2875. In Karbalai Begum vs . Mohd. Sayeed (1980) 4 on 28 November, 1858

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Allahabad High Court

2875. In Karbalai Begum vs . Mohd. Sayeed (1980) 4 on 28 November, 1858

1
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sections 390 and 398). It is the intention to claim adversely
accompanied by such an invasion of the rights of the
opposite party as gives him a cause of action which
constitutes adverse possession."
2874. It further held:
"Consonant with this principle the commencement of
adverse possession, in favour of a person, implies that that
person is in actual possession, at the time, with a notorious
hostile claim of exclusive title, to repel which, the true
owner would then be in a position to maintain an action. It
would follow that whatever may be the animus or intention
of a person wanting to acquire title by adverse possession
his adverse possession cannot commence until site
animus."
2875. In Karbalai Begum Vs. Mohd. Sayeed (1980) 4
SCC 396 in the context of a co-sharer, it was held:
"...It is well settled that mere non- participation in the rent
and profits of the land of a co-sharer does not amount to an
ouster so as to give title by adverse possession to the other
co-sharer in possession."
2876. In Annasaheb Bapusaheb Patil Vs. Balwant (1995)
2 SCC 543 the Court, in para 15, said:
"15. Where possession can be referred to a lawful title, it
will not be considered to be adverse. The reason being that
a person whose possession can be referred to a lawful title
will not be permitted to show that his possession was
hostile to another's title. One who holds possession on
behalf of another, does not by mere denial of that other's
title make his possession adverse so as to give himself the
benefit of the statute of limitation. Therefore, a person who
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enters into possession having a lawful title, cannot divest
another of that title by pretending that he had no title at
all."
2877. In Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496
the Court in paras 27 and 28 held:
"27...it will be seen that in order that the possession of co-
owner may be adverse to others, it is necessary that there
should be ouster or something equivalent to it. This was
also the observation of the Supreme Court in P. Lakshmi
Reddy case which has since been followed in Mohd.
Zainulabudeen v. Sayed Ahmed Mohideen.
28. 'Ouster' does not mean actual driving out of the co-
sharer from the property. It will, however, not be complete
unless it is coupled with all other ingredients required to
constitute adverse possession. Broadly speaking, three
elements are necessary for establishing the plea of ouster
in the case of co-owner. They are (i) declaration of hostile
animus, (ii) long and uninterrupted possession of the
person pleading ouster, and (iii) exercise of right of
exclusive ownership openly and to the knowledge of other
co-owner. Thus, a co-owner, can under law, claim title by
adverse possession against another co-owner who can, of
course, file appropriate suit including suit for joint
possession within time prescribed by law."
2878. In making above observations, the Court also relied
on its earlier decisions in P. Lakshmi Reddy (supra) and
Mohd. Zainulabudeen Vs. Sayed Ahmad Mohideen (1990) 1
SCC 345.
2879. In Roop Singh Vs. Ram Singh (2000) 3 SCC 708 it
was held that if the defendant got the possession of suit land as a
2753

