in para 22 of the written statement (Suit-5) it says, "there is no Charan or Sita Rasoi within the premises of Babari Mosjid and the place known as Sita Rasoi is situated outer side the premises of the said mosque."
20401953. Sri Deoki Nandan Agarwal, who initially filed Suit-5 and was plaintiff no. 3 therein, made a statement under Order X, Rule 2 C.P.C. that the idols were kept under central dome inside the building in the night of 22nd/23rd December, 1949. He, however, admits his absence at the site on that day and stated that he got this information from Mahant Paramhans Ram Das, OPW-1. Sri Deoki Nandan Agarwal, however, added that the above placement inside the building of the idols was done after due ceremony. The above statement of Sri D.N. Agarwal could not have been controverted by the learned counsel for the plaintiffs (Suit-4). Though the process of Pran Pratishtha was tried to be inquired from OPW-1 during cross examination by learned counsels appearing for the Muslim parties in Suit-5 as is evident from pages 46, 58, 78 and 124, but no question has been asked from OPW-1 as to whether idol in question were placed under the dome with or without ceremony as stated by Sri Deoki Nandan Agarwal, plaintiff no. 3 (Suit-5) in his statement under Order X Rule 2 C.P.C. Therefore, the said statement remained uncontroverted particularly for the reason that none of the witnesses, i.e., PW 1 to 32 has claimed that he was present when the alleged incident of 22nd/23rd December, 1949 took place and none could say anything on this aspect either way. 1954. OPW-1, Mahant Paramhans Ram was also examined. He supported the version of placement of idol under the central dome, inside the disputed building, in the inner courtyard, in the night of 22nd/23rd December, 1949. OPW-1 has commenced his deposition in December 1999 and at that time his age was 90 years. On page 41 and 42, he stated about the incident of 1934 and said that a dome was damaged at that time:
^^1934 dh ?kVuk esa f'k[kj dk vk/kk Hkkx ¼e/;@chp ds f'k[kj½ dk VwVk FkkA chp okys f'k[kj dk vk/kk Hkkx pkjks rjQ ls VwVk FkkA chp okys 2041 f'k[kj ds vfrfjDr ogkWa fLFkfr fuekZ.k dk dksbZ vU; Hkkx ugha VwVk FkkA^^ ¼ist 41½ "In 1934 incident, the half portion of the dome(the middle/ central dome) was broken. The half part of the middle dome was broken from all sides. Except for the central dome, no other part of the construction situated there was broken." (ETC) 1955. On page 42 he said that when central dome was damaged in 1934, no idol of Ram Lala was present thereunder. He also said that people used to worship the place as also the pillars whereunder the images were affixed:
^^ftl le; f'k[kj fxjk ml le; f'k[kj ds uhps jkeyyk dh dk sb Z ewf rZ ugh a Fkh f'k[kj dh uhps dh Hk wf e ij iwt k ikB gk sr k Fkk f'k[kj ds uhp s tk s [kEHk s Fk s mles a tk s ewf rZ;k a yxh Fkh mudk yk sx iwt k vpZ u k djrs Fk s mu [kEHkksa esa nsoh &nsorkvksa dh ewfrZ;ka FkhaA ewfrZ;ksa esa guqeku vkfn nsoksa dh ewfrZ;ka FkhA e/; f'k[kj ds uhp s dk sb Z [kEHkk ugh a FkkA e/; f'k[kj ds uhp s iz l wf r Hk wf e] tgk a ij Hkxoku jke dk tUe gq v k Fkk og LFkku FkkA e/; f'k[kj ds uhps dk tks Hkkx xHkZ x`g ds #i esa Fkk og LFkku rFkk mlds pkjks rjQ ml LFkku dks eSa xHkZx`g dk LFkku ekurk gwWaA rhuksa xqEctksa ds uhps dh Hkwfe rFkk ifjdzek ekxZ dh lEiw.kZ Hkwfe xHkZx`g ds vUrxZr FkhA**¼ist 42½ "When the dome collapsed, there was no idol of Ram Lala beneath it. 'Pooja-Paath' used to be performed on the land beneath the dome. People used to offer 'Pooja- Archana' to the idols carved out in the pillars beneath the dome; those pillars had idols of male and female deities engraved in these pillars. The idols included those of demigods like Hanuman and so on. There was no pillar beneath the middle dome. 'Prasuti Bhumi' - the land where Lord Rama was born - was beneath the middle 2042 dome. I take the part beneath the middle pillar - which was in the shape of the sanctum sanctorum - as also the place surrounding it, to be the sanctum sanctorum. The sanctum sanctorum encompassed the land beneath the three domes and the entire land of the circumambulation path." (E.T.C.) 1956. Then, about the placement of idols in 1949, he said:
^^ewfrZ j[kus dk lu~ 'kk;n 1949 FkkA** ¼ist 108½ "The idols were placed probably in the year 1949."(E.T.C) ^^tc ewfrZ j[kh xbZ] rc czEgeqgwrZ FkkA czg~eeqgwrZ dk le; 12-00 cts ds i'pkr vFkkZr jkf= esa rhu cts ds ckn czEg eqgwrZ gksrk gSA** ¼ist 108½ "It was 'Brahm Muhurt' when the idols were installed. 'Brahm Muhurt' is the time after mid night i.e. at 3 AM." (E.T.C) ^^ftl fnu ewfrZ j[kh xbZ mlds vkB ukS jkst igys ls ogkWa ij tylk py jgk FkkA tylk ls esjk rkRi;Z jkek;.k ikB rFkk v[k.M dhrZu ls gSA Hkou ds vUnj rFkk ckgj nksuksa LFkkuksa ij jkek;.k ikB gks jgk FkkA Hkou ds vUnj Hkh yksx cSBs FksA ml le; tk s yk sg s ds lh[kps nhokj es a yx s Fk s] mles a dk sb Z rkyk ugh a yxk FkkA mu QkVdksa esa ;g rkyk ewfrZ j[kus ds ,d & nks ekg ckn yxk;k x;k vFkok lky Hkj ckn yxk;k x;k] ;g eSa ugha dg ldrkA ;g dguk xyr gS fd 22 fnlEcj 1949 dh jkr esa fookfnr Hkou ds vUnj ds Hkkx es a dk sb Z ikB ugh a gq v kA** ¼ist 109½ "A function was going on for last 8-9 days, prior to the day of installation of the idols. By function I mean, recitation of Ramayana and Akhand (non-stop) 'Kirtan'.
The recitation of Ramayana was taking place at both outside and inside of the structure. People were there inside the structure as well. At that time, no lock had been put at the iron grills in the walls. I cannot tell whether 2043 locks were put on those gates about one or two months or an year after installation of the idols. It is wrong to say that no recitation took place in the inner part of the disputed structure in the night of 22nd December, 1949."
(E.T.C) ^^22@23 fnlEcj] 1949 dks eSa izkr% 7&8-00 cts rd ogkWa ij jgk A ogkWa ij iqfyl igys ls Fkh rFkk cjkcj vkrh &tkrh FkhA ftl fnu peRdkj dh ?kVuk gqbZ] ml le; peRdkj ds #i esa izdk'k ds ns[ks tkus ds ckn gh vFkkZr yxHkx 3-00 cts jkr esa pcwr j s ls ewf rZ dk s gVkdj xHkZ x ` g esa LFkkfir dj fn;k x;kA iz'u& ftl le; vki peRdkj dh ckr dj jgs gSa] ml le; vki fookfnr Hkou ds vUnj Fks vFkok ckgjh lgu esa Fks\ mRrj& ml le; eS a ckgjh vk ax u ¼vkmVj dk sV Z ; kMZ ½ es a FkkA** ¼ist 110½ "I remained there till 7-8 AM on 22/23 December, 1949. Police was already present there and kept visiting regularly.
On the day of the miraculous incident i.e. just after seeing the light as a miracle, the idols were removed from the platform and installed in the 'Garbh-grih' (sanctum sanctorum) at about 3 AM.
Question:- Where were you at the time of the said miracle, whether inside the disputed structure or in the outer courtyard?
Answer:- At that time I was in outer courtyard."(E.T.C)
^^23 fnlEcj 1949 dks tk s ewf rZ pcwr j s ls mBkdj f'k[kj ds uhps xHkZ x ` g es a j[kh xbZ ] og igys ls gh izk.k&izfrf"Br ewfrZ Fkh] mldh izk.k izfr"Bk esjs lkeus ugha gqbZA lk{kh us Lo;a dgk fd pcwr j s ij tk s Hkh ewf rZ ; k Fkh mudh iz k .k iz f r"Bk igy s ls gq b Z FkhA^^¼ist 124½ 2044 "The idol placed in the sanctum sanctorum beneath the dome after being removed from the chabutara on 23rd December, 1949, was deified from before; its deification did not take place in my presence. The witness himself stated-Whichever idols were placed on the chabutara were deified from before." (E.T.C.) ^^ftl LFkku dks xHkZx`g crkrk gwWa og LFkku esjs fo'okl ds vuqlkj rFkk leLr fgUnqvksa ds vuqlkj jkepUnz th dk tUeLFkku gSA 23 fnlECj 1949 dk s pcwr j s ls mBkdj ftl LFkku ij ewf rZ j[kh x;h mlh dk s gh eS a tUeLFkku ekurk gwW a rFkk ewf rZ j[kus ds iwo Z Hkh mlh LFkku dk s eS a tUeHk wf e ekurk FkkA** ¼ist 142½ "The place termed as 'Garbh-grih' (sanctum sanctorum) by me, is the birthplace of Ramchandra according to my belief and all the Hindus. The very place where the idols were placed on 23rd December, 1949, after being removed from the platform, is considered as Janmsthan by me and even before installation of the idols, that place was considered Janmbhumi by me."
(E.T.C) ^^tk s ewf rZ pcwr j s ls mBkdj chp ds f'k[kj ds uhp s j[k nh x;h mles a ,d cM+h rFkk ,d Nk sV h ewf rZ Fkh nk su k s a ewf rZ;k a jkeyyk th dh Fkh aA ** ¼ist 143½ "The idols, which were removed from the platform and placed beneath the central dome, had one big and one small idol. Both the idols were of Ramlala." (E.T.C) 1957. The above statement of OPW-1 shows that idols were already there on the Chabutara which was in the outer courtyard prior to 1949 and were only shifted from that Ram Chabutara (outer courtyard) to the building under the central dome (inner courtyard). About the existence of idol on Ram Chabutara, he 2045 deposed on page 55 and 75:
^^vukfn dky ls jkepcwrjk blhizdkj jkeyyk dh ewfrZ jkepcwrjs ij vukfn dky ls fLFkkfir gSA^^ ¼ist 55½ "From time immemorial, the Ram Chabutara (has been) like this, the idol of Lord Ramlala has existed over the Ram Chabutara from time immemorial." (ETC) ^^tc eSa izFkeokj v;ks/;k vk;k rks mlds ckn ls rFkk mijksDr iz.k djus ds chp dh vof/k esa jkepcwrjs ij eSaus cjkcj jkeyyk ds n'kZu fd;kA** ¼ist 75½ "Between my first arrival at Ayodhya and the aforesaid resolution, I regularly had darshan of Ramlala at Ramchabutara." (E.T.C) 1958. Further, he claim to be an eye witness of shifting of idol from Chabutara to the inner courtyard, i.e., under the central dome.
1959. Sri D.N. Agrawal, plaintiff no. 3 (Suit-5) in his statement under Order X Rule 2 dated 30.04.1992 has said that the idols were kept under the central dome inside the building in the night of 22nd/23rd December, 1949 after due ceremonies. There is no evidence produced on behalf of the defendant no. 4 or 5 to disprove the above statement of plaintiff no. 3 or that of OPW No. 1.
1960. In fact none of the witnesses of plaintiffs (Suit-4), i.e., defendant no. 4 (Suit-5) was present in the night of 22nd/23rd December, 1949 on the disputed site when the alleged incident took place. They had no occasion to say either way as to whether the placement of idol was in accordance with due ceremonies of Hindu scriptures or not, whether the same was shifted from Ram Chabutara to the Central Dome or brought from outside. Though in the written statement of defendant no. 5 (Suit-5), para 28, it is said, "However, Namaj has been offered in 2046 the mosque in question after 23rd December 1949 also and Ajan has also been called." This statement, however, has not been supported by any of the witnesses produced by the plaintiffs (Suit-4) and defendant no. 4 (Suit-5). On the contrary, it is an admitted position that since 23rd December, 1949 no muslim person has entered the disputed premises (inner and outer courtyard) as also that the idols placed inside the building under the central dome are being continuously worshipped by Hindus. 1961. With respect to the term "mosque" used in plaint (Suit-
4), statement by the counsel for the plaintiffs (Suit-4) was made on 28.08.1963 under Order X Rule 2 CPC that "mosque lies in A B C D as shown in the plaint map (sketch map)."
1962. Another statement dated 20.01.1964 under Order X Rule 2 CPC made by Mohd. Ayub counsel for plaintiff (Suit-4) before the Civil Judge, says:
^^ckcjh efLtn ds jsfyax ds ckgj vkSj lnj QkVd ds ckm.Mªhoky ds vUnj iwjc nfD[ku dh rjQ ,d 17 x 21 QhV dk pcwrjk gS ftl ij ydM+h ds LV~SDpj dk ,d oqMu VSEiy cuk gS ftlesa dksbZ Hkh fgUnw dh ewfrZ;ka u dHkh Fkh u vc rd gSA og txg Hkh eqlyekuksa dh ekLd dk fgLlk gSA - - - - - ckcjh efLtn ds lnjh QkVd ls vUnj nkf[ky gksus ij mlds nkfguh rjQ tks Hkh rkfejkr gS og fnlEcj 1949 ds igys ogka ij dHkh ugha FkhA mUgsa fnlEcj 1949 ds ckn fdlh us rkehj dj fy;k gksxkA ckcjh efLtn ds esu fcfYMax ds mRrj rjQ pkgjnhokjh ds vUnj Hkh fnlEcj 1949 rd dHkh dksbZ rkehjkr ojkde bekjr ;k pcwrjk oxSjg dHkh ugha jgsA ml txg ij tks pcwrjk lhrk jlksbZ ds uke ls eqn~nkyge dgrs gSa mls fnlEcj 1949 ds ckn gh eqn~nkyge us ;k fdlh us cuk;k gSA** "on the outer side of railing of Babri mosque and inside the boundary of main gate towards south-east, there is a platform measuring 17/21 feet over which a wooden temple is built in wooden structure. No idols of Hindus ever 2047 existed nor exist inside the same. The place is also a part of mosque of Muslims.. . . .On entering through the main gate of Babri mosque, the construction lying on right side, were never in existence prior to December, 1949. The same must have been constructed by someone after December 1949. Towards north of main building of Babri Mosque inside the boundary wall, upto December 1949 A.D. there was never any construction or building or Chabutara etc. Over that place, the Chabutara termed as Sita Rasoi by the defendants has been constructed either by defendants or some else after December 1949." (E.T.C.) 1963. In para 5 of the plaint (Suit-4), the plaintiffs have tried to make a distinction between mosque and the building by stating that in the mosque but outside the main building of the mosque there was "Chabutara". It is thus evident that the case of the plaintiffs (Suit-4) is that inside the mosque (which they denote as A B C D) which means the inner and outer courtyard of the building, there was no idol prior to 22 nd December, 1949 and it was placed surreptitiously in the night of 22nd/23rd December 1949.
1964. Most of the witnesses produced by Hindu parties have clearly stated that idols were kept on Ram Chabutara even before 1885 and that was being continuously worshipped by Hindus. Sita Rasoi and Bhandar in the outer courtyard also existed prior to 1885 and in any case before 22.12.1949. 1965. OPW 1 and OPW 2 have said that the idol of Ram Lala kept on Ram Ram Chabutara in the outer courtyard was placed in the inner courtyard under the central dome on 22nd/23rd December, 1949. This pre-supposes and admits the position that the idols of Ram Lala existed in the mosque denoted by the 2048 letters A B C D in Suit-4 since much before 22nd December, 1949 and it was not kept in the mosque as denoted by the letters A B C D for the first time in the night of 22nd/23rd December, 1949. The premises known by the plaintiffs (Suit-4) as mosque already had the idols of Lord Ram Lala and in the night of 22nd/23rd December, 1949, was shifted from outer courtyard to inner courtyard. In the statement under order Order X Rule 2 CPC the plaintiffs through counsel have tried to dispute even the structures named as "Sita Rasoi" and "Bhandar" in the outer courtyard till 22.12.1949 though many of their witnesses have admitted their existence prior to the said date. 1966. It is an admitted case of the plaintiffs (Suit-4) that in Suit-1885 a map was prepared by the Court's Commissioner which is Exhibit A 25 (Suit-1). There, in the outer courtyard, three structures were shown, one on the north-west side termed as "Sita Rasoi", another on the east side but right to the eastern entry gate termed as "Chappar" or "Bhandar" and third on the east-south side which was called "Ram Chabutara" and which was the subject matter of Suit-1885. This map was never doubted in Suit 1885 by defendant no. 2 therein. 1967. PW 1, on page 24 of his statement, while admitting the said Chabutara measuring about 17x21 feet did not deny presence of idols thereon.
^^bl pcwrjs ij fgUnw nsorkvksa dh ewfrZ vkus tkus okyksa dks fn[kk;h ugha nsrhA - - - - - -;g ugha crk ldrs fd pcwrjs ij ewfrZ;ka fdlh ydM+h ds flagklu ij Fkh ;k ugha eSa ugha crk ldrkA** "Idols of Hindu deities on this Chabutara are not visible to the visitors. ...... I cannot tell whether idols were seated on any wooden throne or not." (E.T.C.) 1968. Thus, in the pleadings, they have tried to dispute the very existence of any structure of worship of Hindus even in the 2049 outer courtyard since their stand is that the idols were kept for the first time in the Mosque on 22nd/23rd December, 1949 and while saying so, they have treated the Mosque as a whole, i.e. denoted by letters ABCD in the map appended to plaint (Suit-4) which comprised of the entire area of inner courtyard and outer courtyard. This stand, we find, stood contradicted by their witnesses who have admitted not only the existence of certain structures in the outer courtyard but also visit of Hindus to those structures and is palpably wrong.
1969. The extract of relevant statement of some other witnesses of plaintiffs (Suit-4) are as under:
(a)PW-1, Mohd. Hashim **iwjc ds ckgjh njokts ls nf{k.k dh rjQ tks pcwrjk gS og 17 x 21 fQV gSA bldh ÅWapkbZ ,d ehVj gSA blds Åij Niij iM+k gSA** ¼ist 24½ "Towards the south of the outside gate in the east lies a chabutra measuring 17x24 feet. Its height is 1 metre. It has a thatched roofing." (E.T.C.) ^^tc v;wc lkgc ds ;gkWa y[kuÅ uksfVl cuokus vk;s Fks rc rd ;g NIij pcwrjs ij dk;e FkkA eSaus uksfVl esa NIij dh ckr blfy, ugha fy[kokbZ D;ksafd 1885 esa nwljs yksx eqdnek gkj pqds FksA ¼isij ua0 44d tks uksfVl vaxzsth esa gS mldks fgUnh esa rjtqek djds xokg dks lquk;k x;k vkSj iwNk fd bl uksfVl eas fy[kk gS fd pcwrjs ij ydM+h dk rEcw uqek LV~Dpj gS ;g lgh gS ;k ughaA xokg us mRrj fn;k½ ;g vUnj ls Fkk vkSj tks uksfVl esa fy[kk gS og lgh fy[kk gSA - -
blds ckjs esa eq>s ugha ekywe fd pcwrjk 17 x 21 okyk dc ls dk;e gSA - - -bl pcwrjs ds iwjc mRrj dh rjQ ,d isM+ FkkA** ¼ist 25&26½ "The chabutra had this thatched roofing till I went to the house of Ayub Sahib in Lucknow to get notice prepared. I did not get the thatched roofing mentioned in the notice because other people had lost the case in 1885. (Paper no.
205044Ka being a notice in English was read out to the witness after being translated into Hindi and a question was put to him as to whether or not it was mentioned in this notice that there is a wooden tent shaped structure on the chabutra. On being so queried, the witness replied) It was so from within, and what is written in the notice, is correct. . . . . . .In this behalf I do not know from when the chabutra, with the dimension of 17x21, exist. . . . . . Towards the east-north of this chabutra lay a tree." (E.T.C.) **iz'u& if'pe dh rjQ tc efLtn ds fy, tkrs Fks rks pcwrjs dks blfy, ugha ns[krs Fks fd fgUnw yksx iwtk djrs Fks\ mRrj& ge ognkfu;r vkSj fujadkj dks ekuus okys gSa blfy, dksbZ rlohj ns[kuk ugha ilan djrsA iz'u& D;k vkidks ekywe Fkk fd pcwrjs ij rLohj ;k ewfrZ gS ftlls vki ml rjQ ugha ns[krs Fks\ mRrj& pcwrjs dh ckcr eqdnek gkjk gqvk Fkk blfy, ge dksbZ rootks ugha nsrs FksA** ¼ist 26½ "Question:- While going to the mosque towards the west, did you not see the chabutra because Hindus worshipped there?
Answ194.er:- We believe in 'vahdaniyat' and 'nirankar' (formless God); that's why I do not want to see any picture. Question:- Did you know there to be a picture or idol, due to which you did not see towards that side?
Answer:- We had lost the case in connection with the chabutra, hence we did not attach any importance to it."(E.T.C.) ^^tks igys eSaus dgk Fkk iqtkjh pcwrjs ij cSBrs Fks og xyr gS ogkWa ij dqN yksx cSBrs Fks vksj ;g ckr lgh gSa ;g vke vkneh fgUnw Fks ij iqtkjh ;k lk/kq ugha Fks ;s yksx v;ks/;k ds ugha FksA - - - - -eSaus flQZ ,d utj ns[kk vkSj flQZ ,d ckj ns[kk** ¼ist 27½ 2051 "My earlier statement that priests used to sit on the chabutra, is wrong. Some people used to sit there, and this fact is true. These ordinary people were Hindus, but not priests or saints. . . . . . . . I threw just one glance and saw only once." (E.T.C.) ^^pcwrjs ds mRrj ,d uhe dk nj[r FkkA - - - - - - -lu~ 1949 es a lhrkjlk sb Z Q'kZ ds cjkcj Fkh lhrkjlk sb Z ij pwY gk pkS d h csy uk pwu s xkj s dk cuk Fkk o"kZ 1949 esaA - - - - - -
-'kq: esa ge yksx Hkh mldks djhc ls ns[krs Fks ml le; dksbZ ruko ugha FkkA mldk s vke yk sx lhrk jlk sb Z dgrs Fk sA geus ;g ugha ns[kk fd vke yksx lhrk jlksbZ dk n'kZu djus tkrs FksA** ¼ist 27½ "There was a neem tree to the north of chabutra. . .In 1949, Sita Rasoi was on a level with the floor. The 'chulha' (hearth), 'chauki' and 'belna' (rolling pin) at Sita Rasoi, was made of lime and brick powder in the year 1949. . . In the beginning, we also looked at it from a close range. There was no tension at that time. People in general called it Sita Rasoi. We did not see general public going to have darshan of Sita Rasoi."(E.T.C.) **iwo hZ QkVd ls vUnj vkus ij ckgjh nhoky ds vUnj mRrj rjQ ,d yEck lk NIij Fkk og Hk.Mkj ij Fkk ;k ugha ;g ugha crk ldrkA ;g yEck lk NIij uhe ds isM+ ds uhps Fkk yksx ml NIij esa jgrs Fks ij eq>s ugha ekywe dkSu yksx jgrs FksA bl NIij ds uhp s fgUnw yk sx jgrs Fk s eq l yeku yk sx ugh a jgrs Fk sA - - - - - - - dqdZ 'kqnk LFkku ds if'pe dh rjQ tk s ifjdz e k cuh Fkh og ifjdzek ds fy, ugha nhoky dh ejEer ds fy, cuh FkhA** ¼ist 31&32½ "On coming inside through the eastern gate there was a spacious shed towards the north inside the outside wall. I cannot tell whether it was a store house or not. This 2052 long shed was beneath the neem tree. People lived in the shed but I do not know who they were. Those who lived under this shed were Hindus, not Muslims.. . . . . . . . The Parikrama (circumambulation), which was built towards the west of the attached place, was for the repair of the wall, not for parikrama." (E.T.C.) **dq d Z 'kq n k tk;nkn dh ckgjh nhoky ds vUnj nk s NIij Fk s ,d pcwr jk ij Fkk vkS j nwl jk iwo hZ nhoky ls lVdj uhe ds isM + ds uhp s FkkA** ¼ist 32½ "Inside the exterior wall of the attached property were two sheds and a chabutra (rectangular terrace). Another chabutra was adjacent to the eastern wall and was beneath the neem tree." (E.T.C.) **Qk sV k s ua- 56 tk;nkn eq r nkfo;k ds ckgjh nhokj ds iwo hZ xsV ls v an j tkus dh ckn nf{k.k dh rjQ tk s 21 x 17 dk pcwr jk gS dh gS A ysfdu mlesa 1949 ds ckn rCnhfy;ka dh x;h FkhaA - - - - - - - -QksVks ua- 57 ml ydM+h ds VsaVuqek pcwrjs ij cuk;h x;h pht gS ftldk ftdz igys vk;k gS ysfdu mls 1949 ds ckn [kwclwjr cuk fn;k x;kA igys ;s ekewyh rjg ls cuk gqvk Fkk ckn esa bls [kwclwjr cuk;k x;k FkkA igys ugha Fkk ckn esa cuk gksxkA** ¼ist 62½ "Photograph no. 56 represents 21 x 17 chabutra which is seen in the southern side on going inside through the eastern gate of the outer wall of the disputed property. But changes were effected after 1949. . . . . . . . Photograph no. 57 represents an object made on wooden tent-shaped chabutra which has found mention earlier but it was beautified after 1949. Earlier it had been constructed in an ordinary manner but later it was beautified. It did not exist earlier. It may have been constructed later." (E.T.C.) 2053 ^^ml ;kfpdk esa eSaus 1885 ds egUr j?kqcj nkl ds eqdnesa dk reke ftdz fd;k FkkA jÄqcj nkl v;ks/;k ds jgus okys Fks ysfdu eSa ugha dg ldrk fd fueksZgh v[kkM+k ls mudk D;k rkYyqd FkkA - - - - -
- - - -egUr j?kqcj nkl ckcjh efLtn esa chp dh nhokj ds lkFk tks pcwrjk Fkk mls eafnj cukus ds nkosnkj FksA eq>s ekywe ugh fd j?kqcj nkl bl pcwrjk ij xSj dkuwuh <ax ls dkfct FksA vlxj vyh ml eqdnesa esa izfroknh FksA ;g Bhd gS fd ml eqdnesa esa vlxj vyh us tokcnkok nk;j fd;k Fkk vkS j ;g nyhy nh Fkh fd 1857 dh xnj es a egUr j?kq c j nkl us tcjnLrh dCtk djds pcwr jk cukdj ml ij ,d ydM+h dk eaf nj cuk fn;k vkS j ml ij ;kuh [kkyh pcwr j s ij iwt k&ikB crkS j eaf nj ds dh tk jgh gS A geus ml nkos dks ugha i<+k blfy, ugha dg ldrs fd vlxj vyh us vius tokc nkos esa fy[kk;k gks fd iwjc ds njokts ls vUnj vkdj mRrj dh rjQ cSjkfx;ksa us viuk Hk.Mkj cuk fy;k gks ;k lhrk jlksbZ cuk yh gks ;k pdyk] csyu vkSj pwYgk cukdj iwtk&ikB djrs gksaA** ¼ist 67&68½ "In that petition, I had considerably made mention of the 1985 case of Mahanta Raghubar Das. Raghubar Das was a resident of Ayodhya but I cannot say what relation he had with the Nirmohi Akhara. . . . . . . . . Mahanta Raghubar Das was claimant for the construction of a temple on the chabutra which stood along the central wall in the Babri mosque. I do not know whether Raghubar Das was an illegal occupant of this chabutra. Asgar Ali was a respondent in that case. It is true that Asgar Ali had filed reply in the said litigation and contended that in the 1857 revolt Mahanta Raghubar Das had forcibly captured and constructed a chabutra and had made a wooden temple thereon. On that, that is, on the vacant chabutra, pooja- paath is being performed as in a temple. I did not go through that claim; hence, I cannot say whether Asgar Ali 2054 had mentioned in his counter claim that on entering through the eastern gate the Bairagis (recluses ) had constructed a store house towards the north or had constructed Sita Rasoi or they used to perform pooja- paath by constructing chakla (rolling disc), belan (rolling pin) and chulha (hearth)." (E.T.C.) ^^fQj dgk fd 1885 dk nkok iwjs ,fj;k dk Fkk ftls egar j?kqcj nkl gkj x;s FksA eq>s ml eqruktk ,fj;k dk jdck ekywe ugha gSa lhrk jlksbZ ds ckjs esa ml eqdnesa esa dksbZ >xM+k ugha Fkk og eqdnek flQZ pcwrjk ds ckjs esa Fkk ftls og eafnj cukuk pkgrs FksA**¼ist 72½ "(Again stated) The 1885 claim was for the whole area and Mahanta Raghubar Das lost it. I do not know the dimension of the disputed area. There was no dispute over Sita Rasoi in that case. This case was only in respect of the chabutra which he wanted to change into a temple."(E.T.C.) ^^tks txg pcwrjk dh lwjr esa fgUnw yksxksa ds dCts es gS fQj dgk ogkWa fgUnqvksa dk dksbZ dCtk ugha gS reke txg efLtn dh gSA**¼ist 113½ "The place being in the shape of chabutra is in the possession of Hindus. (Then stated) Hindus have no possession over there; most of the place belongs to the mosque." (E.T.C.) **;ksX; odhy lkgc us xokg dk /;ku mlds c;ku 6-8-96 okys dh vksj fnyk;k tgka mlus dgk Fkk ^^pcwrjs ij NIij vkSj rEcwuqek ydM+h ds eafnj ij ckgj ds ,d nks yksx fgUnqvksa ds jgk djrs**] lqudj xokg us tckc fn;k eSaus ,slk c;ku ugha fn;k eSaus ;g dgk Fkk fd ifCyd ds yksx cSBrs Fks vkSj eSaus NIij ds ckjs esa c;ku fn;k Fkk eafnj ds ckjs esa ugha dgk FkkA** ¼ist 126½ "When the learned counsel drew the attention of the witness to his 6.08.1996 statement wherein he had stated 2055 one or two Hindus used to reside at the shed and tent-like wooden temple on the chabutra, the witness responded, saying that he had not given any such statement and that the public used to sit there and that he had given a statement about the shed but not about the temple."(E.T.C.) ^^;g xyr gS fd dqdZ gksus ds igys Hkh vUnj iwtk ;k n'kZu ds fy, fdlh ij ikcUnh ugha Fkha 1885 ds ckn ogkWa iwtk ij tkus dk dksbZ eryc gh ugha FkkA** ¼ist 163½ "It is wrong that before the attachment there had been no restriction on anybody's offering prayer or having darshan inside. There were no cause at all to go there to perform pooja after 1885." (E.T.C.) *eSaus fely nkok uEcj 1@89 esa yxk gq, uD'kk tks yVBk ij rS;kj fd;k x;k gS] ns[ k fy;k gS] ;g 1885 okys eqdnesa dh fely ls fy;k x;k gS] mldh lgh udy gS vkSj ;g eqln~ndk gS] ;g ,fDt0 ,&25 gS A ;g uD'kk lgh gS a [kqn dgk fd blh ud'k s dk cq f u;kn ij gekj s gd esa fMdz h 1885 es a ikl gq b z Z Fkh aA ** ¼ist 166½ "I have seen the map prepared on the cotton plot and filed on the record of claim no. 1/89. It is taken from the record of the 1985 case; it is its true copy and it is certified and it is exhibit no. A-25. This map is correct. (Himself stated) On the basis of this very map a decree was passed in 1885 in our favour." (E.T.C.) **flQZ ;gh pcwrjk 1885 ds eqdnek esa lfEefyr eqrukft;k Fkk] fookfnr FkkA bl uD'k s es a tk s ckdh tk;nkn ;k nwl jh fo'k s" k phts a fn[kkbZ xbZ gS a] muds ckj s esa dk sb Z ruktk ;k fookn ugh a FkkA ;g Bhd gS fd egUr j?kqcj nkl us 1885 okys eqdnesa esa bl pcwrjs ij efUnj cukus dh btktr ekWaxh FkhA** ¼ist 167½ "Only this very chabutra was involved and disputed 2056 in the 1885 case. There was no dispute over the rest of property or other particular things shown in this map. It is true that Mahanta Raghubar Das had by means of the 1885 case sought permission for construction of temple on this chabutra." (E.T.C.)
(b)PW-2, Hazi Mahboob Ahmed ^^lhrk jlk sb Z dk pq Y gk pkS d k csy uk ge yku es a ns[ kk djrs Fk s tc ge efLtn es a tkrs Fk sA - - - yk sx dgrs Fk s fd ;g lhrk jlk sb Z gS A eSaus ogkWa ij fdlh dks n'kZu djrs tkrs ugha ns[kkA** ¼ist 54½ "When we went to the mosque, we saw chulha (hearth), chauka, belna (rolling pin) of Sita rasoi ( Sita's kitchen). . . . . . . . People said that it was Sita Rasoi. I did not see anybody going there for darshan." (E.T.C.) ^;g ekywe gS eq>s fd ckgj dk yku] pcwrjk vkSj lhrk jlksbZ dk eqdnek 1884 esa pyk FkkA** ¼ist 62½ "I know that a case went on in 1884 in connection with the outside lawn, chabutra and Sita Rasoi." (E.T.C.) ^^iz'u%& D;k ;g le>k tk;s fd lhrk jlksbZ pcwrjk vkSj NIij ls eqlyekuksa dks dksbZ rkYyqd ugha Fkk\ mRrj& th ugha] og tehu gekjh Fkha ogkW a ml yku es a fgUnw yk sx vkrs tkrs t:j Fk sA eSa ugha crk ldrk fd og D;k djus vkrs tkrs FksA** ¼ist 89½ "Question:- Should I have the impression that Muslims had no concern with Sita Rasoi, Chabutra and shed ?
Answer:- No, Sir. That land was ours.
The Hindus certainly frequented the lawn there. I cannot say what was the purpose of their doing so."(E.T.C.) **lhrk jlk sb Z ogka ls fdruh nwjh ij Fkh eSa ugha crk ldrk 2057 ysfdu og ogh a ij Fkh vkSj yku dh yEckbZ vkSj pkSM+kbZ eSa igys gh crk pqdk gwwaA** ¼ist 98½ "But I cannot tell how much away Sita Rasoi was from there. But it was at that very place and I have already told the length and width of the lawn." (E.T.C.) **tc ge efLtn esa nkf[ky gksrs Fks rks lgu esa ck;h rjQ ,d pcwrjk FkkA og pcwrjk dEikm.M ds chp es Fkk ck;h rjQA ;g pcwrjk 21 x 17 Ldok;j QqV ds djhc FkkA** ¼ist 115½ "When we entered the mosque, there was a chabutra (rectangular terrace) to the left of court-yard. The chabutra was in the middle of the compound and was towards the left. This chabutra was nearly 21x17 square feet." (E.T.C.) **bl pcwrjs ij dqN ugha gksrk Fkk ;g [kkyh iM+k jgrk Fkk dHkh dHkh yksx bl ij cSBs utj vkrs FksA bl ij ,d Qql dk NIij Hkh j[kk x;k FkkA** ¼ist 115½ "Nothing was done on this chabutra. It remained vacant. People were sometimes seen sitting on it. It also had a thatched roof." (E.T.C.)
(c)PW-3, Farooq Ahmad **v;ks/;k esa fgUnw esys gksrs gSa tSls fd jkeuoeh] ifjdzek esyk vkSj lkou esyk] bu esyksa ij fgUnw yksx bdV~Bk gksrs gSa ;s yksx efLtn Hkh ns[kus vk;k djrs gSaA bl pcwr j s dk s ns[ kus dh xjt ls cgq r ls fgUnw vkS j eq f Lye yk sx lHkh tkrs gS aA Åij crk;s x;s esyksa ds oDr bdV~Bk gksus okys fgUnw yksx [kkl rkSj ls bl pcwrjs ij ugha tkrs D;ksafd ogkWa dksbZ p<+kok ugha gSA esy s ds oDr Hkh gj etgc ds yk sx pcwr jk ns[ ku s vkrs Fk sA - - --;g xyr gS fd bl NIij esa ydM+h dk vkSj pkWanh dk e<+k gqvk rEcwuqek dksbZ eafnj Hkh cuk gqvk gksA** ¼ist 29½ "Hindu fairs are held at Ayodhya such as Ramnavami, Parikrama Mela and Sawan Mela. Hindus 2058 gather in these fairs. They also come over to see the mosque. Many Hindus and Muslims used to come over to see this platform (Chabutara). The Hindus assembling at time of the said fairs, did not particularly visit this platform (Chabutara) because there was no offering (chadhawa). Even on occasion of the fairs, people of all religions used to come to see the platform (Chabutara). . . . . . . It is wrong that there was any tent like temple covered by silver and made of wood, under this thatched roof."
(E.T.C) ^*jaxhu QksVks dk ,yce dh vksj fnyk;k QksVks ua0 57 dks ns[kdj xokg us tckc fn;k ;g Qk sV k s mlh pcwr j s vkS j NIij dk gS ftldk ftdz py jgk gS ysfdu blesa cgqr lh ,slh phtsa fn[kk;h x;h gS tks mu fnuksa ogkWa ij ugha FkhA** ¼ist 30½ "(On looking at photograph no. 57 of the colored photo album, the witness stated) this photograph is of the same platform (Chabutara) and thatched roof, which are currently being discussed, but it has many such things in it which were not there in those days." (E.T.C) ^*jke uke dk tc dhrZ u gk sr k Fkk rk s ge Hkh [kM+ s gk s tkrs Fk s jke uke ys y sr s Fk s jke vYykg vkS j [kq n k lc ,d gh gS aA * * ¼ist 36½ "Whenever the Kirtan in the name of Rama was performed, we also used to stand up, take the name of Rama. Rama, Allah and Khuda are all same." (E.T.C) ^^;s Bhd gS fd bl ,yce esa yxk, x, reke Qk sV k s gekj s odhy lkgc dh ekS t wn xh es a [kh ap s x, Fk sA ;s reke Qk sV k st fookfnr tehu vkS j tk;nkn ds gS aA ** ¼ist 61½ "It is true that all the photographs contained in this album, had been taken in the presence of my counsel. All these photographs are of the disputed land and 2059 property." (E.T.C) ^^tk s pdyk csy u vkS j pwY gk ds fu'kkukr cus Fk s] og geus 1949 ls igy s Hkh ns[ k s Fk sA ^^ ¼ist 95½ "The existing marks of chakla, belan and hearth (chulha), had been seen over there by me even before 1949." (E.T.C)
(d)PW-4, Mohd. Yasin ^^esjh gks'k esa bu txgksa ij ;kuh efLtn ds ckgjh lgu esa dHkh dksbZ fgUnw ugha vkrk FkkA eS au s fdlh fgUnw dk s u dHkh pdyk csy uk ds ikl ns[ kk vkS j u gh Åij crk;s x;s mRrjh ;k nfD[kuh NIij ds ikl ns[ kkA ** ¼ist 18½ "In my memory, no Hindu ever came to these places i.e. in the outer courtyard of the mosque. I never saw any Hindu near the Chakla-Belna nor near the aforementioned northern or southern thatched roof."
(E.T.C)
(e)PW-6, Mohd. Yunus Siddiqui ^^;g eSaus tku fy;k Fkk fd ;g pcwr jk 1885 ls pyk vk jgk FkkA** ¼ist 11½ "I came to know that this chabutra had been in existence since 1885."(E.T.C.)
(f)PW-7, Sri Hashmat Ullah Ansari **bl ckgjh lgu esa tgkW a ;s pcwr j s Fk s dHkh uekt ugh a i<h x;hA** ¼ist 30½ "Namaz was never offered at the place where these Chabutras (raised platforms) were built in this outer courtyard." (E.T.C.) **;g Åij crk;k x;k pcwr jk efLtn es a 'kkfey ugh a FkkA bl pcwr j s ij nwl j s yk sx ;kuh fgUnw yk sx cq r j[kus ls igys Hktu&dhrZ u cxS j g fd;k djrs Fk sA * * ¼ist 85½ "This Chabutra, mentioned above, did not form 2060 part of the mosque. Other people, that is, Hindus, before laying idol, used to perform 'Bhajan-Kirtan', etc. on this Chabutra." (E.T.C.)
(g)PW-8, Sri Abdul Aziz ^^ogkWa ij ,d pcwrjk Fkk tks nfD[ku dh rjQ Fkk ml ij dksbZ ydM+h dk flagklu ugha Fkk og pcwrjk [kkyh FkkA iwohZ QkVd ls vUnj nkf[ky gksus ij ;g pcwrjk ck;s gkFk dh vksj vkrk FkkA** ¼ist 43½ "There was a platform towards south. It did not have any wooden throne over it. The platform was vacant. On entering through the eastern gate, this platform lay on the left side." (E.T.C)
(h)PW-23, Mohd Qasim Ansari ^^;g uD'kk Hkh Bhd gS ij blesa tks jke pcwrjk ;k lhrk jlksbZ ;k vU; ckrsa fy[kh gSa mls eSa ugha ekurkA bl uD'k s es a tgk a pcwr jk fn[k;k x;k gS og pcwr jk rk s Fkk ij bles a tk s jke pcwr jk fy[kk x;k gS og xyr gS blh iz d kj bl uD'k s esa fn[kk;h txg rk s ml le; Hkh Fkh ij bles a tk s uke fn[kk;k x;k gS og xyr gS A ** ¼ist 42½ "This map is also correct, but I do not take to be correct Ram Chabutra or Sita Rasoi or other things that are marked herein. There was certainly a Chabutra but marking it as Ram Chabutra herein is incorrect. In this very manner, the place shown in this map existed at that time also but the name shown herein is incorrect."(E.T.C.) 1970. Almost all the witnesses produced on behalf of the Hindu parties, other than those who have appeared as experts, have stated that they were worshipping the idols of Lord Rama at Ram Chabutara since much earlier from 1949 besides Sita Rasoi where there were images of Chakla, Belan, Chulha etc. Only witnesses of Nirmohi Akhara, i.e., DW 1 to DW 3/20 have 2061 also added and claimed that they also worshipped the idols inside the building under central dome in the inner courtyard since Nirmohi Akhara is claiming the building as temple throughout and existence of idols therein simultaneously. 1971. Be that as it may, in view of the overwhelming evidence as also the evidence of Muslim side, we have no manner of doubt that in the outer courtyard, there existed at least three structures; (1) A Chabutara, called as 'Ram Chabutara'; (2) A Chhappar, termed as 'Bhandara' on north east side of gate of outer boundary wall and a place called as 'Sita Rasoi' or 'Kaushalya Rasoi' or "Chhathi Pooja Sthal" on the north west side. All these three places existed since prior to 1885 inasmuch in Suit-1885 Commissioner's map denoted all these places and existence thereof in the map is not disputed, though the terminology used is sought to be disputed by some of witnesses of the Muslim parties. Further in the map prepared by Sri Shiv Shankar Lal, Pleader, submitted to the Court along with his report on 25.5.1980, these three places have been shown. In the objections filed by the defendants no. 1 to 5 (Suit-1) at that time, we find that there is no allegation regarding wrong preparation of the map but what was objected is that in respect to certain parts, nomenclature given by Sri Shiv Shankar Lal was not acceptable to them. In this context, it was observed by the Civil Judge, Faizabad in his order dated 20.11.1950 admitting Commissioner's report as evidence, that the nomenclature given by Sri Shiv Shankar Lal shall not be final and shall be considered in the light of the evidence adduced by the parties. 1972. Now in Suit-4 the pleadings of the plaintiffs are that the idols and object of worship were placed inside the "building" in the night intervening 22nd/ 23rd December, 1949 as 2062 alleged in para 11 of the plaint and the term "building" according to the averments made in the plaint means the area denoted by letters ABCD in the map appended to the plaint. This area covers the entire disputed area, i.e., outer courtyard and inner courtyard. It is not their case that the idols though existed inside the said building but were kept under the three dome structure for the first time on 22nd/23rd December 1949. In view of the fact that three non-Islamic structures were continuing in the outer courtyard for the last several decades and used to be visited by the Hindus for worship, onus lies upon them to prove that in this entire building which they claim to be the area covered by the letters ABCD in the map appended to the plaint (Suit-4) no idol at all ever existed before 23rd December 1949. They have miserably failed to prove it. 1973. The case of the plaintiffs (Suit-5) and other Hindu defendants (except Nirmohi Akhara) is very clear that the idols were already present on Ram Chabutara in the outer courtyard and in the night of the 22nd/23rd December 1949, the same were placed under the central dome of three dome structures in the inner courtyard. There is enough evidence to prove, as per the above discussion, that the idols kept at Ram Chabutara were being worshipped by Hindus since a long time. No doubt or dispute has ever been raised earlier about the consecration of those idols, nor in the present cases it is pleaded that those idols (at Ram Chabutara) were not consecrated in accordance with the Shastrik procedure.