lessee or under a batai agreement then from the permissive
possession it is for him to establish by cogent and convincing
evidence to show hostile animus and possession adverse to the
knowledge of the real owner. Mere possession for a long time
does not result in converting permissive possession into adverse
possession. The Court relied on its earlier decisions in Thakur
Kishan Singh (supra).
2880. In Darshan Singh Vs. Gujjar Singh (2002) 2 SCC
62 in para 7 and 9, the Court held:
"...It is well settled that if a co-sharer is in possession of the
entire property, his possession cannot be deemed to be
adverse for other co-sharers unless there has been an
ouster of other co-sharers."
"9. In our view, the correct legal position is that
possession of a property belonging to several co-sharers by
one co-sharer shall be deemed that he possesses the
property on behalf of the other co-sharers unless there has
been a clear ouster by denying the title of other co-sharers
and mutation in the revenue records in the name of one co-
sharer would not amount to ouster unless there is a clear
declaration that title of the other co-sharers was denied."
2881. In order to defeat title of a plaintiff on the ground of
adverse possession it is obligatory on the part of the respondent
to specifically plead and prove as to since when their possession
came adverse. If it was permissive or obtained pursuant to some
sort of arrangement, the plea of adverse possession would fail.
In Md. Mohammad Ali Vs. Jagadish Kalita & Ors. (2004) 1
SCC 271 with reference to a case dealing with such an issue
amongst co-sharers it was observed that "Long and continuous
possession by itself, it is trite, would not constitute adverse
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possession. Even non-participation in the rent and profits of the
land to a co-sharer does not amount to ouster so as to give title
by prescription.
2882. It was also observed in para 21 that for the purpose
of proving adverse possession/ouster, the defendant must also
prove animus possidendi.
2883. In Amrendra Pratap Singh (supra) considering as
to what is adverse possession, the Court in para 22 observed :
"What is adverse possession? Every possession is
not, in law, adverse possession. Under Article 65 of the
Limitation Act, 1963, a suit for possession of immovable
property or any interest therein based on title can be
instituted within a period of 12 years calculated from the
date when the possession of the defendant becomes adverse
to the plaintiff. By virtue of Section 27 of the Limitation
Act, at the determination of the period limited by the Act to
any person for instituting a suit for possession of any
property, his right to such property stands extinguished.
The process of acquisition of title by adverse possession
springs into action essentially by default or inaction of the
owner. A person, though having no right to enter into
possession of the property of someone else, does so and
continues in possession setting up title in himself and
adversely to the title of the owner, commences prescribing
title into himself and such prescription having continued
for a period of 12 years, he acquires title not on his own
but on account of the default or inaction on part of the real
owner, which stretched over a period of 12 years results
into extinguishing of the latter's title. It is that extinguished
title of the real owner which comes to vest in the
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wrongdoer. The law does not intend to confer any premium
on the wrong doing of a person in wrongful possession; it
pronounces the penalty of extinction of title on the person
who though entitled to assert his right and remove the
wrong doer and re-enter into possession, has defaulted and
remained inactive for a period of 12 years, which the law
considers reasonable for attracting the said penalty.
Inaction for a period of 12 years is treated by the Doctrine
of Adverse Possession as evidence of the loss of desire on
the part of the rightful owner to assert his ownership and
reclaim possession."
2884. However, the Court further observed that if
property, by virtue of some statutory provisions or otherwise, is
alienable, the plea of adverse possession may not be available
and held. :
"23. The nature of the property, the nature of title
vesting in the rightful owner, the kind of possession which
the adverse possessor is exercising, are all relevant factors
which enter into consideration for attracting applicability
of the Doctrine of Adverse Possession. The right in the
property ought to be one which is alienable and is capable
of being acquired by the competitor. Adverse possession
operates on an alienable right. The right stands alienated
by operation of law, for it was capable of being alienated
voluntarily and is sought to be recognized by doctrine of
adverse possession as having been alienated involuntarily,
by default and inaction on the part of the rightful claimant,
who knows actually or constructively of the wrongful acts
of the competitor and yet sits idle. Such inaction or default
in taking care of one's own rights over property is also
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capable of being called a manner of 'dealing' with one's
property which results in extinguishing one's title in
property and vesting the same in the wrong doer in
possession of property and thus amounts to 'transfer of
immovable property' in the wider sense assignable in the
context of social welfare legislation enacted with the object
of protecting a weaker section."
2885. The Court also observed that the judicial precedents
should not be stressed too harsh and observed:
"A judicial decision is an authority for what it
actually decides and not for what can be read into it by
implication or by assigning an assumed intention to the
Judges, and inferring from it a proposition of law which
the Judges have not specifically laid down in the
pronouncement." (Para 28)
2886. In para 14 of the judgment in Amrendra Pratap
Singh (supra), the Court also deprecated the practice of
following dictionary meaning as absolute while interpreting
statute and said :
"Dictionaries can be taken as safe guides for finding
out meanings of such words as are not defined in the
statute. However, dictionaries are not the final words on
interpretation. The words take colour from the context and
the setting in which they have been used. It is permissible
to assign a meaning of a sense, restricted or wider than the
one given in dictionaries, depending on the scheme of the
legislation wherein the word has been used."
2887. In L.N. Aswathama & another Vs. V.P. Prakash
JT 2009 (9) 527 the Court, in para 17 and 18 said:
"17. The legal position is no doubt well settled. To
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establish a claim of title by prescription, that is adverse
possession for 12 years or more, the possession of the
claimant must be physical/actual, exclusive, open,
uninterrupted, notorious and hostile to the true owner
for a period exceeding twelve years. It is also well settled
that long and continuous possession by itself would not
constitute adverse possession if it was either permissive
possession or possession without animus possidendi. The
pleas based on title and adverse possession are mutually
inconsistent and the latter does not begin to operate until
the former is renounced. Unless the person possessing
the property has the requisite animus to possess the
property hostile to the title of the true owner, the period
for prescription will not commence."
"18. ...When a person is in possession asserting to be
the owner, even if he fails to establish his title, his
possession would still be adverse to the true owner.
Therefore, the two pleas put forth by the defendant in
this case are not inconsistent pleas but alternative pleas
available on the same facts. Therefore, the contention of
the plaintiffs that the plea of adverse possession is not
available to defendant is rejected."
2888. Further, in para 25 the Court said :
"25. When defendant claimed title and that was proved to
be false or fabricated, then the burden is heavy upon
him to prove actual, exclusive, open, uninterrupted
possession for 12 years. In this case we have already held
that he did not make out such possession for 12 years prior
to the suit."
2889. Where a plea of adverse possession is taken, the
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pleadings are of utmost importance and anything, if found
missing in pleading, it may be fatal to such plea of adverse
possession. Since mere long possession cannot satisfy the
requirement of adverse possession, the person claiming it must
prove as to how and when the adverse possession commenced
and whether fact of adverse possession was known to real
owner. (R.N. Dawar Vs. Ganga Saran Dhama AIR 1993 Del.
19). In Parwatabai Vs. Sona Bai 1996 (10) SCC 266, it was
stressed upon by the Apex Court that to establish the claim of
adverse possession, one has to establish the exact date from
which adverse possession started. The claim based on adverse
possession has to be proved affirmatively by cogent evidence
and presumptions and probabilities cannot be substituted for
evidence. The plea of adverse possession is not always a legal
plea. It is always based on facts which must be asserted, pleaded
and proved. A person pleading adverse possession has no
equities in his favour since he is trying to defeat the right of the
true owner and, therefore, he has to specifically plead with
sufficient clarity when his possession became adverse and the
nature of such possession. (See Mahesh Chand Sharma Vs.
Raj Kumari Sharma AIR 1996 SC 869.
2890. In Parsinnin Vs. Sukhi (1993) 4 SCC 375, it said
that burden of prove lies on the party who claims adverse
possession. He has to plead and prove that his possession is nec
vi, nec clam, nec precario i.e., peaceful, open and continuous.
2891. Article 144 L.A. 1908 shows that where a suit for
possession is filed, it is the defendant to whom the plea of
adverse possession is available and it is he who has to take
necessary pleadings. A suit by a plaintiff based on adverse
possession is not contemplated by Article 144 inasmuch the suit
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contemplated therein is for restoration of possession and where
a person is already in possession, though adverse possession, the
question of filing a suit for possession would not arise. If the
chain of possession or continued possession ceased or
interrupted, particularly at the time of filing of the suit, the
adverse possession extinguishes and the earlier long possession,
may be of more than the statutory period, would not give any
advantage if the possession has been lost at the time of filing of
the suit.
2892. Besides, alternative plea may be permissible, but
mutually destructive pleas are not permissible. The defendants
may raise inconsistent pleas so long as they are not mutually
destructive as held in Biswanath Agarwalla Vs. Sabitri Bera &
others JT 2009 (10) SC 538.
2893. In Gautam Sarup Vs. Leela Jetly & others (2008)
7 SCC 85, the Court said that a defendant is entitled to take an
alternative plea but such alternative pleas, however, cannot be
mutually destructive of each other.
2894. In Ejas Ali Qidwai and others (supra) certain
interesting questions cropped up which also attracted certain
consequences flowing from annexation of province of Oudh in
1857 by the British Government. It appears that one Asghar Ali
and his cousin Muzaffar Ali granted a mortgage by conditional
sale of the entire estate of Ambhapur (commonly known as the
Taluka of Gandara) and certain villages to the then Maharaja of
Balrampur. The mortgaged property situated in District
Bahraich, which was in the Province of Oudh. The mortgagee
brought an action to enforce his right, got a decree in his favour
and ultimately possession of the property in 1922. The sons of
Asghar Ali thereafter brought an action in civil court for
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recovery of their share of the mortgaged property on the ground
that it was the absolute property of their father and on his death
devolved on all the persons who were his heirs under the
Mahomedan Law. They challenged Iqbal Ali's right to mortgage
the whole of estate and impeached the mortgaged transaction on
various grounds. The claim was resisted on the ground that
succession to the estate was governed by the rule of
primogeniture according to which the whole of the estate
descended first to Asghar Ali and after his death his eldest son
Iqbal Ali. The defence having been upheld the claim was
negatived by the trial court as well as the court of appeal. Before
the Privy Council the only question raised was whether the
succession to the property was regulated by the rule of
primogeniture or by Mahomedan Law.
2895. The Privy Council while considering the above
question observed that the Province of Oudh was annexed by
the East India Company in 1856 but in 1857 during the first war
of independence by native Indians much of its part was declared
independent. Soon after it was conquered by the British
Government and it got reoccupation of the entire province of
Oudh. Thereafter in March 1858 the British Government issued
a proclamation confiscating, with certain exceptions "the
proprietary right in the soil of the Province" and reserved to
itself the power to dispose of that right in such manner as to it
may seem fit. On 10th October 1859 the British Government
(the then Government of India) declared that every talukdar with
whom a summary settlement has been made since the re-
occupation of the Province has thereby acquired a permanent,
hereditary and transferable proprietary right, namely in the
taluka for which he has engaged, including the perpetual
2761