1974. Sri Deoki Nandan Agarwal in his statement under Order X Rule 2 has also said that idol which was kept under the central dome in the three dome structure in the inner courtyard on 22nd/23rd December 1949 was a Chal Vigrah and this 2063 statement he has made again on the basis of the information received from OPW 1. We find from a perusal of the cross examination of OPW 1 that on this aspect and in respect to the idol so placed, no question has been asked whether the statement of Sri Deoki Nandan Agarwal on this aspect is correct or not and whether OPW 1 gave this information to him or not. This statement of plaintiff 3, Sri D.N. Agarwal, therefore, remained uncontroverted.
1975. The existence of Ram Chabutara and Sita Rasoi in the precinct of disputed site since long in our view cannot be doubted though a serious attempt has been made on this aspect also. We presume at this stage that the building in dispute was constructed in 1528 AD at the command of Babar by Mir Baqi. The dividing wall having windows etc. was not constructed at that time. This partition was made after 1855 AD as they claimed. The suggestion of pro mosque parties is that the alleged Chabutara came into existence sometimes between 1855 to 1860 and despite some orders passed by the authorities of the then Government, for removal of the said Chabutara the same continued to exist and was not removed, but this also, we find, has not been proved.
1976. The fact remains that it is now a established fact which is not challenged by the Muslim parties that the Chabutara on the south eastern side of the disputed building has been continuing atleast from 1857 and onwards. Though an attempt has been made to dispute whether any idol was kept on the said Chabutara and whether worship was continuously going on thereat but this also has not been proved. On the contrary, we find that there is abundant evidence to show that Hindus were worshipping the said Chabutara believing that it symbolises and 2064 depicts the birthplace of Lord Rama and that some idol(s) also existed thereat.
1977. There are documentary as well as oral evidence available on record some of which we discuss hereinafter. 1978. The application dated 25.09.1866, Exhibit A-13 (Suit-
1) (Register 6, page 173-177) submitted by Mohd. Afzal, Mutawalli Masjid Babari situated at Oudh says:
**djhc eghuk ds vlkZ gksrk gSa fd rqylhnkl oxSjk cSjkfx;ku tue LFkku us ,d NksVh lh dksBjh c&bjknk j[kus ewjr oxSjk ds pksjh ls igj Hkj ds vlkZ esa vUn:u bgkrk r;~;kj djyh ----------- 'kck'kc gek pcwrjk cSjkfx;ku us cuokfy;k mlds cu tkus ls fdl dnj Qlkn c<+ x;k vc NksVh dksBjh cukbZ gS ---------- vtZ gky djds mEehnokj balkQ gwa fd okLrs fxjkus dksBjh etdwj ds gqDe gqtwj lkfnj gks fd Qlkn cSjkfx;ku ls efLtn egQwt+ jgs okftc Fkk vtZ fd;kA^^ "About a months back the respondents Tulsidas etc. with the intention of planting idols etc in it have constructed a Kothri in an illegal way, within the compound of the Masjid.......Bairagiyan got the Chabootra constructed overnight. Because of this construction, there occurred so much rioting in the local populace. Now a small Kothri has been constructed. ....... it is requested that before the riot is created by Bairagis this Kothri may kindly be dismantled and the Masjid may be protected from the fury of Bairagis." (E.T.C.) 1979. Exhibit 30 (Suit-1) (Register 5 page 107-116-C) is a copy of an application of 1877 seeking execution of the order dated 7th November 1873 for removal of the idol, i.e., Charan Paduka said to have been created in the disputed building. A perusal of the said document shows that despite the order having been passed on 7th November 1873 the same continued to exist and was not removed. In para 6 it says:2065
یعنگگی اب ھی تگگک وہ مگگورتی مطگگابق حکگگم حضگگور نہی گں ا ٹھای گگگی۔ چنانچہ اندر احاطہ مذکور کے جو چولہ بنایا ہے اور رسوی کرتا ہے........ کہ یہ امر پہلے کبھی نہ ہوا وہاں فقگگط ایگگک چھو ٹا چول ہا واسگگطے پگگوجہ کگے لءق تھا۔ اسکو بھی اسنے واجہے کر لیا ہے۔ ^^;kuh vHkh rd og ewjr eqrkfcd+ gqde gqtwj ugha mBkbZ xbZ --------pqukaps vUnj vgkrk et+dwj ds pwygk cukrk gS vkSj jlksbZ djrk gS fd ;g vEj igys dHkh u gqvk ogka Q+d+r ,d NksVk lk pwygk okLrs iwtk ds lkfcd+ esa Fkk ml dks Hkh ml us olhv dj fy;k gSA^^ "That is to say that as per orders the idol has not yet been removed. ....... So he has made a Chulha within the said compound which has never been done before. There was a small Chulah for puja which he has got extended." (E.T.C.) 1980. Besides it also show that in 1877 there also exist a Chulha in the aforesaid premises, complaint whereof was also made.
1981. Exhibit 15 Suit 1 (Register 5 Page 41-43) : It is a copy of the report dated Nil of Deputy Commissioner Faizabad submitted pursuant to the Commissioner Faizabad order dated 14th May, 1877 passed in Misc. Appeal No.56, Mohd. Asghar Vs. Khem Dass. This report appears to have been called by the Commissioner in respect to a complaint made against raising of a doorway in the northern wall of the disputed building. The justification thereof was to provide a separate room on fair day to visitors to the Janam Asthan. The document being old there appears to be certain mistakes may be on account of legibility. It reads as under:
"A doorway has recently been opened in the wall of the Janum-Ashtan not at all in Baber's mosque, but in the wall which infront is divided from the mosque by a railing. This opening was necessary to give a separate route on fair days to visitors to the Janum-Asthan. There was one 2066 opening only, so the cruch (sic:rush) was very great and life was endangered. I marked out the spot for the opening myself so there is no need to depute any Europe officer. This petition is merely an attempt to annoy the Hindu by making it dependent on the pleasure of the mosque people to open or close the 2nd door in which the Mohammedans can have no interest.
2. No objection was made to the opening of this second door.
3. On the 10th November 1873 Baldeo Das was ordered in writing by the Deputy Commissioner to remove an image place on the janam-Asthan platform. A report was made by someone (probably a police officer) that he had gone to the house of Baldeo dass and found that the latter had gone to Gonda. The order was explained to Gyandas and other priests who said could not carry out the order.
The order passed on this (15) was that if the other party (i.e. the complainant) would name person on whom an order of removal could be served-such should be served.
(c) There apparently the matter rested. There is no later on the file."
1982. Pursuant to this report, the Commissioner decided the appeal on 13th December, 1877, rejected the same. The copy of the said order is Exhibit 16 (Suit-1) (Page 45 Register 5) and it reads as under:
"As the door in question was opened by the Deputy Commissioner in the interests of the public safety I decline to interfere. Appeal dismissed."
1983. Exhibit 34 (Suit-1) (Register 5 page 131) is a copy of the order dated 12.01.1884 passed by Assistant Commissioner, 2067 Faizabad. It says as under:
"........ The outer door will be left open. No lock will be allowed upon it. It is absolutely essential to observe the strictest neutrality and maintain the status quo."
1984. This shows that in order to prevent any obstruction to anyone from entering the disputed premises he directed for not keeping lock on the doors and left the same open. 1985. Exhibit 17 (Suit-1)(Page 47-53 Register 5) is a copy of a judgment dated 18th June, 1883 passed by Sri Hari Kishan, Sub-Judge, Faizabad in Suit No.1374/943 of 1883 dismissing the claim of Syed Mohd. Asghar filed against Raghubar Dass claiming rent for user of Chabutara and Takht which admits the possession of Raghubar Das but failed to sustain his claim for rent.
1986. The aforesaid documents disprove the claim of Muslims. It appears that Mohd. Asghar in Suit No. 1374/943 of 1883 produced a witness namely Ganga Prasad, Qanungo, who made some statement in favour of Mohd. Asghar but the same was disbelieved by the Sub Judge. He also severely castigated the conduct of the said Qanungo, an official of the Government, making statement in favour of a private party in a private dispute which was not supported by any documentary evidence though the nature of the dispute warranted some documentary evidence.
1987. Exhibit 18 (Suit-1)(Page 55-57 Register 5) is an application dated 2nd November, 1883 of Mohd. Asghar showing himself as Mutawalli and Khatib Masjid Babari situated at Oudh complaining that he is entitled to get the wall of the mosque white-washed but is being obstructed by Raghubar Das though 2068 he has right only to the extent of Chabutara and Rasoi but the wall and the gate etc. is part of the mosque and the complainant is entitled to get it white-washed. The order passed on the said application is Exhibit 27 (Suit-1) (Page 95-97 Register 5). The Assistant Commissioner Faizabad passed the following order dated 22nd January, 1884:
اج مقدمہ می فرد فریقین پیش ہوا فریقین کو حکگگم صگگاحب ڈپگٹی کمیشنر سے اطلع دی گی اور رگھوبر داس کو فھمایش کی گی کہ اندورنی بہ بیرہونی احگاطہ و دروازہ مسگگجد کگگی مرمگگت وغیگگرہ نگہ کریگں اور محمگد اصغر کو سمجھا دیا گیا کگہ بیرونگگی دروازہ کفگگل نگہ لگایگگا جگگاوے یگہ ن ہایت ضروری ہے کہ عمل در ٓامد قدیم بحال رکھا جاوے اور کوءی دست انگگدازی و مداخلت نہ کی جاوے۔ حکم ہوا کی ٰ کاغذات ھذا داخل دفتر ہو المرقوم ^^vkt eqdnek cgkftjh QjhdSu is'k gqvk QjhdSu dsk gqDe lkgc fMIVh dfe'uj ls bfRryk nh xbZ vkSj j?kqcj nkl dks Qgekb'k dh xbZ fd vUn#uh o cS#uh vgkrk o njoktk elftn dh ejeer oxSjg u djsa vkSj eqgEen vlxj dks le>k fn;k x;k fd cS#uh njoktk dqQ~y u yxk;k tkoas ;g fugk;r t#jh gS fd vey njken dnhe cgkr j[kk tkoas vkSj dksbZ nLr vUnkth o enk[kyr u dh tkos A gqDe gqvk fd dkxtkr gktk nkf[ky nQ~rj gks vYejdwe^^ (Hindi Transliteration) Today the case was put up in the presence of the parties, who have been informed of the orders of the Deputy Commissioner and Raghubar Das has been restricted not to repair the inner or outer portion of the Masjid and Mohammad Asghar has been admonished that the outer gate of the Masjid should not be locked. This was important that long tradition should be maintained and no intervention should be done in it. Ordered these papers 2069 should be consigned to office." (E.T.C.) 1988. Exhibit A-25 (Suit-1) (Register 7, page 277-281) is a copy of a map prepared and submitted on 06.12.1885 by Sri Gopal Sahai Amin, Court's Commissioner appointed by Sub- Judge, Faizabad in Suit-1885 of the disputed place. It mentions in the outer courtyard, existence of Sita Rasoi and Ram Chabutara and this has continued to exist in the outer courtyard even in 1950 as is evident from the map prepared by Sri Shiv Shankar Lal Pleader, Commissioner appointed by Civil Judge, Faizabad in Suit-1 submitted on 25.05.1950. 1989. So far as the existence of Sita Rasoi which was on the north west side in the outer courtyard is concerned, nothing has come on record to show as to when it was actually constructed. On the contrary, the record shows that it existed prior to 1885. Its actual time and period when it was constructed is unascertainable. It is beyond comprehension that Mir Baqi or anyone else, while constructing a mosque at the disputed place could have spared some Hindu structure(s) to continue, may be smaller in size, in the precinct of mosque so as to be worshipped by Hindus inside the premises of mosque. We put this question to Sri Jilani also and he frankly stated that no Muslim would allow idol worship in the precinct of a mosque. 1990. Considering the evidentiary admissions in Avadh Kishore Dass Vs. Ram Gopal (supra) the Court said:
"It is true that evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong, but they do raise an estoppel and shift the burden of proof on to the person making them or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted."2070
(para 23) 1991. In Sitaramacharya Vs. Gururajacharya, 1997(2) SCC 548 the Court said:
"Under Section 18 of the Evidence Act the admission made by the party would be relevant evidence. Section 31 provides that "admissions are not conclusive proof of the matters admitted but they may operate as estoppel under the provisions hereinafter contained". In view of the admissions referred to earlier they appear to be unequivocal and the finding recorded by the appellate Court is cryptic. On the other hand, the trial Court has gone into the evidence on issues in extenso and considered the evidence and the appellate Court has not adverted to any of those valid and relevant consideration made by the trial Court. The High Court has dismissed the second appeal holding that they are findings of fact recorded by the appellate Court on appreciation of evidence. We think that the view taken by the High Court is not correct in law. The admissions in the written statement in the earlier proceedings, though not conclusive, in the absence of any reasonable and acceptable explanation, it is a telling evidence heavily loaded against the respondent." (para 6) 1992. In United India Insurance Co. Ltd. and another Vs. Samir Chandra Chaudhary, 2005(5) SCC 784 the Court said:
"Admission is the best piece of evidence against the persons making admission. As was observed by this Court in Avadh Kishore Das v. Ram Gopal and Ors., AIR (1979) SC 861 in the backdrop of Section 31 of Indian Evidence Act, 1872 (in short the `Evidence Act') it is true that evidentiary admissions are not conclusive proof of the facts 2071 admitted and may be explained or shown to be wrong; but they do raise an estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are an efficacious proof of the facts admitted. As observed by Phipson in his Law of Evidence (1963 Edition, Para 678) as the weight of an admission depends on the circumstances under which it was made, these circumstances may always be proved to impeach or enhance its credibility. The effect of admission is that it shifts the onus on the person admitting the fact on the principle that what a party himself admits to be true may reasonably be presumed to be so, and until the presumption is rebutted, the fact admitted must be taken to be established. An admission is the best evidence that an opposing party can rely upon, and though not conclusive is decisive of matter, unless successfully withdrawn or proved erroneous. (See Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., AIR (1960) SC 100)."
(para 11) 1993. In Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati, AIR 1965 SC 364 the Court said:
"The provisions of the Evidence Act and the Code of Civil Procedure provide for Courts accepting the admissions made by parties and requiring no further proof in support of the facts admitted." (para 22) "23. Section 58 of the Evidence Act inter alia provides that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which by any rule of pleading in force at the time they 2072 are deemed to have admitted by their pleading. Rule 5 of O. VIII, C.P.C., provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability."
"24. Both these provisions, however, vest discretion in the Court to require any fact so admitted to be proved otherwise than by such admission. Rule 6 of O. XII of the Code allows a party to apply to the Court at any stage of a suit for such judgment or order as upon the admissions of fact made either on the pleadings or otherwise he may be entitled to, and empowers the Court to make such order or give such judgment on the application as it may think just. There is therefore no good reason for the view that the Court cannot act upon the admissions of the parties in proceedings under the Act."
"25. Section 23 of the Act requires the Court to be satisfied on certain matters before it is to pass a decree. The satisfaction of the Court is to be on the matter on record as it is on that matter that it has to conclude whether a certain fact has been proved or not. The satisfaction can be based on the admissions of the parties. It can be based on the evidence, oral or documentary, led in the case. The evidence may be direct or circumstantial."
"29. . . it is quite competent for the Court to arrive at the necessary satisfaction even on the basis of the admissions of the parties alone. Admissions are to be ignored on grounds of prudence only when the Court, in the circumstances of a case, is of opinion that the 2073 admissions of the parties may be collusive. If there be no ground for such a view, it would be proper for the Court to act on those admissions without forcing the parties to lead other evidence to establish the facts admitted, unless of course the admissions are contradicted by the facts proved or a doubt is created by the proved facts as regards the correctness of the facts admitted."
1994. In State of Bihar and others Vs. Sri Radha Krishna Singh and others, AIR 1983 SC 684 various aspects of the Evidence Act came to be considered. With respect to genealogy the Court said:
"18. . . . . the plaint genealogy is the very fabric and foundation of the edifice on which is built the plaintiff's case. This is the starting point of the case of the plaintiff which has been hotly contested by the appellant. In such cases, as there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the courts in relying on the genealogy put forward must guard themselves against falling into the trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims."
"19. The principles governing such cases may be summarized thus:
(1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several considerations which must be kept in mind by the 2074 courts before accepting or relying on the genealogies:
(a) Source of the genealogy and its dependability.
(b) Admissibility of the genealogy under the Evidence Act
(c) A proper use of the said genealogies in decisions or judgments on which reliance is placed.
(d) Age of genealogies.
(e) Litigations where such genealogies have been accepted or rejected.
(2) On the question of admissibility the following tests must be adopted:
(a) The genealogies of the families concerned must fall within the four-corners of s.32 (5) or s. 13 of the Evidence Act.
(b) They must not be hit by the doctrine of post litem motam.
(c) The genealogies or the claim cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible.
(d) Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved,."
"24. It is well settled that when a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved."
1995. With respect to Section 5 of the Evidence Act the 2075 Court said:
"32. . . . . Ex.J. being an entry in a Register made by a public officer in the discharge of his duties squarely falls within the four corners of s. 35 of the Evidence Act and is, therefore, doubtless admissible. In this connection, the learned Judge observed thus:
" . . . . There can thus be no doubt that it is admissible under section 35 of the Evidence Act."
33. . . . . . We agree with the unanimous view of the High Court that Ex. J is admissible. . . . . . . all the conditions of s. 35 of the Evidence Act are fully complied with and fulfilled. . . . . It is a different matter that even though a document may be admissible in evidence its probative value may be almost zero and this is the main aspect of the case which we propose to highlight when we deal with the legal value of this document."
"35. In our opinion, Ex. J. squarely falls within the four corners of s. 35 of the Evidence Act which requires the following conditions to be fulfilled before a document can be admissible under this section.
(1) the document must be in the nature of an entry in any public or other official book, register or record, (2) it must state a fact in issue or a relevant fact, (3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept."
"36. . . . . . he was entrusted with the task of and enjoined the duty of ascertaining the possession of various landlords 2076 for the purpose of taking suitable steps in the matter. . . . . The question as to whether the relevant fact is proved or not is quite a different matter which has nothing to do with the admissibility of the document but which assumes importance only when we consider the probative value of a particular document. . . . . . Thus, all the aforesaid conditions of s. 35 are fully complied with in this case."
"38. In P.C. Purushothama Reddiar v. S. Perumal, (1972) 2 SCR 646 this Court while considering the effect of s. 35 of the Evidence Act observed as follows:-
". . . . . The first part of s. 35 of the Evidence Act says that an entry in any public record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty is relevant evidence. Quite clearly the reports in question were made by public servants in discharge of their official duty."
1996. With respect to admissibility of document and probative value the Court in State of Bihar and others Vs. Sri Radha Krishna Singh (supra) said:
"40. We may not be understood, while holding that Ex.J is admissible, to mean that all its recitals are correct or that it has very great probative value merely because It happens to be an ancient document. Admissibility of a document is one thing and its probative value quite another--these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil."
"47. We would like to mention here that even if a document may be admissible or an ancient one, it cannot carry the same weight or probative value as a document 2077 which is prepared either under a statute, ordinance or an Act which requires certain conditions to be fulfilled. This was the case in both Ghulam Rasul Khan's (AIR 1925 PC
170) and Shyam Pratap Singh's cases (AIR 1946 PC 103) (supra)."
1997. In various gazetteers also this has been noticed. The entry of Hindu public before December, 1949 inside the building premises has not been disputed even by the witnesses of plaintiffs (Suit-4).
1998. Considering as to how a fact can be said to have been proved in T. Shankar Prasad Vs. State of A.P., 2004(3) SCC 753 the Court said that direct evidence is one of the modes through which a fact can be proved but that is not the only mode envisaged in the Evidence Act. In para 11, 12, 13 and 14 the Court said:
"11. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows:
"Proof does not mean proof to rigid
mathematical demonstration, because that is
impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion".
12. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such 2078 inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-`-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
13. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.
14. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998 (7) SCC 337):
"A presumption can be drawn only from facts--and not from other presumptions--by a 2079 process of probable and logical reasoning".
1999. Though plaintiffs (Suit-3) have pleaded that the idols in question were already there under the central dome of the disputed building inside the inner courtyard for time immemorial and nothing happened in the night of 22nd/23rd December, 1949 but the plaintiffs (Suit-4 and 5) have categorically pleaded that the idol(s) were placed in the disputed building in the night of 22nd/23rd December, 1949. We propose to find out whether plaintiffs (Suit-3) have discharged burden of showing idols under the central dome prior to 22nd/23rd December, 1949.
2000. Sri Deoki Nandan Agarwal who earlier represented the plaintiffs 1 and 2 (Suit-5) as their next friend made a statement under Order X Rule 2 C.P.C. on 30.04.1992 and said:
"In the early hours of December 23, 1949, the idol of Bhagwan Sri Ram Lala, which was already on Ram Chabutra was transferred to the place where He presently sits, that is, under the central dome of the disputed building. I was not personally present at that time at the place. This information was conveyed to me by Paramhans Ram Chandra Das of Digamber Akhara. This transfer of the idol was done by Paramhans Ram Chandra Das and Baba Abhi Ram Das and certain other persons whose names I do not remember at the moment...."
2001. DW 2/1-2 has also said on page 12, 42 and 128:
^^lu~ 1949 esa fookfnr ifjlj dk chp okyk Hkkx vFkkZr~ xHkZx`g d+qdZ gqvk FkkA xHkZx`g ls rkRi;Z rhu xqEcn okys Hkou ds uhps dk Hkkx rFkk mlds lkeus dh lgu ,oa lh[kps okyh nhokj rd dk Hkkx FkkA d+q dZ ' kq n k lEifRr ds iwj c rjQ+ jketUeHk wf e dk Hk.Mkj rFkk jke pcwr jk FkkA mRrj rjQ+ pkj pj.k fpUg rFkk pkS d k csy u okyk LFkku FkkA^* ¼ist 12½ 2080 "In 1949 the central portion of the disputed premises, i.e, sanctum (Garbh Grih) was attached. Garbh Grih meant the portion below the three domed building and the appurtenant land in front thereof upto the grill wall. Towards east of the attached property, the store of Ram Janmbhumi and Ram Chabutara existed. Towards north, the places of four-footprints and Chauka-Belan (Utensils used in Indian kitchen) existed." (ETC) ^^tc rd ckcjh efLtn /oLr ugha gqbZ Fkh] rc rd mlh Hkou ls yxk gqvk 17 fQV x 21 fQV yEck&pkSM+k jkepcwrjk ekStwn FkkA fookfnr <kWaps ds lkFk&lkFk og jkepcwrjk Hkh /oLr gks x;kA** ¼ist 42½ "Till the Babri mosque was not demolished, there was an appurtenant 17 feet x 21 feet Ramchabutara. Along with the disputed structure, the Ramchabutara was also demolished." (E.T.C) ^^eSaus ;g fy[kk gS fd 1859 bZ0 essa okftn vyh 'kkg ds le; esa jkepcwrjk o lhrk jlksbZ ds u"V gksus ds iz;kl gksrs jgs] ;|fi dksbZ lQyrk ugha feyhA bl va'k dks eSaus i<+us ds vk/kkj ij fy[kk gSA ;g va'k eSaus fdl fdrkc esa i<+k Fkk] ;g eq>s ;kn ugha gSA eq>s ;g ;kn ugha gS fd uokc okftn vyh 'kkg dk dk;Zdky 1858 bZ0 esa lekIr gks x;k Fkk ;k ughaA eq>s u rks bl ckr dh tkudkjh gS vkSj u bl laca/k esa ;kn gS fd 1859 bZ0 esa okftn vyh 'kkg uokc Fks ;k ughaA ;g dguk xyr gS fd 1859 bZ0 esa jkepcwrjk o lhrk jlksbZ ds u"V djus ds iz;kl ls lacaf/kr dksbZ ?kVuk ugha gqbZA** ¼ist 128½ "I have written that in 1859, during the time of Wajid Ali Shah, attempts had been made to vandalise Ram Chabutra and Sita Rasoi but to no avail. I have written this portion on the basis of my study. I do not remember in which book I had read this portion. I do not remember whether the reign of Wajid Ali Shah had come to an end or not in 1858. I neither know nor remember whether Wajid 2081 Ali Shah was Nawab or not in 1859. It is wrong to say that no incident occurred in 1859 which involved attempts to damage Ram Chabutra and Sita Rasoi." (E.T.C) 2002. The State authorities have filed their written statement in Suit-1 and 3 wherein they have also taken this stand that the idols were kept under the central dome of the disputed building in the night of 22nd/23rd December, 1949. Though this fact has been seriously disputed by plaintiffs (Suit-3) and a large number of witnesses have been produced by them to demolish this fact but we find a self contradiction in those statements and for reasons more than one as we shall discuss now, the statements of most of such witnesses produced on behalf of plaintiff (Suit-
3) are uncreditworthy.
2003. Plaintiffs (Suit-3) have examined twenty witnesses i.e. D.W.-3/1 to 3/20. Almost all the witnesses have filed their affidavits under Order XVIII Rule 4 C.P.C., as permitted by this Court, to depose their statement in-chief and all these affidavits are virtually similar, containing prototype statements with minor corrections or variations here and there.
2004. The basic submission is that the building has all along been worshipped by Hindus, managed by the priest and agents of Nirmohi Akhara and idols were already there under the central dome of the disputed building much before 1949. Hindus were regularly worshipping by entering into the disputed building, i.e., inner courtyard prior to 1949. They have also denied any incident of 22/23rd December, 1949 with respect to placement of the idols inside the building under the central dome since it was already there.
2005. For the purpose of Suit-3, the disputed site means only "the inner courtyard". The aforesaid Suit-3 has not been filed 2082 with respect to any part of the premises constitute part of the outer courtyard. Therefore, qua Suit-3, the "disputed site" or "disputed area" or "disputed building" means only the "inner courtyard" and the building existed thereat. As per the plaint statement in Suit-3, the temple of Lord Rama existed at the disputed site since time immemorial. They denied any battle of Babar with the then ruler at Ayodhya, construction by Babar or his agent in 1528 AD, riot or dispute of 1934 as also the alleged incident of placement of idol in the night of 22/23 December, 1949 in the disputed building. It is in support of these averments, twenty witnesses have been produced on behalf of the plaintiff (Suit-3). In fact, in the plaint, nothing has been said about 1528 or 1934 except that no Muslim has ever allowed or admitted to enter atleast ever since the year 1934, as is evident from para 5 thereof but in replication, these incidents have been disputed.
2006. The respondents no.6 to 8 in their written statement gave the date of construction of the disputed building as mosque in 1528 AD by Babar, its maintenance through the grant received from the then Emperor and thereafter by State authorities etc. and continued Namaz till 16th December, 1949. In reply thereto, the replication filed by the plaintiff states that no property was constructed by Babar as mosque but throughout it has been a temple of Lord Rama and that the plaintiffs are in possession of the said temple since time immemorial from the date of the construction of the temple.
2007. Clarifying their stand, Sri Sarab Jeet Lal Verma, Advocate appearing on behalf of the plaintiffs (Suit-3) before the Civil Judge made a statement on 17th May, 1963 under Order X Rule 2 C.P.C. that the property in suit is believed to be the 2083 birth place of Lord Ram Chandra and so there is a temple of Lord Ram Chandra on it. The management and control of this temple is that of plaintiffs and property is not dedicated to the idol though the temple is made on the land which is the birth place of lord Ram. It is owned by the plaintiffs and the temple was made by the plaintiffs. He further clarified that the suit is confined to the property shown by letters E F G H I J K L in the map appended to the plaint (Suit-3).
2008. All the witnesses of plaintiff (Suit-3) have been cross- examined at very great length to contradict them and to extract truth from the. In T. Shankar Prasad Vs. State of A.P. (supra) in respect to the testimony of a witness cross-examined and contradicted with the leave of the Court by the party calling him with reference to Section 154 of the Evidence Act the Court said:
"It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a party of his testimony. If the judge finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the said witness, accept in the light of the other evidence on record that part of his testimony which he found to be creditworthy and act upon it." (para 24) 2009. It is now in the context of the above stand of the plaintiffs (Suit-3) we would examine the statements made by their witnesses.
2010. DW 3/1 Mahant Bhaskar Das, Sarpanch Shri Manch Ramanandiya Nirmohi Akhara, Ramghat, Ayodhya 2084 besides other, firstly said in para 9 of the affidavit that Ram Janam Bhumi and all the surrounding, small and big temples and religious place like Chathi Poojan Sthal, Ram Chabutara Mandir Sthan, Shashthamukhi Shankar Bhagwan, Ganesh Ji, Seeta Koop Mandir, Gufa Mandir, Sumitra Mandir, Lomash Samadhi etc. are all the property of Nirmohi Akhara. It is in their possession and management for last several hundred years prior to the attachment and they have continued to look after the same till acquisition.
2011. Then in para 10 of the affidavit he has specifically said that from 1946 to 1949, in the internal part of the main temple, Nirmohi Akhara through its Pujaries have continued worship including other religious places like Ram Chabutara, Shashtha Mukhi Shankar Bhagwan Sthal and Chathi Poojan Sthal and that no Namaz has been offered in the disputed site from 1946 to 1949. In para 81 he said that Bhagwan Ram Lala is inside the disputed building prior to 1934, and, since 1934, Nirmohi Akhara is continuously having its possession. It, however, admits in para 48 that there was police surveillance at the eastern gate of Mandir Ram Janam Bhoomi prior to 22/23 December, 1949 and Police Chauki was also established in the north-east corner of temple. In para 56, he has admitted that Raghubar Das was the Mahant of Nirmohi Akhara prior to 1885 and had filed a case in respect to Ram Chabutara in his own name and not on behalf of Nirmohi Akhara. In para 62, however, he has denied about shifting of idol from Ram Chabutara on 22/23 December, 1949.
2012. Having said so, he has made very interesting statements in cross examination. Firstly he has admitted that a mosque was constructed in 1528 AD after demolition of Sri 2085 Ram Janam Bhoomi temple in page 47:
^^iz0&ckcjh efLtn dk fuekZ.k dc gqvk Fkk\ m0& lu~ 1528 es a Jhjke tUeHk wf e eaf nj rk sM + djds efLtn cukbZ xbZ FkhA^^ ¼ist 47½ "Question:- When was Babri mosque built? Answer:- The mosque was built in the year 1528 by demolishing Sri Ramjanmbhumi temple. (ETC) ^^;g >xM+k 'kq# ls pyrk Fkk tc ls lu~ 1528 ls ogka fookfnr Hkou cuk ;g ckrsa eSaus vius iwoZtksa ls lquh gSa] dgha i<+h ugha gSaA ;g >xM+k 76 ckj gqvk gSA ;g >xM+k ckcj ds t+ekus ls vaxzstksa ds t+ekus rd gqvk gS vkSj vkf[kjh ckj ;g >xM+k lu~ 1934 esa gq v k FkkA^^ "This conflict used to take place since beginning, when the disputed structure was built over there in the year 1528. I have heard this from my ancestors, but have not read it anywhere. This conflict broke out on 76 occasions. This conflict has continued from the time of Babar to the British period and it last broke out in the year 1934." (E.T.C.) ^^fodzekfnR; }kjk cuok;s x;s Hkouksa dks <+kbZ gtkj o"kZ pwWafd gks x;s gSa] bl dkj.k os Lo;a fxj x;s Fk s vkSj tUeHkwfe eafnj lu~ 1528 esa fxjok;k x;k FkkA tk s Hkou lu~ 1528 esa rk sM +o k ;k x;k Fkk] og ewy #i ls fodz e kfnR; }kjk cuok;k x;k Fkk vkS j chp&chp es a mldk th.kk sZ )kj gk sr k jgk FkkA ;g dguk xyr gS fd lu~ 1528 esa tc fookfnr Hkou cuok;k x;k] rc fdlh eafnj dks rksM+dj ugha cuok;k x;k FkkA ;g Hkh dguk xyr gS fd ml le; ogka dksbZ eafnj ugha FkkA eSaus lu~ 1528 esa eafnj rksM+dj fookfnr Hkou cuokus okyh ckr o fodzekfnR; }kjk tUeHkwfe eafnj cuok;s tkus dh ckr iwo Z t k s a ls lq u h Fkh] dgh a i<+h ugh a FkhA** ¼ist 119½ "Since the buildings built by Vikramaditya were 2500 years old, they collapsed on their own and the Janmbhumi temple was demolished in the year 1528. The building which 2086 was demolished in the year 1528, was originally built by Vikramaditya with intervening renovations from time to time.
It is wrong to say that when the disputed structure was built in the year 1528, it had not been built by demolishing any temple. It is also wrong to say that no temple existed over there at that time. The factum of building of disputed structure in the year 1528 by demolishing a temple, and the building of Janmbhumi temple by Vikramaditya, were heard by me from my ancestors, and I have not read it anywhere."
(E.T.C) 2013. This statement of the witness is directly contrary to the pleading and the basic case of the plaintiffs (Suit-3). 2014. Moreover having said so that is about construction of mosque nowhere he has said as to when the above mosque ceased to be a mosque and when worship by Hindus started in the disputed building. He however has confined the period of worship by Hindus prior to 1934. On page 47, 63, 98, 108 and 109, he has said:
^^iz0& mijksDr efLtn dc rd dk;e jgh Fkh\ m0& lu~ 1934 ds igys ls ogk a ij iwt k&ikB gk sr k pyk vk jgk gS A ** ¼ist 47½ Question:- Till when did the aforesaid mosque exist? Answer:- Prayer-worship has been continuing over there from before the year 1934." (E.T.C) ^^fueksZgh v[kkM+k us igyh ckj fookfnr Hkou ds fy, iq t kjh lu~ 1934 ls igys fu;q D r fd;k Fkk ijUrq ;g ;kn ugha gS fd lu~ 1934 ls fdrus igys fookfnr Hkou ds fy, fueksZgh v[kkM+s us iqtkjh fu;qDr fd;k FkkA** ¼ist 63½ "The first priest for the disputed structure was appointed before the year 1934 by the Nirmohi Akhara, 2087 but (I) do not remember as to how much before the year 1934, was the priest appointed by the Nirmohi Akhara for the disputed structure." (E.T.C) ^^lu~ 1934 ds igys ls ogk a ewf rZ j[kh Fkh] ftls v[kkM+s ds fdlh egUr us izfrf"Br djk;k FkkA ogka ij jkeyyk th dh ewfrZ] y{e.k th dh ewfrZ] guqeku th dh ewfrZ] lkfyx jke Hkxoku vkfn dh ewfrZ;ka j[kh FkhA ;s lc ewf rZ ; k a lu~ 1934 ds igy s ls fookfnr Hkou ds vUnj j[kh FkhA fookfnr Hkou ds e/; okys xqacn ds uhps lhf<+;ksa ij ;s ewfrZ;ka j[kh gqbZ FkhA** ¼ist 98½ "Idol existed over there from before the year 1934, which had been installed by some Mahant of the Akhara.
The idols of Ramlala, Laxman Ji, Hanuman Ji and Lord Saligram existed over there. All these idols were inside the disputed structure from before the year 1934. These idols existed at the stairs beneath the middle dome of the disputed structure." (E.T.C) ^^fookfnr Hkou esa ewf rZ lu~ 1934 ds igys j[kh xbZ Fkh ] ijUrq fdl lu~ esa j[kh xbZ Fkh vFkok fdlus j[kh Fkh ;g eq>s Kku ugha gSA** ¼ist 108½ "The idol had been installed in the disputed structure prior to the year 1934, but I have no knowledge as to when was it installed or by whom." (E.T.C) ^^eSaus ;g ckr vius iwo Ztk s a ls lq u h gS fd lu~ 1934 ds igys ogkWa ewfrZ j[kh gqbZ FkhA eSa ;g Hkh ugh a crk ikÅW ax k fd rhu xq E cn oky s fookfnr Hkou ds fuekZ . k ;kuh lu~ 1528 ds fdrus le; ckn fookfnr Hkou esa ewf rZ j[kh xbZ FkhA^^ ¼ist 109½ "I had heard it from my ancestors that the idols existed over there from before the year 1934. I will also not be able to tell how many years after the construction 2088 of the three domed disputed structure i.e. after the year 1528, were the idols installed in the disputed structure."
(E.T.C) 2015. So far as his own visit to the disputed site, he claimed it since 1946, at page 46:
^^eSa fookfnr LFky ij lu~ 1946 ls tkrk jgk gwWa vkSj ogka ij eSa jgrk Hkh FkkA eSa ogka ij eafnj ij iwtk&ikB djrk Fkk] cgSfl;r iqtkjhA** ¼ist 46½ "I have been going to the disputed site from the year 1946 and I also used to stay over there. I used to carry out prayer-worship in the temple over there as a priest."
(E.T.C) 2016. The visit of Muslims at the disputed site is also disputed by him since 1946 at page 53 and 127:
^^lu~ 1946 esa eqlyeku yksx fookfnr Hkou ij ugha vkrs&tkrs FksA eSaus lu~ 1946 esa fdlh eqlyeku dks fookfnr Hkou esa vkrs&tkrs ugha ns[kkA fnlEcj lu~ 1949 rd fookfnr Hkou esa uekt ugha gqbZA** ¼ist 53½ "In the year 1946, the Muslims did not visit the disputed structure. In the year 1946, I did not see any Muslim visit the disputed structure. Namaz was not offered in the disputed structure till December, 1949." (E.T.C) ^^lu~ 1946 esa tks yksx n'kZu djus vkrs Fks] og fookfnr Hkou ds vUnj vkdj n'kZu djrs FksA lu~ 1946 esa lh[kpk s a okyh nhokj ds nk su k s a njokts n'kZ u kfFkZ ; k s a ds fy, [kq y s jgrs Fk s vkSj efUnj lqcg 8 cts ls 12 cts rd vkSj lk;a pkj cts ls ukS&lk<+s ukS cts jkr rd [kqyk jgrk gSA** ¼ist 127½ "The people who used to come to have darshan in the year 1946, used to have darshan from inside the disputed structure. In the year 1946, both the gates of the grill wall used to remain open for the devotees and the temple 2089 used to remain open between 8 am to 12 noon and 4 pm to 9/9.30 pm." (E.T.C) 2017. His statement apart the affairs of Nirmohi Akhara has attained importance for he is Panch of Nirmohi Akhara since 1950 and presently Sarpanch and Mukhtare Aam:
^^eSa lu~ 1950 esa fueksZgh v[kkM+s dk iap gqvk Fkk vkSj egUr j?kqukFk nkl th dk eq[rkjsvke Hkh FkkA lu~ 1950 ls eS a cjkcj iap pyk vk jgk gwW aA mlds ckn mi&ljiap gqvk Fkk vkSj vkt ls dbZ lky igy s eS a mldk ljiap gk s x;k vkS j vkt Hkh eS a fuek sZ gh v[kkM+ s dk ljiap o eq [ rkj sv ke gwW aA eSa fueksZgh v[kkM+s ds egUr txUukFk nkl th dk eq[rkjsvke gwWaA** ¼ist 72½ "I became the 'Panch' of Nirmohi Akhara in the year 1950 as also the 'Mukhtar-e-aam' (power of attorney holder) of Mahant Raghunath Das. I have regularly continued as a 'Panch' from the year 1950. Thereafter, I became its 'Up-Sarpanch' and today for last many years, I am its 'Sarpanch', and even today I am 'Sarpanch' and 'Mukhtar-e-aam' of Nirmohi Akhara. I am the 'Mukhtar- e-aam' of Nirmohi Akhara's Mahant Jagannath Das."
(E.T.C) 2018. Regarding the incident of 22/23 December, 1949, he said at page 77/78 and 80:
^^22@23 fnlEcj lu~ 1949 dh jkr dk s fookfnr Hkou esa dk sb Z ?kVuk ugh a gq b Z FkhA ;fn dksbZ ;g dgrk gS fd 22@23 fnlEcj 1949 dh jkr dks fookfnr Hkou esa dksbZ ?kVuk gqbZ] rks og xyr dgrk gSA eSa 22@23 fnlEcj lu~ 1949 dh jkr dks fookfnr ifjlj esa gh ekStwn FkkA eSa jkf= esa lk<+s X;kjg cts lksrk gwWa vkSj lk<+s pkj cts mB tkrk gwWa] ml jkr ;kuh 22@23 fnlEcj lu~ 1949 dh jkr dks mlh izdkj lks;k gwWxkA ml le; ;kuh ml jkr dks eSa xqEcn ds uhps okys LFkku ij lks;k FkkA** ¼ist 77&78½ "No incident occurred in the disputed structure in 2090 the night of 22/23 December, 1949. If somebody claims that some incidents occurred in the disputed structure in the night of 22/23 December, 1949, then he is stating wrongly. In the night of 22/23 December, 1949 I was present in the disputed premises. I go to bed at 11.30 PM and get up at 4.30 AM. I must have slept so in that night i.e. in the night of 22/23 December, 1949. At that time i.e. in that night, I had slept at the place beneath the dome."
(E.T.C) ^^;fn ml fjiksVZ esa ;g fy[kk gks fd 22@23 fnlEcj lu~ 1949 dh jkr esa dqN yksxksa us efLtn esa nkf[ky gksdj efLtn ukikd fd;k] rks ;g ckr xyr fy[kh gSA ftu jke'kdy nkl th dk uke bl fjik sV Z esa fy[kk gS ] ogh esj s lkFk 22@23 fnlEcj lu~ 1949 dh jkr dk s xq E cn okys Hkou es a lk s; s Fk s vkSj ftu lqn'kZu nkl th dk uke bl fjiksVZ esa fy[kk gS og ogh lqn'kZunkl th gSa] tks ml jkr lUr fuokl esa lks;s Fks vkSj vHk;jkenklth ogha gSa] tks 22@23 fnlEcj lu~ 1949 dh jkr dFkk e.Mi esa lks;s Fks vkSj ftu jkenklth dk uke fjiksVZ esa vk;k gS] og ml le; jkepcwr j s ds iq t kjh Fk s vkS j ml jkr fookfnr ifjlj es a gh lk s; s Fk sA ** ¼ist 80½ "If it is so mentioned in that report that in the night of 22/23 December, 1949, some people had entered the mosque and de-sanctified the mosque, then the said fact has been mentioned wrongly. The Ramshakal Das named in this report, had slept along-with me in the domed structure in the night of 22/23 December, 1949 , and the Sudarshan Das named in this report, is the same Sudarshan Das who had slept in the saints' accommodation in that night and Abhay Ram Das is the same person who had slept in the 'Katha Mandap' in the night of 22/23 December, 1949 and the Ram Das Ji named 2091 in the report, was the priest of Ramchabutara at that time and he had slept in the disputed premises in that night."