privilege of engaging with the Government for the revenue of
the taluka. Pursuant to that declaration, Wazir Ali with whom a
summary settlement of Taluka has already been made was
granted a Sanad which conferred upon him full proprietary
right, title and possession of the estate or Ambhapur. In the said
grant, there contained a stipulation that in the event of dying
intestate or anyone of his successor dies intestate, the estate
shall descend to the nearest male heir according to rule of
primogeniture. Subsequently, in order to avoid any further doubt
in the matter, Oudh Estates Act I of 1869 was enacted wherein
Wazir Ali was shown as a Tallukdar whose estate according to
the custome of the family on or before 13.2.1856 ordinarily
devolved upon a single heir. However, having noticed this state
of affairs, the Privy Council further observed that this rule was
not followed after the death of Wazir Ali and the Taluka was
mutated in favour of his cousin Nawazish Ali. He was recorded
as owner of Taluka. Thereafter in 1892 Samsam Ali entered the
joined possession with Nawazish Ali and after death of
Nawazish Ali, Samsam Ali was recorded as the sole owner. The
system of devolution of the property was explained being in
accordance with the usage of the family and when the name of
Asghar Ali was recorded, he also made a similar declaration.
Faced with the situation the appellant sought to explain the
possession of Nawazish Ali as adverse possession but the same
was discarded by the Privy Council observing:
"The principle of law is firmly established that a person,
who bases his title on adverse possession, must show by
clear and unequivocal evidence that his possession was
hostile to the real owner and amounted to a denial of his
title to the property claimed."
2762

2896. It appears that the plaintiffs initially sought to
maintain their claim of continued ownership, possession and
disruption against the Government authorities but later on the
plea of adverse possession against the defendant-Muslim parties
has been taken which makes the stand of the plaintiffs
inherently inconsistent and mutually destructive. The plaintiffs
ought to have elected one or the other case and could not have
taken a plea which is not an alternative but mutually destructive.
2897. In Nagubai Ammal and others Vs. B. Shama Rao
and others, AIR 1956 SC 593 the Court considered the doctrine
of election and observed:
"18. An admission is not conclusive as to the truth of the
matters stated therein. It is only a piece of evidence, the
weight to be attached to which must depend on the
circumstances under which it is made. It can be shown to
be erroneous or untrue, so long as the person to whom it
was made has not acted upon it to his detriment, when it
might become conclusive by way of estoppel.
........
Reliance was placed on the well-known observations
of Baron Park in Slatterie v. Pooley, (1840) 6 M & W 664
(669) (C) that "what a party himself admits to be true may
reasonably be presumed to be so", and on the decision in
34 Ind App 27 (B), where this statement of the law was
adopted. No exception can be taken to this proposition. But
before it can be invoked, it must be shown that there is a
clear and unambiguous statement by the opponent, such as
will be conclusive unless explained."
"The ground of the decision is that when on the same facts,
a person has the right to claim one of two reliefs and with
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full knowledge he elects to claim one and obtains it, it is
not open to him thereafter to go back on his election and
claim the alternative relief. The principle was thus stated
by Bankes, L. J.:
"Having elected to treat the delivery to him as an
authorised delivery they cannot treat the same act as a
misdelivery. To do so would be to approbate and
reprobate the same act".
The observations of Scrutton, L. J. on which the appellants
rely are as follows :
"A plaintiff is not permitted to 'approbate and reprobate'.
The phrase is apparently borrowed from the Scotch law,
where it is used to express the principle embodied in our
doctrine of election- namely, that no party can accept and
reject the same instrument: Ker v. Wauchope (1819) 1
Bligh 1 (21) (E) : Douglas-Menzies v. Umphelby 1908 AC
224 (232) (F). The doctrine of election is not however
confined to instruments. A person cannot say at one time
that a transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage. That is to
approbate and reprobate the transaction".
It is clear from the above observations that the maxim that
a person cannot 'approbate and reprobate' is only one
application of the doctrine of election, and that its
operation must be confined to reliefs claimed in respect
of the same transaction and to the persons who are
parties thereto. The law is thus stated in Halsbury's Laws
of England, Volume XIII, page 454, para 512:
2764

"On the principle that a person may not approbate and
reprobate, a species of estoppel has arisen which seems to
be intermediate between estoppel by record and estoppel in
pais, and may conveniently be referred to here. Thus a
party cannot, after taking advantage under an order (e. g.
payment of costs), be heard to say that it is invalid and ask
to set it aside, or to set up to the prejudice of persons who
have relied upon it a case inconsistent with that upon
which it was founded; nor will he be allowed to go behind
an order made in ignorance of the true facts to the
prejudice of third parties who have acted on it". (para 23)
2898. The Doctrine of election was described by Jarman
on Wills, 6th Edn. Page 532 as under :
"The doctrine of election may be thus stated. That he who
accepts a benefit under a deed or will must adopt the whole
contents of the instrument conforming to all its provisions
and renouncing every right inconsistent with it. It therefore
a testator has affected to dispose of property which is not
his own, and has given a benefit to the person to whom that
property belongs, the devisee or legatees accepting the
benefit so given to him must make good the testator's
attempted disposition, but if, on the contrary, he choose to
enforce his proprietary rights against the testator's
disposition, equity will sequester the property given to him,
for the purpose of making satisfaction out of it to the
person whom he has disappointed by the assertion of those
rights."
2899. This has been followed in several cases noticed and
followed by a Division Bench of Madras High Court in
Ammalu Achi Vs. Ponnammal Achi & others AIR 1919
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Madras 464. The above judgment, however, shows that the
doctrine of election as followed therein was that of applicable in
England based on English decision since Sections 35 of Transfer
of Property Act, 1882 and 172 of Succession Act, 1865 were
found by the Court as enunciating the doctrine of election as
enforced in England but those sections were not applicable to
Hindus in India.
2900. In R.N. Gosain Vs. Yashpal Dhir (supra), the Court
said:
"10. Law does not permit a person to both approbate
and reprobate. This principle is based on the doctrine of
election which postulates that no party can accept and
reject the same instrument and that "a person cannot say at
one time that a transaction is valid any thereby obtain
some advantage, to which he could only be entitled on the
footing that it is valid, and then turn round and say it is
void for the purpose of securing some other advantage".
[See:Verschures Creameries Ltd. Vs. Hull and Netherlands
Steamship Co. Ltd. (1921) KB 608, 612 (CA), Scrutton,
LJ]. According to Halsbury's Laws of England, 4th Edn.,
Vol. 16, "after taking an advantage under an order (for
example for the payment of costs) a party may be precluded
from saying that it is invalid and asking to set it aside".
(para 1508).
2901. In National Insurance Co. Ltd. Vs. Mastan (supra)
the Court said:
"23. The 'doctrine of election' is a branch of 'rule of
estoppel', in terms whereof a person may be precluded by
his actions or conduct or silence when it is his duty to
speak, from asserting a right which he otherwise would
2766