(E.T.C) 2019. The contradictions and incorrectness in his statement is evident from the following:
^^;g flag klu fookfnr Hkou es a lu~ 1950 ds igys ls FkkA ;g flagklu fookfnr Hkou esa lu~ 1950 ds nl lky igys ls FkkA ;g flagklu fookfnr Hkou esa lu~ 1950 esa Fkk ijUrq bldh dqdhZ ugha gqbZ FkhA** ¼ist 104½ "This throne existed in the disputed structure from before the year 1950. This throne was present in the disputed structure, from ten years before the year 1950. This throne was in the disputed structure in the year 1950, but it had not been attached." (E.T.C) ^^lu~ 1986 ds igy s bu fp=k sa es a fn[k jgk flag klu fookfnr LFky ij ugh a FkkA ;g gks ldrk gS fd ;g flagklu lu~ 1986 esa fookfnr Hkou dk rkyk [kqyus ds ckn ogka j[kk x;k gksA** ¼ist 147½ "Before 1986, the throne, visible in these photographs, did not exist at the disputed site. This throne may have been placed in the disputed building after its lock was opened in 1986." (E.T.C.) ^^fookfnr Hkou esa jkeyyk th dh nk s ewf rZ;k a Fkh aA -
- - ;s nksuksa ewfrZ;ka lu~ 1934 ds igys ls pyh vk jgh gSaA** ¼ist 107½ "There were two idols of Ramlala in the disputed structure . . . . . . . Both these idols were in existence from before the year 1934." (E.T.C) ^^vfHkjke nkl th - - - -fookfnr Hkou ds iqtkjh Hkh Fks fQj dgk fd&vfHkjke nkl th fueksZgh v[kkM+s ds iqtkjh ugha FksA** ¼ist 123½ "Abhiram Das. . . . . . . was also the priest of the disputed structure. Then stated that Abhiram Das was not 2092 the priest of Nirmohi Akhara." (E.T.C) ^^=q f Vo'k eS au s jkeyyk th dh nk s ewf rZ;k s a ds ckjs esa crk fn;k FkkA tcfd ,d jke yyk th dh ewfrZ Fkh vkSj ,d y{e.k yyk th dh ewfrZ FkhA jkeyyk th dh ,oa y{e.k yyk th dh nks ewfrZ;kWa lu~ 1934 ds igys ls pyh vk jgh FkhA** ¼ist 127½ "Inadvertently I had stated about two idols of Ramlala, when there was one idol of Ramlala and one of Laxmanlala.
The two idols of Ramlala and Laxmanlala, have been in existence from before the year 1934." (E.T.C) ^^eq[; ijh{kk ds 'kiFk&i= dk iSjkxzkQ 25 fn[kk;k x;k] ftls ns[kdj xokg us dgk fd bl iSjkxzkQ esa tks dqN fy[kk gS] og lgh fy[kk gSA mijksDr iSjkxzkQ 25 xokg dks fn[kk;k x;k vkSj ;g iwNk x;k fd bl iSjkxzkQ esa fy[kh ckr fd ';ke&'osr ,yce dk fp=n la0 81 ,oa 82 esa fn[k jgk flagklu pcwrjs dk gS vFkkZr~ jkepcwrjs dk gS\ mijksDr dks ns[kdj xokg us dgk fd bl iSjkxzkQ esa fp= dh la[;k xyr fy[k x;h gSA bl iSjkxzkQ esa tks eS au s fp= la0 &81 ,oa 82 dk gokyk fn;k gS ] mldk mYys[ k xyr gk s x;k gS ] tk s Vkbi dh xyrh gS A blh iSjkxzkQ+ 25 dks xokg dks fn[kkdj iwNk x;k fd bl iSjkxzkQ esa tks Q+ksVks ua0&83 ,oa 84 ds laca/k esa vkius mYys[k fd;k gS] og fdlh Åijh Hkkx dk mYys[k gS\ mijksDr dks ns[kdj xokg us dgk fd esj k iS j kxz k Q 25 dk dFku xyr gk s x;k gS A **¼ist 137½ "Paragraph 25 of affidavit filed at the examination-
in-chief was shown to the witness following which he stated
- Whatsoever is stated in this paragraph, is correctly written.
The aforesaid paragraph 25 was shown to the witness and a query was put to him as to whether the 2093 throne, visible in photographs 81 and 82 of the black-white album represented chabutra or Ram Chabutra.
Seeing the aforesaid photographs, the witness stated that photographs in this paragraph had been wrongly numbered.
In this paragraph, photographs 81 and 82 have been quoted wrongly; that is due to typographical error. This very paragraph 25 was shown to the witness and he was queried as to which upper portion found place in his description about photographs 83 and 84 of this paragraph. Looking at the aforesaid, the witness stated that his statement in paragraph 25 had gone wrong."(E.T.C.) ^^muds eq[; ijh{kk 'kiFk&i= ds blh iSjkxzkQ ds 24 dk va'k ^^tUe Hkwfe ftlds lkeus nqdku crk'ks okyk] 29&30 pcwrjk gS**] fn[kk;k x;k vkSj iwNk fd blls vkidk D;k rkRi;Z gS rks xokg us dgk fd ;g Hkh xyr fy[k x;k gS A ;g iwj k va' k Vkbi dh xyrh ls fy[k x;k gS A ** ¼ist 138½ "A portion of this very paragraph 24 of affidavit filed at examination-in chief - which portion runs as 'Janmbhumi, opposite to which lie a Batasha-selling shop and 29-30 chabutras - was shown to the witness and he was queried as to what he meant by the said words. Thereupon the witness stated - It is also incorrectly written. This portion in its entirety has come to be written due to typographical error." (E.T.C.) 2020. Regarding the period of construction of Ram Chabutara, he said :
^^bl ewfrZ dks vdcj ds tekus esa fueksZgh v[kkM+s ds egUr us j[kk Fkk] ml dk uke eq>s ugha ekyweA ;g ckr eSaus vius iwoZtksa ls lquh gS] dgha i<+k ugha gSA jkepcwr j s ij ftruh Hkh ewf rZ;kW a Fkh a] og lc eq x y ckn'kkg vdcj ds tekus es a j[kh xbZ Fkh aA 2094 ckn'kkg vdcj ds tekus esa Hkh ;g jkepcwrjk 17 fQV x 21 fQV dk Fkk] vkSj ml tekus esa Hkh bl ij mlh rjg dk NIij iM+k gqvk Fkk] tSlk fd lu~ 1950 esa iM+k gqvk FkkA^^ ¼ist 109&110½ "This idol was installed in the period of Akbar by Mahant of Nirmohi Akhara, I do not know his name. I have heard this from my ancestors, and have not read it anywhere. All the idols at the Ramchabutara, had been installed in the period of Mughal emperor Akbar. In the period of emperor Akbar also, this Ramchabutara was of the dimension 17 feet x 21 feet and in that period also, it had a similar thatch, as was there in the year 1950."
(E.T.C.) ^^bl jke pcwr j s ds lEcU/k es a ,d nkok lu~ 1885 es a nkf[ky gq v k FkkA ;g nkok egUr j?kqcj nkl th us nkf[ky fd;k Fkk] tks fueksZgh v[kkM+s esa egUr FksA ;g nkok lc&tt QStkckn dh vnkyr esa nkf[ky gqvk Fkk vkSj igys bl eqdnesa dk fu.kZ; j?kqcj nkl th ds i{k esa gqvk FkkA ckn esa os vihy esa gkj x,A bldh vihy j?kqcj nkl th us ugha dh FkhA ft+yk tt dh vihy esa ml fu.kZ; ds ckn nwljh vihy y[kuÅ esa nkf[ky ugha gqbZA^^ ¼ist 109&110½ "A suit had been filed regarding this Ramchabutara in the year 1885. This suit had been filed by Mahant Raghubar Das, who was Mahant of Nirmohi Akhara. This suit had been filed in the court of Sub-Judge, Faizabad, and earlier this suit was decided in favour of Raghubar Das. Subsequently, he lost in appeal. This appeal had not been preferred by Raghubar Das. No Second Appeal was filed at Lucknow against the decision of District Judge in that appeal." (E.T.C.) ^^ml le; jke pcwr j s dk s tUe LFkku dgk tkrk Fkk] tUeHk wf e ugh a dgk tkrk FkkA mls tUeHkwfe vkt ls lkS o"kZ igys ls dgk tkus yxkA ml le; Hkh bl jke pcwrjs dk {ks=Qy 17 x 21 2095 fQV gh FkkA** ¼ist 110½ "At that time, Ramchabutara was called Janmsthan and not Janmbhumi. It started being referred as Janmbhumi about 100 years ago. At that time also, the area of this Ramchabutara was 17 x 21 feet." (E.T.C) 2021. About the grated dividing wall between the outer and inner courtyard, he has said:
^^;g lh[kpksa okyh nhokj okftn vyh 'kkg ds tekus esa cuh Fkh] tks lu~ 1885 o 1950 esa Hkh dk;e jgh FkhA uokc okftn vyh 'kkg ds tekus esa lha[kps okyh nhokj cuus dh ckr eSaus lquh gS] dgha i<+h ugha gSA eS au s ;g lq u k gS fd okftn vyh 'kkg ds tekus es a ogkW a ij cjkcj >xM+k gq v k djrk Fkk vkS j bl dkj.k ;g lh[kpk s a okyh nhokj cuokbZ xbZ Fkh fd >xM+k 'kkUr gk s tk,] ijUrq ;g >xM+k 'kkUr ugh a gq v kA ;g >xM+k fgUnqvksa vkSj eqlyekuksa esa gqvk djrk FkkA** ¼ist 110&111½ "This grill wall was built in the period of Wajid Ali Shah, which existed in the year 1885 and 1950 as well. I have only heard about the fact of construction of grill wall in the period of Nawab Wajid Ali Shah, and have not read it anywhere. I have heard that in the period of Wajid Ali Shah, there were regular conflicts over there and the grill wall was built only to end the conflicts, but the conflicts did not end. These conflicts used to break out between Hindus and Muslims." (E.T.C) 2022. Though on the one hand he claims that Namaz has never been offered from the days of Babar in the disputed building but about existence of idol of Ram Lala in the disputed building, he said that it is since prior to 1934 but exact date and period is not known to him:
^^ckcj ds tekus ls vkt rd fookfnr Hkou esa dHkh uekt ugha gks ikbZ FkhA jkeyyk th fookfnr Hkou esa lu~ 1934 ds igys ls gSa] 2096 ijUrq ;g tkudkjh eq>s ugha gS fd os lu~ 1934 ds fdrus igys ls ogka FksA eq > s ;g Hkh tkudkjh ugh a gS fd ckcj ds tekus ls lu~ 1934 ds igys rd ogk a jkeyyk th Fk s ;k ugh aA ** ¼ist 112&113½ "Namaz has never been possible in the disputed structure till date from the times of Babar. Ramlala has existed in the disputed structure from before the year 1934, but I do not have knowledge of the fact as to for how long before the year 1934, was He present over there. I also do not have knowledge of the fact whether Ramlala existed over there or not from the times of Babar to the year 1934." (E.T.C) 2023. He admitted the riots of 1934 but says that it did not cause any damage to the disputed building and only the outer wall was damaged:
^^lu~ 1934 ds naxs esa fookfnr Hkou dks dksbZ uqdlku ugha igqaWpk Fkk] dsoy fookfnr ifjlj dh ckgjh pgkjnhokjh dks {kfr igqWph FkhA** ¼ist 127½ "In the 1934 riot, no damage was caused to the disputed structure but damage was caused only to the outer boundary wall of the disputed premises."(E.T.C.) ^^lh[kpk s a okyh nhokj tk s igys ydM+h dh Fkh] mls yk sg s dh cuok;k x;k FkkA lh[kpk s a okyh nhokj esa yk sg s ds lh a[ kp s lu~ 1934 es a yxok, x, Fk s vkSj ;g yksgs ds lh[kps tks naxk VSDl olwy gqvk gqvk Fkk] mlh ls yxok, x, Fks] ijUrq eq>s ;g tkudkjh ugha gS fd ;s fdlus yxok, FksA lh[kpksa okyh nhokj ds njokts lu~ 1934 ds igys ls yksgs ds Fks ;k ckn esa yksgs ds gq, Fks] bldh tkudkjh eq>s ugha gSA** ¼ist 128½ "The grill wall which had earlier been made of wood, was built using iron. Iron-grills came to be used in the grill wall in 1934 and the expenses incurred on 2097 fixing these iron-grills had come from riot taxes which had been realised; but I do not know as to who had carried out this work. I do not know whether the gates of the grill wall came to be made of iron prior to or subsequent to 1934."(E.T.C.) 2024. Regarding preparation of his affidavit, he said:
^^iz'u& rks D;k vkids eq[; ijh{kk ds 'kiFk&i= ds iSjk 24 esa mfYyf[kr fp= la0 vkius dsoy vuqeku ls fy[k fn;s gSa\ mRrj& esj s odhy lkgc Jh jat hr yky oekZ us eq v k;uk djds vius ls bl iS j kxz k Q esa fp=k sa ds uEcj Mky fn;s gS aA ** ¼ist 146½ "Question: Have you mentioned the number of the photograph in paragraph 24 of the affidavit filed at the examination-in-chief only on the basis of guess-work? Answer: My counsel, Sri Ranjeet Lal Verma, after carrying out inspection, has numbered photographs of this paragraph on his own." (E.T.C.) ^^esj s bl 'kiFk&i= dk dq N Hkkx esj s odhy lkgc ds Kku ij vk/kkfjr gS ] ijUrq og dkS u lk Hkkx gS ] ;g eq > s ;kn ugh a gS vkSj eSa bls crk Hkh ugha ikÅWaxkA** ¼ist 231½ "Some portion of this affidavit of mine is based on the knowledge of my counsel. But I do not remember which portion it is, I am also not in a position to tell about it."(E.T.C.) ^^;g 'kiFk&i= 29-8-2003 dks fy[kk;k x;k] mlh fnu VkbZi fd;k x;k vkSj mlh fnu lR;kfir fd;k x;kA gyQ+u kek rS ; kj djrs le; eq > s dk sb Z dkxt ugh a fn[kk;s x;s Fk sA ** ¼ist 264½ "This affidavit was dictated on 29.08.2003 and it was typed and verified on the same day. While preparing the affidavit I was shown none of the papers."(E.T.C.) 2025. Then on page 152, when he was asked whether the 2098 claim that the God has manifested (Prakat) in the night of 22nd December, 1949 as stated in the book "Sri Ram Janam Bhoomi Ka Rakt Ranjit Itihas" written by late Pt. Ram Gopal Pandey Shaarad on page 95 is incorrect, he could not say that this is incorrect and did not happen and instead gave a vague reply :
^^iwNk x;k fd & bl iqLrd ds i`"B&95 ij ftl ?kVuk dk mYys[k 22-12-1949 ds lEcU/k esa fd;k x;k gS] D;k og xyr gS\ mijksDr dks ns[kdj xokg us dgk fd & Hkxoku dk vorkj tc gqvk] rc izxV gh gq, vkSj ckj&ckj tc t:jr gqbZ rc izxV gq,] blesa 22@23 lu~ 1949 dk iz'u ugha gS vkSj blesa tks dqN Hkh fy[kk gS og xyr gSA** ¼ist 152½ "Page 95 of this book was shown to the witness and he was queried as to whether the description of an incident therein in reference to 22.12.1949, is incorrect. Looking at the aforesaid page the witness stated - Whenever God incarnated Himself, He certainly appeared, and He appeared on frequent occasions as per requirement. It does not concern 22nd - 23rd December, 1949, whatsoever is written herein, is incorrect."(E.T.C.) 2026. About Mahant Raghubar Das, he said:
^^egar j?kq c j nkl th dk t+e kuk lu~ 1880 ls 1890 ds yxHkx rd dk jgk gk sx kA ml le; vFkkZr~ 1880 ds yxHkx mijksDr Bsdk egar j?kqoj nkl th gh mBkrs FksA eg ar j?kq c j nkl th ds t+e kus ds bl Bsd s ls lac af /kr dkxt+ bl U;k;ky; es a bu eq d nekr es a nkf[ky gS aA egar j?kqcj nkl th ds ckn tks egar fueksZgh v[kkM+s ds gq, Fks] muds t+ekus ds dkxt Hkh bu eqdnekr esa nkf[ky gSaA** ¼ist 164½ "The period of Mahant Raghubar Das would have been from 1880 to circa 1890. It was Mahant Raghubar Das Ji who used to take the aforesaid contract at that time, that is, around 1880. Papers related to this contract 2099 belonging to the time of Mahant Raghubar Das are filed in this case before this Court. Papers belonging to the period of successor to Mahant Raghubar Das Ji as Mahanta of Nirmohi Akhara, are also filed in this case."(E.T.C.) ^^eg ar j?kq o j nkl th ogh gS a] ftUgk sau s lu~ 1885 okyk nkok nkf[ky fd;k FkkA** ¼ist 199½ "Mahant Raghubar Das is that very person who filed the 1885 claim."(E.T.C.) **iz'u& egar j?kqukFk nkl th jkepcwrjs ds egar Fks vFkok iqtkjh Fks\ mRrj& os jkepcwr j s ds eg ar Fk sA ** ¼ist 165½ "Question:- Whether Mahant Raghunath Das Ji was Mahant or 'Pujari' (priest) of Ramchabutara? Answer:- He was Mahant of Ramchabutara." (E.T.C) 2027. About the police surveillance he said:
^^;g iwNk x;k fd 22@23 fnlEcj lu~ 1949 ds igys fookfnr Hkou ij iqfyl dk igjk D;ksa jgrk Fkk\ mijksDr dks ns[kdj xokg us dgk fd igjk bl dkj.k yxrk Fkk fd eqlyeku yksx ,oa eqfLye iqfyl deZpkjh ogkWa dh ewfrZ gVk nsuk pkgrs FksA ;g igjk ,d&vk/k lky ls py jgk FkkA ;g igjk ljdkj dh rjQ ls yxk Fkk] igjk yxkus dh nj[okLr ugha nh FkhA ;g igjk lu~ 1947 esa vktknh feyus ds ckn ls yxk FkkA** ¼ist 179½ "When asked why the disputed building used to be under the police watch prior to 22nd-23rd December, 1949, the witness stated that the deployment of the police as guards was due to the reason that Muslim public and Muslim cops and officials wanted to remove idols from there. This deployment of police as guards had been for a year or so. This deployment was at the behest of the government; no application had been moved for such police deployment. This deployment of police as guards 2100 had been since 1947, that is, since the time of independence."(E.T.C.) 2028. About Nawah Path and Bhandara inside the building, he made certain contradictions:
^^fookfnr Hkou ds vUnj uokg ikB vkSj Hk.Mkjk lu~ 1949 ds igys esjs lkeus gqvk Fkk] ijUrq fdruh ckj gqvk Fkk] ;g eq>s ;kn ughaA fookfnr ifjlj ds chp okys xq E cn ds uhps oky s LFkku ij uokg ikB gq v k djrk FkkA** ¼ist 207&208½ "Nawah Paath and Bhandara (religious rituals) had taken place in my presence inside the disputed building before 1949; but I do not remember how many times such rituals had been performed therein.
Nawah Paath used to take place at a place below the central dome of the disputed premises."(E.T.C.) ^^eSaus fookfnr Hkou ds vUnj chp okys xqEcn ds uhps uokg ikB gksrs ns[kk FkkA** ¼ist 209½ "I had seen Nawah Paath being performed below the central dome inside the disputed building."(E.T.C.) ^^fookfnr Hkou ds xq E cn okys Hkkx ds ckgj vkS j lh[kpk s a okyh nhokj ds vUnj oky s lgu es a uokg ikB ugh a gk sr k FkkA** ¼ist 210½ "Nawah Paath did not take place outside the dome portion of the disputed building and in the courtyard inside the grill-wall." (E.T.C.) **Hk.Mkjk fookfnr Hkou ds vUnj dHkh ugh a gk sr k FkkA** ¼ist 211½ "'Bhandara' (collective feast) was never held inside the disputed premises." (E.T.C) ^^eSaus tks i`"B 211 ij ;g dgk fd Hk.Mkjk fookfnr Hkou ds vanj dHkh ugha gksrk Fkk] ls esjk eryc ;g Fkk fd ogka Hk.Mkjk dHkh cuk;k ugha x;k ijUrq Hkkstu djk;k tkrk FkkA** ¼ist 215½ 2101 "When I on page 211 stated that Bhandara never took place inside the disputed building, I meant that Bhandara(food prepared for mass feeding) was never prepared there but food used to be served."(E.T.C.) ^^xqEcn okys Hkou ds ckgj lgu esa Hkkstu djk;k tkrk FkkA** ¼ist 216½ "Food used to be served in the courtyard outside the domed building."(E.T.C.) 2029. He admits that ownership or possession on the disputed building was not claimed in 1885 Suit but since 1934 Nirmohi Akhara is arranging worship continuously and therefore is claiming right of possession and ownership thereon:
^^lu~ 1885 ds nkos esa fookfnr Hkou ij viuk LoRo ;k vf/kdkj mUgksaus ugha fn[kk;k Fkk] ysf du lu~ 1934 ls cjkcj iwt k&ikB fuek sZ gh v[kkM+ s ds }kjk ogk a gk sr k pyk vk jgk gS ] blfy, vc ge ml ij LoRo ;k vf/kdkj Dyse dj jg s gS aA ** ¼ist 229½ "They had not shown their title or right over the disputed building in the 1885 claim; but we are now laying our title or right over the same as Pooja-Paath has always been performed by the Nirmohi Akhara since 1934."(E.T.C.) 2030. The idol of Ram Lala, placed in the disputed building, is Chal Vigrah:
^^jkeyyk th dh tks ewfrZ fookfnr Hkwfe esa flagklu ij j[kh Fkh mls ge py foxz g dg s ax sA ** ¼ist 232½ "We will call the idol of Ramlala Ji, seated on the throne in the disputed building, 'Chal-vigrah' (movable form of deity)."(E.T.C.) 2031. About Pran Prathishtha, DW 3/1 says:
^^vkerkSj ls izk.k] izfr"Bk dh fof/k esa de ls de ikWap fnu yxrs 2102 gSa vkSj de ls de ikWap] iafMr feydj izk.k izfr"Bk djrs gSaA tgkWa ij izk.k izfr"Bk djuk gksrk gS] mlds ikl esa e.Mi curk gS vkSj ogka ;K gksrk gS] ftlesa tykf/okl] vUukf/kokl] 'kS;~;kf/kokl vkfn izdj.k gksrs gSa vkSj gou gksrk gS] rFkk uxj dh ifjdzek gksrh gS] rc tgkWa ij eafnj esa ewfrZ LFkkfir fd;k tkuk gksrk gS] ogkWa ewfrZ dks LFkkfir fd;k tkrk gSA** ¼ist 233½ "The ritual of 'Pranpratishtha' (vivification) normally takes at least five days and at least five Pandits (scholarly men) collectively perform 'Pranpratishtha'. 'Mandap' (canopy-like structure) is erected near the place where 'Pranpratishtha' is to be performed, and 'Yajna' (sacrifice) is performed there which comprise 'Jaladhiwas', 'Annadhiwas', 'Shaiyyadhiwas' etc.; and 'Hawan' is also performed and 'Parikrama' is also done of the town in whose temple idol is to be installed or is installed."(E.T.C.) 2032. He explained about the temple on the north of the disputed site:
^^xqnM+rM+ okys eafnj dks tUeHkwfe eafnj ugha dgrs gSa ysfdu tUeHkwfe eafnj dk izkphu uke tUe LFkku gS] ckn esa ;g tUeHkwfe ds uke ls izpfyr gqvk vkSj dkx+t+krksa esa bldk uke tUeLFkku djds gh ntZ gSA lSdM+ks o"kZ igys ls bl tUeLFkku dks tUeHkwfe dgk tkus yxkA ;g ifjorZu dc] dSls gqvk] bldh dksbZ eq>s tkudkjh ugha gSA** ¼ist 244½ "The Gudadtad temple is not called Janmbhumi temple but the old name of the Janmbhumi temple is Janmsthan, which later came to be known as Janmbhumi and its name is recorded only as Janmsthan in records. Hundreds of years ago, this Janmsthan came to be called Janmbhumi. I have no knowledge as to how and when this change came to be."(E.T.C.) 2033. However, about maintenance of building, he could not 2103 say anything very clearly:
^^lu~ 1946 ls 29 fnlEcj lu~ 1949 ds chp fookfnr Hkou dh pwu kdkjh vFkok iq r kbZ gq b Z FkhA ;g iqrkbZ yxHkx gj o"kZ gksrh FkhA ,d ckj fookfnr Hkou esa iqrkbZ esa fdruk O;; gk sr k Fkk] bldh tkudkjh eq > s ugh a gS A ** ¼ist 253½ "Between 1946 and 29th December, 1949, the disputed building was lime-washed or white-washed. This white washing used to be done almost every year. I do not have the knowledge as to how much expenditure was incurred in white washing the disputed building once."(E.T.C.) 2034. DW 3/2 Raja Ram Pandey claims to have visited disputed site for worship of Sri Ram Lala since 1930:
^^eSa lu~ 1930 ls jketUeHkwfe ij n'kZu djus tkrk jgk gwaA eSaus jketUeHkwfe dh ifjdzek Hkh cjkcj dh gSA ;g lgh gS fd guqer }kj okyh nhokj esa gh nkfguh rjQ okjkg Hkxoku dh izfrek rk[kk esa FkhA rk[kk] iwohZ nhokj esa nf{k.k dh rjQ FkkA** ¼ist 20½ "I have been going to have darshan at Ramjanmbhumi since 1930. I have always also performed circumambulation at Ramjanmbhumi. It is true that an idol of Lord Varah was on a niche to the right of the wall itself having the Hanumat Dwar. The niche was on the southern side in the eastern wall."(E.T.C.) ^^fookfnr Hkou es a eS a tc ls Hkh n'kZ u djus tk jgk gwW a] mlh le; ls ewf rZ ogkW a ij fojkteku gS ] ij dc ls Fkh] bldk eq > s Kku ugh a gS A fookfnr Hkou es a tc eS a igyh ckj lu~ 1939 es a x;k Fkk] ml le; ogka Hkxoku fojkteku Fks vkSj eSa mudh iwtk o n'kZu djds pyk vk;k FkkA lu~ 1930 ds ckn ls eS a fookfnr Hkou esa Hkxoku@ewfrZ dks fojkteku ns[k jgk gwWaA** ¼ist 26½ "The idol is present there since the time I have 2104 been going to have 'Darshan' at the disputed building. But I do not know since when it has been there. In 1939, when I first went to the disputed building, 'Bhagwan' was seated there and I returned from there after performing 'Pooja' and having 'Darshan' of Him. I have been seeing Bhagwan/idol of Bhagwan seated in the disputed building since 1930."(E.T.C.) ^^eSaus gt+kjksa ckj dqd+hZ ds igys vk/kk ?kUVk ls ,d ?k.Vk rd chp okys xqEcn ds uhps cSBdj jkedhrZu fd;k FkkA** ¼ist 39½ "Prior to the attachment, I had thousands of times performed 'Ramkirtan' by sitting beneath the central dome for half an hour to an hour."(E.T.C.) 2035. He denied construction of mosque by Babar in 1528:
^^;g dguk xyr gksxk fd ckcjh efLt+n lu~ 1528 esa cuh FkhA** ¼ist 25½ "It would be wrong to say that the Babri mosque was built in 1528 AD."(E.T.C.) 2036. In the zeal of denying existence of any mosque at the disputed sight he gave different versions about his knowledge of the word "Babri Masjid":
^^eS a lu~ 1949 ds ckn ls ckcjh efLtn dk uke lq u jgk g wW a] mlls igys eSaus ckcjh efLtn dk uke ugha lquk FkkA lu~ 1949 ls ftl ckcjh efLtn ds ckjs esa lqu jgk gwWa] og v;ks/;k esa dgkWa ij fLFkr gS ;k Fkh] bldh eq>s tkudkjh ugha gSA mldk eqdnek py jgk gS] bldh tkudkjh eq>s gSA** ¼ist 62½ "I have been hearing of the Babri mosque since 1949; I had not heard of the Babri mosque earlier. I do not know where in Ayodhya the Babri mosuqe - about which I have been hearing since 1949 - is or was situated. I have the knowledge that a case in this connection is going on."(E.T.C.) 2105 ^^eUuku lkgc ds ftjg djus ij eq > s ;g eky we gq v k Fkk fd ftl Hkou dk s eS a tUeHk wf e efUnj dgrk gwW a mlh dk s eq l yeku yk sx ckcjh efLtn dgrs gS aA ** ¼ist 62½ "From Mannan Sahib's cross-examination I came to know that the building which I call Janmbhumi temple is called the Babri mosque by Muslims." (E.T.C.) ^^fookfnr Hkou dh dqdhZ ds ckjs esa lekpkj eSaus lu~ 1949&50 esa i<+k FkkA mu lekpkjksa esa Hkh ckcjh efLtn dk uke ugha vk;k FkkA** ¼ist 63½ "In 1949-50 I went through the news regarding the attachment of the disputed building. The words 'Babri mosque' had not occurred in those pieces of news."(E.T.C.) **eSaus ,slk ugha lquk fd og <kWpk ckcj ds le; Fkk] bl dkj.k yksx mls fxjkuk pkgrs FksA eSa ml fookfnr Hkou dks eafnj le>rk FkkA** ¼ist 72½ "I have not so heard that the structure was of the time of Babar, therefore, people wanted to demolish the same. As regarded that disputed building as temple."
(E.T.C) ^^esjh eqlyekuksa ls eqykdkr gksrh jgh Fkh vkSj lu~ 1992&93 esa Hkh eqykdkr gksrh jgrh Fkh] ijUrq fdlh eqlyeku us eq>ls ;g ugha dgk fd 6 fnlEcj lu~ 1992 dks ckcjh efLtn fxjk nh x;h FkhA** ¼ist 73½ "I had been meeting Muslims and I used to have meetings with them in 1992-93 as well; but none of the Muslims told me that the Babri mosque had been demolished on 6th December, 1992. "(E.T.C.) **tc Jh vCnq y eUuku lkgc dh ftjg es a ckcjh efLtn dk uke vk;k rc eS au s ;g le> fy;k Fkk fd ;g mlh fookfnr Hkou ls lac af /kr gS ] ftldk s eS a jke tUe Hk wf e le>rk jgk gwW A** ¼ist 74½ "When the name of Babri mosque appeared in the 2106 cross-examination of Sri Abdul Mannan, I understood that the same related to the same disputed building which I have been regarding as Ramjanambhumi."
(E.T.C) ^^eS a 22 flrEcj lu~ 2003 dk s y[kuÅ gkbZ d k sV Z vk;k] rk s ,d dejs ij eS au s fy[kk gq v k i<+k ^^jketUeHk wf e&ckcjh&efLtn**] rk s esj h le> esa vk;k fd ^^jketUeHk wf e efUnj** dk ^^ckcjh efLtn** ls dk sb Z lEcU/k gS A ** ¼ist 152½ "On 22nd September, 2003 I came to Lucknow High Court and read 'Ramjanmbhumi-Babri Masjid' written outside a room, when I came to understand that 'Ramjanmbhumi temple' has some relation with 'Babri mosque'." (E.T.C) 2037. When faced certain problem due to long drawn cross examination, he immediately took recourse to age old defence of "weak memory" and says:
^^esjh vk;q 87 o"kZ gks x;h gS vkSj esj k foosd Bhd dk;Z ugh a djrk gS ] bl dkj.k eq > s ;kn ugh a jgrk gS fd eS au s dc D;k dgkA esjs mijksDr c;kuksa esa ls vkt okyk mijksDr c;ku lgh gS] dy fnukad 30-9-2003 okyk c;ku =qfVo'k ns x;k gwWaA** ¼ist 70½ "I have grown 87 years old and my discretion does not work in a proper manner. For this reason, I fail to remember which particular thing I stated at a particular time. Of the aforesaid statements, the above mentioned statement given by me today is correct; I have wrongly given the statement dated 30.09.2003."(E.T.C.) 2038. About the period as to when the idols were kept in the disputed building he says:
^^eq>s ;g Kku ugha gS fd fookfnr rhu xqacnksa okys Hkou esa ewfrZ;ka dc vkSj fdlus j[kokbZ] ijUrq tc ls eSa ogkWa tk jgk gwWa] rc ls 2107 mUgas ogka ns[k jgk gwWaA mRrj okyk QkVd dsoy esyk esa [kqyrk FkkA** ¼ist 76½ "I do not have knowledge of the fact as to who installed the idols in the three dome disputed structure and when, but ever since I have been going there, I have seen them over there. The northern gate used to open only during fairs." (E.T.C) 2039. Regarding the dividing wall between outer and inner courtyard as well as 1934 damage, he says:
^^ftl nhokj esa ydM+h ds taxys yxs gksuk eSa crk jgk gwWa] ;g ogh nhokj gS] ftlesa lu~ 1949 ds igys ls yksgs ds lh[kps yxs gq, FksA bl nhokj es a yk sg s ds lh[kp s lu~ 1949 ls yx s gS a] mlls igys lu~ 1930 ls ydM+h ds tax y s yx s gq , Fk s ] fQj dgk fd ydM+h ds taxys lu~ 1930 ds igys ls yxs gq, FksA blh nhokj dk s lu~ 1934 esa ekewy h {kfr igq W ap h FkhA bl nhokj ds vykok fookfnr Hkou ds vU; fdlh Hkkx dk s lu~ 1934 esa eS au s {kfrxz L r ugh a ns[ kkA fookfnr LFky ds djhc lu~ 1934 ds naxs esa dksbZ Hkh eqlyeku ugha ekjk x;k Fkk] v;ks/;k esa 8&10 eqlyeku ekjs x, FksA esjh tkudkjh esa ugha gS fd fookfnr Hkou dh ftl nhokj dks {kfr igWqph Fkh] mldh ejEer djkbZ xbZ Fkh] ;k ughaA ml nhokj dk s {kfrxz L r :i es a eS a lu~ 1949 rd ns[ krk jgkA**¼ist 88½ "The wall in which I am stating about fixation of wooden 'Jangla' (grating), is the same wall in which iron grills were fixed prior to the year 1949. The iron grills in this wall are fixed since 1949, prior to it were wooden 'Jangla' since 1930, then stated that the wooden 'Jangla' were fixed before the year 1930. This very wall had suffered minor damage in the year 1934. Apart from this wall, I did not see any other part of the disputed structure damaged in the year 1934. No Muslim was killed near the disputed structure in the riot of the year 2108 1934. 8-10 Muslims were killed in Ayodhya. It is not within my knowledge whether the wall of the disputed structure, which had suffered damage, had been repaired or not. I had seen that wall in a damaged state till the year 1949."
(E.T.C) ^^;g dguk xyr gS fd lu~ 1934 ds nax s es a fookfnr Hkou ds f'k[kj mldh if'peh nhokj ,oa Q+'kZ vkfn dks {kfrxz L r fd;k x;k FkkA** ¼ist 89½ "It is wrong to say that the dome, western wall and floor of the disputed structure had been damaged in the riot of the year 1934." (E.T.C) (Note: This is contradictory to DW 3/1, page 127.) ^^;g dguk Hkh xyr gS fd ftl nhokj esa ydM+h ds taxys gksuk eSaus crk;k gS] muesa dHkh ydM+h ds taxys ugha yxs FksA ;g Hkh dguk xyr gS fd mDr nhokj esa lu~ 1930 ds igys ls gh yksgs ds lh[kps@taxys yxs FksA** ¼ist 89½ "It is also wrong to say that the wall, in which the wooden windows are stated to have been fixed, never had wooden 'Jangla' . It is also wrong to say that iron grill/'Jangla' had been fixed in the said wall before the year 1930." (E.T.C) 2040. On the one hand he admits weak memory due to old age but on the other hand he is able to tell as to what actually happened when for the first time he went to visit the disputed site in 1930 and that too after almost 73 years:
^^esjs firk th izFke fnu tc eq>s ysdj fookfnr Hkou esa n'kZu djkus x, rks QkVd ij gh mUgksaus crk;k fd ns[kks bu [kEHkksa esa guqeku th dh ewfrZ yxh gS vkSj bls guqer }kj dgrs gSa vkSj mUgha ds crkus ds vk/kkj ij eSaus ;g ckr dgh gSA** ¼ist 150½ "On the first day when my father took me to the disputed structure for 'darshan', he told me at the gate-2109
look, these pillars contain the idol of Hanuman Ji and it is called Hanumatdwar and it is on basis of facts told by him that I have stated these facts." (E.T.C) 2041. DW 3/3, Satya Narain Tripathi claims to have visited the disputed building since 1941 several times and has seen the idol of Lord Ramlala in the Garbhgrih, i.e., under the central dome of the disputed building. He is not resident of Ayodhya but reside at Village Mahawan, Tahsil Bikapur, District Faizabad and was born on 08.09.1931. His village is about 35 kms from Ayodhya. He did not deny, as such, any incident whether took place in the night of 23/12/1949 on page 22.
^^eq>s irk ugha fd fnukad 23-12-1949 dh jkr dks dqN yksxksa us ?kql dj ewfrZ;ka j[kh ;k ughaA** "I do not know whether or not some persons had entered and placed idols on the night of 23.12.1949. "(E.T.C.) 2042. On page 37 he claims that the disputed building was constructed by Vikramaditya. On page 80 he said about the size of the three domes as under:
^^fookfnr Hkou esa rhu xqEcn FksA rhuk s a xq E cn ,d gh vkdj ds Fk sA ** "There were three domes in the disputed building. All the three domes were of the same size." (E.T.C.) 2043. This statement is ex facie incorrect since the central dome was bigger than the rest two and it is virtually the admitted position by all the parties. We also find it from the bare perusal of the photographs of the disputed building available to us. Most of the statement of this witness is based on assumption and hearse, i.e., the information he has received. On the one hand he gave statement about his visit to the disputed site very accurately but regarding placement of various items thereat he 2110 made contradictory statement. On page 24 he said that there were idols of Ramji, Lakshmanji and Hanumanji kept on Sinhasan which remain there from 1941 to 1992 (page 25) but then on page 26 he retracted from the said statement after looking to the photographs and said that it was not clear to him when he used to visit and in what manner the idols were kept. 2044. DW 3/4, Mahant Shiv Saran Das, a Bairagi of Ramanandi Sampraday, claims that he is visiting Ram Janambhumi since 1933 and has worshipped the idols of Lord Ramlala inside the disputed building under the central dome, i.e., Garbhgrih. On page 13 he, however, improved upon his statement by stating that he was born in 1920 and since 1930 to 1942 he remained at Ayodhya continuously.
^^v;ks/;k esa eSa 10 o"kZ dh vk;q ls lu~ 1942 rd yxkrkj jgk gwWaA esjk tUe o"kZ 1920 esa gqvk FkkA lu~ 1930 esa eSa nl o"kZ dk Fkk vkSj lu~ 1930 ls lu~ 1942 rd eSa yxkrkj v;ks/;k esa jgk vkSj ;g vof/k yxHkx 12 o"kZ dh gksrh gSA** "From the age of 10 years up to 1942, I have always been at Ayodhya. I was born in 1920. I was 10 years old in 1930, and I continued to reside at Ayodhya from 1930 to 1942, and this period is of nearly 12 years."(E.T.C.) 2045. This statement is contradicted by him repeatedly.
^^eSa v;ks/;k lSdM+ksa ckj x;k gwWa vkSj ogkWa ij eSa jgk Hkh gwWaA - - - - vyhxat esa gekjs ?kj ds lkeus gh ,d efLtn gSA - - - - - 11 o"kZ dh voLFkk esa esjk ;Kksiohr gks x;k Fkk] mlds ckn eSaus ?kj NksM+ fn;k FkkA** ¼ist 28½ "I have been to Ayodhya hundreds of times and I have also resided there. . . . . . . There is a mosque right in front of our house at Aliganj. . . . . . . . My 'Yogyopaveet' (sacrificial thread ceremony ) was solemnised when I was 11 year old. After that I left the house."(E.T.C.) 2111 ^^12 o"kZ dh voLFkk esa eS a v;k s/ ;k x;k Fkk vkSj mlh le; ls eSaus ewfrZ;kWa gh ns[kh gSaA eq>s /;ku ugha gS fd tc eSa 12 o"kZ dh vk;q dk Fkk] ml le; lu~ dkSu lk FkkA eSa vankt ls Hkh lu~ ugha crk ldrkA** ¼ist 29½ "At the age of 12, I visited Ayodhya and since then I have seen the idols only. I do not remember which year was in the running when I was 12 years old. I cannot tell the year even by guess."(E.T.C.) ^^v;k s/ ;k es a eS a ml oDr ls jgk tc eS a egjkt th dk f'k"; cukA eS a egkjkt th dk f'k"; lu~ 1945 es a cukA mlds ckn 5&6 lky rd eSa cM+h Nkouh esa egkjkt th dh lsok djrk FkkA mlds ckn vius xq: HkkbZ jke euksgj nkl th ds lkFk vgenkckn pyk x;kA** ¼ist 34½ "I began to reside at Ayodhya since I became the disciple of Maharaj Ji. I became disciple of Maharaj Ji in 1945. After that, I served Maharaj Ji at Badi Chhavani (big cantonment) for 5-6 years. Thereafter I went to Ahmedabad with my Gurubhai (disciple of the same spiritual teacher), Ram Manohar Das Ji. "(E.T.C.) ^^eS a 11 o"kZ dh mez es a xq t jkr x;k FkkA eS a ogkW a djhc 13 lky rd jgkA** ¼ist 38½ "I went to Gujrat while being 11. I resided there for about 13 years." (E.T.C.) ^^esjs egkjkt th cM+h Nkouh ds Jh Jh 108 egUr Jh Lokeh dkS'ky fd'kksj nkl th Fks vkSj os 80 lky rd v;ks/;k esa jgs vkSj mlh nkSjku xn~nh'khu jgsA eSa Jh egUr th ds lkFk yxHkx 10 lky v;ks/;k esa jgkA tgkWa Jh egUr th jgrs Fks] ogha eSa Hkh jgrk FkkA eSa muds lkFk lu~ 1946 ls lu~ 1956 rd jgkA 1956 ds ckn eSa vius xq#HkkbZ ds lkFk Jh }kfjdk th pyk x;kA** ¼ist 40½ "Sri Sri 108 Mahant Sri Swami Kaushal Kishore Das Ji of Badi Chhavani was my Maharaj Ji (spiritual teacher) 2112 and he resided at Ayodhya for 80 years and continued to assume the seat during that very period. I resided at Ayodhya along with Sri Mahant Ji for nearly 10 years. I resided wherever Sri Mahant Ji resided. I was with him from 1946 to 1956. After 1956 I went to Sri Dwarika Ji along with my Gurubhai."(E.T.C.) ^^lu~ 1945&46 ds mTtSu ds dqEHk esa Jh Jh 108 Jh Lokeh fueZy nkl th egkjkt us eq>s ukxk cuk;kA ml le; eSa vgenkckn esa gh jgrk FkkA** ¼ist 41½ "Sri Sri 108 Sri Swami Nirmal Das Ji Maharaj initiated me as a Naga at the Kumbh held in Ujjain in 1945-46. At that time I resided in Ahmedabad itself."(E.T.C.) ^^eSa ;g ugha crk ikÅWaxk fd eSa v;ks/;k esa fdrus o"kZ rd jgk] D;ksafd eq>s fxurh ugha ekyweA esjk ;Kksiohr 11 lky dh mez esa gqvk Fkk vkSj mlds nks ekg ckn eSa v;ks/;k pyk x;k vkSj lk/kw cu x;k FkkA ;Kksiohr 11 lky dh vk;q esa gh gksrk gSA ;Kksiohr esa czkg~e.k vkrs gSaA v;ks/;k tkrs gh eSa cM+h Nkouh esa Jh Jh 108 Jh Lokeh dkS'ky fd'kksj nkl th dk f'k"; gks x;kA esjh egUr th ls igyh nQ+k ogha cM+h Nkouh esa eqykdkr gqbZ Fkh vkSj muds f'k"; cuus ds ckn eSa 10 lky ogkWa jgk FkkA** ¼ist 41&42½ "I am not in the position to tell for how many years I resided at Ayodhya because I do not know the numbers. My Yagyopaveet was solemnised while I was 11, and two months after that I went to Ayodhya and became a saint.
Yogyopaveet is performed only at the age of 11 years. Brahmans come to attend Yagyopaveet. Immediately after going to Ayodhya I became the disciple of Sri Sri 108 Sri Swami Kaushal Kishore Das Ji of Badi Chhavani. I had first met my Mahant Ji at that very Badi Chhavani and I resided there for 10 years after becoming his 2113 disciple."(E.T.C.) ^^fookfnr Hkou tk s rhu xq E cn dk Fkk] ogkW a eS a lu~ 1936 ls tk jgk gW wA tc eSa fookfnr Hkou esa igyh ckj lu~ 1936 esa x;k Fkk] rks chp okys xqEcn ds uhps rd x;k FkkA** ¼ist 42½ "Since 1936, I have been going to the disputed building which had three domes. In 1936, when I first went to the disputed building, I went up to beneath the central dome."(E.T.C.) ^^lu~ 1938 ls lu~ 1950 rd eS a v;k s/ ;k es a ugh a jgk] ijUrq v;k s/ ;k vkrk Fkk vkS j bl nkS j ku tc eS a v;k s/ ;k vkrk Fkk] rk s fookfnr LFky dh rjQ ugh a tkrk Fkk vkS j vxj tkrk Hkh Fkk rk s ckgj ls gkFk tk sM +d j ykS V vkrk FkkA^^ ¼ist 54½ "I did not reside at Ayodhya from 1938 to 1950 but whenever I came to Ayodhya I did not go towards the disputed site and if I at all went there I returned from outside after saluting the place with folded hands."