have had. The doctrine of election postulates that when
two remedies are available for the same relief the
aggrieved party has the option to elect either of them but
not both. Although there are certain exceptions to the same
rule but the same has no application in the instant case."
2902. The question of effect of gap in continuous
possession came to be considered in Devi Singh Vs. Board of
Revenue for Rajasthan and others, (1994) 1 SCC 215 and in
para 5 the Court held as under:
"The salutary principle of appreciation of evidence in
possessory matters is that when a state of affairs is shown
to have existed for a long course of time but a gap therein
puts to doubt its continuity prudence requires to lean in
favour of the continuity of things especially when some
plausible explanation of the gap is forthcoming."
2903. Since adverse possession is a plea to usurp title over
immovable property which otherwise the claimant does not
possess and its successful claim would mean that the real owner
shall be denuded of his title and the same would stand conferred
upon the claimant, the pleadings in this aspect, have been held
of utmost importance. They have to be very clear, emphatic and
to the extent of covering every necessary ingredient to satisfy
the claim of adverse possession. The claimant cannot take
advantage of default on the part of the other side but has to set
up his case on his own failing which it is he, who has to suffer.
Since this kind of claim has the result of defeating the very right
of an otherwise rightful person, the law is very strict on this
aspect. It needs a thorough and minute inquiry into the claim of
the person who asserts title on the basis of adverse possession.
2904. In Abubakar Abdul Inamdar (supra) in the context
2767

of Articles 64 and 65 of L.A. 1963 emphasizing the importance
of pleadings in para 5 of the judgment the Apex Court said :
"With regard to the plea of adverse possession, the
appellant having been successful in the two Courts below
and not in the High Court, one has to turn to the pleadings
of the appellant in his written statement. There he has
pleaded a duration of his having remained in exclusive
possession of the house, but nowhere has he pleaded a
single overt act on the basis of which it could be inferred
or ascertained that from a particular point of time his
possession became hostile and notorious to the complete
exclusion of other heirs, and his being in possession openly
and hostilely. It is true that some evidence, basically of
Municapal register entries, were inducted to prove the
point but no amount of proof can substitute pleadings
which are the foundation of the claim of a litigating party.
The High Court cought the appellant right at that point and
drawing inference from the evidence produced on record,
concluded that correct principles relating to the plea of
adverse possession were not applied by the courts below.
The finding, as it appears to us, was rightly reversed by the
High Court requiring no interference at our end." (Para 5)
2905. In Ram Charan Das (supra) the property of a Mutt
was alienated by Mahant by executing a Mukararri (permanent
lease) in favour of one Munshi Naurangi Lal. The sale deed of
the land in dispute was also executed to another one and in both
the documents it was said that they were executed to meet the
expenses and necessities of the Mutt. After the death of Mahant,
a suit was filed by successor in office against the lessee and
purchaser etc. claiming possession of the property in dispute to
2768

Mutt. The defendants besides others, took the plea of adverse
possession also. The question was did the possession of the
concerned defendant became adverse to Mutt or Mahant
representing the Mutt on the date of relevant assurance or date
of death of the concerned Mahant. The trial court held the latter
date to be correct while the High Court took a contrary view and
upheld the former date. The Privy Council held:
" In other words a mahant has power (apart from any
question of necessity) to create an interest in property
appertaining to the Mutt which will continue during his
own life, or to put it perhaps more accurately, which will
continue during his tenure of office of mahant of the mutt,
with the result that adverse possession of the particular
property will only commence when the mahant who had
disposed of it ceases to be mahant by death or otherwise. If
this be right as it must be taken to be, where the
disposition by the mahant purports to be a grant of a
permanent lease, their Lordships are unable to see why the
position is not the same where the disposition purports to
be an absolute grant of the property nor was any logical
reason suggested in argument why there should be any
difference between the two cases. In each case the
operation of the purported grant is effective and endures
only for the period during which the mahant had power to
create an interest in the property of the mutt."
2906. Recently, the Apex Court has considered in detail
the various authorities on the question of adverse possession in
Hemaji Waghaji Jat (supra) and in para 18 observed that plea
of adverse possession is not a pure question of law but a blended
one of fact and law. Therefore, a person who claims adverse
2769

possession should show : (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his
possession was open and undisturbed. A person pleading
adverse possession has no equities in his favour. Since he is
trying to defeat the rights of the true owner, it is for him to
clearly plead and establish all facts necessary to establish his
adverse possession.
2907. The Court also referred to its earlier decision in D.N.
Venkatarayappa (supra) observing :
"Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence to show
that the petitioners have been in continuous and
uninterrupted possession of the lands in question claiming
right, title and interest in the lands in question hostile to
the right, title and interest of the original grantees, the
petitioners cannot claim that they have perfected their title
by adverse possession."
2908. In D.N. Venkatarayappa (Supra), the Court
emphasized the importance of pleading as also the pre requisites
of plea of adverse possession and said :
"3. ...What requires to be pleaded and proved is that
the purchaser disclaimed his title under which he came into
possession, set up adverse possession with necessary
animus of asserting open and hostile title to the knowledge
of the true owner and the later allowed the former, without
any let or hindrance, to remain in possession and
enjoyment of the property adverse to the interest of the true
owner until the expiry of the prescribed period. The
2770

classical requirement of adverse possession is that it
should be nec vi, nec clam, nec precario."
"... ordinary classical requirement of adverse
possession is that it should be nec vi, nec clam, nec
precario and the possession required must be adequate in
continuity, in publicity and in extent to show that it is
possession adverse to the competitor."
"apart from the actual and continuous possession
which are among other ingredients of adverse possession,
there should be necessary animus on the part of the person
who intends to perfect his title by adverse possession."
"A person who under the bona fide belief thinks that
the property belongs to him and as such he has been in
possession, such possession cannot at all be adverse
possession because it lacks necessary animus for perfecting
title by adverse possession."
"... one of the important ingredients to claim adverse
possession is that the person who claims adverse
possession must have set up title hostile to the title of the
true owner."
"...there is not even a whisper in the evidence of the
first petitioner with regard to the claim of adverse
possession set up by the petitioners. It is not stated by the
petitioners that they have been in continuous and
uninterrupted possession of the lands in question."
"But, the crucial facts to constitute adverse
possession have not been pleaded. Admittedly, the
appellant came into possession by a derivative title from
the original grantee. It is seen that the original grantee has
no right to alienate the land. Therefore, having come into
2771

possession under colour of title from original grantee, if
the appellant intends to plead adverse possession as
against the State, he must disclaim his title and plead his
hostile claim to the knowledge of the State and that the
State had not taken any action thereon within the
prescribed period. Thereby, the appellant's possession
would become adverse. No such stand was taken nor
evidence has been adduced in this behalf. The counsel in
fairness, despite his research, is unable to bring to our
notice any such plea having been taken by the appellant."
"Therefore, in the absence of crucial pleadings,
which constitute adverse possession and evidence to show
that the petitioners have been in continuous and
uninterrupted possession of the lands in question claiming
right, title and interest in the lands in question hostile to
the right, title and interest of the original grantees, the
petitioners cannot claim that they have perfected their title
by adverse possession"
"...person, who comes into possession under colour
of title from the original grantee if he intends to claim
adverse possession as against the State, must disclaim his
title and plead his hostile claim to the knowledge of the
State and the State had not taken any action thereon within
the prescribed period."
"5. ... in claiming adverse possession certain pleas
have to be made such as when there is a derivative title as
in the present case, if the appellants intend to plead
adverse possession as against the State, they must disclaim
their title and plead this hostile claim to the knowledge of
the State and that the State had not taken any action within
2772

the prescribed period, it is only in those circumstances the
appellants' possession would become adverse. There is no
material to that effect in the present case. Therefore, we
are of the view that there is no substance in any of the
contentions advanced on behalf of the appellants."
2909. In Mahesh Chand Sharma (supra), the necessity of
pleading was emphasized and the Court in para 36 said :
"In this connection, we may emphasise that a person
pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true owner, it is
for him to clearly plead and establish all the facts
necessary to establish his adverse possession. For all the
above reasons, the plea of limitation put forward by the
appellant, or by Defendants Nos. 2 to 5 as the case may, be
is rejected."
2910. Here we may also refer to some more judgements
which have been cited by Sri P.N. Mishra, Advocate, advancing
his arguments on the issues pertaining to adverse possession.
2911. In Smt. Bitola Kuer (supra) in para 16 the Court
said :
"It is well settled that tile ordinarily carries with it
the presumption of possession and that when the question
arises is to who was in possession of land, the presumption
is that the true owner was in such possession. In other
word" possession follows title. The inevitable Corollary
from this principle is that the burden lies on the person
who claims to have acquired title by adverse possession to
prove his case."
2912. In Prabhu Narain Singh (supra) in para 6 the Court
observed :
2773

"A person claiming title to any land by adverse
possession has to be very specific about the area of the
land and the period over which he has been in possession."
2913. In Ramzan Vs. Smt. Gafooran (supra) the Court
observed :
"27. It is, therefore, explicit that unless there is
specific plea and proof that adverse possessor has
disclaimed his right and asserted title and possession to the
knowledge of the true owner within a statutory period and
the true owner has acquiesced to it, the adverse possessor
cannot succeed to have it established that he has perfected
his right by prescription."
"29. As pointed out above, where the defendants are
not sure who is the true owner and question of their being
in hostile possession then the question of denying title of
true owner does not arise. At the most, the defendants have
claimed and which is found to be correct by the trial court
that they have been in possession of the disputed property
since the inception of the sale deeds in their favour. They
came in possession, according to their showing, as owner
of the property in question. It follows that they exercised
their right over the disputed property as owner and
exercise of such right, by no stretch of imagination, it can
be said that they claimed their title adverse to the true
owner."
2914. In Raja Rajgan Maharaja Jagatjit Singh (supra) it
was held that the defendant-appellant has to establish that the
title to the land in suit held by the owner under the First
Settlement of 1865 had been extinguished under Section 28 of
the Limitation Act due to the adverse possession of the
2774

defendant-appellant or his predecessors for the appropriate
statutory period of limitation and completed prior to the
possession taken under attachment by Tehsildar who thereafter
held it for the true owner. It also says:
"It is well established that adverse possession against an
existing title must be actual and cannot be constructive."
2915. In Md. Mohammad Ali Vs. Jagdish Kalita (supra)
also the change brought in 1963 under Article 65 qua the earlier
Act of 1908 was pointed out and the Court observed:
"By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act underwent a
change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his
title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to
defeat the plaintiffs claim to establish his title by adverse
possession."
2916. Mahadeo Prasad Singh and others Vs. Karia
Bharthi, AIR 1935 PC 44 is a judgment which deals with the
issue of commencement of limitation under Article 144 of
Limitation Act 1908. It was held therein that a person in actual
possession of Math is entitled to maintain a suit of recovery of
property pertaining to Math not for his own benefit but for the
benefit of Math. On the matter of limitation the Court held:
"It is common ground that the article of the Indian
Limitation Act of 1908 applicable to the claim is Article
144, which prescribes a period of 12 years from the date
2775

when the possession of the appellants became adverse to
the math. Their case is that in 1904, when Rajbans settled
his dispute with the plaintiff, he ceased to be the mahant of
Kanchanpur and repudiated the title of the math of the
village of Saktni as well as to the other villages which he
got in pursuance of the compromise. On that date, it is
contended, he began to hold the property adversely to the
institution, and the action, which was brought after the
expiry of 12 years from that date, was barred by time."
2917. To the same effect is the view taken in Gopal Datt
Vs. Babu Ram, AIR 1936 All 653.
2918. From the above discussion what boils down is that
the concept of adverse possession contemplates a hostile
possession, i.e., a possession which is expressly or impliedly in
denial of the title of the true owner. Possession to be adverse
must be possession by a person who does not acknowledge the
other's right and in fact deny the same. A person who bases his
title on adverse possession must show by clear and unequivocal
evidence that his possession was hostile to the real owner and
amounted to denial of his title to the property claimed. In order
to determine whether the act of a person constitute adverse
possession is 'animus in doing that act' and it is most crucial
factor. Adverse possession commenced in wrong and is aimed
against right. A person is said to hold the property adversely to
the real owner when that person in denial of owner's right
excluded him from the enjoyment of his property. Adverse
possession is that form of possession or occupancy of land
which is inconsistent with the title of the rightful owner and
tends to extinguish that person's title. Possession is not held to
be adverse if it can be referred to a lawful title. The persons
2776