(E.T.C.) eSa lu~ 1938 rd v;ks/;k esa jgk Fkk vkSj mlds ckn lu~ 1938 ls lu~ 1957 rd vgenkckn] e/; izns'k] dkfB;kokM+] cEcbZ vkfn esa Hkze.k djrk jgk vkSj lu~ 1958 esa eSa dSyk'k ioZr vkSj eku ljksoj dh ;k=k ds fy, x;k FkkA** ¼ist 54½ "I resided at Ayodhya until 1938 and after that kept travelling to Ahmedabad, Madhya Pradesh, Kathiyavad, Bomaby, etc. from 1938 to 1957, and went on journey to Mountain Kailash and Mansarovar in 1958. "(E.T.C.) ^^eSa fookfnr Hkou ds uhps okys Hkkx esa de ls de lSdM+ksa ckj x;k gksÅWaxkA Lo;a dgk fd eSa ogkWa iqtkjh Fkk] HkaMkjh Fkk vkSj Hkksx Hkh yxkrk FkkA eSa Jh jketUe Hkwfe esa iqtkjh FkkA Jh jke tUe Hkwfe ls esjk rkRi;Z rhu xqEcn okys fookfnr Hkou ls gh gSA eq>s lu~ ugha ;kn gS fd fdl lu~ esa eSa ogkWa iqtkjh Fkk] ijUrq jke tUe Hkwfe tc jke tUe Hkwfe 2114 ugha Fkh] mls fookfnr ugha dgk tkrk Fkk] rc eSa ogkWa iqtkjh Fkk vkSj Hk.Mkjh Hkh FkkA** ¼ist 66½ "I must have gone to the lower part of the disputed building at least hundreds of times. (Himself stated) I was a priest there; I was a Bhandari and I also performed 'Bhog' (offering of meal to deity). I was a priest at Sri Ramjanmbhumi. By Sri Ramjanmbhumi I mean three domed disputed building. I do not remember the year in which I was a priest there but at the time when Ramjanmbhumi was not Ramjanmbhumi and as such it was not fit to be termed as disputed, I was a priest as also a Bhandari there."(E.T.C.) ^^eSa rhu xqEcn okys fookfnr Hkou esa iqtkjh Hkh jgkA eq>s ;g ;kn ugha gS fd eSa rhu xqEcn okys fookfnr Hkou esa 10&20 ckj x;k Fkk ;k 100&200 ckj x;k ;k fdruh ckj x;kA eq>s ;kn ugha gS fd rhu xqEcn okys fookfnr Hkou esa eSa fdrus fnu iqtkjh ds :i esa jgk gwWaA eSa rhu xqEcn okys fookfnr Hkou esa iqtkjh ds :i esa 2&4 lky jgkA** ¼ist 74½ "I was also a priest in the three domed disputed building. I do not remember how many times-10-20 times or 100-200 times - I went to the three- domed disputed building. I do not remember for how many days I have been as a priest at the three- domed disputed building. I was a priest at the three- domed disputed building for 2-4 years."(E.T.C.) 2046. He contradicted his own statement of page 74 on page
106. ^^iz'u& vki vius mijksDr Lo;a ds c;ku ds vuqlkj v;ks/;k esa lu~ 1931 ls lu~ 1957 ds chp dsoy 5&6 eghus yxkrkj jgs gSaA D;k ;g lgh gS\ mRrj& th gkWaW] ;gh lgh gSA 2115 iz'u& rks esjk ;g dguk gS fd vkidk 5 Qjojh 2004 ds i`"B&74 dk ;g c;ku fd vki ^^rhu xqEcn okys fookfnr Hkou esa iqtkjh ds :i esa nks&pkj lky** jgs x+yr gks tkrk gSA bl lEcU/k esa vkidks D;k dguk gS\ mRrj& mijksDr dks ns[kdj xokg us dgk fd esjk ;g c;ku xyr gk s x;k gS A ** "Question: As per the aforesaid statement of your own, you have been at Ayodhya continuously for only 5-6 months between 1931 and 1957. Is it true?
Answer: Yes, Sir. It is true.
Question: Then I have to say that your statement dated 5th February, 2004 - mentioned on page 74 and reading as 'You served as a priest at the three domed disputed building for 2-4 years' - goes wrong. What have you to say in this respect?
Answer: Going through the aforesaid the witness stated - this statement of mine has gone wrong."(E.T.C.) 2047. He also contradicted the very averment made in para 8 of his affidavit about his visit to Ramjanmbhumi since 1933 and said:
^^fo}ku ftjgdrkZ vf/koDrk }kjk xokg dks muds eq[; ijh{kk ds 'kiFk&i= ds iSjkxzkQ&8 dk va'k ^^JhjketUeHkwfe esa 1933 bZ0 ls n'kZu djus tkrk jgk gwWa] ^^fn[kk;k x;k vkSj ;g iwNk x;k fd D;k ;g D;k ;g c;ku Hkh xyr gks x;k gS] D;ksafd ml le; vki v;ks/;k esa Fks gh ugha\ mijksDr dks ns[kdj xokg us mRrj fn;k fd bles a lu~ 1933 xyr fy[k x;k gS A ** "A portion of paragraph 8 in the affidavit filed at the examination-in-chief - which runs as 'I have been going for Darshan at Sri Ramjanmbhumi since 1933' - was shown to the witness by the learned cross-examining counsel and he was asked whether this statement of his has also turned 2116 incorrect because he was not at all present in Ayodhya. Going through the aforesaid, the witness replied - The year 1933 has come to be wrongly written in it." (E.T.C.) 2048. Then ultimately on page 108 he said:
^^eq > s ;g ;kn ugh a gS fd eS a Qjojh lu~ 1986 ls igy s fookfnr Hkou esa dHkh x;k ;k ugh aA ** "I do not remember whether I had ever gone or not to the disputed building before February, 1986." (E.T.C.) 2049. He also contradicted his statement on page 13 about his continuous stay from 1930 to 1942 on page 102.
^^fo}ku ftjgdrkZ vf/koDrk }kjk xokg dks muds fnukad&14-11- 2003 ds i`"B&13 ds c;ku dk va'k ^^v;ks/;k esa eSa nl o"kZ dh vk;q ls lu~ 1942 rd yxkrkj jgk gwWa** vkSj blh i`"B ds c;ku dk va'k ^^vkSj lu~ 1930 ls lu~ 1942 rd eSa yxkrkj v;ks/;k esa jgk vkSj ;g vof/k yxHkx 12 o"kZ dh gksrh gS** fn[kk;k x;k vkSj ;g iwNk x;k fd bu mijksDr nksuksa c;kuksa esa vkius tks lu~ 1942 rd v;ks/;k esa yxkrkj jgus vkSj 12 o"kZ jgus dh ckr dgh gS] D;k og vkids Åij fn;s x;s c;ku ds eqrkfcd xyr gS\ mijksDr dks ns[kdj xokg us mRrj fn;k fd bles a tk s lu~ 1930 ls 1942 rd yxkrkj v;k s/ ;k esa jgus okyh ckr fy[kh gS ] og eS a xyrh ls crk x;k gwW aA ** "The witness was shown by the learned cross- examining counsel a portion of the former's statement dated 14.11.2003 - mentioned on page 13 and running as 'I have continuously been at Ayodhya from the age of 10 years until 1942' - as also a portion of the statement mentioned on this very page - which runs as 'And I resided continuously from 1930 to 1942 at Ayodhya and this period is of nearly 12 years' - and a question was put to him whether his version as in the aforesaid two statements to the effect that he resided at Ayodhya continuously up to 1942 and this period spanned 12 years, was incorrect as 2117 per the statement given by him. Going through the aforesaid, the witness replied that the factum of his residing at Ayodhya continuously from 1930 to 1942 has wrongly been mentioned therein by him."(E.T.C.) 2050. DW 3/5, Raghunath Prasad Pandey is resident of village Sariyawan, a place about 16-17 kms from the disputed place. Later on page 34 he however rectified his statement of para 1 of the affidavit saying that the actual distance is about 14- 15 kms. He was born in October, 1930 and his father died when he was six years of age, i.e., 1936. He claims to have visited Ayodhya alongwith his mother from 1937 to 1948 and that the idols of Lord Ramlala was inside the building under the central dome, i.e., Garbhgrih. Later on when he was confronted with various photographs of the disputed building he got confused and made contradictory statement. In order to justify his statement about location of Sumitra Bhawan, he even disputed the map prepared by Court Commissioner, Sri Shiv Shankar Lal, which map has not been disputed by most of the witness of Nirmohi Akhara as well Akhara itself, and ultimately he admitted on page 84 that his statement is wrong.
^^mijksDr dks ns[kdj xokg us dgk fd esj k mijk sD r c;ku xyr gk s x;k gS A - - - -mijksDr dks ns[kdj xokg us mRrj fn;k fd esjk mijksDr c;ku x+y r gk s x;k gS ] D;ksafd lu~ 1991 esa ;g lqfe=k Hkou m0iz0 ljdkj }kjk fxjk fn;k x;k FkkA** "Going through the aforesaid, the witness stated - the aforesaid statement of mine has turned incorrect. . . . . . . Going through the aforesaid the witness replied - The aforesaid statement of mine has turned wrong because this Sumitra Bhawan was demolished by the Government of Uttar Pradesh in 1991. "(E.T.C.) 2051. Most of his statement travelled in the facts of antiquity 2118 and, therefore, wholly irrelevant and inadmissible since admittedly he had no personal knowledge of those facts. So far as the statement of his personal belief that the disputed place is where Lord Rama was born, the same being matter of faith and belief, no comment is called for but rest of his statement about the history of the period of Lord Rama etc. is wholly inadmissible. When asked about the source of his knowledge he says on page 101 that he has heard the stories from his teachers. On page 102 he says that three domed structure was constructed by Raja Vikramaditya. Then he modified it on page 105 stating that the building constructed by Vikramaditya was demolished and thereafter the disputed building was constrcuted and for this information refers to Ayodhya Mahatam. Sri R.L. Verma, Advocate for Nirmohi Akhara, did not dispute that Ayodhya Mahatam nowhere mentions that the building constructed by Raja Vikramaditya was demolished and thereafter the disputed building was constructed. The witness is an educated man having worked in Indian Railway since 1948 till 1988. However, on page 170 he claims to have heard the name of 'Babari mosque' for the first time on 18.11.2003.
^^18 uoEcj lu~ 2003 dk s tc eS a ;gkW a c;ku nsu s vk;k Fkk rc eS au s y[kuÅ esa igyh ckj ckcjh efLtn dk uke lq u kA mlls igys eSaus dHkh ckcjh efLtn dk uke ugha lqukA eSaus 18 uoEcj lu~ 2003 dks gh ;g ckr igyh ckj lquh Fkh fd eqlyeku yksx fookfnr Hkou dks efLtn ekurs gSaA** "I first heard the name of Babri mosque in Lucknow when I came here to give my statement on 18th November, 2003. Prior to it, I had never heard the name of Babri mosque. On 18th November, 2003 itself I had heard for the first time that the Muslims considered the disputed structure to be a mosque." (E.T.C) 2119 2052. Very interestingly he admits on page 172 that he has wrongly stated on page 45 that he read his affidavit after it was typed out but before its verification.
^^iz'u& rks D;k vkids mijksDr i`"B&45 ds c;ku esa ;g x+yr fy[k x;k gS fd vkius mijksDr 'kiFk&i= dks VkbZi gksus ds mijkar vkSj lR;kfir gksus ds iwoZ QStkckn esa i<+k Fkk\ mRrj& th gkWa] ;g ckr x+y r gk s xbZ gS A ** "Question:- Then have you wrongly stated at the aforesaid page-45 of your statement that you had read the aforesaid affidavit at Faizabad, after it was typed out and before it was verified?
Answer:- Yes, this mistake has occurred." (E.T.C) 2053. DW 3/6 Sitaram Yadav was born in 1943 and, therefore, virtually had no personal knowledge about the facts as they were, upto December 1949. Whatever he says is hearse and inadmissible. We do not find that for the state of affairs as prevailed upto December, 1949 his statement can be treated to be relevant. Much of his averments are not relevant since he is basically a witness of fact produced to show firstly that the worship was going on inside the disputed building prior to December, 1949 and the idols of Lord Ramlala also exist thereat since before that and that all these things were in possession and management of Nirmohi Akhara which information also he has given based on information he has received, as he has no such personal knowledge.
2054. DW 3/7, Mahant Ramji Das was born on 13.04.1923 at Katni (Madhya Pradesh) and has visited Ayodhya at the age of 11 and 12 years.
^^fookfnr LFky dk s fgUnw leqnk; ds yksx vukfndky ls Jh jkepUnz th dh tUe Hk wf e ekudj iwt k djrs gS aA ---- Hkxoku jke dk tc ls tUe gqvk] rc ls ml LFky dh iwtk gksrh jgh 2120 gS] mlds igys Hkh ml LFky dh iwtk gksrh jgh gSA** ¼ist 18½ "The followers of Hinduism have been worshiping the disputed site since time immemorial by considering it to be the birthplace of Sri Ramchandra.. . . . . . The said site has been worshiped since Lord Rama was born. The said place was worshiped even before that." (E.T.C) ^^lu~ 1934 ls lu~ 1992 rd eSaus fookfnr LFky dks ,oa mlds ikl fLFkr pkSdk] pwYgk] csyu] vFkkZr~ dkS'kY;k jlksbZ dks mlh :i esa ns[kk gSA** ¼ist 20½ "From the year 1934 to 1992, I have seen the disputed site and the 'Chauka', 'Chulha' (hearth), 'Belan' i.e. the Kaushalya Rasoi, in the same form." (E.T.C) ^^fgUnq v k sa dh ijEijk] vkLFkk ,oa fo'okl pyk vk jgk gS fd xq E cn okys fookfnr Hkou ds chp okys xq E cn ds uhp s okys Hkkx es a jkepUnz th dk tUe gq v k Fkk vkSj ;gh vkLFkk o fo'okl esjk Hkh gSa Jh jketUe Hkwfe LFky jkepUnz th ds le; ls iwT; gS vkSj cjkcj iwftr gksrh pyh vk jgh gSA eSa fookfnr ifjlj ds iwohZ eq[; }kj ls gksdj vanj n'kZu djus tkrk FkkA tUeHkwfe dk n'kZu djus ds mijkUr tc ckgj fudyrs Fks rks nf{k.k dh vksj ls ?kwe dj ifjdzek djrs FksA** ¼ist 22&23½ "The tradition, faith and belief of Hindus has been continuing that Ramchandra was born beneath the middle dome of the domed disputed structure and I also have the same faith and belief. The Sri Ramjanmbhumi site is reverable since the times of Ramchandra and has been continuously worshiped. I used to go through the eastern main gate of the disputed structure to have darshan. On coming out after having darshan, (I) used to circumambulate by turning southwards." (E.T.C) ^^lu~ 1934 esa tc eSa v;ks/;k x;k Fkk] rks ml le; esjh vk;q yxHkx X;kjg&ckjg o"kZ FkhA eq>s ;kn ugha gS fd eSa lu~ 1934 esa 2121 v;ks/;k x;k ;k ughaA** ¼ist 27½ "In the year 1934, when I had gone to Ayodhya, at that time I was aged around 11-12 years. I do not remember whether I had gone to Ayodhya in the year 1934, or not."
(E.T.C) ^^eq>s yksxksa us ;g crk;k Fkk fd lu~ 1934 ds naxs esa fookfnr Hkou dk ,d f'k[kj VwVk FkkA fookfnr Hkou dk f'k[kj ds vykok vU; dksbZ Hkkx lu~ 1934 ds cycs esa ugha VwVk FkkA - - - - - lu~ 1934 ds cyos ds iUnzg&lksyg lky ckn bu yksxksa us fookfnr f'k[kj ds VwVus ds ckcr crk;k FkkA - - - - - lu~ 1934 ds yxHkx pkSgn lky ckn eSa v;ks/;k x;kA bl pkSng o"kksZa ds nkSjku Hkh eSa ,d nks ckj v;ks/;k x;k gwWaA - - -
- -lu~ 1934 vkSj lu~ 1948 ds nkSjku tc eSa ,d nks ckj v;ks/;k x;k Fkk] rks eSa cM+k LFkku v;ks/;k esa Bgjk FkkA ml le; eSa cM+s LFkku ds egar dk f'k"; ugha gqvk FkkA** ¼ist 28½ "I was told by people that in the riot of the year 1934, a dome of the disputed structure had fallen down. Apart from the dome of the disputed structure, no other part was damaged in the riot of the year 1934. . . . . . .About 15-16 years after the riot of the year 1934, these persons had told about the damage to the disputed dome. . . . . . .I went to Ayodhya about 14 years after the year 1934. In the period of 14 years as well, I had been to Ayodhya on couple of occasions.. . . . . . .When I went to Ayodhya on couple of occasions between the year 1934 to 1948, I had stayed at 'Bada Sthan', Ayodhya. At that time, I had not become the disciple of the Mahant of 'Bada Sthan'." (E.T.C) ^^eSa fuf'pr #i ls ;g ugha crk ldrk fd eSa lu~ 1934 vkSj 1948 ds chp esa v;ks/;k fdruh ckj x;k FkkA eq>s ;kn ugha gS fd lu~ 1934 ,oa lu~ 1948 ds chp esa tc eSa v;ks/;k x;k] ml le; esjh vk;q D;k FkhA tc eSa vius firkth ds lkFk x;k FkkA eq>s ;g ;kn ugha gS fd lu~ 1934 ds ckn igyh ckj eSa v;ks/;k dc x;k Fkk ijUrq tc eSa lu~ 2122 1934 ds ckn igyh ckj tc eSa v;ks/;k x;k Fkk] rks rhu pkj fnu jgk FkkA** ¼ist 29½ "I cannot definitely tell as to on how many occasions had I gone to Ayodhya between the years 1934 to 1948. I do not remember as to what was my age, when I visited Ayodhya between the years 1934 to 1948. When I had gone along with my father. I do not remember as to when did I first go to Ayodhya after the year 1934, but when I first went to Ayodhya after the year 1934, I stayed for 3-4 days."
(E.T.C) ^^fookfnr Hkou esa ewfrZ lu~ 1949 ds igys ls gh FkhA** ¼ist 31½ "The idol existed in the disputed structure from before the year 1949." (E.T.C) ^^lu~ 1949 ds ckn fookfnr Hkou ls lacaf/kr dksbZ ?kVuk ugha gqbZA** ¼ist 36½ "After the year 1949, no incident occurred regarding the disputed structure." (E.T.C) ^^eSaus v;ks/;k esa LFkk;h fuokl lu~ 1948 ls izkjEHk fd;k FkkA** ¼ist 37½ "I started living permanently in Ayodhya from the year 1948." (E.T.C) ^^lu~ 1948 ds ckn esjs firk th dHkh v;ks/;k ugha x,A esjs firkth dk nsgkolku lu~ 1947&48 esa gqvk FkkA esjh ekrk th dk nsgkUr lu~ 1947 esa gqvk FkkA** "After the year 1948, my father never visited Ayodhya. My father expired in the year 1947-48. My mother expired in the year 1947." (E.T.C) 2055. Contrary to the stand of Nirmohi Akhara, on page 75 he admits the construction of Babar of the disputed building:
^^fookfnr Hkou ftls 6 fnlEcj lu~ 1992 dks fxjk;k x;k] ckcj }kjk lhrk&ikd dh 'kDy esa cuk;k x;k Fkk] efLtn 2123 dh 'kDy esa ughaA - - - - - - - fookfnr Hkou esa vdcj ds le; es a eq l yekuk s a dk s tq e k dh uekt+ i<+u s dh btkt+r Fkh vkS j ckdh le; esa fgUnq v k sa dk s iwt k vpZ u k dh btkt+r FkhA lkfgR; ;k bfrgkl esa bl ckr dk irk ugha pyrk gS fd ckcj ls vdcj ds chp esa fookfnr Hkou ds vanj eqlyekuksa }kjk uekt i<+h tkrh Fkh ;k ugha ;k jke dh iwtk&vpZuk gksrh Fkh ;k ughaA tgkWa rd esjh tkudkjh gS vkSj tSlk eq>s crk;k x;k gS] fookfnr Hkou es a lu~ 1934 ds nax s ds ckn dHkh uekt+ ugh a gq b Z ] cfYd mlds ckn ls ogka iwtk vpZuk cjkcj gksrh jghA tks esjh tkudkjh gS vkSj tks tuJqfr ij vk/kkfjr gS] vdcj ds le; ls lu~ 1934 rd fookfnr Hkou esa tqes dh uekt+ gksrh FkhA ckdh fnu uekt+ ugha i<+h tkrh FkhA** ¼ist 75½ "The disputed structure, which was demolished on 6th December, 1992, was built by Babar in the shape of 'Sita Pak', (and) not in shape of mosque. . . . . . . . In the period of Akbar, Muslims had the permission to offer Jumma namaz in the disputed structure and for the remaining period, Hindus were permitted to carry out prayer- worship. It is not found in literature or history as to whether in the period between Babar to Akbar, namaz was offered by Muslims in the disputed structure or not, or whether the prayer-worship of Lord Rama was carried out or not. To the best of my knowledge and as told to me, namaz was never offered in the disputed structure after the riot of the year 1934 and instead prayer-worship was regularly carried out over there in the later days. As per my knowledge, which is based on hearsay, the Jumma namaz was offered at the disputed structure from the times of Akbar till the year 1934. Namaz was not offered on other days." (E.T.C) ^^fookfnr LFky ifjlj dks lhrk ikd ds uke ls ckcj }kjk 2124 efUnj rk sM +d j cuok;k x;k Fkk] efLtn ugha vkSj rHkh ls bls lhrk ikd vkSj jketUeHkwfe ds uke ls tkurs gSaA** ¼ist 96½-
"The site of the disputed structure was built by Babar under the name 'Sita Pak', (it was) not a mosque and since then it is known as 'Sita Pak' and Ramjanmbhumi."
(E.T.C) ^^fookfnr LFky ij gh lhrk ikd 'kCn fy[ks gq, Fks] ijUrq ckcjh lhrk ikd ;kuh ckcj ds uke ds lanHkZ esa ugha vkSj u gh ckcj ds uke ls FkkA Lo;a dgk fd fookfnr Hkou ij jkepUnz th dk rkjd ;U= dk "kVdks.k ;U= cuk gqvk FkkA Lo;a dgk fd ckcj us fookfnr Hkou ij lhrk ikd blfy, fy[kok;k Fkk] D;ksafd tc&tc ckcj us efLtn cuokus dk iz;kl fd;k] mlesa foQy jgk] guqeku th Hkou dks fxjk nsrs Fks] rc lk/kw lUrksa dh jk; ds eqrkfcd ckcj us ml ij lhrk ikd fy[kok;k vkSj ehukjksa dks fxjok fn;k rFkk vkns'k fn;k fd eqlyeku flQZ tqes dh uekt+ i<+sxsa] ckdh fnu nso iwtk] _f"k ikB lc gksxkA** ¼ist 96&97½ "The words 'Sita Pak' were inscribed at the disputed site itself, however, (it) was neither in reference to 'Babri Sita Pak' i.e. name of Babar nor with the name of Babar. Stated on his own that Lord Ramchandra's 'Shatkon Yantra' of 'Tarak Yantra' were there at the disputed structure. Stated on his own that Babar had got 'Sita Pak' inscribed at the disputed structure in view of the fact that whenever Babar attempted to build the mosque, he remained unsuccessful, (as) Hanuman Ji used to demolish the building, and then as per the advice of saints-sages, Babar got 'Sita Pak' inscribed over it and dismantled the minarets and ordered that Muslims would offer only the Jumma namaz and on the remaining days 'Dev Puja' (worship of deities), 'Rishi Path' (orations by sages) would all take place." (E.T.C) 2056. After long drawn cross-examination ultimately when 2125 he found several mistakes in his affidavit, said on page 169:
^^'kiFk i= ij nLr[kr djrs le; eS au s mls ugh a i<+k FkkA eSaus bl 'kiFk i= dks U;k;ky; d{k esa vkus ds ckn U;k;ky; d{k esa i<+k FkkA** "I had not read the affidavit at time of signing it. I had read this affidavit after entering the Court room, in the Court room." (E.T.C) 2057. DW 3/8, Pt. Shyam Sunder Mishra born in 1914, has claimed to visit the disputed premises and worship Lord Rama inside the disputed building from the age of 14 years. However, on page 119 he says that the disputed building was attached on 23.12.1949 and this was told to him by Baldev Das and Bhaskar Das when he visited the premises for Darshan.
^^23 fnlEcj 1949 ds izkr%dky cYnso nkl rFkk Hkk"dj nkl us fookfnr Hkou ds dqdZ gksus dh ckr eq>s crk;k FkkA tc eSa lqcg n'kZu djus x;k rks cYnso nkl rFkk Hkk"dj nkl us dqdhZ gksus ds laca/k esa eq>s crk;k FkkA - - - - - 23 fnlEcj 1949 dh lqcg ls dksbZ Hkh O;fDr vUnj n'kZu djus ugha tk ldrk Fkk] ckgj ls gh yksx n'kZu djrs FksA n'kZu yksx jkeyyk dh ewfrZ dk djrs FksA** "In the morning of 23rd December, 1949 Baldev Das and Bhaskar Das had told me about attachment of the disputed structure. When I had gone in the morning to have darshan, Baldev Das and Bhasker Das had told me about the attachment. . . . . . From the morning of 23rd December, 1949 no person could go inside to have darshan, (and) people used to have darshan from outside. People used to have darshan of the idol of Ramlala." (E.T.C) 2058. About his belief he said:
^^fookfnr LFky ij 'kq: ls gh jke tUe Hkwfe ds :i esa iwtk gksrh jgh gSA 'kq: ls esjk rkRi;Z ;g gS fd tc eSa 14 lky dh mez ls ogkWa vkus yxk rc ls eSaus mls jke tUe Hkwfe ds :i esa ns[kk gSA vius 2126 gk s' k es a vkus vFkkZ r 14 lky dh mez ds igys fookfnr LFky ij iwt k gk su s vFkok u gk s u s ds ckjs esa eq > s dk sb Z tkudkjh ugh a gS A fookfnr LFky ij Jh jke pUnz th iS n k gq , Fk sA eSa ;g ugha crk ikÅWaxk fd jke pUnz th vkt ls fdrus lky igys iSnk gq,A** "The disputed structure has been worshiped as Ramjanmbhumi from the very beginning. By 'very beginning', I mean that since I started coming there from the age of 14 years, I have seen it as Ramjanmbhumi. I have no knowledge about observance or non-observance of worship at the disputed site, prior to my attainment of maturity i.e. before the age of 14 years. Lord Shri Ramchandra was born at the disputed site. I will not be able to tell as to how many years ago, was Lord Ramchandra born." (E.T.C) 2059. DW 3/9, Ram Ashrey Yadav is 72 years of age, which brings his year of birth to about 1932. He claims to have visited the disputed place at the age of 12-14 or 15 years. Interestingly about his affidavit he say:
^^eSaus vkt bl U;k;ky; esa 'kiFk&i= nkf[ky fd;k gSA eS a Lo;a ;g ugh a i<+ ik;k fd esj s }kjk nkf[ky bl 'kiFk&i= es a D;k fy[kk gS A bl 'kiFk&i= dks eqa'kh th us eq>s i<+dj lquk;k Fkk] ijUrq eaq'kh th dk uke eq>s ugha ekywe gSA eSaus vius 'kiFk i= esa] lquus ds ckn dsoy nLr[kr dj fn;s Fks] ijUrq mles a D;k fy[kk gS ] ;g eq > s ugh a ekywe A ;g 'kiFk&i= rhu ;k pkj iUus dk FkkA** ¼ist 6½ "Today, I have filed an affidavit in this Court. I was not able to read on my own as to what was written in the affidavit filed by me. This affidavit was read out to me by the 'Munshi' (advocate clerk), but I do not remember his name. I had only put my signature on the affidavit after hearing the same, but I do not know about its contents.2127
This affidavit ran into three or four pages." (E.T.C.) 2060. Then on page 8 he says:
^^eS au s vHkh rd tk s lokyk s ds tokc fn;s gS a] og lgh Hkh gk s ldrs gS a vkS j xyr HkhA tk s pht+ ges a ugh a ;kn gS ] mlds ckj s es a loky dk tokc xyr Hkh gk s ldrk gS A bl le; gekjk CyMisz'kj gkbZ gS] bl dkj.k gekjk fnekx Bhd ugh a gS A eSa QStkckn esa 7&8 cts lqcg xkM+h esa cSBk Fkk] rc eSa Bhd FkkA jkLrs esa esjh rfc;r [kjkc yxus yxh vkSj ckjkcadh igqaprs&igqaprs esjk CyMizs'kj c<+k yxus yxkA bl le; esjh rfc;r [kjkc yx jgh gS vkSj esj k fnekx dke ugh a dj jgk gS vkSj eSa pkgrk gwa fd vkt ds ctk; esjk vU; fnu c;ku fy[k fy;k tk;sA** ¼ist 8½ "All my answers till now, may be right or wrong. My answer can be wrong as regards the facts I do not remember. Presently I have high blood pressure, as such my mind is not functioning properly. I was alright when I took the train at 7-8 AM at Faizabad. My health started deteriorating on the way and my blood pressure increased by the time I reached Barabanki. At present I am not feeling well and my mind is not working properly and I want that instead of today, my statement be recorded on some other day." (E.T.C.) 2061. On his request the cross-examination was adjourned but on the next day also when he found difficulty in replying the cross-examination claiming his bad health he says:
^^vkt Hkh esj k LokLFk Bhd ugh a gS A rFkk vkt Hkh eq>s gkbZ CyM izs'kj gSA** ¼ist 11½ "My health is not good even today and I have high blood pressure today as well." (E.T.C.) 2062. Further on page 18 he said about his bad health:
^^vkt Hkh esj h rfc;r Bhd ugh a gS A ** ¼ist 18½ "Today also I am not well." (E.T.C.) 2128 2063. Then he took the plea of weak memory.
^^esj k fnekx 8&10 ekg ds Bhd ls dke ugh a dj jgk gS A esj h ;kn~ n k'r detk sj gk s x;h gS A vkt ds c;ku esa /kuir ;kno dh e`R;q 2&3 o"kZ iwoZ gksuk eSaus blfy, crk;k gS D;ksafd fnekx dh detk sj h ds dkj.k] og Bhd ls dke ugh a dj jgk gS A ** ¼ist 27½ "My brain has not been working properly for 8-10 months. My memory has weakened. In my statement of the day, I have stated the death of Dhanpat Yadav to have occurred 2-3 years ago, due to weakness of my brain, which is not working properly on that account." (E.T.C.) ^^lk{kh dks mlds 'kiFk i= dh /kkjk 10 dks i<+dj lquk;k x;kA bl /kkjk esa fy[kh ckrk s a dk s eS au s fy[kok;k Fkk ;k ugh a] eq > s ;kn ugh a gS A - - - - - - - - - bl /kkjk dh nwljh o rhljh ykbu esa eSaus ;g fy[kk gS fd ^^22&23 fnlEcj dks xHkZx`g ds Hkkx esa ewfrZ j[kuk ,dne xyr ckr gS**] ;g ckr 1949 dh ?kVuk ls lacaf/kr gS vFkok ugha] ;g eq>s ;kn ugha gSA blh /kkjk esa eSaus ;g Hkh fy[kk gS fd ^^ dqN eqdkeh eqlyekuksa us - - - -QthZ dk;Zokgh djk fn;kA** ;g QthZ dk;Zokgh fdl laca/k esa Fkh] ;g eq>s ;kn ugha gSA Lo;a dgk ftl QthZ dk;Z o kgh dk eS au s mYy s[ k fd;k gS ] og lu~ 1934 dh ?kVuk ls lac af /kr gS vFkok ugh a] ;g eS a ugh a crk ldrkA^* ¼ist 31&32½ "The paragraph 10 of his affidavit, was read out to the witness. I do not recollect whether the facts mentioned in this paragraph, had been got incorporated by me or not.. . . .. .. . In second and third line of this paragraph, I have mentioned that 'the placement of idols in the 'Garbh-grih' portion on 22-23 December, is totally wrong'. I do not remember whether this fact is related to the incident of 1949 or not. In this very paragraph, I have also mentioned that 'few local Muslims. . . . . . . . . .got the 2129 forged action taken'. I do not recollect as to in which behalf, was this forged action. Stated on his own that I can not tell whether the forged action mentioned by me was related to the incident of year 1934 or not." (E.T.C.) ^bl le; esj k fnekx dke ugh a dj jgk gS A ** ¼ist 33½ "My brain is not working presently." (E.T.C.) ^^tk s eS a vkt c;ku ns jgk gwW a] mldk fcLej.k nk s ?k.Vs ckn gk s tk;sx kA tc eSa c;ku nsrk gwWa rks tks eq>s Lej.k jgrk gS] eSa crkrk gwWaA esj h Lej.k 'kfDr detk sj gk s x;h gS ] vr,o bl laca/k esa eSa D;k dj ldrk gwWaA eSa ;g crk pqdk gwWa fd esjh Lej.k 'kfDr detksj gS] vr% eSa rF;ksa dks Hkwy tkrk gwWa rFkk ifjokj ds lnL; dks Hkh dHkh&dHkh ugha igpkurk gwWaA esj s vUnj ;g {kerk ugh a gS fd eS a rF;k s a dk s dgus ds igys ;g lq f uf'pr dj y wW a fd crk;s x;s rF; lgh a gS A ** ¼ist 51&52½ "The statement being given by me today, will be forgotten after two hours. Whenever I give statement, I tell whatever I remember. My memory has become weak, and I can do nothing in this behalf. I have told that my memory has become weak, as such I forget the facts and sometimes fail to recognise even the family members. I do not have the capacity to ensure before stating that the facts are correct." (E.T.C.) 2064. DW 3/11, Shri Bhanu Pratap Singh is also a resident of Village Haliyapur, district Sultanpur and is aged about 70 years in April 2004, meaning thereby his year of birth comes to 1934. He claims to have visited Ayodhya before 1949 and that the idols were kept inside the building in the inner courtyard prior to 1949. The idols of Bhagwan Ram Lala and others were also there on Ram Chabutara. He visited the disputed building for about 40-50 times upto 1949. The distance of his village 2130 from Ayodhya is 54 Kms. On page 29 he virtually admits of having given his wrong age as is evident from the following:
^^esjh tUe frfFk gkbZLdwy izek.k&i= esa 1 tqykbZ 1936 fy[kh gqbZ gSA** ¼ist 29½ "My date of birth is mentioned as 1st July, 1936 in the High School certificate." (E.T.C) 2065. His father expired in 1945 as said by him on page 30. He used to visit Ayodhya with his grandfather. There are several contradictions in his statements but for us suffice to mention about his admission regarding weak memory.
^^rks D;k eSa ;g le>wWa fd vkidh Lej.k 'kfDr bruh {kh.k gks xbZ gS fd vki ikWap feuV esa ckr Hkwy tkrs gSa vkSj fQj ikWap feuV ckn vkidks ;kn vk tkrh gS\ m0& esj h Lej.k 'kfDr dq N det+k sj gS A ** ¼ist 46½ "Should I consider that your memory is so weak that you forget facts within five minutes and then you recollect after five minutes?
Answer:- My memory is a bit weak." (E.T.C) ^^esjs mi;qZDr c;ku dk va'k ^^pkjksa rjQ+ eafnj gSa** x+yr gS] D;ksafd eafnj ek= nks gh rjQ+ FksA - - - - -bl laca/k esa eSa x+yr c;ku nsus dk dksbZ dkj.k ugha crk ldrk] eS a dq N rF;k s a dk s Hk wy tkrk gwW a] ftlds dkj.k bl izdkj ds c;ku ns fn;s tkrs gSaA Hkwyus dk rkRi;Z ;g gS fd os rF; ml le; eq>s ;kn ugha jgrs gSaA** ¼ist 105½ "The portion 'temples all around' of my above statement, is wrong because temples were only on two sides. . . . .In this behalf, I cannot give any reason for making wrong statement. I forget few facts due to which such statements are made. By forgetting, I mean that I do not remember those facts at that time." (E.T.C) ^^fnukad 29-4-2004 ds i`"B 20 ij vfHkfyf[kr c;ku dk va"k ^^eSaus rhu xqEcn ugha ns[ks Fks] rhu f'k[kj ns[ks Fks] xqEcn rFkk f'k[kj ,d 2131 gh ugha gksrk gS** x+yr gks ldrk gS] xqEcn rFkk f'k[kj ,d gh gksrk gSA c;ku dh bl x+yrh dk dksbZ dkj.k ugha crk ldrkA - - - - -dHkh&dHkh Hk wy tkus ds dkj.k eq > ls x+y rh gk s tkrhgS A ** ¼ist 106½ "The portion 'I had not seen the three domes, had seen the three vertexes, dome and vertex are not same' of my statement dated 29.04.2004 at page 20, may be wrong. Dome and vertex are same. I cannot give any reason for this mistake in the statement....... Sometimes such mistakes creep in on account of loss of memory" (E.T.C) 2066. DW 3/12, Ram Akshyawar Pandey:
^^eSaus jketUeHkwfe eafnj ds pkjksa rjQ ifjdzek ugha fd;k gSA jkepcwrjs dh ifjdzek fd;k gSA** ¼ist 17½ "I have not performed circumambulation of the Ramjanmbhumi temple. I have performed the circumambulation of Ramchabutara." (E.T.C.) **ogka ij fLFkr eafnj tgka ij jkeyyk fojkteku Fks] ogka ij rhu xqEcn FksA jke pcwrjk ls jkeyyk eafnj rd dh vanj ls pkSM+kbZ yxHkx 60 gkFk dh FkhA^* ¼ist 25½ "The temple, where Ramlala was present, had three domes. The inside width from Ramchabutara to Ramlala temple was about 60 yards." (E.T.C.) **;g dguk xyr gS fd fnukad&23-12-1949 dh jkr esa ewfrZ;ka j[kh xbZ FkhaA- - - - - -esjs xkao okyks us eq>ls bl laca/k esa crk;k Fkk fd jketUeHkwfe ftlesa jkeyyk cSBs gS] iqjkuk Fkk] og fxj x;kA** ¼ist 27&28½ "It is wrong to say that the idols had been placed in the night of 23-12-1949. . . . . . . . The villagers of my village had told me in this behalf that the Ramjanmbhumi, in which Ramlala was present, had collapsed as it was old." (E.T.C.) ^^bl le; esjs flj esa cgqr rst nnZ rFkk vka[ks yky gSa] blfy, eSa Bhd 2132 ls ugha ns[k ik jgk gwWa vkSj ugha crk ikmxk fd lqUnjdk.M es fdrus nksgs o fdruh pkSikbZ;ka gSaA** ¼ist 39½ "I have severe headache and my eyes are infected, hence I am not able to see properly and as such I will not be able to give the number of 'Doha' and 'Chaupai' in the 'Sundar Kand'." (E.T.C.) ^^D;ksfd esjs flj esa nnZ gS vkSj esjh vka[ks nnZ dj jgh gSaA - - - -
- vkt eSa bldk vFkZ ugha crk ikÅWxk] D;ksafd esjk flj nnZ dj jgk gSA
- - - -og nnZ ds dkj.k Hk wy tk jgk gwW aA ** ¼ist 40½ "Because I have headache and also have pain in my eyes. . . . . . I will not be able to give its meaning today because of headache.. . . . . . My memory is failing because of the pain." (E.T.C.) ^^fookfnr Hkou] ftlesa rhu xqEcn Fks] mldks fdlus vkSj dc cuk;k Fkk] blds ckjs esa eSaus u rks dgha lquk vkSj u i<+kA** ¼ist 42½ "I have nowhere read or heard as to who constructed the disputed structure with three domes, and when." (E.T.C.) ^^bl lEcU/k esa eS au s ;g lq u k gS fd ;g LFkku jkepUnz th dk tUeLFkku gS A Hkxoku jke dk tUe rhu xqEcn okys Hkou ds chp okys xqEcn ds uhps okys LFkku ij gqvk FkkA** ¼ist 44½ "I have so heard that this place is the birthplace of Lord Rama. Lord Rama was born at the place below the mid dome of the three dome structure." (E.T.C.) ^^tc eS a vius ckck ds lkFk vkf[kjh ckj v;k s/ ;k x;k Fkk] rc esj h vk;q 12 o"kZ dh FkhA tc eS a vius ckck ds lkFk igyh ckj v;k s/ ;k x;k Fkk] rc esj h vk;q D;k Fkh] ;g eS a ugh a crk ldrk] D;ksafd ml le; eSa cgqr NksVk FkkA** ¼ist 48½ "When I last visited Ayodhya along with my grandfather, I was aged 12 years. I do not remember my 2133 age at the time when I first visited Ayodhya, since I was quite young at that time." (E.T.C.) ^^iz'u& rks D;k vkidh ;knnk'r bruh detksj gS fd vki FkksM+h nsj igys dgh x;h ckr Hkwy tkrs gSa\ mRrj& esjh ;knnk'r detksj ugha gS] ijUrq flj esa nnZ gksus ds dkj.k dHkh&dHkh fnekx esa pDdj vk tkrk gSA** ¼ist 54½ "Question:- Is your memory so weak that you are unable to recollect what you have stated sometime back?
Answer:- My memory is not weak, but on account of headache, sometimes there is dizziness." (E.T.C.) ^^eSa ;g ugha crk ldrk fd tc eSa vius ckck ds lkFk igyh ckj v;ks/;k x;k Fkk] ml le; esjh vk;q 9 o"kZ dh Fkh vFkok ughaA ------ iafMr yksxksa us eq>s ;g crk;k fd bl le; esjh mez 70 o"kZ dh gks pqdh gSA - - - - -eSa dHkh Ldwy esa i<+us ugha x;kA ,d VsEisjsjh Ldwy [kqyk Fkk] ftlesa eSa i<+us x;k ogka ij eSaus rhljs pkSFks ntsZ rd f'k{kk ikbZA** ¼ist 59½ "I can not tell whether I was aged nine years or not, when I first went to Ayodhya along with my grandfather. ........The priests told me that I am aged 70 years now. ....... I never went to school. A temporary school had been established and I received education there upto Class III-IV." (E.T.C.) ^^,sl k iz r hr gk sr k gS fd eS a c;ku nsr s le; Hk wy x;k FkkA** ¼ist 69½ "It appears that I had forgotten at the time of my statement." (E.T.C.) ^^vkt c;ku nsr s le; esj k fnekx lgh ugh a FkkA^* ¼ist 78½ "I was not in my senses during my deposition of the day." (E.T.C.) 2067. The above extract is self evident to make this witness 2134 unreliable.
2068. DW 3/13, Mahant Ram Subhag Das Shastri, aged about 86 years in 2004 meaning thereby his year of birth comes to 1918, came to Ayodhya in 1933 and since then is continuously visiting Ram Janam Bhumi Temple. He has confirmed existence of Ram Chabutara, Chhati Pujan Sthal, Charan Chinh, Chakla and Belan as well as Bhandara in the outer courtyard of the site in dispute. He says that various idols of Lord Rama, Lakshmanji etc. were present on Ram Chabutara as well as Garbhgrih when he used to visit Ram Janam Bhumi Temple for Darshan and worship of Lord Ramlala. The incident of 23rd December, 1949, he claims to be a fictitious one and says that the entire disputed building was in possession of Nirmohi Akhara who were managing and serving. It was a temple of Nirmohi Akhara and Math. He also deny that any Namaj was offered in the entire building in dispute. Three documents he has annexed alongwith his affidavit to show that he had to sign a bond alongwith Baba Abhiram Das, Baba Brindaban Das, Baba Ram Vilas Das, Naga Sudarshan Das and Ram Shatrudhan since proceedings were initiated against them under Section 295/448 after the incident of 23rd December, 1949. However, in cross- examination the witness gave contradictory statement to the stand of the plaintiffs (Suit-3), as is evident from the following:
^^lu~ 1934 ds vizSy ekg esa v;ks/;k esa >xM+k gqvk FkkA bl >xM+s ds ckn v;ks/;k esa jgus okyksa ij VSDl yxk FkkA Lo;a dgk fd xksdq'kh gks x;h Fkh ftlesa dqN eqlyeku ekjs x;s Fks] mlds ckn jketUeHkwfe ds Åij tks <kapk Fkk mldks fgUnw yksx fxjkus yxs] ml le; vaxzstksa dk jkT; Fkk] QkSt us vkdj HkhM+ dks frrj&fcrj dj fn;k] mlds ckn gh fgUnqvksa ij tqekZuk yxk;k x;k FkkA 85 gtkj :i;s tq+ekZus ds :i esa yxk;s x;sA** ¼ist 15½ "A riot had broken out in Ayodhya in the month of 2135 April of the year 1934. After this riot, a tax had been imposed on the residents of Ayodhya. Stated on his own that cow slaughter had taken place, in which few Muslims had been killed and thereafter the Hindus started demolishing the structure standing over Ramjanmbhumi. At that time there was British rule and the army had come and scattered the crowd. The fine was imposed on the Hindus only after that. A sum of Rupees 85 thousand had been imposed as fine." (E.T.C) ^^lu~ 1933 ds iwoZ yk sx dgrs Fk s fd ckcjh efLtn gS ] ijUrq tc eS a mldk Lo#i ns[ krk Fkk rk s yxrk Fkk fd ;g eaf nj gS A ** ¼ist 23½ "Prior to the year 1983, people used to say that (it) was Babri mosque, but when I used to see, it appeared to be a temple." (E.T.C) ^^Lo;a dgk fd bls eaf nj dk s /oLr djds cuok;k x;k FkkA** ¼ist 23&24½ "Stated on his own that it had been built after demolishing the temple." (E.T.C) ^^ckcjh efLtn es a rhu xq E cn Åij Fk sA ckcjh efLtn yxHkx ipkl fQ+V yEch rFkk yxHkx mruh gh pkSM+h FkhA Lo;a dgk fd yEckbZ rFkk pkSM+kbZ yxHkx cjkcj FkhA ;g dguk x+yr gS fd [kkyh txg ij efLtn cuk;h x;h] cfYd ;g efLtn] eaf nj rk sM +d j cuk;h x;h FkhA tc ls eSa v;ks/;k x;k gwWa] rc ls ckcjh efLtn esa uekt+ ugha i<+h x;hA ckcjh efLtn vius LFkku ij ftl izdkj Fkh] mlh izdkj dk;e jghA - - - - -22@23-12-1949 dh jkr esa fookfnr Hkou esa dksykgy gqvk] ml jkr esa D;k O;oLFkk gqbZ] ;g eq>s irk ugha] ijUrq bruk fofnr gq v k fd uohu ewf rZ cS B k nh x;hA** ¼ist 24½ "There were three domes on top of the Babri mosque. Babri mosque was about fifty feet long and 2136 equally wide. Stated on his own that length and breadth were almost similar. It is wrong to say that mosque was built at vacant place , and instead this mosque was built after demolishing the temple. Since I have been to Ayodhya, namaz has not been offered in the Babri mosque. Babri mosque as it was stood at this place.. . . . . . .. There was disturbance in the night of 22/23.12.1949 in the disputed structure, but I do not know as to what arrangements were made in that night. However, this much transpired that new idols had been installed."(E.T.C) ^^ckcj }kjk fufeZr Hkou 500 lky iqjkuk gksxkA Lo;a dgk fd ftl le; ckcj Fks] mlh le; ;g Hkou cukA ftl le; ckcj us ;g Hkou cuok;k] mldks yksx efLtn ds :i esa cukuk crkrs gSa] ijUrq Hkou dks ns[kus ls ;g Hkou] eafnj ekywe nsrk FkkA ftl #i esa ckcj us fookfnr Hkou cuok;k Fkk] mlh #i es a og Hkou lu~ 1992 rd pyk vk;kA** ¼ist 35½ "The structure built by Babar would be 500 years old. Stated on his own that this structure was build in the period in which Babar existed. At the time when Babar built this structure, it is said by people that he built as a mosque, but on looking at the structure, it appeared to be a temple. The shape in which Babar had built this structure, continued as such till the year 1992." (E.T.C) ^^lu~ 1949 dk cyok fookfnr Hkwfe ij gqvk FkkA ;g cyok 23 fnlEcj 1949 dh jkr es a gq v k Fkk] bldh tkudkjh nwljs fnu vFkkZr 24 fnlEcj 1949 dks gqbZA ;g lgh gS fd ;g cyok 22@23 fnlEcj dh e/; jkf= esa gqvk FkkA ;g cyok fookfnr Hkou esa ewf rZ j[kus ds lac a/ k es a gq v k FkkA dksbZ dgrk Fkk fd Hkxoku Lo;a izdV gks x;s gSa] dksbZ dgrk Fkk fd ewfrZ j[k nh xbZ gSA ml jkr eSa fookfnr Hkou esa ugha x;k FkkA eSa jkr esa fookfnr Hkou ij ugha x;k 2137 Fkk] fQj Hkh esjk uke lfEefyr dj fn;k x;kA** ¼ist 41½ "The riot of the year 1949, occurred at the disputed premises. This riot broke out in the night of 23rd December, 1949. I came to know about it on the next day i.e. on 24th December, 1949. It is correct that this riot broke out in midnight of 22/23 December. This riot had broken out in respect of installation of idols in the disputed structure. Some claimed that the deity had Himself appeared, some said that the idols had been installed. I had not been to the disputed structure that night. I had not gone to the disputed structure in the night, still my name was included." (E.T.C) ^^eSaus fnukad 7-7-2004 dks i`"B 41 ij ;g c;ku fn;k gS fd 22@23 fnlEcj 1949 dks cyok gqvk Fkk] tks fookfnr Hkou esa ewfrZ j[kus ds laca/k esa Fkk] dksbZ dgrk Fkk fd Hkxoku izdV gks x;s gSa] dksbZ dgrk Fkk ewfrZ j[k nh x;h gSa esjk ;g c;ku lgh gSA** ¼ist 54½ "On 7.7.2004 at page-41, I have stated that 'a riot had broken out in the night of 22/23 December, 1949, which was in respect of installation of idols in the disputed structure. Few used to say that the deity had Himself appeared, few used to say that the idols had been installed', this statement of mine is correct." (E.T.C) ^^lu~ 1934 esa oS j kfx;k s us fookfnr Hkou dk s eaf nj le>dj mlds Åij geyk fd;k FkkA os oSjkxh yksx ml le; Hkh fookfnr Hkou esa iwtk djus tkrs FksA** ¼ist 98½-- "In the year 1934, the recluses had attacked the disputed structure, considering it to be temple. At that time also, the recluses used to go to the disputed structure for worship." (E.T.C) ^^ckcj us eaf nj ds <k ap s dk s rk sM +d j efLtn cuk;k Fkk] ijUrq og iw.kZ #i ls efLtn ugha cuk ik;kA 14 [kaHks bl Hkou esa 2138 yxs gq, Fks] ftuesa ewfrZ;ka cuh gSa] blfy, og cqr[kkuk gks x;kA** ¼ist 107½ "Babar had built the mosque by demolishing the structure of temple, but he was unable to make it a mosque completely. 14 pillars were fixed in this structure, which had idols engraved over them, and as such it became a place of idol." (E.T.C) 2069. He admits weak memory.
^^Lo;a dgk fd voLFkk vf/kd gk su s ds dkj.k eq > s foLe` f r gk s tkrh gS A ** ¼ist 20½ "Stated on his own that on account of advanced age, my memory fails me." (E.T.C) ^^;g laHko gS fd lu~ 1933&34 ds ckn dh ckrsa Hkh eq>s foLe`r gksuk 'kq: gks xbZ gksa vFkkZr~ lu~ 1933&34 ds ckn dh ckrs a Hkh eS au s Hk wy uk 'kq : dj fn;k gS A ** ¼ist 28½ "It is possible that the post 1933-34 facts are also fading away from my memory i.e. I have also started forgetting the post 1933-34 facts." (E.T.C) ^^;g lgh gS fd c;ku nsr s le; mYVh&iq Y Vh ckrs a fudy tkrh gS a rFkk gks ldrk gS fd esjk ;g c;ku fd QStkckn] v;ks/;k esa 'kkfey gS] xyr gksA** ¼ist 106½ "It is true that I make unnecessary utterances at time of giving my statement and it is possible that my statement 'Faizabad is included in Ayodhya' may be wrong." (E.T.C) ^^esj k efLr"d b/kj&m/kj gk sr k jgrk gS A ** ¼ist 109½ "My mind tends to lose concentration." (E.T.C) 2070. His statement about the existence of Chhati Pujan Sthal, Charan and Ram Chabutara in the outer courtyard of the disputed building could not be discredited in the cross- examination where he has categorically and in clear terms, 2139 consistently made similar statement. Then on some occasions he has also made contradictory statement.
^^22@23 fnlEcj 1949 dh jkr esa fookfnr Hkou esa ftl le; u¸;j lkgc eftLVsªV Fks] ewfrZ;ka ugha j[kh xbZ] ;s ewfrZ;ka igys ls FkhaA** ¼ist 102½ "These idols were not installed in the disputed structure in the night of 22/23 December, 1949, when Mr. Nayyar was the Magistrate, these idols were already in existence." (E.T.C) 2071. The statement of DW 3/13 does not support Nirmohi Akhara, plaintiff (Suit-3). In fact, it is contrary to their pleadings. It is well settled that evidence which are totally contrary to the pleadings ought not to be entertained by the Court. A Division Bench of Patna High Court in Parmeshwari Devi and others Vs. Khusali Mandal and others, AIR 1957 Patna 482 has observed:
"......evidence at variance with the pleadings is not permissible and, if adduced, cannot be looked into to sustain a claim which was never put forward in the pleadings."
2072. The entire case of Nirmohi Akhara is that there never existed any mosque and nothing was constructed by Babar or Mir Baqi at the disputed site which all through was a temple in the management, control and possession of Nirmohi Akhara and no riot or disturbance occurred either in 1934 and nothing happened in the night of 22/23 December, 1959 but the same stand totally belie by DW 3/13.
2073. DW 3/14, Jagadguru Ramanandacharya Swami Haryacharya. He is the head of Ramanandi Sampraday since 1985-86. His statement is not relevant as to whether the idols were already existing prior to December 1949 inside the 2140 disputed building but he in general gave history about the birth of Lord Rama. He has explained the concept of Panchkoshi Parikrama on page 64 as under:
^^egkjktk n'kjFk ds jktegy dk {ks=Qy tSlk fd okYehfd jkek;.k esa mfYyf[kr gS] v;ks/;k ds ikap dksl ds vUrxZr fLFkr gSA ;g ikap & dksl iapdkslh ifjdzek ds vUrxZr gS] n'kjFk ds jktegy dh gh ifjdzek gksrh gSA tgkWa ls iapdkslh 'kq: gksrh gS] ogkWa ls egjktk n'kjFk dk jktegy 'kq: gksrk Fkk rFkk tgkWa ij iapdkslh ifjdzek lekIr gksrh gS ogkWa ij lekIr gksrk FkkA** ¼ist 64½ "The area of King Dashrath's palace as mentioned in the Valmiki Ramayana, is located within 5 kosas (unit of distance) of Ayodhya. This distance of five kosas is within the panchkosi prikrama, which is only the circumambulation of Dashrath's palace. The panchkoshi starts from the place from where the palace of King Dashrath started and the panchkoshi circumambulation terminates at the place where it (the palace) ended."
(E.T.C.) 2074. Similarly on page 67 he explained 84 Koshi Parikrama observing that it encompasses the then entire Ayodhya. On page 118, 120, 127 and 128 however he said:
^^bl iz d kj fookfnr Hkou ds vUnj lhf<+; k s a ij jkeyyk th dh ewf rZ dk s j[k s gq , eS au s lu~ 1946&47 es a ns[ kk Fkk** ¼ist 118½ "I saw the idol of Ramlala installed inside the disputed structure on the stairs, in the year 1946-
47."(E.T.C.) ^^tc eSaus igyh ckj 15 fQ+V dh nwjh ls ewfrZ dk n'kZu fd;k Fkk] rc eSaus xqEcn ds uhps [kM+s gksdj n'kZu ugha fd;k Fkk] cfYd lgu esa [kM+s gksdj n'kZu fd;k FkkA** ¼ist 120½ "When I first had 'Darshan' (offering worship to the 2141 idol) from a distance of 15 feet, I did not have 'Darshan' from under the dome and instead it was done from the courtyard." (E.T.C.) ^^dqdhZ ds igys tc eSa n'kZu djus tkrk Fkk] rks lk;adky lk<+s ikWap cts n'kZu djrk Fkk rFkk n'kZu djds izk;% lkr cts rc okil vkrkk FkkA tkM+s ds ekSle esa ges'kk va/ksjk gks tkrk FkkA ml le; xqEcn okys Hkou esa dHkh ykyVsu rFkk dHkh ySEi j[kk jgrk Fkk] ml le; ogkWa fctyh ugha FkhA eSa lh[k+ps okyh nhokj] ftlesa ,d iz/kku QkVd rFkk ,d NksVk QkVd Fkk] ls gksdj n'kZu djus tkrk FkkA dHkh&dHkh cM+k okyk QkVd tc cUn jgrk Fkk rks eSa lh[kps okys QkVd ls pyk tkrk FkkA** ¼ist 120½ "Prior to the attachment whenever I went for 'Darshan', I had 'Darshan' at 5.30 PM and usually I returned by 7'O' clock. It always turned dark during winters. Sometimes lantern and sometimes lamp was kept in the domed building. There was no electricity at that time.
I used to go through the main gate and a small gate in the grill wall to have 'Darshan'. Whenever the main gate was locked, I used to go through the grill gate." (E.T.C.) ^^esjh eq[; ijh{kk ds 'kiFk&i= dh /kkjk&45 esa 3 fQ+V ÅWaps] 20 fQ+V yEcs rFkk 17 fQ+V pkSM+s pcwrjs dk mYys[k gS] ;g mYys[k jke pcwrjs ds ckjs esa gSA eSaus vius c;ku es vkt jkepcwrjs dks 40 fQV yEck rFkk 20 fQ+V pkSM+k crk;k gS] esj h eq [ ; ijh{kk ds 'kiFk&i= dh /kkjk&45 esa jke pcwr j s dh yEckbZ tk s mfYyf[kr gS ] og lgh ugh a gS A eSaus viuh eq[; ijh{kk ds 'kiFk&i= dh /kkjk & 46 esa ftl NB~Bh iwtu LFky dk mYys[k fd;k gS mlds ckjs esa fooj.k okYehfd jkek;.k esa ek= NB~Bh iwtu ds :i esa feyrk gS] mlesa NB~Bh iwtu LFky dk mYys[k ugha gS] jkepfj= ekul es Hkh NBh egksRlo eukus dk mYys[k gS ijUrq NB~Bh iwtu LFky dk mYys[k ugha gSA jkepfjr ekul rFkk okYehfd jkek;.k esa ek= NB~Bh dk mYys[k gS] NB~Bh egksRlo dk mYys[k ugha gSA** ¼ist 127½ 2142 "In para 45 of the affidavit of my examination-in- chief, there is mentioned about a platform 3 feet high, 20 feet long and 17 feet wide. This mention is about Ramchabutara. In my statement today, I have mentioned the Ramchabutara to be 40 feet long and 20 feet wide. The length of Ramchabutara mentioned in para 45 of the affidavit of my examination-in-chief, is not correct. The detail about the 'Chhathi' (the sixth day after the birth of a child) worship place mentioned in para 46 of the affidavit of my examination-in-chief, is found only as 'Chhathi' worship in Valmiki Ramayana, but it does not mention about 'Chhathi' worship place. The Ramcharit Manas also mentions about observance of the function of 'Chhathi', but there is no mention about 'Chhathi' worship place. The Ramcharit Manas and Valmiki Ramayana only mention about 'Chhathi' but there is no mention about the function of 'Chhathi'." (E.T.C.) ^^pj.k fpUg] csyuk] pdyk o pwYgs dk dksbZ mYys[k u rks jkepfjr ekul esa gS u gh okYehfd jkek;.k esa gSA esjh eq[; ijh{kk ds 'kiFk&i= dh /kkjk&46 esa ftu pj.k fpUgksa dk mYys[k gS] os ik"kk.k ds FksA bu pj.k fpUgksa dh la[;k 4 FkhA pdyk Hkh ik"kk.k dk Fkk] csyuk Hkh ik"kk.k dk Fkk] pwYgk gks ldrk gS feV~Vh dk jgk gks D;ksafd bls eSaus nwj ls ns[kk FkkA ;s lc phtsa 8 x 10 fQV dh ,d csnh ij FkkA csnh dk rkRi;Z pcwrjs ls gSA ;g pcwrjk pkj vaxqy ÅWpk jgk gksxkA ;g pcwr jk ftl ij pkS d k] csy uk rFkk pwY gk Fkk] bls dkS ' kY;k ikd rFkk lhrk jlk sb Z Hkh dgk tkrk FkkA - - - -
-dkS ' kY;k ikd rFkk dkS ' kY;k jlk sb Z ,d gh pht+ gS viuh&viuh vkLFkk ls yksx mls vyx&vyx iqdkjrs gSa dkS'kY;k jlksbZ ls rkRi;Z ml jlksbZ ls gS] ftldk iz;ksx dkS'kY;k th djrh FkhA ;g Hkh laHko gS fd dkS'kY;k jlksbZ dk iz;ksx lhrkth Hkh djrh jgh gksaA eSaus vius c;ku esa crk;k gS fd jketh rFkk lhrkth vyx egy esa jgrs Fks 2143 rFkk dkS'kY;k th vyx egy esa jgrh FkhaA** ¼ist 127&128½ "Neither in Ramcharit Manas nor in Valmiki Ramayana, is there any mention about foot sign, 'Belna' (traditional utensil used for rolling breads), 'Chakla' (traditional utensil used as base for rolling breads) & stove. The foot signs mention in para 46 of affidavit of my examination-in-chief were of stone and were four in number. The 'Chakla' and 'Belna' were also of stone, but the stove may have been of earth because I had seen it from a distance. All these items were on a 'Vedi' (platform) of 8x10 feet. Vedi means platform. This platform must have been four finger tall. The platform over which were these 'Chauka', 'Belna', stove, was also called Kaushalya Pak and Sita Rasoi.. . . . . . . . . . . . . Both Kaushalya Pak and Sita Rasoi are the same thing, and people refer them differently out of their faith. Kaushalya Rasoi implies that kitchen which was used by Kaushalya. It is possible that Kaushalya's kitchen was used by Sita ji. I have stated in my statement that Lord Rama and Sita lived in a separate palace and Kaushalya lived in separate palace." (E.T.C.) 2075. On page 136 he made a statement contrary to the stand of Nirmohi Akhara.
^^6 fnlECj lu~ 1992 dks fookfnr Hkou ds fxjus ls mlesa j[kh ewfrZ;kWa blfy, ugha VwVh D;ksafd jks/kkPNknu ¼iq"V rjhds ls½ ml ij dqN fxjus ls jksd fn;k x;k FkkA 6 fnlEcj lu~ 1992 dk s iz k r% dky tk s ewf rZ ; kW a fookfnr Hkou esa j[kh gq b Z Fkh] og ewf rZ;kW a Hkou fxjus ds nkS j ku Hkh ogh a j[kh jgh aA vkt Hkh os ewfrZ;kWa ogha ij j[kha gqbZ gSaA tks flagklu o >wyk fookfnr Hkou ds fxjus ds iwoZ ogkWa j[ks gq, Fks rFkk ftlesa ewfrZ;kWa j[kh gqbZ Fkha] og flagklu rFkk >wyk vkt Hkh mlh izdkj j[kk gqvk gSA bl ckjs esa eSaus lquk Fkk D;ksafd 6 fnlEcj 1992 ds ckn eSa ogkWa ij n'kzu djus ugha x;kA ;g ckr eSaus 2144 fookfnr Hkou ds fxjus ds nwljs fnu vkJe esa fo|kfFkZ;ksa rFkk lk/kqvksa ls lquh FkhA blds ckn Hkh bl laca/k esa eSus lquk FkkA eSaus ;g ckr jkenso 'kkL=h] 'kkf'kdkUr] jkenkl vEcjh"k feJ] deynkl tks vkJe esa jgus okys fo|kFkhZ rFkk lk/kq gSa] ;s lquh FkhA ;g lHkh yksx vHkh thfor gS rFkk esjs vkJe esa jgrs gSaA** ¼ist 150½ "The idols present in the disputed structure did not break down due to collapse of the structure on 6th December, 1992 because by a protective cover, nothing was allowed to fall over it. The idols present in the disputed structure in the morning of 6th December, 1992, were present at that place even during the collapse of the structure. Even today the said idols are at that very place. The throne and swing, in which the idols were placed, were there in the disputed structure before its collapse and even today the said throne and swing are kept in the same manner. I had heard about this, because after 6th December, 1992 I have not been there to have 'Darshan'. I had heard this on the next day of the collapse of the disputed structure, from students and saints in the Ashram. I heard about this even subsequently. I had learnt this from Ramdev Shastri, Shashikant, Ramdas, Ambrish Mishra, Kamaldas who are students and saints of the Ashram. They all are alive even today and live in my Ashram." (E.T.C.) 2076. About observance of Namaz in the disputed building on page 151 he says:
^^v;k s/ ;k vkus ds iwo Z ;fn ogkW a ij uekt+ gk sr h jgh gk s] rk s bldh tkudkjh eq > s ugh a gS A ** ¼ist 151½ "I have no information if Namaz was offered there, before I came to Ayodhya." (E.T.C.) 2077. About the place of dispute he admits that there is no mention in the plaint.2145
^^ftl fookfnr LFky rFkk fookfnr Hkou ds ckjs esa eS a bl U;k;ky; es a c;ku ns jgk gwW a] mlds ckj s es a bl okn&i= esa dq N ugh a fy[kk gS A ** ¼ist 168½ "Nothing has been written in this plaint about the disputed site and the disputed structure regarding which I am giving statement in this Court." (E.T.C.) 2078. On page 183 his statement did not rule out placement of idols inside the disputed building in 1949:
^^;g laH ko gS fd lu~ 1949 dk tk s fookn gq v k rFkk fookfnr Hkou esa tk s ewf rZ j[kh x;h mlesa v;ks/;k ds LFkkuh; fgUnw HkkbZ;ksa dk dksbZ ;ksxnku ugha Fkk cfYd ckgj ds cSjkxh lk/kq yksx ftEesnkj gSaA** ¼ist 183½ "It is possible that in the dispute that occurred in 1949 and in the incident in which idol had been placed in the disputed building, the local Hindus of Ayodhya had no role; rather, outsider ascetic saints were responsible for the same." (ETC) 2079. It is worthy to mention that on page 159 he has said that:
^^eS a ;g xokgh fuek sZ gh v[kkM+k ds i{k esa ns jgk gwW aA ** ¼ist 159½ "I am giving this evidence in favour of Nirmohi Akhara." (E.T.C.) ^^mRrj& eSa dsoy ,d gh eqdnesa ^^fueksZgh v[kkM+k cuke fiz;k nRr** ds eqdnesa esa xokgh ns jgk gwWa] fdlh vU; eqdnes ds ckjs esa xokgh ugha ns jgk gwWaA** ¼ist 161½ "Answer:- I am giving evidence only in one case viz. 'Nirmohi Akhara versus Priya Dutt', and not about any other case." (E.T.C.) 2080. DW 3/15, Narendra Bahadur Singh. According to age he has disclosed, his year of birth comes to 1932 and he 2146 claims to have visited the disputed site at the age of 15 years.
^^eSa 15 o"kZ dh vk;q esa jketUeHkwfe dk n'kZu djus tkus yxk Fkk] ijUrq blds igys Hkh eSa vius ekrk&firk ds lkFk ;g n'kZu djus tk;k djrk FkkA** ¼ist 12½ "I had started going to have Darshan of Ramjanmbhumi at the age of 15 years, but even before that I used to go to have Darshan there along with my parents."(E.T.C.) 2081. He is resident of Village Rajapur Saraiya which is about 35 kms away from Faizabad. On page 27-28 he did not deny the construction of the building by demolition of the then temple by Babar.
^^eS au s ,sl k lq u k gS fd ckcj us jketUeHk wf e ij fLFkr eaf nj dk s rk sM +d j dq N efltn dk :i nsu s dk iz ; Ru fd;k] ijUrq vc Hkh lkjs lcwr tUeHkwfe ds ogka ij fo|eku gSaA ,sl k lq u k tkrk gS fd lu~ 1528 ea s a ckcj us eaf nj dk s fxjkdj ;g fuekZ . k fd;kA ckcj ds le; esa ehjckdh Fks] ftUgksaus fuekZ.k laca/kh dqN dk;Z fd;k FkkA eSa ;g lgh :i ls ugha crk ldrk gwWa fd ;g fuekZ.k&dk;Z lu~ 1528 esa gqvk FkkA ;g dguk xyr gS fd lu~ 1528 ds ckn fookfnr Hkou esa cjkcj uekt+ gksrh jgh gksA ehjckdh us dk sb Z fuekZ . k ugh a fd;k Fkk] mlus dso y rk sM +Q k sM + djds dq N ifjorZ u fd;k FkkA** ¼ist 27&28½ "I have so heard that after demolishing the temple existing at the Ramjanmbhumi, Babar attempted to shape it like a mosque, but even today all the evidences of Janmbhumi exist there. It is so heard that in the year 1528, Babar had raised this construction after demolishing the temple. There was one Mir Baqi in the period of Babar, who had carried out some construction. I can not tell correctly that this construction was carried out in the year 1528. It is wrong to say that from the year 1528, 2147 Namaz was regularly offered at the disputed structure. Mir Baqi had not carried out any construction, and instead had only carried out minor modification after destruction." (E.T.C.) 2082. About belief he said:
^^esjh ,slh vkLFkk gS rFkk fo'okl Hkh gS fd fookfnr LFky gh jkepUnz th dh tUeHkwfe gS ijUrq blds ckjs esa /kkfeZd iqLrdksa esa ftudk eSaus v/;;u fd;k gS] dgha ugha i<+k gSA** ¼ist 34½ "It is my faith as well as belief that the disputed site is the birth place of Lord Rama, but I have not read so in the religious books studied by me." (E.T.C.) 2083. He subsequently admitted to have visited the disputed place twice before its attachment.
^^nksuksa ckj tc eSa fookfnr Hkou esa dqdhZ ds iwoZ x;k Fkk rks ogka ij 10&15&30 feuV rd :dk FkkA** ¼ist 40½ "On both the occasions, when I had been to the disputed structure prior to the attachment, I had stayed there for 10-15-30 minutes." (E.T.C.) ^^viuh eq[; &ijh{kk ds 'kiFk&i= dh /kkjk & 16 esa ;g dgk gS fd ^^eSus vius gks'k esa ogka dHkh fdlh eqlyeku dks uekt i<+us ugha ns[kk gSA** ns[kus dk rkRi;Z ;g gS fd tc eS a ogk a mifLFkr jg wx k] rHkh ns[ k wx k aA lu~ 1950 ds iwo Z fookfnr ifjlj es a eS u s rhu ckj tkuk crk;k gS A bUgh a rhu voljk s a ds lEcU/k es a eS au s ;g dgk gS fd * eS au s fdlh eq l yeku dk s uekt i<+r s ugh a ns[ kk gS * A** ¼ist 51½ "In para 16 of the affidavit of my examination-in- chief, (I) have mentioned that 'in my senses, I have never seen any Muslim offer Namaz at that place'. By 'seen' I mean that I would see only when I will be present there. I have stated to have been to the disputed site on three occasions prior to the year 1950. It is in respect of these 2148 very three occasions that I have stated that 'I have not seen any Muslim offer Namaz'."(E.T.C.) 2084. DW 3/16, Shiv Bheekh Singh:
^^jketUeHkwfe eafnj] tgkWa ij eSa n'kZu djus tkrk Fkk] ogkWa ij jke yyk dh ewfrZ fojkteku FkhA -------- ogkWa ij rhu xqQk,a FkhA^^¼ist 8½ "The idol of Ramlala existed in the Ramjanmbhumi temple, where I used to go to have 'Darshan' (offering of prayer by sight). ...... There were three caves." (E.T.C.) ^^fookfnr LFky tgkWa ij jkeyyk fojkteku gSa mudks jketUeHkwfe blfy, dgk tkrk gS D;ksafd ogha ij jkepUnz th dk tUe gqvk FkkA blfy, ;g LFkku cgqr ifo= ekuk tkrk gSA fgUnqvksa dks ,slk fo'okl gS fd bl LFkku ds n'kZ u ek= ls gh ek s{ k dh iz k fIr gk sr h gS A - - - - - - - - fookfnr ifjlj ;k jketUeHkwfe esa fdlh eqlyeku dks vkrs&tkrs ;k uekt i<+rs dHkh ugha ns[kkA** ¼ist 10½ "The disputed site where Ramlala exists, is called Ramjanmbhumi because Lord Rama was born there. This is why this place is considered to be very sacred by the Hindus. It is the belief of Hindus that only by 'Darshan' of this place, 'Moksha' (salvation) is obtained. . . . . . . . . . I never saw any Muslim either visit or offer Namaz at the disputed site or the Ramjanmbhumi." (E.T.C.) ^^esj k xkW ao QS t kckn pkS d ls 48 fdyk se hVj nwj gS A v;k s/ ;k ls esj k xkW ao 54&55 fdyk se hVj dh nwj h ij gk sx kA
- - - - eSa vf/kdka'k :i ls cSyxkMh ls v;ks/;k tkrk Fkk dHkh v;ks/;k bDds ls tkrk FkkA - - - - - - - - -eSa 2&4 o"kZ ds fy, lu~ 1940 esa cEcbZ x;k Fkk] mlds vykok vius xkao esa gh jgk gwWaA - - - - - 3&4 o"kZ rd eSa cEcbZ esa lkbfdy rFkk rk'k cukus ds dkj[kkus esa vLFkk;h :i ls dk;Zjr FkkA** ¼ist 11&12½ "My village is 48 kilometres away from Faizabad Chowk. My village would be 54-55 kilometres from Ayodhya. . . . . . . Mostly I went to Ayodhya on bullock-cart 2149 and sometimes by Tonga. . . . . . . . . . . . In the year 1940, I had gone to Bombay for 2-4 years, and except for that period I have always remained in my village........I temporarily worked in Bombay for 3-4 years in factories of cycle and playing cards." (E.T.C.) ^^eSa vius xkao ls v;ks/;k vuqeku ls vkt rd 24&25 ckj x;k gksÅWaxkA^* ¼ist 14½ "Till today, I may have gone to Ayodhya from my village on approximately 24-25 occasions." (E.T.C.) ^^eSa ;g ugha ekurk gwa fd lu~ 1528 esa ckcjh efLtn cuh FkhA Lo;a dgk fd lu~ 1528 ;k dHkh Hkh ckcjh efLtn ugha cuh FkhA** ¼ist 15½ "I do not accept that Babri mosque was built in the year 1528. Stated on his own that Babri mosque was not built either in the year 1528 or on any other occasion."
(E.T.C.) ^^bldks esjs cki&nknk Hkh ugha crk ldrs gSa fd ;g ewfrZ dc j[kh x;hA vr,o bls esjs }kjk crk;k tkuk lEHko ugha gSA** ¼ist 18½ "Even my forefathers can not tell as to when this idol had been placed. Hence, it is not possible for me to tell."
(E.T.C.) ^^;g dguk xyr gS fd 23 fnlEcj lu~ 1949 dks fookfnr Hkou esa ewfrZ;ka j[kh x;haA** ¼ist 18½ "It is wrong to say that idols had been placed in the disputed structure on 23rd December, 1949."(E.T.C.) ^^tc ls eSaus gks'k laHkkyk] rc ls jketUeHkwfe ifjlj esa fdlh eqlyeku dk vkokxeu eSaus ugha ns[kk gSA** ¼ist 19½ "Since I attained maturity, I have never seen any Muslim visit the Ramjanmbhumi premises."(E.T.C.) ^^mRrj& jketUeHkwfe ifjlj esa esjs oki&nknkvksa ds tekus ds vkSj igys ls ewfrZ;kWa fojkteku FkhaA^* ¼ist 20½ 2150 "Answer:- The idols existed at the Ramjanmbhumi premises even before the period of my forefathers."(E.T.C.) ^^eSa QStkckn & v;ks/;k ,d lky esa vf/kd ls vf/kd 3&4 ckj vkrk gwWaA vius iwj s thoudky es a QS st kckn&v;k s/ ;k 26&28 ckj vk;k gk sÅ W ax kA v;ks/;k esa jkeuoeh] lkou>wyk] ifjdzek rFkk dkfrZd iwf.kZek ;s pkj esys gksrs gSaA buesa ls nks esyksa ds volj ij eSa izfro"kZ vkrk FkkA* ¼ist 22½ "I go to Faizabad- Ayodhya, a maximum of 3-4 times a year. In my entire life, I may have been to Faizabad- Ayodhya on 26-28 occasions. The four fairs of Ramnavami, Sawan Jhula, Parikrama and Kartik Purnima are held at Ayodhya. Out of these, I used to go to two fairs every year." (E.T.C.) ^^fookfnr Hkou jketUeHkwfe eafnj FkkA ;g eSa rFkk lkjh nqfu;k dgh jgh gSA** ¼ist 23½ "The disputed structure was Ramjanmbhumi temple. This is being claimed by me and the whole world." (E.T.C.) ^^eSa vius c;ku esa igys dksrokyh ds ikl ftl n'kjFk egy ds gksus dk mYys[k fd;k gS og mYys[k xyrh ls o`)koLFkk ds dkj.k Le` f r ds {kh.k gk su s ds dkj.k ,sl k dg fn;k gS A ^* ¼ist 27&29½ "My earlier statement regarding the Dashrath palace being near the Kotwali, was made inadvertently on account of fading memory in old age." (E.T.C.) ^^jke us ekuo nsg /kkj.k fd;k gS] blfy, mudk tUe ysuk dgk tkrk gSA - - - - -Lo;a dgk fd esjk bl laca/k esa c;ku lq u h&lq u kbZ ckrk s a ij vk/kkfjr gS A ** ¼ist 30½ " Lord Rama had taken human form, and due to this His birth is claimed. . . . . Stated on his own that my statement in this behalf is based only on hearsay."(E.T.C.) 2151 ^^jketUeHkwfe eafnj eSa ftls crk jgk gwWa og ogh rhu xqEcn okyk Hkou gS ftldk fookn gSA** ¼ist 31½ "The Ramjanmbhumi temple according to me, is the same three dome structure about which is the dispute."
(E.T.C.) ^^esys ds volj ij ikap feuV ls de le; gh eafnj esa n'kZu djus ds fy, feyrk Fkk D;ksafd HkhM ds dkj.k rqjUr fudky fn;k tkrk FkkA - - - - - - - rhu xqacn okys Hkou ftlesa ewfrZ;ka j[kh Fkh ogka ij nks&rhu feuV ls T;knk n'kZu djus ds fy, ugha feyrk FkkA - - - - - -
-ifjdzek lh[k+ps okyh nhokj ds vanj gksrh FkhA fookfnr ifjlj esa iwjc rjQ jkepcwrjk FkkA fookfnr ifjlj esa fLFkr jkepcwrjs dh ifjdzek ugha gksrh FkhA** ¼ist 35½ "On occasion of fair, less than five minutes were afforded to have 'Darshan' in temple, because the crowd was immediately pushed out. . . . . . Not more than 2-3 minutes were afforded for 'Darshan' in the three dome structure, where the idols existed. . . . . . . The circumambulation was performed inside the grill wall. Ramchabutara was to the east of the disputed structure. The Ramchabutara situated inside the disputed structure, was not circumambulated." (E.T.C.) ^^fookfnr ifjlj es a lhrk jlk sb Z uked LFkku ugh a FkkA dkS ' kY;k th dk NV~ B h iwt u LFky FkkA NV~Bh iwtu LFky dh Hkh ifjdzek ugha gksrh FkhA** ¼ist 35½ "There was no place called Sita Rasoi in the disputed premises. There was the 'Chhathi' (the sixth day after birth) worship place of Kaushalya ji. The 'Chhathi' worship place was also not circumambulated."
(E.T.C.) ^^rhu xqEcn okys fookfnr Hkou esa jke&y{e.k FkksM+k Åij FksA Hkjr] 'k=q?u FkksMk uhps FksA cx+y esa xqQk Fkh mlesa ekrk dkS'kY;k 2152 jkeyyk dks xksan esa fy;s cSBh FkhA - - - - - -dkS'kY;k th dh ewfrZ lh<+h ds cxy esa ,d NksVh lh xqQk ds vanj FkhA^^ ¼ist 36½ "In the three dome disputed structure, Rama- Laxaman were at some elevation. Bharat, Shatrughan were a bit lower. There was cave on side wherein mother Kaushalya had Ramlala in her laps. . . . . .The idol of Kaushalya ji was inside the cave adjacent to the steps."
(E.T.C.) ^^tc eSa igyh ckj rhu xqEcn okys Hkou esa x;k Fkk rc eSa xqacn ds Bhd uhps ugha x;k FkkA xa aq cn okys Hkkx ds uhps lkeus tk s xsV Fkk ogk a ls eS au s n'kZ u fd;k FkkA** ¼ist 38½ "When I had first gone inside the three dome structure, I had not been exactly under the mid dome. I had the 'Darshan' from the gate in front of the lower side of the dome." (E.T.C.) ^^esj k tUe lu~ 1926 es a gq v k FkkA - - - - - tc eSa igyh ckj fookfnr LFky ij x;k FkkA rc ml le; lu~ 1937&38 jgk gksxkA
- - - - - eSaus fnukad 24&8&2004 dks ist 14 ij ;g c;ku fn;k gS fd ^^eS a vius xk ao ls v;k s/ ;k 24&25 ckj x;k gk sm ax k A* esj k ;g c;ku fookfnr Hkou ds fxjus rd dh vof/k dk gS A - - - - - lk{kh us dgk fd eSa v;ks/;k o"kZ esa vf/kdka'kr% nks ckj x;kA dHkh & dHkh ,d ckj o"kZ esa x;k ijUrq ,slk dHkh ugha gqvk fd eSa fdlh o"kZ v;ks/;k ,d ckj Hkh u x;k gwWaA** ¼ist 42&43½ "I was born in the year 1926. . . . . . . When I first went to the disputed site, it was probably the year 1937-38. . . . . . On 24.08.2004, I stated at page 14 that 'I must have been to Ayodhya from my village on about 24-25 occasions'. This statement of mine is for the period upto the demolition of the disputed structure. . . . . The witness stated that mostly I went to Ayodhya twice a year. Sometimes I went once a year, but it never so happened 2153 that I did not go to Ayodhya even once a year." (E.T.C.) ^^eS a lkbZ f dy ls yxHkx chl ckj nwl jk s a ds lkFk vk;k gk sÅ W ax kA tc eSa igyh ckj fookfnr LFky ij lu~ 1938 esa x;k Fkk rc Hkh ogka ij Hkk"dj nkl th dks ns[kk FkkA** ¼ist 47½ "I must have visited along with others by cycle, on about 20 occasions. When I first went to the disputed site in the year 1938, then I had seen Bhaskar Das over there."
(E.T.C.) 2085. DW 3/17, Mata Badal Tiwari, born in 1920, has stated visiting Ramjanm Bhumi at the age of 12 years. Ayodhya was about 18-19 kos from his place of residence. About the construction of the disputed building by Babar on page 30-31 he said:
^^v;ks/;k dh ckcjh efLtn ds ckjs esa eSa ugha tkurk gwWa eq>s ;g tkudkjh ugha gS fd ckcjh efLtn dc cuh FkhA eSa ;g ugha crk ldrk gwWa fd ckcjh efLtn dks chj ckdh us cuok;k Fkk ;k ughaA ;g gk s ldrk gS fd lu~ 1528 es a ehjckdh us ckcjh efLtn cuokbZ gk sA ** ¼ist 30½ "I do not know about Ayodhya's Babri mosque. I have no knowledge about the date of construction of the Babri mosque. I can not tell whether the Babri mosque had been built by Mir Baqi or not. It may be that Mir Baqi had built the Babri mosque in the year 1528." (E.T.C.) 2086. Then on page 35 he took a different stand:
^^;g dguk xyr gS fd ehjckdh us lu~ 1528 esa efLtn dk fuekZ.k djk;k Fkk vkSj cjkcj blesa uekt gksrh jghA ** ¼ist 35½ "It is wrong to say that Mir Baqi had built the mosque in the year 1528 and that Namaz was regularly offered there." (E.T.C.) 2087. Again about the Babari mosque on page 35 and 53 he made contradictory statement.2154
^^eSa ;g tkurk gh ugha gwWa fd ckcjh efLtn dgka gSA**¼ist 35½ "I just do not know where is Babri mosque situated."
(E.T.C.) ^^eSaus ckcjh efLtn dk uke lquk gSA**¼ist 53½ "I have heard the name of Babri mosque." (E.T.C.) 2088. Fallacy of his statement is evident from what he has said on page 56, 57, 61 and 62.
^^eSaus v;ks/;k ds naxs dk mYys[k fd;k gSA ;g naxk lu~ 1934 esa gqvk FkkA ml le; fookfnr Hkou dk dqN fgLlk {kfrxzLr dj fn;k x;k FkkA mu xqEcnksa dks cgqr ls yksxksa us {kfr igqWpk;k FkkA {kfrxzLr djus okys fgUnw /keZ ds vuq;k;h FksA**¼ist 57½ "I have mentioned about the riot of Ayodhya. This riot occurred in the year 1934. Some part of the disputed structure had been damaged at that time. Those domes were damaged by many people. The damagers were followers of Hindu religion."(E.T.C.) ^^bl ?kVuk esa tks xqEcn {kfrxzLr gqvk Fkk] mls cuok;k x;k ;k ugha] ;g eq>s /;ku ugha gSA ---------- lu~ 1934 es a tk s xq E cn {kfrxz L r gq v k Fkk] mldh dk sb Z ejEer lu~ 1992 ds iwo Z rd ugh a gq b Z FkhA lu~ 1934 esa rhuk s a xq E cnk s a dk s {kfrxz L r fd;k x;k FkkA chp okyk xq E cn iwj k fxj x;k FkkA rhuksa xqEcnksa esa FkksM+k&FkksM+k uqdlku gqvk FkkA**¼ist 61&62½ "I do not remember whether the dome damaged in this incident, was repaired or not. ........ The dome damaged in the year 1934, was not repaired till the year 1992. All the three domes had been damaged in the year 1934. The mid dome had completely collapsed. All three domes were damaged slightly."(E.T.C.) 2089. DW 3/18, Mahant Banshidhar Das @ Uriya Baba, born in 1905, came to Ayodhya in 1930 and since then is continuously visiting the disputed place and worshipping the 2155 idols in the inner courtyard under three dome structure as also on Ram Chabutara etc. In his cross-examination he has also made statement which demolishes the case of Nirmohi Akhara about the existence of temple since time immemorial and no construction or demolition by Babar in 1528 AD or his agent, no riot or damage to the building in 1934 and no incident on 22/23 December, 1949. On page 34 he states to have come to Ayodhya at the age of 28 which takes to the period of his coming to Ayodhya from 1930 to 1933. He admits of his weak memory.
^^lk{kh us crk;k fd vf/kd vk;q gk su s ds dkj.k esj k efLr"d dke ugh a djrk gS A **¼ist 41½ "The witness stated - Due to advanced age my mind does not work."(E.T.C) ^^D;ksafd eS a o` ) O;fDr gwW a vkS j esj k fnekx T+; knk dke ugh a djrk gS A ** ¼ist 50½ "Since I am an old man, my mind does not work much."(E.T.C) 2090. On page 59 he states that all the temples of Ayodhya were demolished during the reign of Mohammad Tughlaq and in 1325 the temple of the disputed place was also demolished by him.