setting up adverse possession may have been holding under the
rightful owner's title, i.e., trustees, guardians, bailiffs or agents,
such person cannot set up adverse possession. Burden is on the
defendant to prove affirmatively.
2919. An occupation of reality is inconsistent with the
right of the true owner. Where a person possesses property in a
manner in which he is not entitled to possess it, and without
anything to show that he possesses it otherwise than an owner,
i.e., with the intention of excluding all persons from it, including
the rightful owner, he is in adverse possession of it. Where
possession could be referred to a lawful title it shall not be
considered to be adverse. The reason be is that a person whose
possession can be referred to a lawful title will not be permitted
to show that his possession was hostile to another's title. One
who holds possession on behalf of another does not by mere
denial of other's title make his possession adverse so as to give
himself the benefit of the statute of limitation. A person who
enters into possession having a lawful title cannot divest another
of that title by pretending that he had no title at all.
2920. Adverse possession is of two kinds. (A) Adverse
from the beginning or (B) that become so subsequently. If a
mere trespasser takes possession of A's property, and retains it
against him, his possession is adverse ab initio. But if A grants a
lease of land to B, or B obtains possession of the land as A's
bailiff, or guardian, or trustee, his possession can only become
adverse by some change in his position. Adverse possession not
only entitled the adverse possessor, like every other possessor,
to be protected in his possession against all who cannot show a
better title, but also, if the adverse possessor remains in
possession for a certain period of time produces the effect either
2777

of barring the right of the true owner, and thus converting the
possessor into the owner, or of depriving the true owner of his
right of action to recover his property although the true owner is
ignorant of the adverse possessor being in occupation.
2921. In Hari Chand Vs. Daulat Ram (supra) the Court
held if the encroachment was not new one but the structure was
in existence prior to acquiring title over the property the decree
on the basis of adverse possession cannot be granted in favour
of the plaintiff. Para 10 and 11 of the judgment reads as under:
"10. On a consideration of these evidences it is quite clear
that the disputed kachha wall and the khaprail over it is
not a new construction, but existed for over 28 years and
the defendant has been living therein as has been deposed
to by Ramji Lal vendor of the plaintiff who admitted in his
evidence that the land in dispute and the adjoining kachha
walls had been affected by salt and the chhappar over the
portion shown in red was tiled roof constructed about 28
years back. This is also supported by the evidence of the
defendant, D.W. 1, that the wall in dispute was in existence
when the partition was effected i.e., 28 years before. On a
consideration of these evidences the Trial Court rightly
held that the defendant had not trespassed over the land in
question nor he had constructed a new wall or khaprail.
The trial court also considered the report 57C by the court
Amin and held that the wall in question was not a recent
construction but it appeared 25-30 years old in its present
condition as (is) evident from the said report. The suit was
therefore dismissed. The lower appellate court merely
considered the partition deed and map Exts. 3/1 and 3/2
respectively and held that the disputed property fell to the
2778

share of the plaintiff's vendor and the correctness of the
partition map was not challenged in the written statement.
The court of appeal below also referred to Amin's map 47
A which showed the encroached portion in red colour as
falling within the share of plaintiff's vendor, and held that
the defendant encroached on this portion of land marked in
red colour, without at all considering the clear evidence of
the defendant himself that the wall and the khaprail in
question existed for the last 28 years and the defendant
has been living there all along. P.W. 1 Ramji Lal himself
also admitted that the wall existed for about 28 years as
stated by the defendant and the kachha walls and the
khaprail has been effected by salt. The lower appellate
court though held that P.W. 1 Ramji Lal admitted in
cross-examination that towards the north of the land in
dispute was the khaprail covered room of Daulat Ram in
which Daulat Ram lived, but this does not mean that the
wall in dispute exists for the last any certain number of
years, although it can be said that it is not a recent
construction. Without considering the deposition of
defendant No. 1 as well as the report of the Amin 57 C the
IInd Addl. Civil Judge, Agra wrongly held that the
defendant failed to prove that the wall in dispute and the
khaprail existed for the last more than 12 years before the
suit. The Civil Judge further held on surmises as "may be
that the wall and khaprail have not been raised in May,
1961 as is the plaintiff's case, but they are recent
constructions." This decision of the court of appeal below
is wholly incorrect being contrary to the evidences on
record."
2779

"11. On a consideration of all the evidences on record it
is clearly established that the alleged encroachment by
construction of kuchha wall and khaprail over it are not a
recent construction as alleged to have been made in May
1961. On the other hand, it is crystal clear from the
evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that
the disputed wall with khaprail existed there in the disputed
site for a long time, that is 28 years before and the wall
and the khaprail have been affected by salt as deposed to
by these two witnesses. Moreover the court Amin's report
57 C also shows the said walls and khaprail to be 25-30
years old in its present condition. The High Court has
clearly came to the finding that though the partition deed
was executed by the parties yet there was no partition by
metes and bounds. Moreover there is no whisper in the
plaint about the partition of the property in question
between the co-sharers by metes and bounds nor there is
any averment that the suit property fell to the share of
plaintiff's vendor Ramji Lal and Ramji Lal was ever in
possession of the disputed property since the date of
partition till the date of sale to the plaintiff. The plaintiff
has singularly failed to prove his case as pleaded in the
plaint."
2922. In Maharaja Sir Kesho Prasad Singh Bahadur
(supra) the Hon'ble Privy Council has held that mere receipt of
rent by persons claiming adversely is not sufficeint to warrant
finding of adverse possession. The possession of persons or
their predecessors-in-title claiming by adverse possession must
have "all the qualities of adequacy, continuity and
exclusiveness" necessary to displace the title of the persons
2780