^^eksgEen rqx+yd+ dk 'kkludky 1320 bZ0 ls 'kq: gqvk Fkk rFkk 1325 bZ 0 esa fookfnr LFky ij fLFkr eaf nj dk s fxjk;k x;k FkkA ¼;g ckr lk{kh us vius }kjk ykbZ x;h Mk;jh dks i<+us ds ckn crk;k½A eksgEen rqx+yd }kjk fookfnr LFky ij cus eafnj dks fxjk;s tkus ds ckn bl LFkku ij eafnj] jkekuan Lokeh ds f'k"; vuarkuan us cuok;k FkkA bl eafnj dks vuarkuan us fQ+jkst'kkg rqxyd ds le; esa cuok;k FkkA fQ+jkst'kkg rqx+yd] eksgEen 'kkg rqx+yd dk yM+dk FkkA Lo;a dgk fd eaf nj fxjk;s tkus ds ckn cgq r le; rd og fxjk iM+k jgkA eaf nj fxjk;s tkus ds ckn mldk nq c kjk fuekZ . k 30&40 o"kk sZ a ds ckn gq v kA** ¼ist 59½ 2156 "The tenure of Mohammad Tughlaq commenced in 1320 and the temple situated on the disputed site was demolished in 1325. (The witness stated this thing after going through a diary which he had brought along). After the mosque situated at the disputed site had been demolished by Mohammad Tughlaq, Anantanand, disciple of Ramanand Swami, got a temple built on that place. Anantanand got this temple built in the time of Firoz Shah Tughlaq. Firoz Shah Tughlaq was the son of Mohammad Shah Tughlaq. (Stated on his own) The temple after having been demolished had remained as such for a considerable time. The temple after having been demolished was reconstructed after 30-40 years."(E.T.C) ^^tks eafnj vuarkuan th us fookfnr LFky ij cuok;k Fkk mls fQ+jkst 'kkg rqx+yd+ us iqu% fxjok fn;kA mlds ckn Lokeh vuqHkokuan th us ogkWa ij eafnj cuok;kA vuqHkokuan th }kjk cuk;s x;s eafnj esa ';kekuan th jgsA ';kekuan th ds le; es a ckcj ds lsu kifr ehjckdh us bl eaf nj dk s fxjok;kA Lo;a dgk fd ckcj us ehj ckd+h dks bl laca/k esa dksbZ funsZ'k ugha fn;k Fkk] ehj ckd+h us Lo;a fxjok;k FkkA ehj ckd+h us eafnj dks fxjk dj efLtn ugha cuok;kA mlus bl LFkku dks eafnj ds fxjus ds ckn mlh izdkj NksM+ fn;kA ';kekuan th ds f'k"; xksfoUnnkl us fookfnr LFky ij fQj eafnj cuok;kA xksfoUnnkl th us fookfnr LFky ij eafnj ckcj ds le; esa gh cuok;k FkkA tks eafnj xksfoUnnkl us cuok;k Fkk ogh eafnj 6 fnlEcj 1992 dks fxjk fn;k x;k FkkA** ¼ist 60½ "Firoz Shah Tughlaq again ensured demolition of the temple which Anantanand Ji had got built on the disputed site. After that Swami Anubhavanand Ji got a temple built there. Shyamanand stayed in the temple built by Anubhavanand Ji. In the time of Shyamanand Ji, Babur's commander Mir Baqi got this temple 2157 demolished. (Stated on his own) Babur had not given any directions in this respect; Mir Baqi had himself got it demolished. After demolishing the temple Mir Baqi had not got a mosque built there. In the wake of demolition of the temple he had left this place as it was. Shyamanand's disciple Govind Das again got a temple built on the disputed site. Govind Das Ji had got the temple built in the disputed site only on the time of Babur. That very temple which Govind Das had got built, was demolished on 6th December, 1992."(E.T.C) ^^1930 ds ckn eqlyekuksa us fookfnr LFky ij ikWap lky ckn vkdze.k fd;k FkkA eqlyekuksa }kjk igyk vkdze.k esjs le; esa lu~ 1934 esa gqvk FkkA vkf[k+jh vkdze.k fookfnr LFky ij rc gqvk] tc jkenso nwcs njksx+k FkkA ;g ogh jkenso nwcs Fkk] ftlus 22@23 fnlEcj 1949 dh ?kVuk ds vuqlkj fjiksVZ 23 fnlEcj 1949 dks fy[kk;h FkhA bl jkenso nwcs dks eSa vPNh rjg tkurk FkkA** ¼ist 61½ "Five years after 1930, Muslims attacked the disputed site. The first invasion of Muslims had taken place in my time, that is, in 1934. The last invasion on the disputed site was at a time when Ram Dev Dubey was an inspector. It was the same Ram Dev Dubey who had on 23rd December, 1949 got a report lodged as per the incident of 22nd-23rd December, 1949. I was well acquainted with this Ram Dev Dubey."(E.T.C) ^^okLrfodrk ;g gS fd 1934 es a efLtn dk s tk s gkfu gq b Z Fkh] mls fgUnw lk/kqvksa us Lo;a pUnk ,d= djds ftldh jkf'k 35 gt+kj Fkh] cuok fn;kA** ¼ist 89½ "Reality is that Hindu saints got repaired the damage, caused to the mosque in 1934, by themselves collecting subscription which had aggregated to Rs. 35,000."(E.T.C) 2158 ^^;fn lu~ 1930 ds iwo Z fookfnr LFky ij eq L rfd+y rkS j ij uekt+ i<+h tkrh jgh gk s] rk s mlds ckjs es a eq > s tkudkjh ugh a gS A ;fn esjh vuqifLFkfr ds nkSjku lu~ 1930 ls 1949 ds chp fookfnr LFky ij uekt+ i<+h tkrh jgh gks] rks bldh Hkh tkudkjh eq>s ugha gSA** ¼ist 93&94½ "If namaz may have regularly been offered on the disputed site prior to 1930, I do not have the knowledge about the same. If namaz may have been offered on the disputed site between 1930 to 1949 in my absence, I also do not have the knowledge about the same."(E.T.C) ^^;g Hkh dguk xyr gS fd 22 fnlEcj lu~ 1949 rd fookfnr Hkou ds fdlh Hkh Hkkx esa dksbZ Hkh ewfrZ ugha j[kh FkhA** ¼ist 96½ "It also incorrect to say that no idol had been placed in any part of the disputed building up to 22nd December, 1949."(E.T.C) 2091. DW 3/19, Ram Milan Singh has sought to prove the existence of idols in the disputed building, i.e., under the Central Dome in the inner courtyard and also on Ram Chabutara which he had been visiting for Darshan and worship since 1940 till 1949. According to the age given in his affidavit, year of birth comes to 1929. He is resident of Mauja Haliyapur, Pargana Isauli, Tahsil Musafirkhana, District Sultanpur. He claims to have mainly visited in the three fairs held at Ayodhya. First of all with respect to the averments contained in his affidavit which he has filed under Order 18 Rule 4 on page 70 he says:
^^bl 'kiFk i= dk s rS ; kj djus oky s O;fDr gh bl ckjs esa crk ldrs gS aA eq[; ijh{kk ds 'kiFk i= ij gLrk{kj djus ds iwoZ eSaus iwjk ugha i<+k FkkA - - - -"'kiFk i= ij gLrk{kj eSaus mPp U;k;ky;] y[kuÅ esa fd;k gSA ;g 'kiFk i= y[kuÅ esa VkbZi gqvk Fkk ;k ugha] ;g eSa ugha crk ldrkA esjs bl 'kiFk i= dk izk:i tc rS;kj fd;k x;k Fkk] rc eSa v;ks/;k esa vius odhy lkgc ds ?kj ij 2159 FkkA mUgksaus ;g crk;k Fkk fd eSa vkids 'kiFk i= dk et+ewu rS;kj dj jgk gwaA 'kiFk i= dk et+e wu rS ; kj gk su s ds ckn eS au s mls ugh a ns[ kkA** ¼ist 70½ "The person having prepared this affidavit, can only tell about this. I had not completely read the affidavit of examination-in-chief before signing it. . . . . . I had put my signature on the affidavit at the High Court, Lucknow. I cannot tell whether this affidavit had been typed out at Lucknow or not. At the time when the draft of this affidavit of mine had been prepared, I was at the place of my counsel in Ayodhya. He had told that 'I am preparing the draft of your affidavit'. I had not seen the contents of the draft of the affidavit, after it was prepared." (E.T.C) 2092. This itself makes his entire deposition doubtful and unreliable. He also admits of having never entered three dome disputed structure prior to 1986.
^^lu~ 1972 ds iwoZ 1940] 1941] 1942 esa tc eSa fookfnr LFky ij tkrk Fkk] rks xqEcn ds uhps x;k FkkA iq u % dgk fd eS a lu~ 1940] 1941 o 1942 es a xq E cn ds uhps okys Hkkx es a ugh a x;k FkkA** ¼ist 34½ "Prior to the year 1972, whenever I used to go to the disputed site in the years 1940, 1941, 1942, I had gone beneath the dome. Again stated that I had not gone to the place beneath the dome in the years 1940, 1941 and 1942." (E.T.C) ^^;g dguk lgh gS fd rhu xq E cn okys fookfnr Hkou ds van j eS a lu~ 1986 ds iwo Z dHkh ugh a x;kA** ¼ist 56½ "It is correct to say that I had never been inside the three domed disputed structure before the year 1986."(E.T.C) 2093. Distance of disputed site from the witness's residence 2160 is about 54 Kms. The witness says that in 1940, 1941 and 1942 he came to Ayodhya on a bullock-cart and thereafter on foot till 1948 and then by bus in 1948 and onwards. He has however admitted his date of birth on page 67 as 15.01.1930. 2094. DW 3/20, Mahant Rajaram Chandracharya, aged about 76 years in 2004, must have born in the year 1930, came to Ayodhya in 1944 at the age of 14 years. He claims to become pupil of Mahant Raghunath Das who was Mahant of Nirmohi Akhara at that time. He was assigned duties to perform at Janambhumi Temple where he worked from 1943 to 1949 and claim continuous worship of the idols placed in the internal part of the disputed building, i.e., under the three domed structure. Very clearly he has given topography of various structures in regard to the disputed site which is almost consistent with various maps prepared by different Commissioners appointed by the Civil Judge in different proceedings including that of Commissioner's map prepared in Suit 1885. The following part of his statement are relevant for our purposes.
^^eSa bl eqd+nesa esa fueksZgh v[kkM+k ds iap rFkk i{kdkj ds #i esa c;ku ns jgk gwWaA** ¼ist 41½ "I am testifying in this case as a 'Panch' of the Nirmohi Akhara and as a party."(E.T.C) ^^lu~ 1943 esa tc eSa izFke ckj v;ks/;k vk;k Fkk] rc ogkWa ij ckcjh efLtn dk vfLrRo gh ugha FkkA lu~ 1943 esa fookfnr LFky ij dksbZ efLtn ugha Fkh] D;ksafd ml le; ogkWa ij ewfrZ iwtk gksrh FkhA eSaus ckcjh efLtn dk uke lquk gSA fookfnr Hkou ckcjh efLtn gS A iq u % dgk fd ;g ckcjh efLtn ugh a gS ] ;g eaf nj gS A fookfnr Hkou esa rhu xqEcn gSaA ;g efLtn ugha gSA ;g Hkxoku jke dh tUeHkwfe gSA lu~ 1943 esa tc eSa izFke ckj v;ks/;k x;k Fkk] rc eSaus ckcjh efLtn ns[kh gh ughaA fookfnr Hkou esa eSaus dHkh uekt+ gksrs gq, ugha ns[kkA eSaus ogkWa ij iwtk gksrs ns[kh gSA Lo;a dgk fd tgkWa ij iwtk 2161 gksrh gS] ogkWa ij uekt+ gksus dk iz'u gh ugha mRiUu gksrkA lu~ 1943 esa tc eSa izFke ckj v;ks/;k x;k Fkk] rc fookfnr LFky ij eSaus efLtn ugha ns[kk Fkk] efUnj ns[kk FkkA Lo;a dgk fd ogkWa ij iwtk&lsok gksrh FkhA fookfnr Hkou esa rhu xqEcn cus gq, FksA** ¼ist 51½ "In 1943, when I first came to Ayodhya, the Babri mosque was not at all existing there. There was no mosque on the disputed site in 1943, because there used to be worship of idols over there. I have heard the name of the Babri mosque. The disputed building is the Babri mosque. (Again stated) It is not the Babri mosque; it is a temple. The disputed building has three domes. It is not a mosque. It is the birthplace of Lord Rama. In 1943, when I first visited Ayodhya I did not see the Babri mosque at all. I never saw namaz being offered in the disputed building. I have seen Pooja being performed there. (Stated on his own) No question arises of offering namaz at a place where Pooja is performed. In 1943, when I first visited Ayodhya, I saw a temple, not a mosque, on the disputed site. (Stated on his own) There used to be Pooja-Sewa (offering worship and rendering service) over there. Three domes were built in the disputed building."(E.T.C) ^^v;ks/;k esa eSa vanktu yxHkx 8&9 o"kksZa rd jgk gwWaA lu~ 1943 ls ysdj lu~ 1949&50 rd fookfnr Hkou esa uekt+ ugha gksrh Fkh] cfYd iwtk gksrh FkhA** ¼ist 54½ "I guess to have resided at Ayodhya for about 8-9 years. Namaz was not offered at the disputed building from 1943 to 1949-50; rather, Pooja (worship) was performed."(E.T.C) ^^eS au s ;g lq u k gS fd ckcj us lu~ 1528 es a efUnj dk s rk sM +d j efLtn cuokbZ Fkh vkSj mlh dks ysdj fookn la?k"kZ dk :i fy, pyrk vk jgk gSA** ¼ist 56½ 2162 "I have heard that Babur had got the mosque built by breaking down the temple in 1528, and the dispute over that very construction has been continuing, taking the shape of struggle."(E.T.C) ^^fookfnr Hkou ds lEcU/k esa ;g dgk tkrk gS fd ;g efUnj rk sM +d j lu~ 1528 es a efLtn cukbZ xbZ A ;g dguk x+yr gS fd fookfnr LFky ij cjkcj uekt+ gksrh jgh gSA** ¼ist 57½ "It is said about the disputed building that demolishing this temple the mosque was constructed in 1528. It is incorrect to say that namaz has regularly been offered on the disputed site."(E.T.C) ^^fookfnr Hkou ds rhuk sa xq E cn ds uhp s dk Hkkx xHkZ x ` g FkkA vktdy tgkWa rEcw ds vanj Hkxoku jkeyyk gSa] og ,d NksVk LFkku gSA xHkZx`g ls esjk rkRi;Z ;g gS fd tgkWa fdlh dk tUe gksrk gS] mlh LFkku dks xHkZx`g dgrs gSaA** ¼ist 72½ "The part beneath the three domes of the disputed building was 'Garbh-Grih' (sanctum sanctorum). The place where Lord Ramalala rests under a tent today, is a small place. By 'Garbh-Grih' I mean that a place where someone is born, is called 'Garbh-Grih'. "(E.T.C) ^^eSaus dy ;g c;ku fn;k Fkk fd 1943 ls 1951 rd eSa xqEcn okys Hkou esa jgrk FkkA jgus ls esjk vk'k; iwtk&ikB djus o vkjke djus ls Fkk] lksus ds fy, eSa fookfnr LFky esa cus lUr fuokl esa tkrk FkkA - - - - -;g lUr fuokl fookfnr Hkou ds ifjlj dh mRrjh nhokj ls feyk gqvk FkkA** ¼ist 82½ "I had given a statement yesterday that I resided in the domed building from 1943 to 1951. By 'residing' I mean 'offering Pooja-Paath' and 'taking rest'; I used to go to Sant Niwas built on the disputed site to take sleep. . . . . . .
This Sant Niwas abutted on the northern wall of the disputed building premises."(E.T.C) 2163 ^^tks fookfnr Hkou 6 fnlEcj 1992 dks rksM+dj fxjk fn;k x;k Fkk] og Hkou esjs Kku ds eqrkfcd 500 o"kZ ls T;knk iqjkuk FkkA og Hkou] jkeeafnj Fkk] tks ckcj ds 'kkludky ds igys ls Fkk vkSj ftls ckcj us ifjofrZr fd;k Fkk] fQj dgk fd ifjofrZr djus dh dksf'k'k dhA mDr Hkou ckcj ds 'kkludky ls igys ls fufeZ r FkkA ckcj ds 'kkludky es a ml Hkou dh rk sM +Q k sM + gq b Z Fkh rFkk iq u fuZ e kZ . k gq v k FkkA esjs dgus dk vk'k; gS fd iwoZ fufeZr Hkou dks ckcj ds 'kkludky esa rksM+QksM+ djus ds ckn iqufuZekZ.k dh dksf'k'k dh xbZ] ftlesa mls lQyrk ugha feyh vkSj og la?k"kZ ds #i esa cny x;k vkSj og la?k"kZ vkt Hkh py jgk gSA** ¼ist 98½ "The disputed building, demolished on 6th December, 1992, was, as per my knowledge, older than 500 years. That building was Rama Temple, which existed from before the reign of Babur and which Babur changed, (further stated) tried to change. The said building was built from before the tenure of Babur. During the reign of Babur that building had been damaged and reconstructed. I mean to say that during the reign of Babur attempts were made for reconstruction after damaging the earlier built building. He had not succeeded in his attempt and the situation had turned into a struggle, which is continuing even today."(E.T.C) ^^ckcj ds t+ekus esa tc eafnj rksM+dj fookfnr Hkou cuk;k x;k Fkk] rc 84 esa ls 70 [kaHks yksx mBk ys x;s gksaxs ;k D;k gks x;s] bldk eq>s irk ugha] D;ksafd og dlkSVh iRFkj Fkk] dherh ik"kk.k FkkA** ¼ist 100½ "I do not know whether 70 out of 84 pillars may have been picked up by people at the time when the disputed building was constructed by demolishing the temple in the time of Babur or what happened to such pillars, because there were of Kasauti stone, costly stone."(E.T.C) 2164 ^^vkt tks ewfrZ;kWa fookfnr LFky ij ns[kus dks feyrh gSa] os ogh ewfrZ;kWa gSa] tks ckck ';kekuUn th ds }kjk mRrjk[k.M ysdj pyh tkus okyh ewfrZ;ksa esa ls gSaA ckck ';kekuUn th og ewfrZ;kWa ckcj ds vkdze.k ds le; mRrjk[kaM ysdj pys x;s FksA xksfoUnnkl th ckck ';kekuUn ds vaxj{kd o f'k"; FksA xksfoUnnkl th us ewfrZ;kas dks ys vkdj iqu% mlh LFkku ij LFkkfir dj fn;kA** ¼ist 101&102½ "The idols which are now seen on the disputed site, are among the idols which had been taken along by Baba Shyamanand Ji to Uttarakhand. Baba Shyamanand Ji had gone to Uttarakhand at the time of Babur, taking along those idols. Govind Das Ji was the body guard and disciple of Shyamanand. Govind Das Ji took the idols along and reinstalled them on that very place."(E.T.C) ^^jke pcwrjk dh LFkkiuk Hkh mlh le; gqbZ] tc ckck xksfoUn nkl th us ewfrZ;ksa dh iquZLFkkiuk mlh LFkku ij dh] tgkWa ij og ewfrZ;ka igys FkhaA ;g ckcj ds 'kkludky dk vkf[k+jh le; FkkA bl jke pcwrjs ij Hkh jkeyyk] Hkjr th] y{e.k th] 'k=q?u th o dkSf'kY;k th dh ewfrZ;ka xksfoUn nkl ds f'k";ksa esa ls fdUgha f'k";ks }kjk LFkkfir dh x;haA ml f'k"; dk uke ;kn ugha gSA** ¼ist 103½ "Ram Chabutra was also built at that very time when Govind Das Ji had reinstalled the idols on that very place where they existed earlier. It was the concluding period of Babur's tenure. Idols of Ramlala, Bharat Ji, Lakshman Ji, Shtrughn Ji and Kaushalya Ji were installed on this Ram Chabutra, too, by certain disciples of Govind Das. I do not remember the names of those disciples."(E.T.C) ^^lu~ 1934 es a tk s nax k gq v k Fkk mlls ckcjh efLtn dk s uq d lku gq v k Fkk mlds ckn fgUnq v k sa ij VS D l yxk vkS j mlh iS l s ls efLtn dh ejEer iq u % dj nh xbZ A ** ¼ist 106½ "Damage was caused to the Babri mosque due to 2165 the riot which had broken out in 1934. After that tax was imposed on Hindus and the mosque was repaired from that very fund." (E.T.C) ^^eSa fookfnr LFkku ij lu~ 1943 esa vk;k Fkk vkSj rHkh ls eSaus xksfoUn nkl th dks iqtkjh ds :i esa ogkWa ns[kk FkkA os tc rd thfor jgs] ogkWa ij iqtkjh jgsA mudh e`R;q yxHkx lu~ 1950 esa gqbZA Jh cynsonkl th tks xksfoUn nkl th ds le; lgk;d iqtkjh Fks mudh e`R;q ds ckn cM+s iqtkjh ds :i esa dk;Z djus yxsA** ¼ist 208½ "I came to the disputed site in 1943 and since then I saw Govind Das Ji as a priest there. As long as he was alive, he was priest there. He died in around 1950. At the time of Govind Das Ji, Sri Baldev Das Ji was assistant priest. After the former's death the latter began to work as chief priest."(E.T.C) NOTE: This statement shows that during this period of 1943 to 1950 Mahant Bhaskar Das was not there as Pujari at the disputed site though it has been so claimed by other witnesses and that stand contradicted.
2095. Sri Jilani, learned counsel for plaintiffs (Suit-4) has taken great pains in placing before us the apparent contradiction and incorrectness in the statement of these witnesses at several places and in particular in recognising places, topography, various structures etc. in the photographs which are part of record, some of which were obtained by Sri Bashir Ahmad, Civil Court's Commissioner appointed in 1950 and most of them were prepared by the State Archaeological Survey through its Director, Dr. Rakesh Tiwari in 1990 pursuant to an order passed by this Court on 10.01.1990 which reads as under:
"Sunni Central Waqf Board has filed this application in Suit No. 4 of 1989 for:
I- permitting and authorising the plaintiff or its 2166 representatives to enter upon the property in suit with a photographer and others to take the photographs of the building and the surrounding area;
II- taking measurements of the buildings and its boundaries;
III- permitting a video tape of the same for being placed as evidence in Court and IV- such other direction as the Court deems fit and proper.
Another application has been moved by defendant no. 2 (Paramhans Ram Chandra Das) purporting to be under Order XXXIX Rule 7 of the Code of Civil Procedure through Sri Tilhari, Advocate, in Suit No. 4 of 1989, and the permission sought for is the same as in the application mentioned above.
A third application has also been filed in Suit No. 2 of 1989 by the defendant no. 3 of the said suit for appointing a survey commissioner for preparing a report in accordance with the map and Abadi Khasra (Annexures I and II) filed along with this application.
Sri Abdul Mannan, counsel appearing for the plaintiff in Suit No. 4 of 1989, referred to an application filed on its behalf in the Court below for appointment of a survey commissioner.
The last prayer made was contested on the ground that as the application filed in the trial court stood disposed of the prayer made by Sri Abdul Mannan could not be acceded to. This submission is not correct. The application was not rejected. It was kept in abeyance 2167 directing that an order for survey commissioner would be made after final hearing. Since we are of the opinion that a survey commissioner be appointed at this stage, therefore, we direct that the Registrar/Secretary of the Board of Revenue to appoint any officer, not below the rank of P.C.S. Officer, having knowledge of survey work, to survey the site and to report the location of the plots. The survey commissioner to be appointed would take assistance from the municipal records and such other records which he considers to be useful for the same purpose. The commissioner would give notices of the date, on which he would like to survey, to the Sunni Central Waqf Board and the defendants nos. 2 and 13, namely, Paramhans Ram Chandra Das and Mahant Dharam Das, in Suit No. 4 of 1989. Since we are of the opinion that the photographs of mosque and temple, including all the pillars, may also be helpful for deciding the controversy in this suit, as well as other connected ones, we direct that the photographs of the mosque, temple, including pillars be taken and prepared.
The question as to who would be fit for purposes of carrying out the directions of the Court was considered by us at length. In the circumstances, we consider that the Director, U.P. Archaeological Department, be asked to do the same. He would also prepare carbon dating of the pillars, mosque and temple. For purposes that the directions given by us are effectively complied with and no unnecessary rush gets collected, we consider that out of the two sides, that is, Sunni Central Waqf Board and defendants 2 and 13 would be entitled to take not more 2168 than seven persons with themselves, one of them can be a photographer.
So far as defendant no. 3 is concerned, we consider, for purposes of settlement of controversy involved in the suit, its interest is not adverse to that of the defendants nos. 2 and 13, therefore, it can take with itself three persons.
The Director, Archaeological Department, would also get video cassettes prepared of the mosque, temple and pillars. The district administration will make arrangement for security.
The Advocate General had made a statement in the Court that the expenses would be borne by the State of all the proceedings, such as the present. Consequently, we direct that for making the survey commission, taking photographs, video cassettes etc. the expenses would be borne by the State itself.
The applications are decided accordingly."
(emphasis added) 2096. Dr. Rakesh Tiwari, OPW 14 has proved the aforesaid photographs and also the video recording made of the disputed building. He (Sri Jilani) says, since the witnesses have failed to identify most of the photographs and in fact made apparently wrong statements, showing that they never visited the disputed place, their statements are basically wrong and should be rejected.
2097. It is no doubt true that almost all the witnesses have failed to identify correctly location, site or the objects shown in one or the other of the above photographs, but then we have to consider certain well settled principles in the matter of oral evidence. Memory of a man may be very good or may not be, 2169 depending upon the individual. Some people's memory is so sharp that they can continue the things in their mind for several years, decades and may tell very accurately the things happened 20, 30 or 40 years back but this is not a normal phenomena. Normal period of memory of human being is not so long. All the witnesses who have appeared before us have deposed their statements after more than 50 years of the incident. To expect meticulous details, these witnesses can recollect, what transpired or what they observed more than 50 years ago and that too when they must not have any idea that at some point of time they will have to depose statement in a Court of Law and, therefore, could not watch everything very carefully and minutely, is too much. Such lacking is quite normal. No one has a flashing computerise memory. Such expectation and that too from those who are simple rural folks, is too much. We have to consider the overall credibility of the statement of the witnesses as that could be of an ordinary human being.
2098. In fact similar kind of error has occurred virtually with all the witnesses of fact who have deposed their statements whether on behalf of plaintiffs or defendants. It is for this reason, we have not delved into the statements of all the witnesses of facts with respect to the events of 1950 and earlier thereto by looking into contradiction of each line, each word and each page, i.e., on every aspect. We have tried to find out truth in the statements of witnesses by judging their credibility by narrowing down the facts which they intend to prove in their examination-in-chief and thereafter looking to the general conduct, attitude and some other circumstantial state of affairs as discerned from the statement of the witnesses in cross- examinations. Wherever oral evidence is corroborated with the 2170 documentary evidence than obviously one has to take more reliable one than the one which is totally based on the statement of a person which is slippery and appears to be tutored. For a particular fact, if one gives statement of a fact which occurred 50 and more years back with minute details but not able to recollect or tell the Court about such event the dates of which are much more recent, normally very important for a man's life, for example the date or year of birth of children, marriage etc. which must be known by him, then his statement becomes suspicious and needs to be seen with care.
2099. So far as claim of Nirmohi Akhara is concerned that nothing had happens on 22/23 December, 1949 and idols existed under the central dome in the inner courtyard much prior thereto is not only unbelievable and incorrect but in fact many of their own witnesses have proved their case wrong. Many of the witnesses appeared on behalf of Nirmohi Akhara have made statement which is wholly inconsistent to the basic pleadings of Nirmohi Akhara, plaint and replication in Suit-3 and in written statement in Suit-4 and 5.
2100. Though twenty witnesses have been produced on behalf of Nirmohi Akhara and it is strange but unfortunate that we find almost all of them uncreditworthy so far as this aspect of the matter is concerned that the idols in dispute were placed inside the building under central dome long back and much before 22nd December, 1949 and nothing happened on that day. It is well settled that the quantity of evidence does not matter but it is the quality of evidence which matters. 2101. On the point where there is some variance between pleadings and proof, in Ananda Chnadra Chakrabarti vs. Broja Lal Singha (supra), the Court while taking the view that 2171 every variance is not fatal has held:
" The rule that the pleading and proof must correspond is intended to serve a double purpose; first, to apprise the defendant distinctly and specifically of the case he is called upon to answer; and, secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding upon the same allegations. The test thus is, whether the defendant will be taken by surprise if relief is granted on the facts established by the evidence, or, as has sometimes been said, a variance between a pleading and what is proved is immaterial unless it hampers a defence or unless it relates to an integral part of the cause of action."
2102. In Sewkissendas Bhatter & others Vs. Dominion of India AIR 1957 Cal. 617 and Basant Kumar Roy Vs. Secretary of State for India & others AIR 1917 PC 18, it was held that where a matter requires consideration of facts, a new fact ought not to be allowed unless supported by pleadings since its is only the matters of law which can be allowed to be raised and not those where factual investigation is required. 2103. Extending the diluted approach as observed by the Culcutta High Court in Ananda Chandra Chakrabarti vs. Broja Lal Singha (supra) yet we find that it is really unfortunate that even this approach may not help the plaintiffs (Suit-3) for the reason that the variance in pleadings and proof is so inconsistent that virtually it amounts to a mutually destructive plea and when the variance is so wide, it cannot but fatal to the case of the plaintiffs (Suit-3). It demolishes their case virtually in its entirety for the purpose of their claim in respect to the premises inside the courtyard.
21722104. We have no hesitation in holding and recording our finding that under the central dome of the disputed building, idols were kept in the night of 22nd/23rd December, 1949. 2105. Now the question about the consecration of the said idols and whether the idols were kept after observing the procedure meant for consecration, and, if the idols were same as were kept on Ram Chabutara up to 22nd December, 1949, whether on shifting, fresh exercise of consecration was required and its effect etc., if any.
2106. The crucial aspect would be whether the idols kept under the central dome in the night of 22nd/23rd December, 1949 were placed in such a manner that the people who visit to worship believe, that there exists a divine spirit, it is a deity conceived of as a living being, capable of providing spiritual salvation and it is a deity having supreme divine powers. As we have discussed, an idol itself is not worshipped but it is a particular image wherein on consecration it is believed by the Hindus that it has attained such divinity and supreme power so as to provide human salvation and fulfillment of wishes of the beneficiary. The idol is only a material symbol and embodiment of pious purpose though the real worship is that of a supreme power. In T.R.K. Ramaswami Servai (supra) as we have already observed the test was not whether the installation of an idol and the mode of its worship conform to any particular school of Agama Sastras but if the public or that section of the public who go for worship consider that there is a divine presence in a particular place and by offering worship at that place, they are likely to be the recipients of the bounty or blessings of God then it is a temple, a deity capable of worship and no further ceremonial right is required to be shown. This 2173 has been approved and affirmed by the Apex Court in Ram Jankijee Deities (supra). None of the witnesses of plaintiffs (Suit-4) have said that he was present at the time of such placement. On the contrary, plaintiff no. 3 (Suit-5) , i.e., OPW 2 in his statement under Order X Rule 2 has clearly said that due ceremonies were performed when the idols were transferred. Paramhans Ramchandra Das also appeared in the witness box as OPW 1 and has proved the state of affairs. His presence on the site at the relevant time has not been doubted either by the plaintiffs (Suit-4) or their witnesses or before us during the course of arguments by learned counsels. Some other witnesses have also proved this fact.
2107. It thus cannot be said that the idol(s) placed therein were not properly consecrated. Atleast the status of deity cannot be assailed by those who do not believe in idol worship since it is to be seen from the angle of those who go and worship thereat. They conform the test of being a juridical person in the eyes of law.
2108. The plaintiffs (Suit-4) have failed to prove that idols and objects of worship were placed inside the building as described in plaint by letters ABCD read with the map appended to the plaint in the night intervening 22nd/ 23rd December, 1949. Consistent with the pleadings in plaint (Suit-4), the building denoted by the area ABCD of the map appended to the plaint (Suit-4), the idols and object of worship were existing even prior to 22nd December 1949 at Ram Chabutara, in the outer courtyard.
2109. We accordingly answer Issue No. 12 (Suit-4) in negative. The effect of this answer shall be considered at the relevant stage and need not be answered at this stage.
21742110. Issue No. 3 (a) Suit-5 is answered in affirmance i.e. in favour of the plaintiffs (Suit-5). It is held that the idol(s) in question was/were installed under central dome of the disputed building (since demolished) in the earlier hours of 23rd December 1949 as alleged by the plaintiff in para 27 of the plaint and clarified by the plaintiffs in the statement under Order X Rule 2 C.P.C. The Issue No. 1 (suit-5) is, also, accordingly, answered in its entirety, in affirmance. It is held that the plaintiffs 1 and 2 both are juridical person. Issue No. 21 (Suit-5) is answered in negative, i.e., against the defendants no. 4 and 5. 2111. Having said so, immediately Issue No. 21 (Suit-4) need be considered as to whether the Suit is bad for non-joinder of the said deity.
2112. An idol being a legal/juristic person, is a necessary party in a suit where relief is sought against it. The idol represents a Deity or a spiritual being whose existence is recognized by Hindu Law. The Deity or spiritual being is supposed to exist for ever. It cannot suppose to act like an ordinary human being but has to be represented by someone. Where a suit is filed seeking a relief against an idol without its impleadment, the suit cannot be decreed against the idol and has to be dismissed for the reason that decree, if any, is passed, would not be binding upon the idol.
2113. In Mukundji Mahraj (supra), para 31 of the judgment, the Court said :
"As the idol was not properly represented in the aforesaid suits, the decrees were nullities as against the idol. In such cases the principle laid down by the Privy Council in Rashidunnisa Vs. Muhammad Ismail, ILR 31All 572 (PC) (I) and by this Court in Dwarika Halwai v. Sitla Prasad, 2175 1940 All LJ 166: (AIR 1940 All 256) (J) applies. The decree is not merely voidable, but null and void. The decrees being nullities can be ignored and the plaintiff is not under the necessity of having them set aside before suing for possession."
2114. In B. Jangi Lal Vs. B. Panna Lal and another AIR 1957 Allahabad 743 a Division Bench of this Court said that an idol can bring a suit to defend its interest and also has right to defend itself in a suit instituted claiming a relief which impairs the idols rights. Whether it is a necessary party or not depends upon the facts and circumstances of each case. Where the interest of the idol are directly affected or its own existence seriously impaired appearance of idol before the Court is necessary. However, while observing so in para 5, the Court proceeded further to observe where it is found that idol must be impleaded being a necessary party, it should do so. 2115. In our view this later observation in B. Jangi Lal (supra) would require a little clarification. It is suffice if the plaintiff is made known of the fact that idol being a juristic personality, a necessary party. Wherever its interest is sought to be impaired, no relief can be granted without impleading it. Despite this aspect having been pointed out by the defendants in suit, if no attempt is made by the plaintiff to implead the idol and on the contrary this is defended by objecting to the issue, the matter would have to be considered in a different manner and if at the time of final adjudication the Court finds that the suit was filed without impleading a necessary party and continuing as such it would have to face the logical consequences.
2116. In K. Manathunainatha Desikar Vs. Sundaralingam 2176 (supra) a Full Bench of the Madras High Court in para 20 of the judgment observed:
"............The Deity, a juristic entity, is the proprietor who never dies but labours under physical disability which renders it necessary that its interests should be looked after in perpetuity."
2117. In Jodhi Rai Vs. Basdeo Prasad and Ors. (supra) a Full Bench of this Court held:
"...............An idol has been held to be a juristic person who can hold property. Therefore, when a suit is brought in respect of property held by an idol, it is the idol who is the person bringing the suit or against whom the suit is brought, the idol being the person beneficially interested in the suit."
2118. The Court in Jodhi Rai (supra) however on merits found that though the idol was impleaded through Manager but it was not properly described. In these circumstances, the Court held that the correction in the description could have been permitted to the plaintiff and this by itself does not warrant dismissal of suit since correction would not have the effect of introducing third party, on record after expiry of period of limitation. However where the necessary party has not been impleaded within the period of limitation, the position may be different.
2119. In Bimal Krishna Ghose and Ors. Vs. Shebaits of Sree Sree Iswar Radha Ballav Jiu and Ors. AIR 1937 Cal 338 the Court referring to its earlier decision in Rabindra Nath Vs. Chandi Charan AIR 1932 Cal 117 observed that in India, the Crown is the constitutional protector of all infants and as the Deity occupies in law the position of an infant, the Shebaits who 2177 represent the Deity are entitled to seek the assistance of the Court in case of mismanagement or maladministration of the deity's estate and to have a proper scheme for management framed which would end the disputes amongst the guardians and prevent the debutter estate from being wasted or ruined. 2120. In para 7 of the judgment the Court relied and referred to the Privy Council decision in Kanhaya Lal Vs. Hamid Ali, AIR 1933 PC 198 and observed :
"The Privy Council held that they could not deal with the appeal in the absence of the idol whose interest arose under the Wakf ..................."
2121. In Kasturi Vs. Iyyamperumal and Ors. 2005 (6) SCC 733 referring to Order I Rule 10 as to who would be the necessary party in para 7 and 13 it said :
7. In our view, a bare reading of this provision, namely, second part of Order 1 Rule 10 sub-rule (2) CPC would clearly show that the necessary parties in a suit for specific performance of a contract for sale are the parties to the contract or if they are dead, their legal representatives as also a person who had purchased the contracted property from the vendor. In equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the 2178 proceedings; (2) no effective decree can be passed in the absence of such party.
13. From the aforesaid discussion, it is pellucid that necessary parties are those persons in whose absence no decree can be passed by the court or that there must be a right to some relief against some party in respect of the controversy involved in the proceedings and proper parties are those whose presence before the court would be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit although no relief in the suit was claimed against such person.
2122. In J. Jaya Lalitha Vs. Union of India & another AIR 1999 SC 1912, the Court observed that "necessary" means that is indispensable, needful and essential in respect of which, nothing is vague or nebulous.
2123. In Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue AIR 1963 SC 786, the Court said that a necessary party is one without whom no effective order can be made; a proper party in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. 2124. In Prabodh Verma & others Vs. State of U.P. and others AIR 1985 SC 167 it was considered as to who are necessary and proper parties. The Court observed that a person who may be adversely affected directly by a decision of the Court is a necessary party, for the reason any order passed behind his back may not be binding upon him having been passed in violation of the principles of natural justice. 2125. In Ramesh Hirachand Kundanmal Vs. Municipal 2179 Corporation of Greater Bombay & others (1992) 2 SCC 524, the Court said that parties whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, are necessary parties. What makes a person a necessary party is not merely that he has relevant evidence to come on some of the questions involved nor it is merely that he has interest in the correct solution of some questions involved, and has relevant arguments to advance. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party.
2126. It has also been held in a catena of decisions that non impleadment of a necessary party is fatal as provided in the principles enshrined in proviso to Order 1, Rule 9 C.P.C. Recently, a Division Bench of this Court also taken the above view in Satya Narain Kapoor Vs. State of U.P. & others 2007 (2) ARC 308.
2127. In Narayan Bhagwantrao Gosavi Balajiwale (supra) the Apex Court in para 41 of the judgment observed:
"..................The difficulty in the way of the appellant is real. He refrained from joining the Deity, if not as a necessary, at least as a proper party to the suit. If he had joined the deity and the deity was represented by a disinterested guardian, necessary pleas against his contention could have been raised by the guardian, and it is likely that some evidence would also have been given. The appellant seeks to cover up his default by saying that 2180 the suit was one under O. 1, R. 8 of the Code of Civil Procedure, and that the Hindu public was joined and the Deity was adequately represented. In a suit of this character, it is incumbent to have all necessary parties, so that the declaration may be effective and binding. It is obvious enough that a declaration given against the interests of the deity will not bind the Deity, even though the Hindu Community as such may be bound. The appellant would have avoided circuity of action, if he had acceded to the very proper request of the respondents to bring on record the Deity as a party. He stoutly opposed such a move, but at a very late stage in this court he has made an application that the Deity be joined. It is too late now to follow the course adopted by the Privy Council in 52 Ind App 245: (AIR 1925 PC 139) and Kanhaiya Lal Vs. Hamid Ali, 60 Ind App 263: (AIR 1933 PC 198 (1),........."
2128. The plaintiffs (Suit-4) have sought a relief of eviction of idol from the building in dispute. The idol in question is a Deity and a juridical person in law. That being so, if a relief is sought against the idol, a juridical person, its impleadment was necessary as it is a necessary party. The consequences of non impleadment of a necessary party is that the suit cannot proceed and deserve to be dismissed on this ground. The principle in this regard is that relief cannot be granted in a suit against a person who has no opportunity to place his case before the Court as one cannot be condemned unheard.
2129. In ordinary circumstances, we ought to have dismissed Suit-4 for non impleadment of necessary party. However, there are certain peculiar facts and circumstance in the present sets of cases. There was a serious dispute regarding the status of the 2181 idol in question. Besides, four suits have been clubbed. The legal person i.e. Deity is fully represented in this Court and has placed its case in the best possible manner through a battery of learned counsels and we find nothing more could have been said if technically the impleadment of idol would have been there in Suit-4. The basic principle that no one should be condemned unheard therefore does not exist in the case in hand. If a relief is to be given to a plaintiff, an order may not be passed against a person who is not a party to that suit. This would make at the best, in case Suit-4 is to be allowed, not to grant relief in respect of the eviction of the idol from the premises in question but would have no impact on the matter of declaration. 2130. After due and careful consideration of the matter and having placed this question before the learned counsels, who argued the matter as to what else could have been their defence if the idol would have been a party in Suit-4, they could not place before us on behalf of the idol, who is plaintiff no.1 in Suit-5 and is placing his case before us to which they could not reply or add anything.
2131. We, accordingly, in the facts and circumstances and discussion made above, decide issue 21 (Suit-4) in negative i.e. in favour of the plaintiff (Suit-4) and hold that the suit is not bad for non-joinder of the Deities.
2132. Issues no.2 and 6 (Suit-5) relates to the capacity of plaintiff no.3 to file suit on behalf of plaintiffs no. 1 and 2 as their next friend and relates to the maintainability of the suit in the manner it has been filed or even if plaintiffs no.1 and 2 are held to be juridical person, are entitled to sue or be sued in their own name.
2133. Now, so far as the issue No.2 and 6 ( Suit-5) are 2182 concerned, we really find it surprising that there is no averment at all in the entire plaint that plaintiff no. 3 is a worshipper of lord Ram and that of plaintiffs 1 and 2. Besides it is also not the case that there is no Shebait at all or the Shebait, if any, is not managing the affairs properly.
2134. An idol or deity in Hindu law, as we have already discussed,is a juridical person and can file a suit for protection of its rights etc. and similarly can also be sued. Not being a natural person, it cannot litigate on its own as but its interest has to be watched through a natural person. Here we come up to the concept of Shebait or Mahant. He look after the interest of the idol or deity, can sue or be sued. Where the suit is in respect of the rights of the idol, it is to be filed in the name of the idol through the concerned Shebait or Mahant who is held to be the manager of such deity, under an obligation to look after its interest. No specific procedure in this regard has been mentioned in the Code of Civil Procedure. However, by process of interpretation and by judicial precedence the Courts have taken recourse to the principles of Order 32 Rule 1 CPC. In B.K. Mukherjea's Hindu Law of Religious and Charitable Trusts (supra) at page 265 the learned author clearly opined that a deity being a juristic person has undoubtedly, right to institute a suit for protection of its interest. So long as there is a Shebait in the office functioning properly, the rights of the deity, as stated above, practically lie dormant and it is the Shebait alone who can file suits in the interest of the deity. When, however, the Shebait is negligent or is himself the guilty party against whom the deity needs relief, it is open to worshippers or other persons interested in the endowment to file suit for the protection of the Debutter. It is open to the deity also to file a suit through some 2183 person as next friend for recovery of possession of property improperly alienated or for other relief. Such a next friend may not unoften be a person who as a prospective Shebait or a worshipper is personally interested in the endowment. 2135. The learned author has further considered as to how we can distinguish the two classes of cases and ascertain whether it is a suit by the deity or by the worshipper personally. He has answered this question observing that it would certainly depend upon the nature of the suit and the nature of the relief claimed. If the suit is not in the name of the deity, it cannot be regarded as a deity's suit, even though the deity is to be benefited by the result of the litigation. It would be the personal suit of the worshipper, the family members or the prospective Shebait, as the case may be. These persons are not entitled to claim any relief for themselves personally, e.g., by way of recovery of possession of the property improperly alienated or adversely possessed by a stranger.