against whom they claim. Relevant extracts from page 78 of the
said judgment reads as follows:
"the mere fact that many years after the sale the
Gangbarar maliks or persons depriving title from them are
obtaining rent for the land is in itself very significant. Even
in a locality exposed to dilution by the action of the river
this circumstance alone might be given considerable
weight. But without sufficient proof to cover the intervening
years it was most reasonably held by the learned
Subordinate Judge to be insufficient. The circumstance that
the Maharaja was not in possession or in receipt of rent is,
it need hardly be said, insufficient under Art. 144 to
warrant a finding of adverse possession on behalf of the
respondents or their predecessors-in-title. Their Lordships
are of opinion that on the materials produced it cannot be
contended that the learned Subordinate Judge was obliged
in law to find that the possession of the principal
respondents had "all the qualities of adequacy, continuity
and exclusiveness" (per Lord Shaw 126 CWN 66610 at p.
673) necessary to displace the title of the Maharaja, and
they think that no reason in law exists why his finding of
fact in this respect should not be final."
2923. In Ramzan and others Vs. Smt. Gafooran (supra)
the Hon'ble Allahabad High Court has held that unless there is
specific plea and proof that adverse possession has disclaimed
his right and asserted title and possession to the knowledge of
the true owner within the statutory period and the true owner has
acquiesced to it, the adverse possessor cannot succeed to have it
established that he has perfected his right by prescription.
Where the adverse possessor were not sure as to who was the
2781

true owner and question of their being in hostile possession,
then the question of denying title of true owner does not arise.
Relevant paras 27, 29 and 30 of the said judgment read as
follows:
"27. It is, therefore, explicit that unless there is specific
plea and proof that adverse possessor has disclaimed his
right and asserted title and possession to the knowledge of
the true owner within a statutory period and the true owner
has acquiesced to it, the adverse possessor cannot succeed
to have it established that he has perfected his right by
prescription."
"29. As pointed out above, where the defendants are not
sure who is the true owner and question of their being in
hostile possession then the question of denying title of true
owner does not arise. At the most, the defendants have
claimed and which is found to be correct by the trial court
that they have been in possession of the disputed property
since the inception of the sale deeds in their favour. They
came in possession, according to their showing, as owner
of the property in question. It follows that they exercised
their right over the disputed property as owner and
exercise of such right, by no stretch of imagination, it can
be said that they claimed their title adverse to the true
owner."
"30. Viewed as above, on the facts of the present case, the
possession of the contesting defendants is not of the variety
and degree which is required for adverse possession to
materialise."
2924. In Qadir Bux Vs. Ramchand (supra) the Hon'ble
Allahabad High Court has held that the term "dispossession"
2782

applies when a person comes in and drives out others from the
possession. It implies ouster; a driven out of possession against
the will of the person in actual possession. The term
"discontinuance" implies a voluntary act and openness of
possession followed by the actual possession of another. It
implies that a person discontinuing as owner of the land and left
it to be dispossessed by any one who has not to come in.
Relevant para 30 of the said judgment reads as follows:
"30. The main point for consideration is whether in such
circumstances it can be said that the plaintiff had been
dispossessed or had discontinued his possession within the
meaning of Article 142 of the First Schedule to the Indian
Limitation Act. The term "dispossession" applies when a
person comes in and drives out others from the 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. It implies that the person
discontinuing has given up the land and left it to be
possessed by anyone choosing to come in. There must be
an intention to abandon title before there can be said to be
a discontinuance in possession, but this cannot be assumed.
It must be either admitted or proved. So strong in fact is the
position of the rightful owner that even when he has been
dispossessed by a trespasser and that trespasser abandons
2783

possession either voluntarily or by vis major for howsoever
short a time before he has actually perfected his tittle by
twelve years' adverse possession the possession of the true
owner is deemed to have revived and he gets a fresh
starting point of limitation - vide Gurbinder Singh v. Lal
Singh, AIR 1965 SC 1553. Wrongful possession cannot be
assumed against the true owner when according to the
facts disclosed by him he himself had voluntarily handed
over possession and was not deprived of it by the other
side."
2925. In Gurbinder Singh and another Vs. Lal Singh
and another, AIR 1965 SC 1553 the Hon'ble Supreme Court
held that in an order that Article 142 is attracted the plaintiff
must initially found in possession of the property and should
have been dispossessed by the defendant or someone through
whom the defendants claim or alternatively the plaintiff should
have discontinued possession. It has also been held that in a suit
to which Article 144 attracted the burden is on the party who
claims adverse possession to establish that he was in adverse
possession for 12 years before the date of suit and for
computation of this period he can avail of the adverse
possession of any person or persons through whom he claims
but not the adverse possession of an independent trespasser.
Relevant paras 6, 8 and 10 of the said judgment read as follows:
"6. In order that Art. 142 is attracted the plaintiff must
initially have been in possession of the property and should
have been dispossessed by the defendant or someone
through whom the defendants claim or alternatively the
plaintiff should have discontinued possession. It is no one's
case that Lal Singh ever was in possession of the
2784

property. It is true that Pratap Singh was in possession of
part of the property--which particular part we do not
know--by reason of a transfer thereof in his favour by
Bakshi Singh. In the present suit both Lal Singh and
Pratap Singh assert their claim to property by success on
in accordance with the rules contained in the dastur ul
amal whereas the possession of Pratap Singh for some
time was under a different title altogether. So far as the
present suit is concerned it must, therefore, be said
that the plaintiffs--respondents were never in possession
as heirs of Raj Kaur and consequently art. 142 would not
be attracted to their suit."
"8. Mr. Tarachand Brijmohanlal, however, advanced an
interesting argument to the effect that if persons entitled to
immediate possession of land are somehow kept out of
possession may be by different trespassers for a period of
12 years or over, their suit will be barred by time. He
points out that as from the death of Raj Kaur her
daughters, through one of whom the respondents claim,
were kept out of possession by trespassers and that from
the date of Raj Kaur's death right up to the date of the
respondents' suit, that is, for a period of nearly 20 years
trespassers were in possession of Mahan Kaur's, and
after her death, the respondents' share in the land, their
suit must therefore be regarded as barred by time. In other
words the learned counsel wants to tack on the adverse
possession of Bakshi Singh and Pratap Singh to the
adverse possession of the Raja and those who claim
through him. In support of the contention reliance is
placed by learned counsel on the decision in Ramayya v.
2785