2136. It appears that there was some variation in the opinion of different courts on this aspect as to how and in what manner a suit be filed on behalf of a deity or idol. Sri Jilani and other learned counsels appearing for Sunni Board as well as other Muslim parties have not gone to the extent of denying any right of filing a suit by a deity and it is not, in fact, disputed that a deity consecrated in accordance with Shashtrik law is a juridical person entitled to sue or be sued and such a suit can be filed through its Shebait or Mahant, as the case may be. Their objection is that plaintiffs no.1 and 2 are not deity in accordance with recognised tenets of Hindu law and, therefore, Suit-5 itself is not maintainable. This issue we have already considered and replied.
21842137. In continuation, the next objection is that plaintiffs no.1 and 2 cannot be represented through the next friend i.e., the plaintiff no.3, and Suit-5 by plaintiffs no.1 and 2 through plaintiff no.3 as next friend is not in accordance with law, hence not maintainable.
2138. The defendant no. 4 though has pleaded in para 1 of his written statement (Suit-5) that there is no installation of deity within the premises of the disputed place of worship and that the idol in question was stealthily and surreptitiously kept inside the mosque in the night of 22nd/23rd December, 1949 and, therefore, are not a juridical person being not a deity but nothing has been brought on record to prove it. Similar assertions have also been made in paras 6, 11, 12, 14, 18 and 21 of the written statement of defendant no. 4, Suit-5. Regarding plaintiff no. 1 (Suit-5) the assertion that it is a Chal Vigrah and was kept in the night of 22nd/23rd December, 1949 after due ceremonies and the fact that since 23rd December, 1949 it is continuously being worshiped by Hindus leaves no option for us but to disagree with the stand of the defendant no. 4 (Suit-5) that it is not a deity in terms of Hindu Shastras and, therefore, not a juridical person. So far as the plaintiff no. 2 is concerned, the discussion made above make it clear that a place by itself can also be a deity for worship of Hindus and in such a case being a Swambhu and permanent deity, no particular kind of consecration is required to be observed in such a case. Subject to our findings in respect to the issues whether the disputed site is the place of birth of Lord Rama or that it is believed to be the place of birth of Lord Rama by Hindus for time immaterial, the issues which are separately under consideration, if answered in affirmance, i.e., in favour of Hindu parties, we have no hesitation in holding that the 2185 plaintiffs no. 1 and 2 cannot be denied the status of deity and, therefore, are juridical persons as known in Hindu laws. It is not the case of any of the parties that there is or there was any shebait appointed or working to look after or managing the plaintiffs no. 1 and 2. The idol while existing on Ram Chabutara, its worship etc. was being managed by the priest of Nirmohi Akhara as claimed by them and also not seriously disputed by other Hindu parties but after its shifting in the disputed building under the central dome, there is nothing on record to show that any person as shebait of plaintiff no. 1 continued to look after.
2139. So far as plaintiff no. 2 is concerned, we find that there is no pleading by the defendants no. 4 and 5 or any other muslim party that there was any shebait to manage the affairs of plaintiff no. 2. The plaintiff no. 3 has stated in para 1 that he is a Vaishnav Hindu. The Vaishnavas are those who worship Lord Rama. He was allowed to represent the plaintiffs no. 1 and 2 as their next friend by Civil Judge while entertaining the suit in question vide order dated 01.07.1989. After death of Sri D.N. Agrawal he was replaced by Sri T.P.Verma vide order of the Court who was made next friend of plaintiffs no. 1 and 2. Recently Sri Triloki Nath Pandey has been allowed as next friend to represent plaintiffs no. 1 and 2. In view of the law laid down by the Apex Court in Bishwanath Vs. Sri Thakur Radha Ballabhi (supra) in the absence of Shebait, a suit on behalf of a Hindu idol can be filed and pursued by a worshipper as an idol's next friend.
2140. A suit on behalf of a minor or a Deity can be filed through next friend only if the above conditions are satisfied. This could have been a serious deficiency in respect to 2186 maintainability of Suit-5 through next friend but we have noticed that here is not a case where Suit-5 was entertained on behalf of plaintiffs 1 and 2 through next friend without the intervention of the Court. The record shows that before entertaining the suit, the Court considered the prayer of the plaintiff 3 to permit him to represent the plaintiffs no.1 and 2 as next friend. The Civil Judge passed order on 01.07.1989 permitting the plaintiff no.3 to present the said suit as next friend of the plaintiffs no.1 and 2. The said order of the Civil Judge has never been challenged by any of the parties and the same has attained finality. In fact after the death of Sri Deoki Nandan Agarwal the then next friend of plaintiffs no.1 and 2, an application was filed for another next friend by Sri T.P.Verma which was allowed by this Court. Thereafter when a further change was requested, another application was filed on behalf of Kamleshwar Nath to represent as next friend of plaintiffs 1 and 2 but it was dismissed by this Court against which an appeal was taken to the Apex Court and vide judgment dated 08.02.2010, the Apex Court permitted him to be impleaded and pursue the present suit as next friend of plaintiffs no. 1 and 2 subject to certain conditions, which he complied with and accordingly he was substituted as next friend by this Court's order dated 18.03.2010.
2141. In view of the above discussion, we are of the view that Suit-5 cannot be held not maintainable merely on account of some defects in pleading with respect to the status of the next friend or Shebait. We decide Issues no. 2 and 6 (Suit-5) in negative i.e. in favour of the plaintiffs (Suit-5). We hold that the suit is maintainable and plaintiff no. 3 can validly represent plaintiffs no. 1 and 2 as their next friend and is competent on 2187 this account.
(H) Limitation 2142. In this category fall four issues namely Issue No. 3 (Suit-4); 10 (Suit-1); 9 (Suit-3); and 13 (Suit-5). 2143. The above issues though pertain to a common statute of "limitation" but since the situation, relevant facts and arguments cover different angles in all the cases, we propose to deal the said four issues separately and suitwise. 2144. First we proceed with the leading case, i.e., Issue No. 3 (Suit-4) which reads as under:
"Is the suit within time?"
2145. The plaintiffs in para 23 of the plaint have alleged that the cause of action arose on 23rd December, 1949 when the Hindus unlawfully and illegally entered the mosque, desecrated the same by placing idols therein, caused obstruction and interference with the rights of Muslims in general in offering prayers and other religious ceremonies in the mosque, caused obstructions to Muslims going to the grave-yard and reciting Fatiha to the dead persons buried therein; the said injury is continuing and renewed de-die-indiem; the cause of action against defendants 5 to 9 arose on 29th December, 1949 on which date the defendant No. 7 attached the mosque in suit and handed over possession to Receiver (defendant No. 9) who assumed charge of the same on 5th January, 1950 and the State Government and its officials, defendants No.6 to 8, failed in their duty to prosecute offenders and safeguard interest of Muslims. Para 23 of the plaint reads as under:
"23. That cause of action for the suit against the Hindu public arose on 23.12.1949 at Ajodhiya District Faizabad within the jurisdiction of this Hon'ble Court when the 2188 Hindus unlawfully and illegally entered the mosque and desecrated the mosque by placing idols in the mosque thus causing obstruction and interference with the rights of the Muslims in general, of saying prayers and performing other religious ceremonies in the mosque. The Hindus are also causing obstructions to the Muslims going in the grave-yard (Ganj-Shahidan) and reciting Fatiha to the dead persons buried therein. The injuries so caused are continuing injuries and the cause of action arising therefrom is renewed de-die-indiem and as against defendants 5 to 9 the cause of action arose to the plaintiffs on 29.12.1949 the date on which the defendant No. 7 the City Magistrate Faizabad-cum-Ajodhiaya attached the mosque in suit and handed over possession of the same to Sri Priya Dutt Ram defendant no. 9 as the receiver, who assumed charge of the same on January 5, 1950.
The State Government and its officials defendants 6 to 8 failed in their duty to prosecute the offenders and safeguard the interests of the Muslims"
2146. The defendants No.1 and 2 in para 23 of written statement dated 12th March, 1962 have denied it. In additional pleas, para 28 they have pleaded that the suit is time barred. The plaintiff's were not in possession of the disputed property since 1934. The relevant pleading is as under :
"23. That para 23 of the plaint is wrong. The suit is hopelessly time barred. The Muslims have not been in possession of the property in dispute since 1934, and earlier."
"28. That the suit is time barred as the plaintiffs were never in possession over the temple in dispute since 1934, 2189 and the Hindus were holding it adversely to them, overtly and to their knowledge."
2147. Another written statement filed on behalf of defendants No. 1 and 2 dated 25th January, 1963 is similarly worded in para 23 and 28 thereof.
2148. The defendants No. 3 and 4 in their written statement dated 22nd August, 1962, while denying para 23 of the plaint in para 23 of the written statement, have stated in para 34 (part of additional pleas) that the suit is barred by time. 2149. The defendant No.10 in his written statement dated 15th February, 1990 has denied para 23 of the plaint and in additional pleas has alleged in para 29 and 79 that the suit is barred by time. Para 79 of the written statement says:
"79. That the suit as framed is a suit for declaration only and the relief for delivery of possession is in the words that "In case in the opinion of the court . . . . . " which means that the plaintiffs are not seeking relief of possession and leave it to the court to grant possession suo motu. The reason is obvious that the suit was barred by limitation and so specific prayer has not been made."
2150. Though a replication has been filed to this written statement of defendant No.10 but para 79 was inserted in the written statement pursuant to the amendment allowed by Court's order dated 23rd November, 1992 and there is no reply to para 79 of the written statement. The part of relief sought in the plaint i.e. para 24 (bb) is also pleaded barred by time in para 12, additional written statement dated 12th September, 1995 of defendant No.10 (Baba Abhiram Dass, substituted by defendant No.13/1 vide Court's order dated 27th January, 1992). In written statement dated 20.7.1968, paras 23, 27 and 28 he pleads that 2190 the suit is hopelessly time barred. The defendant No.13/1 in his separate written statement dated 4th December, 1989 in para 23 and 39, while asserting that the suit is barred by time, has averred:
"23. That paragraph 23 of the plaint is denied. The cause of action pleaded therein is fictitious. It could in no case be said to be renewed de-die-indiem, inasmuch as the imaginary injury complained of does not constitute a continuing injury or a continuing wrong in the eye of law. The suit is hopelessly time-barred by the limitation of 6 years prescribed by Article 120 of the Schedule to the Indian Limitation Act, 1908, which squarely applies to the allegations and the cause of action pleaded in the plaint, though the answering defendant submits that there was in fact no cause of action for the suit, and the suit is only a malicious exercise in futility which is fit to be dismissed as such."
"39. That the relief for possession by the removal of the idols and other articles of Hindu worship, is in fact and in law a relief for mandatory injunction, and is barred the 6 years' limitation prescribed by Article 120 of the Schedule to the Indian Limitation Act, 1908. Otherwise too a person other than the Mutwalli of a Mosque cannot sue for its possession, and can only sue for a declaration that it is a mosque and, if out of possession or dispossessed, that its possession be made over to the Mutwalli, and to such suit also Article 120 applied, and neither of the Article 142 or 144 of the Schedule to the Indian Limitation Act, 1908 had any application. Further, on the pleas raised in the plaint, the plaintiffs having claimed to have been effectively and 2191 completely dispossessed by the Preliminary order of attachment and appointment of a Receiver to maintain the worship of the Deity inside the three-domed building, passed on 29.12.1949 under Section 145 of the Code of Criminal Procedure, 1898, the suit is barred by Article 14 of the Schedule to the Indian Limitation Act, 1908. Inasmuch as the Plaintiffs have claimed that they were completely and effectively ousted from the building and the premises in suit by the Defendants act of 'placing' of Idols within the 'mosque', on December 23, 1949, their cause of action was finally complete and closed that day, and did not recur thereafter, according to their own allegations. It could not be said to arise thereafter die-in- diem, as it was not the case of a continuing wrong, within the meaning of Section 23 of the Indian Limitation Act, 1908. In any view of the matter the suit is hopelessly barred by limitation, even on the allegations of the Plaint which is liable to be rejected under Order 7, Rule 11 of the Code of Civil Procedure, 1908, and Section 3 of the Indian Limitation Act, 1908, casts a duty on the Court to dismiss the suit and not to proceed with its trial any further."
2151. Defendant No.17 in para 18 of additional written statement dated 14th September, 1995 has pleaded that the suit is barred by time in the following words :
"18. That the suit as framed is a suit for declaration and the relief for delivery of possession has not been made in specific terms as the said relief was time-barred on the date of institution of the suit. Now by way of amendment, relief of possession from statutory receiver is being sought and as such the plaintiffs are stopped from claiming 2192 possession of the property at this stage and the said claim has also become time-barred."
2152. Similarly, defendant No.18 in para 23 of the written statement has denied and in para 28 has said that the suit is barred by limitation; Defendant No.20 has denied para 23 and in para 48 has pleaded that the suit is barred by limitation. 2153. Sri P.N.Mishra, Advocate, assisted by Miss Ranjana Agnihotri appearing on behalf of defendant No.20 submitted that Sri Zahoor Ahmad-plaintiff No.10 (since deceased) was impleaded as defendant No.1 in Suit-1. Mohammad Faiq- plaintiff No.4 (since deceased) was defendant No.3 in Suit-1 and defendant No.7 in Suit-3. Similarly, plaintiff No.10/1 Farooq Ahmad substituted after the death of the plaintiff No.10 Zahoor Ahmad is defendant No.11 in Suit-3. In the plaint (Suit-4), the plaintiffs have taken a stand in para 11 that the disputed building was in peaceful possession of Muslims and they used to recite prayer therein till 23rd December, 1949 when a large crowd of Hindus with mischievous intention of destroying, damaging or defiling the said mosque and thereby insulting Muslim religion and religious feelings, entered and desecrated the mosque by placing idols therein. Shri Mishra pointed out that plaintiff No.4-Mohd. Faiq and plaintiff No.10-Zahoor Ahmad had filed written statement dated 21st February, 1950 in Suit-1 and in para 22 therein have pleaded that Namaz was offered in the building in dispute till 16th December, 1949 and till then there was no idol in the said building; if it has been placed subsequently in the disputed building, the same was wholly illegal. Similarly, the plaintiff No.4 along with two others had filed written statement dated 28.03.1960 in Suit-3 and in para 26 thereof he has pleaded that Namaz was offered in the disputed building till 2193 16th December, 1949 and upto that time there was no idol inside the building. The above stand has been changed by the said two plaintiffs in Suit-4 though it is a futile and illegal attempt; will not bring the suit in dispute within the limitation prescribed therefor.
2154. Sri Mishra contended that Suit-4 was presented and filed in the court on 18th December, 1961. Plaintiff No.1 (Suit-
4), who was impleaded as defendant No.9 (Suit-3) pursuant to the Court's order dated 23rd August, 1989 on application for impleadment, made a statement through his counsel that he is adopting written statement already filed on behalf of the defendants No.1 to 5 in Suit-1 and the defendants No.6 to 8 in Suit-3. Sunni Central Waqfs Board was also impleaded as defendant No.10 in Suit-1 pursuant to the Court's order dated 7th January, 1987. Thus the stand taken by plaintiffs No. 4 and 10 is binding on plaintiff No.1. The change in stand in Suit-4 with respect to the date on which last Namaz was offered in the disputed building cannot be pleaded otherwise than what they have already pleaded. They are estopped from changing the stand and cannot be permitted to cover up the deficiency in regard to limitation by such altered stand. 2155. It is contended by Sri P.N. Misra that in the earlier pleadings of Muslim parties their specific case was that last Namaz was offered on 16.12.1949 hence the subsequent improvement in the later pleadings shall not improve upon their case. They are bound by the stand they have taken in earlier pleadings. He argued that post litem motum is inadmissible on the ground that the same thing must be in controversy before and after the statement is made. The statement in Suit-4, therefore, is inadmissible where improving upon their earlier 2194 stand it has been pleaded that Namaz was offered lastly on 22.12.1949. Sri Misra placed reliance on a decision of the Apex Court in State of Bihar & Ors. Vs. Sri Radha Krishna Singh (Supra) and in particular para 132 and 138 which read as under:
"132. Same view was taken by a full Bench of the Madras High Court in Seethapti Rao Dora v. Venkanna Dora & Ors, (1922) ILR 45 Mad 332: (AIR 1922 Mad 71). Where Kumaraswami Sastri, J. Observed thus:
"I am of opinion that Section 35 has no application to judgments, and a judgment which
would not be admissible under Sections 40 to 43 of the Evidence Act would not become relevant merely because it contains a a statement as to a fact which is in issue or relevant in a suit between persons who are not parties or privies. Sections 40 to 44 of the Evidence Act deal with the relevancy of judgments in Courts of justice."
"138. In Hari Baksh v. Babu Lal & Anr., AIR 1924 PC 126, their Lordships observed as follows.
"It appears to their Lordships that these statements of Bishan Dayal who was then an interested party in the disputes and was then taking a position adverse to Hari Baksh cannot be regarded as evidence in this suit and are inadmissible."
2156. Referring to the reliefs sought in Suit-4, it is contended by Sri Mishra that for the purpose of limitation, Suit- 4 would be governed by Article 120 of Limitation Act, 1908, (hereinafter referred to as "L.A. 1908"). The period prescribed therein is only six years. Admittedly the suit has been filed by the plaintiffs after more than 12 year. Therefore, it is liable to be 2195 dismissed on the ground of limitation itself. He argued that though presently the L.A. 1908 has been repealed by Limitation Act, 1963, (hereinafter referred to as "L.A.1963"), but for the purpose of ascertaining as to whether the suit in question was filed within the period prescribed in law, the statute as it was enforced on the date of filing of the suit would have to be considered. Applying Article 120 of L.A. 1908, Suit-4 is hopelessly barred by limitation.
2157. The submission is that in a suit for declaration, only Article 120 of L.A. 1908 applicable since no other Article apply. Even if the date of cause of action, as mentioned in para 23 of the plaint, is taken to be correct, the suit in question having been filed after expiry of six years, is hopelessly barred by limitation. 2158. He also submitted that there is no question of continuing wrong. It is not a case where the cause of action accrued de die indiem i.e. every day. The suit in question cannot be treated to be within limitation. Alternatively he contended that even if Article 120 is found inapplicable, due to Article 142 or 144 of L.A. 1908, the cause of action having arisen on 16 th December, 1949, and, not being a continuous cause of action running de die indiem, the suit in question is barred by limitation having been filed after expiry of 12 years i.e. 2 days later after expiry of 12 years. Sri Mishra submits that once the suit stands barred by limitation, there is no question to consider or apply any sympathy or equity in the matter. A suit, which is barred by limitation, cannot be held within time for trial on any such ground like equity, conscience, justice, sympathy, leniency etc. 2159. He further pleaded that Articles 142 and 144 of L.A. 1908 are mutually exclusive. In any case, both have no 2196 application to the dispute in hand in view of the relief sought by the plaintiffs. The party to a suit, if has taken in an earlier proceedings, a particular stand, is estopped from taking a different stand in a subsequent proceeding. It amounts to approbate and reprobate at the same time, which is impermissible. In such a matter, doctrine of 'election' would apply which binds the party to adhere to the first stand taken and not to take advantage of subsequent stand, which is an after thought.
2160. To attract Article 142 of L.A. 1908, possession of the defendants was necessary on the date of suit filed by it. There are two words used in Article 142 namely "discontinuation from possession" and "dispossession". Both have different meaning and context. Since the defendants were not in possession on the date the suit was filed, Article 144 of L.A. 1908 would not come into picture.
2161. Sri Mishra further submits that the order of attachment passed as a preliminary order under Section 145 Cr.P.C. would make no difference, inasmuch as, a Receiver appointed by the Magistrate in proceedings under Section 145 Cr.P.C. is not adversary to any of the party but he holds and receive the property, entering into the shoes of the original and real owner. Hence the date from which receiver is appointed, would not confer any advantage to the plaintiffs in the present case so as to bring the matter within limitation. 2162. The above arguments have been buttressed by the learned counsel Sri Mishra from various angles relying on a catena of decisions i.e.: Shyam Sunder Prasad & Others Vs. Raj Pal Singh & Anr. 1995(1) SCC 311, Chairman & M.D., N.T.P.C. Ltd. Vs. M/s Reshmi Construction Builders & 2197 Contractors AIR 2004 SC 1330, Draupadi Devi & Ors. Vs. Union of India & Ors. (2004) 11 SCC 425, Mohima Chundar Mozoomdar & Ors. Vs. Mohesh Chundar Neogi & Ors. 16 Indian Appeals (1888-1889) 23, Nawab Muhammad Amanulla Khan Vs. Badan Singh & Ors. 16 Indian Appeals (1888-1889) 148, Jamal Uddin & Anr. Vs. Mosque at Mashakganj & Ors. AIR 1973 Allahabad 328, Raja Rajgan Maharaja Jagatjit Singh Vs. Raja Partab Bahadur Singh AIR 1942 Privy Council 47, Mt. Bolo Vs. Mt. Koklan and others AIR 1930 Privy Council 270, Partab Bahadur Singh, Taluqdar Vs. Jagatjit Singh AIR 1936 Oudh 387, Yeknath Vs. Bahia AIR 1925 Nagpur 236 (1), Rajah of Venkatagiri Vs. Isakapalli Subbiah & Ors. ILR (26) Madras 410, Abinash Ch. Chowdhury Vs. Tarini Charan Chowdhury and others AIR 1926 Cal. 782, The Firm of Eng Gim Moh Vs. The Chinese Merited Banking Co. Ltd. and another AIR 1940 Rangoon 276, Annamalai Chettiar and others Vs. A.M.K.C.T. Muthukaruppan Chettiar & anr. AIR 1931 Privy Council 9, Mst. Rukhmabai Vs. Lala Laxminarayan & Ors. AIR 1960 SC 335, Garib Das and others Vs. Munshi Abdul Hamid and others AIR 1970 SC 1035, State of Bihar & Ors. Vs. Sri Radha Krishna Singh (supra), C. Beepathumma and others Vs., Valasari Shankaranarayana Kadambolithaya and others, AIR 1965 SC 241.
2163. Sri M.M.Pandey, Advocate on behalf of defendant no.2/1 Mahant Suresh Das submitted that the property is under attachment. There is no cause of action for claiming the relief of possession and hence a suit for declaration lie which attract limitation under Article 120. He placed reliance on Deo Kuer & Anr. Vs. Sheo Prasad Singh & Anr. AIR 1966 SC 359 and 2198 submitted that since the suit has been filed after more than 11 years, it is highly barred by limitation. He also submitted that limitation once start running, shall not stop and placed reliance on Bank of Upper India Vs. Mt. Hira Kuer & Ors. AIR 1937 Oudh 291. Explaining "right to sue", he placed reliance on Annamalai Chettiar and others Vs. A.M.K.C.T. Muthukaruppan Chettiar & anr (Supra) and Mt. Bolo Vs. Mt. Koklan and others (Supra).
2164. Besides above, he also placed reliance on Partab Bahadur Singh, Taluqdar Vs. Jagatjit Singh (Supra), C. Natrajan Vs. Ashim Bai & Anr. AIR 2008 SC 363; Shyam Sunder Prasad (supra); Panna Lal Biswas Vs. Panchu Raidas AIR 1922 Cal 419; Bhinka and others Vs. Charan Singh 1959 (Supp.) 2 SCR 798, Abdul Halim Khan Vs. Raja Saadat Ali Khan & Ors. AIR 1928 Oudh 155 and Brojendra Kishore Roy Chowdhury & others Vs. Bharat Chandra Roy and others AIR 1916 Cal. 751.
2165. Sri G.Rajagopalan, Senior Advocate, appearing on behalf of defendant No.12 also towing the same line contended that the suit is only for declaration and there is no prayer for possession. It is covered by Article 120 of the L.A.1908 hence barred by limitation. Referring to Order VII Rule 6 C.P.C., he submits that the plaintiffs when filed the suit beyond the period of limitation must state the grounds upon which exemption from such law is claimed. No such ground or exemption has been stated in the plaint therefore, it is ex facie barred by limitation. He also contended that the plaintiffs have also not sought any exemption under Public Waqf (Extension) of Limitation Act, 1959 and even otherwise the said Act would not be applicable to the plaintiffs.
21992166. Sri Ravi Shankar Prasad, Senior Advocate, contended that the suit of plaintiffs-Muslims is actually a suit for immoveable property governed by Article 120 of L.A. 1908 and neither Article 142 nor 144 is applicable. Any attempt to construe the suits filed by the plaintiffs as anything but a suit for possession of immovable property is incorrect. They are not in possession of the property in dispute since 22/23rd December, 1949 and therefore, the limitation was only for six years which having elapsed the suit is barred by limitation. He placed reliance on Raja Ramaswamy Vs. Govinda Ammal, AIR 1929 Madras 313 (Para 19 to 25); Pierce Leslie & Co. Ltd. Vs. Miss Violet Ouchterlony Wapshare AIR 1969 SC 843 (Para 7); Janki Kunwar Vs. Ajit Singh (1888) ILR 15 Cal 58 (Para 8); Jafar Ali Khan & Ors. Vs. Nasimannessa Bibi AIR 1937 Cal 500 (Para 7).
2167. On the contrary, Sri Siddiqui refuting all the submission vehemently contended that here is a continuous cause of action since the proceedings of 145 Cr.P.C. have not been finalized so far. The deprivation for the Muslims is on day- to-day basis and that it was a suit for possession wherein the limitation would commence from 22/23 December, 1949 and the suit having been filed on 18th December, 1961 is well within time. He also cited certain authorities namely Kali Prasad Misir and others Vs. Harbans Misir 1919 All 383; Mata Palat Vs. Beni Madho AIR 1914 All 184; Prajapati and others Vs. Jot Singh and others AIR 1934 All 539; Jagat Mohan Nath Sah Deo Vs. Pratap Udai Nath Sah Deo & Ors. AIR 1931 PC 302; and Suryanarayana & Ors. Vs. Bullayya & Ors. AIR 1927 Madras 568.
2168. Before coming to the question as to whether Suit-4 2200 (leading suit) is barred by limitation or not, it would be appropriate, first to consider, the relevant provisions, namely, Article 120, 142 and 144 of L.A. 1908 and a few other relative provisions to find out scope, effect and the circumstances in which they would operate since it is this Act which was in operation at the time when Suit-4 was filed. 2169. The nature of the statute on limitation has been considered in C. Beepathuma (supra) and it say:
"There is no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it."
2170. Before the British, during the period when Muslims ruled the Country (in particular Oudh), it appears that personal laws governed all matters. The Muslim law does not recognize limitation; while in Hindu personal laws, on certain aspects, in different schools, some provisions for limitation are prescribed which are not common to all the Hindus. Hindu Law recognizes both prescription and limitation while Muslim jurisprudence recognises neither of them. In some of the Smritis a period of 20 years was prescribed for acquisition of title by prescription. It appears that since agriculture was the main occupation of the people, Smritis concentrated more on land and on the rights therein.
2171. Thus prior to 05.05.1859 there was no common law of limitation applicable to whole of India. The Provincial Courts in each Presidency established by East India Company were governed by certain Regulations, like; Regulation III of 1793 (Bengal); Regulation II of 1802 (Madras); Regulation I of 1800 (Bombay) and the Acts particularly applicable to them like Act I of 1845; Act XIII of 1848; Act XI of 1859. The Non-Regulation 2201 Provinces i.e. Punjab and Oudh etc. were governed by Codes of their own and sometimes by Circular Orders of Judicial Commissioner. The three Supreme Courts established by Royal Charter adopted the English law of limitation. 2172. Cause of action with respect to the statutes of Limitation as applicable in England in one of the earliest cases came to be considered in 1849 as to when it would run. Privy Council in The East India Company Vs. Oditchurn Paul 1849 (Cases in the Privy Council on Appeal from the East Indies) 43 held that the Statute runs from the time of breach, for that constitutes the cause of action. With reference to the East India Company, it observed that the statute of limitation was extended to India by Indian Act No.XIV of 1840. The appeal against the Supreme Court of Judicature at Fort William in Bengal (Calcutta) was allowed by Privy Council. It also observed therein if the matter would have been tried by Hindu law, the limitation of suits, under the Hindu law, would have been twelve years.
2173. The first codified statute was Act No. XIV of 1859, enacted to amend and consolidate laws relating to limitation of suits. This Act received the assent of Governor General on 5th May, 1859. It was repealed by Act No. IX of 1871, Act XV of 1877 and thereafter by Act IX of 1908 (i.e. L.A. 1908). Presently, even L.A. 1908 has been repealed and the Courts in India are now governed by Limitation Act, 1963 (i.e. L.A. 1963).
2174. Act XIV of 1859 provided limitation of suits only. Section I, Clauses12 and 16, said :
"12. To suits for the recovery of immovable property or of any interest in immovable property to which no other 2202 provision of this Act applies- the period of twelve years from the time the cause of action arose."
"16. To all suits for which no other limitation is hereby expressly provided- the period of six years from the time the case of action arose." (emphasis added) 2175. Sections XI, XII, XV and XVI of the Act XIV of 1859 read as under:
"XI. If, at the time when the right to bring an action first accrues, the person to whom the right accrues is under a legal disability, the action may be brought by such person or his representative within the same time after the disability shall have ceased as would otherwise have been allowed from the time when the cause of action accrued, unless such time shall exceed the period of three years, in which case the suit shall be commenced within three years from the time when the disability ceased; but, if, at the time when the cause of action accrues to any person, he is not under a legal disability, no time shall be allowed on account of any subsequent disability of such person or of the legal disability of any person claiming through him."
"XII. The following persons shall be deemed to be under legal disability within the meaning of the last preceding Section-married women in cases to be decided by English law, minors, idiots, and lunatics."
"XV. If any person shall, without his consent, have been dispossessed of any immovable property otherwise than by due course of law, such person, or any person claiming through him, shall, in a suit brought to recover possession of such property, be entitled to recover 2203 possession thereof notwithstanding any other title that may be set up in such a suit, provided that the suit be commenced within six months from the time of such dispossession. But nothing in this Section shall bar the person from whom such possession shall have been so recovered, or any other person, instituting a suit to establish his title to such property and to recover possession thereof within the period limited by this Act."
"XVIII. All suits that may be now pending, or that shall be instituted within the period of two years from the date of the passing of this Act, shall be tried and determined as if this act had not been passed; but all suits to which the provisions of this Act are applicable that shall be instituted after the expiration of the said period shall be governed by this Act and no other law of limitation, any Statute, Act, or Regulation now in force notwithstanding."
2176. Section I of Act XIV of 1859 says that no suit shall be maintained in any Court of Judicature within any part of the British territories in India in which this Act shall be in force, unless the same is instituted within the period of limitation hereinafter made applicable to a suit of that nature, any Law or Regulation to the contrary notwithstanding. The territory upon which the said Act was made operative, is provided in Section XXIV as under:
"XXIV. This Act shall take effect throughout the Presidencies of Bengal, Madras, and Bombay, including the Presidency Towns and the Straits Settlements; but shall not take effect in any Non-Regulation Province or place until the same shall be extended thereto by public notification by the Governor-General in Council or by the 2204 Local Government to which such Province or place is subordinate. Whenever this Act shall be extended to any Non-Regulation Province or place by the Governor- General in Council or by the Local Government to which such Province or place is subordinate, all suits which, within such Province or place, shall be pending at the date of such notification, or shall be instituted within the period of two years from the date thereof, shall be tried and determined as if this Act had not been passed; but all suits to which the provisions of this Act are applicable that shall be instituted within such Province or place after the expiration of the said period, shall be governed by this Act and by no other law of limitation, any Statute, Act, or Regulation now in force notwithstanding."
2177. Though Act No. XIV of 1859 was drafted in a language much more precise than the loose phraseology of earlier Regulations, but the Privy Council in The Delhi and London Bank Vs. Orchard, I.L.R. 3 (1876) Calcutta 47 (PC) observed it as an "inartistically drawn statute". 2178. Act IX of 1871 extended the scope and made provisions relating to limitation to suits, appeals and certain applications to Courts. It received the assent of Governor General on 24th March, 1871. Second Schedule, First Division, Articles 118, 143 and 145 provided limitation for possession of immovable property and read as under :
Description of suit Period of Time when
limitation period begins to
run
118 Suit for which no period of Six years When the right to limitation is provided sue accrues.
elsewhere in this schedule.
143 For possession of Twelve The date of the
2205
immovable property when years dispossession or
the plaintiff, while in discontinuance.
possession of the property,
has been dispossessed or
has discontinued the
possession.
145 For possession of Twelve When the
immovable property or any years possession of the
interest therein not hereby defendant, or of
otherwise specially some person
provided for through whom
he claims,
became adverse
to the plaintiff.
2179. Some of the feature of Act IX of 1871 are:
(a) Section-3 defines term 'minor means a person who has not completed his age of eighteen years;
(b) Section-7 deals with legal disability, Section 9 provides continuous running of time, Sections 23 and 24 deals with continued cause of action or renewal of cause of action and 29 for the first time provides for extinction of rights of a person in respect to any land or hereditary office and read as under:
"7. If a person entitled to sue be, at the time the right to sue accrued, a minor, or insane, or an idiot, he may institute the suit within the same period after the disability has ceased, or (when he is at the time of the accrual affected by two disabilities) after both disabilities have ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the second schedule hereto annexed. When this disability continues upto his death, his representative in interest may institute the suit within the same period after the death as would otherwise have 2206 been allowed from the time prescribed therefor in the third column of the same schedule.
Nothing in this section shall be deemed to extend, for more than three years from the cessation of the disabilities or the death of the person affected thereby, the period within which the suit must be brought"
" 9. When once time has begun to run, no subsequent disability or inability to sue stops it : Provided that where letters of administration to the stage of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues."
"23. In the case of a suit for the breach of a contract, where there are successive breaches, a fresh right to sue arises, and a fresh period of limitation begins to run, upon every fresh breach; and where the breach is a continuing breach, a fresh right to sue arises, and a fresh period of limitation begins to run, at every moment of the time during which the breach continues.
Nothing in the former part of this section applies to suits for the breach of contracts for the payment of money by instalments, where, on default made in payment of one instalment, the whole becomes due."
"24. In the case of a continuing nuisance a fresh right to sue arises, and a fresh period of limitation begins to run at every moment of the time during which the nuisance continues."
"29. At the determination of the period hereby limited to any person for instituting a suit for possession of any land or hereditary office, his right to such land or 2207 office shall be extinguished."
2180. Drafting of this statute received better observation from Privy Council in Maharana Futtehsangji Vs. Dessai Kullianraiji, (1873) LR 1 IA 34 and it commented as a "more carefully drawn statute".
2181. The Act gave for the first time some recognition to the doctrine of prescription by the Legislative Council of India, viz. the doctrine of extinctive prescription as to land and hereditary offices, and of positive prescription as to easements. It lived short and was replaced by Act 15 of 1877 which extended the principle of extinctive prescription to movable property and the principle of positive or acquisitive prescription to profits a prendre.
2182. The Law of Prescription prescribes the period at the expiry of which not only the judicial remedy is barred but a substantive right is acquired or extinguished. A prescription by which a right is acquired, is called an "acquisitive prescription". A prescription by which a right is extinguished is called "extinctive prescription". The distinction between the two is not of much practical importance or substance. The extinction of right of one party is often the mode of acquiring it by another. The right extinguished is virtually transferred to the person who claims it by prescription. Prescription implies with the thing prescribed for is the property of another and that it is enjoyed adversely to that other. In this respect it must be distinguished from acquisition by mere occupation as in the case of res nullius. The acquisition in such cases does not depend upon occupation for any particular length of time. 2183. Doctrine of limitation and prescription is based upon the broad considerations. The first, there is a presumption that a 2208 right not exercised for a long time is non-existent. Where a person has not been in possession of a particular property for a long time, the presumption is that he is not the owner thereof. The reason is that owners are usually possessors and possessors are usually owners. Possession being normally evidence of ownership. The longer the possession has continued the greater is its evidentiary value. The legislature it appears, therefore, thought it proper to confer upon such evidence of possession for a particular time a conclusive force. Lapse of time is recognised as creative and destructive of right instead of merely an evidence for and against their existence. The other consideration on which the doctrine of limitation and prescription may be said to be based is that title to property and matters of right in general should not be in a state of constant uncertainty, doubt and suspense. It would not be in the interest of public at large. The object of the statute of limitation is preventive and not creative but in a matter covered by the principle of adverse possession it also creates. It interposes a statutory bar after a certain period and gives a quietus to suits to enforce an existing right.
2184. Act XV of 1877 received the assent of Governor General on 19th July, 1877 and came into force on 1st October, 1877. Articles 120, 142 and 144 , Second Schedule-First Division of the said Act reads as under :
Description of suit Period of Time when
limitation period begins
to run
120 Suit for which no period of Six years When the right
limitation is provided to sue accrues.
elsewhere in this schedule.
142 For possession of Twelve The date of the
immovable property, when years dispossession
2209
the plaintiff, while in or
possession of the property, discontinuance.
has been dispossessed or
has discontinued the
possession.
144 For possession of Twelve When the
immovable property or any years possession of
interest therein not hereby the defendant
otherwise specially becomes
provided for. adverse to the
plaintiff.
2185. Section 2 of Act XV of 1877 makes it very clear that the right to sue if already barred shall not revive by said enactment. It reads as follows:
"2. All reference to the Indian Limitation Act, 1871, shall be read as if made to this Act; and nothing herein or in that Act contained shall be deemed to affect any title acquired, or to revive any right to sue barred, under that Act, or under any enactment, thereby repealed; and nothing herein contained shall be deemed to affect the Indian Contract Act, section 25."
2186. Section 4 makes it obligatory for the Court to dismiss a suit if presented after the expiry of the period of limitation. Section 7 deals with the legal disability which is virtually pari materia with the earlier provision of 1871 Act though slightly worded differently and says:
"7. If a person entitled to institute a suit or make an application be, at the time from which the period of limitation is to be reckoned. A minor, or insane, or an idiot, he may institute the suit or make the application within the same period, after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the second schedule hereto 2210 annexed.
When he is, at the time from which the period of limitation is to be reckoned, affected by two such disabilities, or when, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so prescribed.
When his disability continues up to his death, his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so prescribed.
When such representative is at the date of the death affected by any such disability, the rules contained in the first two paragraphs of this section shall apply.
Nothing in this section applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made."
2187. Section 9 talks of continuous running of time, Section 23 deals with the continuing breach of contract and Section 28 talks of extension of right to property and say:
"9. When once time has begun to run, no subsequent disability or inability to sue stops it:
Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues."2211
"23. In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues."
"28. At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
2188. There were several amendments in the above statute and ultimately it was repealed and replaced by Act 9 of 1908. 2189. L.A. 1908 came into force on 1st January, 1909. It continued with the provision imposing obligation upon the Court to dismiss a suit if, while it is instituted, is already barred by limitation vide Section 23.
2190. The arrangement of above Articles 120, 142 and 144 in L.A. 1908 remained the same, i.e., Articles 120, 142 and 144 and is verbatim:
Description of suit Period of Time when
limitation period begins to
run
120 Suit for which no period of Six years When the right limitation is provided to sue occurs.
elsewhere in this schedule
142 For possession of Twelve The date of the
immovable property when years dispossession or
the plaintiff, while in discontinuance.
possession of the property,
has been dispossessed or
has discontinued the
possession.
144 For possession of Twelve When the
immovable property or any years possession of
interest therein not hereby the defendant
otherwise specially becomes
provided for. adverse to the
plaintiff.
2212
2191. The doctrine of limitation is founded on
considerations of public policy and expediency. It does not give a right where there exist none, but to impose a bar after a certain period to the remedy for enforcing an existing right. The object is to compel litigants to be diligent for seeking remedies in Courts of law if there is any infringement of their right and to prevent and prohibit stale claims. It fixes a life span for remedy for redressal of the legal injury, if suffered, but not to continue such remedy for an immemorial length of time. Rules of limitation do not destroy the right of the parties and do not create substantive rights if none exist already. However, there is one exception i.e. Section 28 of L.A. 1908, which provides that at the determination of the period prescribed for instituting suit for possession of any property, his right to such property shall stand extinguished and the person in possession, after expiry of the such period, will stand conferred title. The law of limitation is enshrined in the maxim "interest reipublicae ut sit finis litium" (it is for the general welfare that a period be part to litigation).
2191A. This statute is based upon two broad principles. First, there is a presumption that a right not exercised for a long time is non existent. Where a person has not been in possession of a particular property for a long time, the presumption is that he is not the owner thereof. The owners are usually possessors and possessors are usually owners. Possession thus being normally evidence of ownership. Longer the possession has continued the greater is its evidentiary value. The law therefore has deemed it expedient to confer upon such evidence of possession for a particular time, a conclusive force. 2192. In Motichand Vs. Munshi, AIR 1970 SC 898, the 2213 Court noticed the maxim vigilantibus non dormientibus jura subventiunt (the law assists the vigilant not those who sleep over their rights). Though there is a general principle ubi jus ibi remedium i.e. where there is a legal right there is also a remedy, but there are certain exceptions to this general rule. 2193. Mere expiry of limitation could have extinguished remedy but the principle embodied in Section 28 extinguishes the right also and thereby makes the said general principle inapplicable. Once the right of getting possession extinguished it cannot be revived by entering into possession again [See Salamat Raj Vs. Nur Mohamed Khan (1934) ILR 9 Lucknow 475; Ram Murti Vs. Puran Singh AIR 1963 Punjab 393; Nanhekhan Vs. Sanpat AIR 1954 Hyd 45 (FB) and Bailochan Karan Vs. Bansat Kumari Naik 1999 (2) SCC 310]. 2194. In this matter the plaintiffs (Suit-4) have attempted to bring their case within the precinct of Article 142 and in the alternative Article 144 while the defendants intend to bulldoze the plaintiffs by stressing upon to apply Article 120. An attempt to out class the bar of limitation has also been made by pleading that the wrong is de-die indium, hence being a continuing wrong, no obstruction of limitation is there. 2195. Article 120 is completely a residuary provision and where limitation cannot be found in any other provision, only then it would be attracted. We can say safely that Article 120 L.A. 1908 would be attracted only when Articles 142 and 144 are inapplicable. We, therefore, at this stage defer to consider scope and extent of Article 120 so as to be discussed a bit later. 2196. Between the Articles 142 and 144 the later one is a kind of residuary provision while Article 142 applies in a specific type of case [See Sidram Lachmaya Vs. Mallaya 2214 Lingaya AIR (36) 1949 Bom. 137 (Para 9); Ranchordas Vandravandas Vs. Parvatibai 29 I.A. 71 (P.C.)]. 2197. A Full Bench of this Court in Bindyachal Chand Vs. Ram Gharib, AIR 1934 Alld. 993 (FB) held where Article 142 is applicable, Article 144 cannot be applied. First it has to be seen whether Article 142 applies in the case or not and when it clearly becomes inapplicable only then resort can be taken to Article 144.
2198. Article 142 applies where the plaintiff while in possession has been dispossessed or has discontinued his possession. Where a persons has been dispossessed or discontinued of his possession of the property, he can bring an action seeking restoration of possession of the immoveable property within 12 years. It pre-supposes the possession of such person over the immoveable property before he is dispossessed or discontinued. Article 144, however, applies where any other provision specifically providing for restoration of immoveable property or interest therein is not available and there also though the period of limitation is 12 years but the limitation runs from the date when the possession of the defendants becomes adverse to the plaintiff and commonly it is said that this provision is in respect to the cases where the defendant's possession is said to be adverse. Though the distinction is quite evident but in the complex nature of the society and the disputes which arise, at times the courts find difficulty in maintaining distinction between the two and there appears to be some conflicting views also as to the scope of Article 142 L.A. 1908 and its applicability. What has been ultimately realised is that the question would basically that of pleading. 2199. In reference to Articles 143 of Act 9 of 1871 the 2215 Privy Council in Bibi Sahodra Vs. Rai Jang Bahadur, (1881) 8 Cl. 224:8 I.A. 210 said:
"refers to a suit for possession of immovable property, where the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession, and it allows twelve years from the date of the dispossession or discontinuance. But in order to bring the case under that head of the schedule, he must show that there has been a dispossession or discontinuance."
2200. The view, therefore, was that Article 143 of Act 9 of 1871 which is corresponding to Article 142 of Act 15 of 1877 and L.A. 1908 would not be attracted where pleadings distinctly show that there was no dispossession or discontinuance of possession of the plaintiff.
2201. In Karan Singh Vs. Bakar Ali Khan, (1882) 5 All 1 the question of application of Article 145 of Act 9 of 1871 (this corresponds to Article 144 of the statute with which we are concerned) arose. Sir Peacock observed that a suit can be brought within 12 years from the time when the possession of the defendant or of some persons through whom he claims, became adverse to the plaintiff.
2202. In both the type of cases what we find is that possession by itself is of much relevance and importance. The courts took the view that by reason of his possession a person may have an interest which can be sold or devised. One has to prove first his possession before making complaint of dispossession or discontinuance of possession. He need not prove the title or the capacity in which he had the possession for the purpose of Article 142. However, after title is proved, the presumption of possession goes with it unless proved otherwise.
22162203. Privy Council in Sundar Vs. Parbati, (1889) 12 All 51 agreed with the view of this court that possession is a good title against all the world except the person who can show a better title. By reason of his possession such person has an interest which can be sold or devised.
2204. In Mohima Chundar Mazoomdar (supra) considering Article 142 of Act 15 of 1877, the Judicial Commissioner held that onus lies upon the plaintiffs to prove their possession prior to the time when they were dispossessed, and at sometime within twelve years before the commencement of the suit so as to save suit from limitation prescribed under Article 142.
2205. Articles 142 and 144 of Act XV of 1877 came up for consideration before the Judicial Commissioner in Nawab Muhammad Amanulla Khan (supra). It held that Article 142 applies where the plaintiff while in possession of the immovable property earlier had been dispossessed or has discontinued the possession and in such a case to bring a suit for possession, limitation would be 12 years. However, Article 144 applies only as to adverse possession where there is no other Article which specifically provides for the same. In the aforesaid case there was a refusal on the part of the plaintiffs and their ancestors to make the engagement for payment of revenue. The Government made engagement with the villagers (defendants). It was held that this amounted to dispossession or discontinuance of possession of the plaintiff within the meaning of Article 142 of Act 15 of 1877 and this case would not be governed by residuary Article 144 as to adverse possession. 2206. Explaining inter relationship of the two Articles Punjab Chief Court in Bazkhan Vs. Sultan Malik, 43 P.R. 1901 2217 held that suit for possession of immoveable property upon discontinuance of possession or dispossession is barred after 12 years under Article 142 of the Limitation Act although no adverse possession is proved. Articles 144 and 142 cannot both apply. Article 144 in terms is applicable only when no other Article is found applicable.
2207. Privy Council in Dharani Kanta Lahiri Vs. Gabar Ali Khan, (1913) 18 I.C. 17 said:
"it lay upon the plaintiffs to prove not only a title as against the defendants to the possession, but to prove that the plaintiffs had been dispossessed or had discontinued to be in possession of the lands within the 12 years immediately preceding the commencement of the suit."
2208. In the above case a suit was filed for ejectment of persons who were admittedly in possession of lands from which they were sought to be evicted.
2209. In Secretary of State Vs. Chelikani Rama Rao, (1916) 39 Mad. 617 Lord Shaw on page 631 of the report observed:
"nothing is better settled than that the onus of establishing title to property by reason of possession for a certain requisite period lies upon the person asserting such possession. It is too late in the day to suggest the contrary of this proposition. If it were not correct it would be open to the possessor for a year or a day to say, 'I am here; be your title to the property ever so good, you cannot turn me out until you have demonstrated that the possession of myself and my predecessors was not long enough to fulfil all the legal conditions.' .........It would be contrary to all legal principles to permit the squatter to put the owner of 2218 the fundamental right to a negative proof upon the point of possession." (emphasis added) 2210. In Kanhaiya Lal Vs. Girwar, 1929 ALJ 1106 this Court said:
"this article applies to suit in which the plaintiff claims possession of the property on the ground that while in possession he was dispossessed or his possession was discontinued by the defendant. In other words that article is restricted to cases in which the relief for possession sought by the plaintiff is based on what may be styled as possessory title."
"possession is in itself title and good against every body except the true owner. In short, there may be cases in which a person, though not the true owner, has been in peaceful possession of property and his possession is disturbed. In such cases the person dispossessed has a right to be restored back to possession on proving the fact of his possession and his dispossession or discontinuance of his possession by the defendant within a period of 12 years prior to the institution of the suit. To such cases Art. 142 applies."
2211. It thus appear that the Court followed the principles that the correct article to apply in cases based upon the allegation of title and possession is Article 144 because if plaintiff's title is proved he is entitled to succeed unless the defendants proves that the title has been lost on account of adverse possession on the part of defendants. But the plaintiff though not able to substantiate his title, is in a position to prove his possession and dispossession by defendants within 12 years, if that be the case, Article 142 will apply and the burden will lie 2219 on the plaintiff. This was in fact misunderstood in the sense that a suit of owner who also had actual possession, if dispossessed or discontinued possession was not treated to be covered by Article 142. This is evident in Kallan Vs. Mohammad Nabikhan, 1933 ALJ 105. Fortunately this mistake was soon realised and the view otherwise was overruled by a Full Bench in Bindyachal Chand Vs. Ram Gharib (supra) where it was held that Article 142 is not restricted to suits based on possessory title only as distinguished from suits in which plaintiff proved his proprietary title as well. This view of the Full Bench was followed by a Full Bench of Lahore High Court in Behari Lal Vs. Narain Das, 1935 Lah. 475.
2212. In Shyam Sunder Prasad (supra) in reference to Article 142 and 144 of L.A. 1908 the Apex Court said:
"Under the old Limitation Act, all suits for possession whether based on title or on the ground of previous possessions were governed by Article 142 wherein the plaintiff while in possession was dispossessed or discontinued in possession. Where the case was not one of dispossession of the plaintiff or discontinuance of possession by him, Article 142 did not apply. Suits based on title alone and not on possession or discontinuance of possession were governed by Article 144 unless they were specifically provided for by some other articles. Therefore, for application of Article 142, the suit is not only on the basis of title but also for possession."
2213. Thus, the judicial consensus now binding on this Court is to the effect that Article 142 is one of the specific provisions governing suits for possession of immoveable property and contemplates a suit for possession when the 2220 plaintiff, while in possession has been dispossessed or has discontinued possession [See also Abbas Dhali Masabdi Karikar, (1914) 24 I.C. 216 (Cal.)].
2214. Article 144 in the matter of an occasion for possession of immoveable property or an interest therein is a residuary Article hence the allegations made in the plaint if brings the suit within Article 142, there is no justification or occasion to take the matter out of that Article and then to apply Article 144. It is only when Article 142 is not applicable and no other article apply, based on the pleadings, then if attracted, Article 144 may be applied. Article 142 is neither subordinate nor subject to Article 144 but will have application on its own and independent. Article 144 thus is a kind of residuary article and will have application when no other article has application to the matter. In Bindyachal Chand (supra) Justice Mukharjee observed that if on the allegations made in the plaint suit falls within Article 142 there is no justification to take it out of Article 142 and attempt to bring Article 144 into picture. 2215. We may notice at this stage that the view taken by the Courts that Article 142 would apply to a suit by the owner of the property as well as a person suing on the basis of possessery titles and thereby seems to favour even a trespasser, as observed in Bindyachal Chand (supra) and some other Courts that its applicability to a suit is based on possessary title constitute one of the relevant aspect resulted in possibility of helping miscreants. This view, besides other, caused in a specific and clear provision in the new statute i.e. L.A. 1963 where words "or has discontinued the possession" were omitted in column 3 and the words "based on previous possession and not on title"
were inserted in column 1 in Article 64 thereof.2221
2216. In C. Natarajan Vs. Ashim Bai (supra), the Apex Court noticed the distinction between Article 142 and 144 of LA 1908 and Article 64 and 65 of LA 1963 in para 15 of the judgment as under:
"15. The law of limitation relating to the suit for possession has undergone a drastic change. In terms of Articles 142 and 144 of the Limitation Act, 1908, it was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. However, if the plaintiff has filed the suit claiming title over the suit property in terms of Articles 64 and 65 of the Limitation Act, 1963, burden would be on the defendant to prove that he has acquired title by adverse possession."
What is Dispossession 2217. Article 142 contemplates earlier possession before dispossession or discontinuance thereof. This bring us to understand the term 'Possession'. It has a variety of meanings. It is a juristic concept distinct from title and can be independent of it. It is both physical and legal concept. The concept of possession implies "corpus possession" coupled with "animus possidendi". Actual user without animus possidendi is not a possession in law. In fact, possession is a polymorphous term having different meanings in different context. It has different shades of meaning and very elastic in its connotation. We intend to discuss with the term "possession" in much detail while dealing with the issues "pertaining to possession/adverse possession" and hence do not intend to elaborate hereat. For the purpose of the plea of limitation, we shall confine ourselves to the pleadings and the evidences available to find out its 2222 consequence on the case whether the suit in question is saved from limitation or not.
2218. The pivotal point to attract Article 142 and to run limitation is the date of "dispossession" or "discontinuation of possession". The period of limitation thus would commence, in a case governed by Article 142, from the date the plaintiff is "dispossessed" or "discontinued". The two terms ex facie do not and cannot have the same meaning.
2219. The dictionary meaning of the term "dispossession" is:
(A) In "Mitra's Legal & Commercial Dictionary" 5th Edition (1990) by A.N. Saha, published by Eastern Law House Prv.
Ltd., at pages 232-233:
"Dispossession. The term 'dispossession' applies when a person comes in and drives out others from possession. It imports ouster; a driving out of possession against the will of the person in actual possession. This driving out cannot be said to have occurred when according to the case of the plaintiff the transfer of possession was voluntary, that is to say, not against the will of the person in possession but in accordance with his wishes and active consent. The term 'discontinuance' implies a voluntary act and abandonment of possession followed by the actual possession of another. Qadir Bux v. Ramchand AIR 1970 All 289.
Unless the possession of a person prior to his alleged dispossession is proved, he cannot be said to have been dispossessed. Rudra Pratap v Jagdish AIR 1956 Pat 116."
(B) In "Black's Law Dictionary" Seventh Edition (1999), published by West, St. Paul, Minn., 1999, at page 485:
"dispossession Deprivation of, or eviction from, 2223 possession of property; ouster."
(C) In "The Judicial Dictionary of Words and Phrases Judicially Interpreted, to which has been added Statutory Definitions" by F. Stroud Second Edition Vol. 1 (1903), at page 485:
"DISPOSSESSION.-"Dispossession, or Discontinuance of Possession," s.3, Real Property Limitation Act, 1833, means the ABANDONMENT of possession by one entitled to it (Rimington v. Cannon, 22 L.J. C.P. 153; 12 C. B. 18), followed by actual possession by another (Smith v. Lloyd, 23 L.J. Ex. 194; 9 Ex. 562: McDonnell v. MeKinty, 10 Ir.L.R. 514); ignorance on the part of the rightful owner that such adverse possession has been taken making no difference (Rains v. Buxton, 49 L.J. Ch. 473; 14 Ch. D. 537; 28 W. R. 954).
Acts of user which do not interfere, and are consistent, with the purpose to which the owner intends to devote the land, do not amount to Discontinuance of Possession by him (Leigh v. Jack, 5 Ex. D.264; 49 L. J. Ex.
220); Dispossession "involves an animus possidendi with the intention of excluding the owner as well as other people" (per Lindley, M.R., Littledale vs. Liverpool College, 69 L.J. Ch. 89, cited DISCONTINUANCE).
SMALL ACTS by the rightful owner will disprove "Dispossession or Discontinuance,"- e.g. small repairs (Leigh v. Jack, sup), or, as regards a boundary wall, an inscription claiming it (Phillipson vs. Gibbon, 40 L.J. Ch. 406; 6 Ch. 428).
Vh, Watson, Eq. 574, 575; and for a full examination of the cases on "Dispossession" and "Discontinuance," V. 2224 35 S. J. 715, 742, 750."
(D) In "Corpus Juris Secundum" A Complete Restatement of the Entire American Law as developed by All Reported Cases (1959), Vol. 27, published by Brooklyn, N.Y. The American Law Book Co., at pages 600-601:
"DISPOSSESSION. The act of putting out of possession, the ejectment or exclusion of a person from the realty, if not to his injury, then certainly against his interest and without his consent, ouster.
The term has been held not to imply necessarily a wrongful act; and, although it has been defined as a wrong that carries with it the amotion of possession, an act whereby the wrongdoer gets the actual possession of the land or hereditament, including abatement, intrusion, disseisin, discontinuance, deforcement, it has been said that it may be by right or by wrong, that it is necessary to look at the intention in order to determine the character of the act, and that, in this respect, the word is to be distinguished from "disseisin."
(E) In "Words and Phrases" Legally Defined, Vol. 2 (1969), published by Butterworth & Co. (Publishers) Ltd., at pages 89- 90:
"DISPOSSESSION [A partnership was dissolved, and the continuing partner, Hudson, agreed, in consideration of an assignment to him of the partnership property, to pay an annuity to the retiring partner. In order to carry into effect this agreement an indenture was entered into and executed between the parties; and Hudson bound himself to trustees, in the sum of £ 2,000, by a bond of even date conditioned to be void on payment of the annuity "or in case he should at 2225 any time after the expiration of the then existing lease, be dispossessed of and be compelled and obliged to leave and quit the premises without any collusion, contrivance, consent, act, or default" on his part.] "It seems that the species of dispossession in contemplation was a compulsory eviction; and they meant to provide that, if Hudson should be evicted, not through any fault of his own, he should no longer be burthened with payment of the annuity .... The expulsion intended to be provided for, was such an expulsion as would leave Hudson no benefit from the premises." Heyland v. De Mendez (1817), 3 Mer. 184, per Grant, M.R., at p. 189."
(F) In P Ramanatha Aiyar's "The Law Lexicon" with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997), published by Wadhwa and Company Law Publishers, at page 573:
"Dispossession. Where the heirs of the deceased could not realise rent owing to successful intervention of another person, it must be taken that they were dispossessed. "Dispossession" implies ouster, and the essence of ouster lies in that the person ousting is in actual possession.
Dispossession implies some active element in the mind of a person in ousting or dislodging or depriving a person against his will or counsel and there must be some sort of action on his part.
The word "dispossession" in the third column of the article is dispossession by the landlord or by an authorised agent of the landlord acting within the scope of his authority.
Dispossession obviously presupposes previous 2226 possession of the person dispossessed. If a person was never in possession, he will be said to be out of possession, but he cannot be said to have ever been dispossessed."
2220. Similarly the meaning of term "discontinuance" in various dictionaries is as under:
(A) In "The New Lexicon Webster's Dictionary of the English Language" (1987), published by Lexicon Publications, Inc. at page 270:
"Dis-con-tin-u-ance-a discontinuing (law) the discontinuing of an action because the plaintiff has not observed the formalities needed to keep it pending"
(B) In "Mitra's Legal & Commercial Dictionary" 5th Edition (1990) by A.N. Saha, published by Eastern Law House Prv. Ltd., at pages 229:
"Discontinuance of Possession. Discontinuance of possession connotes adandonment of possession by the owner followed by the taking of possession by another. Hashim v. Hamidi AIR 1942 Cal 180: 46 CWN 561.
Discontinuance implies a voluntary act and abandonment of possession followed by the actual possession of another. Quadir Bux v. Ramchand AIR 1970 All 289."
(C) In "Black's Law Dictionary" Seventh Edition (1999), published by West, St. Paul, Minn., 1999, at page 477:
"discontinuance 1. The termination of a lawsuit by the plaintiff; a voluntary dismissal or nonsuit. See Dismissal; Nonsuit. 2. the termination of an estate-tail by a tenant in tail who conveys a larger estate in the land than is legally allowed."2227
(D) In "The Judicial Dictionary of Words and Phrases Judicially Interpreted, to which has been added Statutory Definitions" by F. Stroud Second Edition Vol. 1 (1903), at page 540-541:
"DISCONTINUANCE.- " 'Discontinuance' is an ancient word in the law" (Litt. s. 592). "A discontinuance of estates in lands or tenements is properly (in legall understanding) an alienation made or suffered by tenant in taile, or by any that is seized in auter droit, whereby the issue in taile, or the heire or successor, or those in reversion or remainder, are driven to their action, and cannot enter" (Co. Litt. 325 a). Vf, Termes de la Ley: 3 Bl. Com. 171.
"Discontinuance of POSSESSION," s. 3, 3 & 4 W. 4, c. 27; V. Leigh v. Jack, 5 Ex. D. 264; 49 L. J. Ex. 220:
Littledale v. Liverpool College, 1900, 1 Ch. 19; 69 L. J. Ch. 87; 81 L.T. 564; 48 W.R. 177."
(E) In "Corpus Juris Secundum" A Complete Restatement of the Entire American Law as developed by All Reported Cases (1956), Vol. 26A, published by Brooklyn, N.Y. The American Law Book Co., at pages 971-972:
"DISCONTINUANCE. The word "discontinuance" is defined generally as meaning the act of discontinuing; cessation; intermission; interruption of continuance.
As defined in Dismissal and Nonsuit; 2, the word "discontinuance" means an interruption in the proceedings of a case caused by the failure of the plaintiff to continue the suit regularly as he should, and it is either voluntary or involuntary, and is similar to a dismissal, nonsuit, or nolle prosequi, but differs from a retraxit.2228
In a particular connection, it has been held that the term connotes a voluntary, affirmative, completed act, and that it cannot mean a temporary nonoccupancy of a building or a temporary cessation of a business.
The term may be employed as synonymous with "abandonment."
(F). In "Words and Phrases" Permanent Edition, Vol. 12A (1954), published by St. Paul, Minn. West Publishing Co., at pages 276-277:
"DISCONTINUANCE-A "discontinuance" of case is a gap or chasm in proceeding after suit is pending.
The term "discontinuance" means voluntary withdrawal of a suit by a plaintiff.
There exists no essential difference between a "discontinuance" and a "voluntary nonsuit."
A criminal suit may be discontinued, "discontinuance" being a gap or chasm in prosecution after suit is pending.
The word "discontinuance" is synonymous with "abandonment," and connotes a voluntary, affirmative, completed act.
The word "discontinuance" as it is used in the ordinance is synonymous with "abandonment". It connotes a voluntary, affirmative, completed act.
Word "discontinuance" as employed in deed of land from city to county providing in effect that property was deeded to county to be used for park purposes and that city reserved all right of reversion in event of discontinuance of property for park purposes was equivalent to abandonment.2229
Narrowing of street held not "discontinuance"
within statute requiring written petition as basis for action by village board.
"Discontinuance," generally speaking, is failure to continue case regularly from day to day and from term to term from commencement of suit until final judgement.
The word "discontinue" as used in ordinance, providing that, if nonconforming use of premises was discontinued future use should be in conformity with ordinance, means something more than mere suspension, and did not mean temporary nonoccupancy of building or temporary cessation of business, but word "discontinuance" as used was synonymous with abandonment, and connoted voluntary affirmative completed act. Zoning ordinance did not destroy owner's right to continue nonconforming use of premises merely because tenant became insolvent."
(G) In P Ramanatha Aiyar's "The Law Lexicon" with Legal Maxims, Latin Terms and Words & Phrases, Second Edition 1997), published by Wadhwa and Company Law Publishers, at page 562:
"Discontinuance. Default; a discontinuance in practice is the interruption in proceedings occasioned by the failure of plaintiff to continue the suit from time to time as he ought, or failure to follow up his case: A break or chasm in a suit arising from the failures of the plaintiff to carry the proceedings forward in due course of law.
Discontinuance is either voluntary, as where plaintiff withdraws his suit or involuntary, as where in consequence of some technical omission, mispleading, or the like, the 2230 suit is regarded as out of courts, A discontinuance means no more than a declaration of plaintiff's willingness to stop the pending action; it is neither as adjudication of his cause by the proper tribunal nor an acknowledgement by him that his claim is not will founded."
(H) In "Jowitt's Dictionary of English Law" Vol. 1 Second Edition-1977, Second Impression-1990, published by London Sweet & Maxwell Limited, at pages 621-622:
"Discontinuance, an interruption or breaking off. This happened when he who had an estate tail granted a larger estate of the land than by law he was entitled to do; in which case the estate was good so far as his power extended to make it, but no further (Finch L. 190;1 Co. Rep. 44).
Formerly, in the law of real property, discontinuance was where a man wrongfully alienated certain lands or tenements and dies, whereby the person entitled to them was deprived of his right of entry and was compelled to bring an action to recover them,. The term was specially applied to alienations by husbands seised jure uxoris, by exxlesiastics seised jure ecclesiae, and by tenants in tail:
thus, if a tenant in tail alienated the land and died leaving issue, the issue could not enter on the land but was compelled to bring and action (Litt. 470, 592, 614; Co. Litt. 325A; Termes de la Ley; 3 Bl. Comm. 171).
The principal action appropriate to discontinuance were formedon, cui in vita, and cui ante divortium. The effect of discontinuance was taken away by the Real Property Limitation Act, 1833, s. 39. See Miscontinuaunce; Recontinuance; Withdrawal.2231
In the procedure of the High Court discontinuance is where the plaintiff in an action voluntarily puts an end to it, either by giving notice in writing to the defendant not later than fourteen days after service of the defence (R.S.C. Ord. 21, r. 2(1)) or later with leave of the court (r.3). The effect of discontinuance is that the plaintiff has to pay the defendant's costs (R.S.C. Ord. 62, r. 10(1)) and any subsequent action may be stayed until these costs are paid (R.S.C. Ord. 21, r. 5). A defendant may withdraw his defence at any time and may discontinue a counterclaim by notice not later than fourteen days after service of a defence to the counterclaim (r. 2(2)). A counterclaim may be discontinued later by leave of the court (r.3). He must pay the costs of the plaintiff (R.S.C. Ord. 62, r. 5). If all the parties consent the action may be withdrawn without leave of the court (r.2(4)).
2221. The term "dispossession" and "discontinuance of possession" in Article 142, Act IX of 1908 came to be considered before the Calcutta High Court in Brojendra Kishore Roy Chowdhury (supra) and the Court held:
"Dispossession implies the coming in of a person and the driving out of another from possession. Discontinuance implies the going out of the person in possession and his being followed into possession by another."
2222. In Basant Kumar Roy (supra), the Court explained the term 'dispossession' in Article 142 of Limitation act of 1877:
"The Limitation Act, of 1877, does not define the term "dispossession", but its meaning is well settled. A man may cease to use his land because he cannot use it, since it is under water. He does not thereby discontinue his 2232 possession : constructively it continues until he is dispossessed; and, upon the cessation of the dispossession before the lapse of the statutory period, constructively it revives. "There can be no discontinuance by absence of use and enjoyment, when the land, is not capable of use and enjoyment", .... It seems to follow that there can be no continuance of adverse possession, when the land is not capable of use and enjoyment, so long as such adverse possession must rest on de facto use and occupation."
2223. The distinction between "dispossession" and "discontinuance" has been noticed in Gangu Bai Vs. Soni 1942 Nagpur Law Journal 99 observing that "dispossession" is not voluntary, "discontinuance" is. In dispossession, there is an element of force and adverseness while in the case of discontinuance, the person occupying may be an innocent person. For discontinuance of possession, the person in possession goes out and followed into possession by other person.
2224. In Agency Company Vs. Short, 1888 (13) AC 793 the Privy Council observed that there is discontinuance of adverse possession when possession has been abandoned. The reason for the said observation find mention on page 798 that there is no one against whom rightful owner can bring his action. The adverse possession cannot commence without actual possession and this would furnish cause of action. 2225. Dispossession is a question of fact. The term refers to averments in the plaint exclusively and cannot be construed as referring to averments in the plaint in the first instance and at a later stage to the finding on the evidence. The indicias of discontinuance are also similar to some extent. It implies going 2233 out of the person in possession and is being followed into possession by another. In Abdul Latif Vs. Nawab Khwaja Habibullah 1969 Calcutta Law Journal 28, the Court observed that discontinuance connotes three elements i.e. actual withdrawal, with an intention to abandon, and another stepping in after the withdrawal. Same is the view taken by this Court and Kerala High Court in Qadir Bux Vs. Ram Chandra AIR 1970 Alld. 289 (FB) and Pappy Amma Vs. Prabhakaran Nair AIR 1972 Kerala 1 (FB).
2226. In order to wriggle out of the limitation prescribed under Article 142 of the Limitation Act, it has to be shown by the plaintiff that he was in possession of the disputed land, within 12 years of the suit and has been dispossessed, as observed by the Apex Court in Sukhdev Singh Vs. Maharaja Bahadur of Gidhaur (supra).
2227. In Wahid Ali & another Vs. Mahboob Ali Khan AIR 1935 Oudh 425, referring to Article 142 of Limitation Act, 1908 the Court held where the plaintiff or the Muslim community whom they represent were dispossessed from the land in question belonging to the graveyard by the erection of a house thereon and the suit is filed after 12 years therefrom, it would be barred by Article 142 of the Limitation Act. 2228. In R.H.Bhutani Vs. Miss Mani J. Desai AIR 1968 SC 1444, the Court said that dispossession means to be out of possession, removed from the premises, ousted, ejected or excluded. It applies when a person comes in and drives out others in possession.
2229. In Shivagonda Subraigonda Patil Vs. Rudragonda Bhimagonda Patil 1969 (3) SCC 211, the Court held that dispossession for the purpose of this Article must be by the 2234 defendant and that must be the basis of the suit. If there is no dispossession by the defendant, this Article would have no application. The dispossession, therefore, implies taking possession without consent of the person in possession and is a wrong to the person in possession. It must result in termination of possession of the person in possession earlier. 2230. Application of Article 142 and 144 of L.A. 1908 was considered in Jamal Uddin and (supra) and in para 29 the Court said:
"29. The next point that was urged by the counsel for the appellants was that the courts below committed a legal error in applying Art. 144 of the Limitation Act, 1908, to the suit and placing the burden on the defendants to prove their adverse possession for more than twelve years, while the suit on the allegations contained in the plaint clearly fell within the ambit of Art. 142 and the burden was on the plaintiffs to prove their possession within twelve years. This contention also is quite correct. It was clearly alleged by the plaintiffs that they had been dispossessed by the contesting defendants before the filing of the suit. As such, the suit would be governed by Article 142 and the residuary Article 144 will have no application. The courts below have unnecessarily imported into their discussion the requirements of adverse possession and wrongly placed the burden on the defendant to prove those requirements. Now the trial Court has approached the evidence produced by the parties would be evident from the following observation contained in its judgment.
"The onus of proving adverse possession over the disputed land lies heavily upon the defendants and their 2235 possession has to be proved beyond doubt to be notorious, exclusive, openly hostile and to the knowledge of the true owner as laid down in AIR 1938 Mad 454."
After a consideration of the documentary and oral evidence produced by the defendants to prove their possession the trial Court has opined that the document on record do not prove the title and possession of the defendants to the hilt in respect of the disputed land. So far as the plaintiffs' evidence is concerned it was disposed of by the trial Court with the following observations:
". . . . . .No doubt, the oral evidence of the plaintiffs about the use of the land for saying the prayers of 'Janaze Ki namaz' and about the letting out of the land in suit for purposes of 'D or Sootana' is equally shaky and inconsistent. But as already pointed out above the plaintiffs have succeeded in proving their title over the disputed land and as such possession would go with the ownership of the land. The defendants cannot be allowed to take advantage of the plaintiffs foulty evidence and it was for them to prove beyond any shadow of doubt that they were actually in possession over the disputed land as owners and that they exercised this right openly hostile to the plaintiffs with the latter's knowledge. Judged in this context, the evidence of the defendant falls short of this requirement."
2231. The learned counsel for the Pro-Mosque parties as well as Nirmohi Akhara sought to argue that since the property in dispute was attached by the Magistrate under Section 145 Cr.P.C. and this attachment continued, the question of dispossession by an individual private party as such may not arise or of no consequence. The Magistrate was not handing 2236 over possession to the rightful owner, it gave a (fresh) cause of action, which was continuing and hence Articles 142 or 144 or even 120 need not be gone into in these cases. 2232. This require us to have a bird eye view not only of Section 145 Cr.P.C., its connotation, implication, scope and consequences in the matter. What is evident from record is that the property in dispute, as specified in Suit-4, was not in its entirety placed under attachment.
2233. The case of the plaintiffs (Suit-4) is that in the night of 22nd/23rd December, 1949 some Hindu people surreptitiously placed the idols inside the disputed building under the central dome and thereby interferred and obstructed the right of worship of the Muslim parties. It is admitted by almost all the witnesses of the plaintiffs (Suit-4) that on and after 23rd December 1949, no Muslim has entered the disputed premises and no Namaz has been offered therein. In fact, this is what has been the case set out by the plaintiffs, as is evident from para 11 of the plaint, which reads as under:
"That the Muslims have been in peaceful possession of the aforesaid mosque and used to recite prayer in it, till 23.12.2949."
2234. The possession of the parties of the inner courtyard thereafter was disturbed inasmuch on 29th December, 1949, the City Magistrate passed an order under section 145 Cr.P.C. attaching the property due to apprehension of breach of peace and appointed Receiver giving in his possession a part of the disputed property, i.e., the inner courtyard which, in fact, was taken in charge by Receiver, Priya Dutt, on 5th January, 1950. 2235. Nirmohi Akhara has claimed that the possession of the outer courtyard remained with them, as it was earlier, till 2237 1982, when in some other suit between the people of Nirmohi Akhara, the same was also attached and placed in the hands of a Receiver. It has also been said that infact the same Receiver was given charge, who was already having the charge of the premises in the inner courtyard. These facts we find have not been disputed by any of the parties and in fact there is nothing on record to contradict it.
2236. It would thus appropriate first to consider Section 145 Cr.P.C., 1898 as it stood in 1949-50 when the proceedings were initiated thereunder.
2237. Section 145 Cr.P.C., 1898, as it stood then, i.e., prior to its amendment by Amendment Act, 1955, was as under:
"145. (1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section the expression "land or water" includes building, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon 2238 such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:
Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:
Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) If the Magistrate decides that one of the parties was or should under the second proviso to sub-section (4) be treated as being in such possession of the said subject, 2239 he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
2238. The nature of the proceedings under Section 145 2240 Cr.P.C. are not judicial. The Magistrate is not supposed to deal with the matter as if it is a Civil Suit. A party to a proceeding under Section 145 is not in a position of a plaintiff in a Civil Suit who has set the Court in motion and has a right to require a decision upon the questions raised by him.
2239. Privy Council in Dinomoni Chowdhrani & Brojo Mohini Chowdhrani 29 IA 24 (PC) observed that the proceedings under Section 145 do not constitute a trial and are not in the nature of a trial. They are in the nature police proceedings in order to prevent the commission of offence. The nature of the proceedings under Section 145 Cr.P.C. has been described in different terms like quasi-civil (Bande Ali Vs. Rejaullah 25 Cr.L.J. 303), quasi-executive (Madho Kunbi Vs. Tilak Singh AIR 1934 Nagpur 194), quasi-judicial (Muhammad Araf Vs. Satramdas Sakhimal & others AIR 1936 Sind 143), quasi-criminal (K.S. Prahladsinhji Vs. Chunilal B. Desai AIR 1950 Saurashtra 7).
2240. The object of section is merely to prevent breach of peace by maintaining one or the other of the parties in possession and where it is not possible to place any of the parties in possession, to appoint Receiver and to take the property in the custody of the Court, i.e., custodia legis. These proceedings are not to protect or maintain any body in possession (Musammat Phutania Vs. Emperor 25 Cr.L.J. 1109).
2241. In Doulat Koer Vs. Rameshwari Koeri alias Dulin Saheba (1899) ILR 26 Cal. 635, the Court said that this Section is to enable a Magistrate to intervene and pass a temporary order in respect to the possession of the property in dispute having effect until the actual right of one of the parties is determined by 2241 any competent Court in more lengthy proceedings. In order to attract proceedings under Section 145, Lahore High Court in Agha Turab Ali Khan Vs. Shromani Gurdwara Parbandhak Committee AIR 1933 Lahore 145 has said that the power or competency of the Magistrate to interfere depends on the very fact that the possession of the land is in dispute. The dispute means actual disagreement, struggle, scramble or quarrel for possession of the land existent between the disputants at the time of proceedings with reference to the merits of their respective claim to possess the land. It is nobody's case that such proceedings were not initiated or that the same were initiated wrongly or that the procedure prescribed thereof under the statute was not followed.
2242. The order dated 29.12.1949 is a preliminary order referable to Section 145 Sub-section (1) read with Sub-section (4) second proviso. It is an admitted position by all the parties that the Receiver appointed by Magistrate took the possession of the property and such possession continued till it was replaced by the statutory Receiver under the Act of 1993. It is pointed out that when a Receiver is appointed by the Court, his possession is the possession of the Court. He is Officer through whom the Court exercises its power of management. Such an officer cannot be correctly described as party interested in the dispute likely to cause a breach of peace. No final order in the case in hand could be passed by the Magistrate. It appears that on 16.1.1950 an injection order was passed by the Civil Judge in Suit-1. The aforesaid order was modified on 19.1.1950 and the modified order was confirmed by the Civil Judge as well as this Court on 26.04.1955.
2243. Despite filing of the civil suit and injunction order 2242 passed therein, the City Magistrate could not drop the proceedings and passed an order for deferring the said proceedings. Sri Jilani & Siddiqui, learned counsels for the plaintiffs have castigated the said approach of the Magistrate stating that he ought to have passed final order in one or the other manner or should have dropped the proceedings but by keeping the matter pending, parties were left in lurch, and therefore, for such a situation created by City Magistrate, the plaintiffs' suit cannot be held barred by limitation and it should be deemed that every order passed by the City Magistrate resulted in a fresh cause of action for filing civil suit by the plaintiffs.
2244. We however, find it difficult to agree. From perusal of injunction order passed by the Civil Court, we find that on 16th January, 1950 a simple order, in terms of the prayer made in the interim injunction application, was passed directing the parties to maintain status quo. Thereafter on 19th January, 1950, the order was modified but the Civil Court did not appoint a Receiver of its own and also did not direct the City Magistrate to get the possession transferred to any other person or another Receiver of the Court instead of the Receiver appointed by the Magistrate. On the contrary, in Suit-1, the City Magistrate was also impleaded as one of the defendant and the Civil Court passed an order directing the defendants to maintain status quo. It also clarified that the Sewa, Puja as was going on, shall continue. Quite visible, the Magistrate could not have ignored this order by dropping the proceedings as that would have resulted in discharge of Receiver and release of the property attached and placed in his charge. In other words, it could have construed by the Civil Judge as an order disobeying the order of 2243 statue quo. Had the Civil Judge passed an order appointing a Court's Receiver and directing the Magistrate to hand over possession of the property to him, the position might have been different. In these circumstances, if the Magistrate did not drop the proceedings but deferred it, we find no fault on his part. Moreover, when the earlier order of the Magistrate, attaching the property and placing it in the charge of Receiver, could not have resulted in giving a cause of action to the plaintiffs to file suit, we failed to understand as to how the subsequent order, which merely deferred the pending proceedings, would lend any help. The order of attachment passed by the Magistrate itself does not given a cause of action and on the contrary it only make the things known to the party that there appears to be some dispute about the title and/or possession of the property concerned and also there is apprehension of disturbance of public peace and order. The cause of action virtually is known to the party that there exist some dispute and not the order of the Magistrate whereby he attached the property in question and placed it in the charge of the Receiver.
2245. We find that in the context of Section 145 Cr.P.C., 1973, a three-Judge Bench of the Apex Court in Amresh Tiwari Vs. Lalta Prasad Dubey & another 2000 (4) SCC 440 following an earlier decision in Ram Sumer Puri Mahant Vs. State of U.P. and others 1985 (1) SCC 427 said:
"12. The question then is whether there is any infirmity in the order of the S.D.M. dicontinuing the proceedings under Section 145 Criminal Procedure Code. The law on this subject-matter has been settled by the decision of this Court in the case of Ram Sumer Puri Mahant v. State of U.P., reported in, (1985) 1 SCC 427 :2244
(AIR 1985 SC 472 : 1985 Cri LJ 752). In this case it has been held as follows:
"When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any justification for initiating a parallel criminal proceeding under Section 145 of the Code. There is no scope to doubt or dispute the position that the decree of the civil court is binding on the criminal Court in a matter like the one before us.
Counsel for respondents 2-5 was not in a position to challenge the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the civil Court, the Criminal Court should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation. We are, therefore, satisfied that parallel proceedings should not continue."
13. We are unable to accept the submission that the principles laid down in Ram Sumers case (AIR 1985 SC 472 : 1985 Cri LJ 752) would only apply if the civil Court has already adjudicated on the dispute regarding the property and given a finding. In our view Ram Sumers case is laying down that multiplicity of litigation should be avoided as it is not in the interest of the parties 2245 and public time would be wasted over meaningless litigation. On this principle it has been held that when possession is being examined by the civil Court and parties are in a position to approach the civil Court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145 proceedings should not continue.
14. Reliance has been placed on the case of Jhummamal alias Devandas v. State of Madhya Pradesh reported in, (1988) 4 SCC 452 : (AIR 1988 SC 1973 : 1989 Cri LJ 82). It is submitted that this authority lays down that merely because a civil suit is pending does not mean that proceedings under Section 145, Criminal Procedure Code should be set at naught. In our view this authority does not lay down any such broad proposition. In this case the proceedings under Section 145, Criminal Procedure Code had resulted in a concluded order. Thereafter the party, who had lost, filed civil proceedings. After filing the civil proceedings he prayed that the final order passed in the Section 145 proceedings be quashed. It is in that context that this Court held that merely because a civil suit had been filed did not mean that the concluded order under Section 145 Criminal Procedure Code should be quashed. This is entirely a different situation. In this case the civil suit had been filed first. An Order of status quo had already been passed by the competent civil Court. Thereafter Section 145 proceedings were commenced. No final order had been passed in the proceedings under Section 145. In our view on the facts of the present case the ratio laid down in Ram Sumers case (AIR 1985 SC 472 :
22461985 Cri LJ 752) (supra) fully applies. We clarify that we are not stating that in every case where a civil suit is filed. Section 145 proceedings woud never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil court is competent to decide the question of title as well as possession between the parties and the orders of the civil Court would be binding on the Magistrate."
2246. In Sadhuram Bansal Vs. Pulin Behari Sarkar and others 1984 (3) SCC 410, a three-Judge Bench of theApex Court observed in para 62, that the pendency of the proceeding under Section 145 Cr.P.C. and order, if any, passed thereon does not in any way affect the title of the parties to the disputed premises though it reflects the factum of possession. It followed an earlier decision in Bhinka and others Vs. Charan Singh (supra).
2247. The provision as existed in Cr.P.C. in 1989 before its amendment in 1955 though went under some change in 1955, but it appears that under the new Cr.P.C., 1973 Section 145 is virtually same as was before 1955 amendment. This has been noticed by the Apex Court in Mathura Lal Vs. Bhanwar Lal and another 1979 (4) SCC 665 as under:
"The provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment. The only noticeable change is that the second proviso to Section 145 (4) (as it 2247 stood before the 1955 amendment) has now been transposed to Section 146 but without the words "pending his decision under this Section" and with the words "at any time after making the order under Section 145(1)" super- added. The change, clearly, is in the interests of convenient draftsmanship. ..."
2248. The above discussion, in our view, would show that the proceedings under Section 145 Cr.P.C. and the orders passed therein would not help the plaintiffs in the matter of limitation particularly when it is virtually admitted in the plaint that they discontinued with possession at least from 23rd December, 1949. It is their own version and this disturbance is on account of a title dispute of the property in question. Moreover, all the plaintiffs do not claim themselves to be the owner of the property in question or the legal custodian thereof. None of the plaintiffs is claimed to be Mutwalli of the alleged waqf. It is only a Mutwalli of a waqf who can claim possession of the property in question according to Islamic Law. However, no such person is before us seeking the relief of possession or to seek a declaration in his capacity as Mutwalli. Plaintiffs No.1 Sunni Central Waqf Board is a supervisory controlling body of the Sunni Waqfs in the State of U.P. but on its own has no power to claim possession or custody of any waqf. At least no such provision has been shown. The other individual plaintiffs claimed themselves to be the worshippers i.e. the beneficiaries of the alleged waqf. If there is any obstruction in the right of worship of an individual, he can come to the Court for protection of such right of worship but cannot claim possession of such property since he is neither owner nor legal custodian of the property. Similarly, right of worshipper is confined for the 2248 period the subject matter is in existence and vanishes as soon as the right of the owner or that of legal custodian goes or the subject matter disappear, as observed in the case of Masjid Shahid Ganj (Supra).
2249. Had it been a suit for a mere injunction for protection of right of worship, something might have been said, but no such relief has been sought by the plaintiffs in the case in hand and we cannot read a prayer which is neither incidental nor otherwise connected but totally different to the real prayer made in the suit. The effect of the property being attached by the Magistrate shall neither result in extension of limitation for the plaintiffs nor in exclusion of certain period for the purpose of limitation to some extent or to the extent of the period the property remain under attachment or in any other manner. 2250. We may consider whether the effect of the property being attached by the Magistrate will give any benefit to the plaintiffs either for extension of limitation or for excluding some period for the purpose of limitation to some extent or to the extent the property remained under attachment or in any other manner can help.
2251. Where one person claims to be in possession to the exclusion of others and alleges that some other person seeks unlawfully or by force to interfere with his possession and if it is likely to lead to a breach of peace, it will be justifiable and necessary for a Magistrate to take action under Section 145(1) Cr.P.C., (in the present case Cr.P.C. of 1898). Such an order passed is only a police order and in no sense is a final one. The possession contemplated under Section 145 is actual physical possession on the subject matter. The possession, so taken over by Receiver, appointed by a criminal Court after attachment, 2249 merely passes the property into custodia legis and is not dispossession within the meaning of Article 142 of L.A. 1908, as observed in Pappy Amma (supra). The legal possession of the land attached, for the purpose of limitation, will be constructively with the person who was entitled to the property at the date of attachment. Magistrate cannot be regarded as having dispossessed either party and he cannot legally be made a party to the suit of either of the claimants. 2252. It is submitted that since no final order has been passed by the Magistrate so far, there is no question of limitation applying in this case and, therefore, it cannot be pleaded that the suit is barred by limitation under any of the provisions of L.A. 1908. Article 142 and 144 would not apply. Let us examine the legal position when the property is attached. 2253. The possession of the part of the property (the inner courtyard of the disputed premises) was placed with a Receiver by an order of City Magistrate passed under section 145 Cr.P.C.. At the time when the suit was filed the possession was not with any adversary but in the hands of a statutory authority who has been held to possess the property on behalf of real owner. 2254. In Everest Coal Company Pvt. Ltd. Vs. State of Bihar and others, 1978 (1) SCC 12 though in a different context, expressing its opinion on the status/capacity of receiver appointed by the Court, the Apex Court said, "when a court puts receiver in possession of a property, the property comes under court's custody, the receiver being merely an officer/agent of the Court." It further says that "receiver represents neither party being an officer of the Court."
2255. In Rajah of Venkatagiri Vs. Isakapalli Subbiah & others (supra), the Madras High Court held, if a suit is filed for 2250 declaration of title to immovable property, Article 142 of the Second Schedule to Act XV of 1877 would not be attracted. But where a suit for possession is filed by a person who was earlier in possession and was dispossessed or discontinued of possession, it would be governed by Article 142. However, it was further clarified where the property has been attached by a Magistrate under Section 145, Article 142 will not be attracted since the Magistrate cannot be regarded as having dispossessed either parties or that has discontinued possession thereof. The Nature of attachment by Magistrate vis-a-vis possession of the property is explained as under :
"Under section 146, Criminal Procedure Code, the Magistrate is bound to continue the attachment and have statutory possession of the lands for purposes of continuing the attachment until a competent Civil Court determines the rights of the parties to the dispute before him or the person entitled to the possession of the lands and he cannot deliver the property to any of the parties or other person without an adjudication by a Civil Court. During the continuance of the attachment, the legal possession for purposes of limitation will constructively be in the person who had the title at the date of the attachment and such title cannot be extinguished by the operation of section 28 of the Limitation Act, however, long such attachment may continue."
2256. The Court also held that to commence limitation or whether a cause of action is a continuing one, the criteria would be "whether the wrong is a continuing one" and not "whether the right is a continuing one". It reiterated the view that attachment of property does not amount to either dispossession