Kotamma, ILR 45 Mad 370: (AIR 1922 Mad 59). In order
to appreciate what was decided in that case a brief resume
of the facts of that case is necessary. Mallabattudu, the last
male holder of the properties to which the suit related, died
in the year 1889 leaving two daughters Ramamma and
Govindamma. The former died in 1914. The latter
surrendered her estate to her two sons. The plaintiff who
was a transferee from the sons of Govindamma instituted
a suit for recovery of possession of Mallabattudu's
property against Punnayya, the son of Ramamma to whom
Mallabattudu had made an oral gift of his properties two
years before his death. Punnayya was minor at the date of
gift and his eider brother Subbarayudu was managing the
property on his behalf. Punnayya, however, died in 1894
while still a minor and thereafter his brothers Subbarayudu
and two others were in possession of the property. It
would seem that the other brothers died and Subbarayudu
was the last surviving member of Punnayya's family.
Upon Subbarayudu's death the properties were sold by his
daughters to the third defendant. The plaintiffs- appellants
suit failed on the ground of limitation. It was argued on his
behalf in the second appeal before the High Court that as
the gift to Punnayya was oral it was invalid, that
consequently Punnayya was in possession as trespasser,
that on Punnayya's death his heir would be his mother, that
as Subbarayudu continued in possession Subbarayudu's
possession was also that of a trespasser, that as neither
Subbarayudu nor Punnayya completed possession for 12
years they could not tack on one to the other and that the
plaintiff claiming through the nearest reversioner is not
2786

barred. The contention for the respondents was that there
was no break in possession so as to retest the properties in
the original owners, that Punnayya and Subbarayudu
cannot be treated as successive trespassers and that in any
event the real owner having been out of possession for
over 12 years the suit was barred by limitation. The High
Court following the decision of Mookerjee J. in Mohendra
Nath v. Shamsunnessa, 21 Cal. LJ 157 at p. 164:(AIR 1915
Cal. 629 at p. 633), held that time begins to run against the
lastfull owner if he himself was dispossessed and the
operation of the law of limitation would not be arrested by
the fact that on his death he was succeeded by his widow,
daughter or mother, as the cause of action cannot be
prolonged by the mere transfer of title. It may be
mentioned that as Mallabattudu had given up possession
to Punnayya under an invalid gift Art. 142 of the
Limitation Act was clearly attracted. The sons of
Govindamma from whom the appellant had purchased the
suit properties claimed through Mallabattudu and since
time began to run against him from 1887 when he
discontinued possession it did not cease to run by the mere
fact of his death. In a suit to which that Article applies the
plaintiff has to prove his possession within 12 years of his
suit. Therefore, so long as the total period of the plaintiff's
exclusion from possession is, at the date of the plaintiff's
suit, for a period of 12 years or over, the fact that this
exclusion was by different trespassers will not help the
plaintiff provided there was a continuity in the period of
exclusion. That decision is not applicable to the facts of the
case before us. This is a suit to which Art. 144 is
2787

attracted and the burden is on the defendant to establish
that he was in adverse possession for 12 years before the
date of suit and for computation of this period he can avail
of the adverse possession of any person or persons
through whom he claims--but not the adverse possession of
independent trespassers."
"10. This view has not been departed from in any case. At
any rate none was brought to our notice where it has not
been followed. Apart from that what we are concerned with
is the language used by the legislature in the third column
of Art. 144. The starting point of limitation there stated is
the date when the possession of the defendant becomes
adverse to the plaintiff. The word "defendant" is defined in
S. 2(4) of the Limitation Act thus:
'defendant' includes any person from or through whom a
defendant derives his liability to be sued".
No doubt, this is an inclusive definition but the gist of it is
the existence of a jural relationship between different
persons. There can be no jural relationship between
two independent trespassers. Therefore, where a defendant
in possession of property is sued by a person who has title
to it but is out of possession what he has to show in
defence is that he or anyone through whom he claims has
been in possession for more than the statutory period. An
independent trespasser not being such a person the
defendant is not entitled to tack on the previous possession
of that person to his own possession. In our opinion,
therefore, the respondents' suit is within time and has
been rightly decreed by the courts below. We dismiss
this appeal with costs."
2788

2926. In S.M. Karim Vs. Mst Bibi Sakina (supra) the
Hon'ble Apex Court has held that the alternative claim must be
clearly made and proved, adverse possession must be adequate
in continuity, in publicity and extent and a plea is required at the
least to show when possession becomes adverse so that the
starting point on limitation against the party affected can be
found. A mere suggestion in the relief clause that there was an
uninterrupted possession for "several 12 years" or that the
plaintiff had acquired "a possible title" was not enough to raise
such a plea. Long possession is not necessary adverse
possession and prayer clause is not a substitute for a plea.
Relevant paras 3 to 5 of the said judgment read as follows:
"3. In this appeal, it has been stressed by the appellant
that the findings clearly establish the benami nature of the
transaction of 1914. This is, perhaps, true but the
appellant cannot avail himself of it. The appellant's claim
based upon the benami nature of the transaction cannot
stand because S. 66 of the Code of Civil Procedure bars it.
That section provides that no suit shall be maintained
against any person claiming title under a purchase
certified by the Court on the ground that the purchase was
made on behalf of the plaintiff or on behalf of someone
through whom the plaintiff claims. Formerly, the opening
words were, no suit shall be maintained against a certified
purchaser and the change was made to protect not only the
certified purchaser but any person claiming title under a
purchase certified by the Court. The protection is thus
available not only against the real purchaser but also
against anyone claiming through him. In the present case,
the appellant as plaintiff was hit by the section and the
2789

defendants were protected by it."
"4. It is contended that the case falls within the second
sub-section under which a suit is possible at the instance of
a third person who wishes to proceed against the
property, though ostensibly sold to the certified purchaser,
on tie ground that it is liable to satisfy a claim of such
third person against the real owner. Reliance is placed
upon the transfer by Syed Aulad Ali in favour of the
appellant which is described as a claim by the transferee
against the real owner. The words of the second sub-
section refer to the claim of creditors and not to the
claims of transferees. The latter are dealt with in first sub-
section, and if the meaning sought to be placed on the
second sub-section by the appellant were to be accepted,
the entire policy of the law would be defeated by the real
purchaser making a transfer to another and the first sub-
section would become almost a dead letter. In our opinion,
such a construction cannot be accepted and the plaintiff's
suit must be held to be barred under S. 66 of the Code."
"5. As an alternative, it was contended before us that the
title of Hakir Alam was extinguished by long and
uninterrupted adverse possession of Syed Aulad Ali and
after him of the plaintiff. The High Court did not accept
this case. Such a case is, of course, open to a plaintiff to
make if his possession is disturbed. If the possession of the
real owner ripens into title under the Limitation Act and he
is dispossessed, he can sue to obtain possession, for he
does not then rely on the benami nature of the transaction.
But the alternative claim must be clearly made and
proved. The High Court held that the plea of adverse
2790

possession was not raised in the suit and reversed the
decision of the two courts below. The plea of adverse
possession is raised here. Reliance is placed before us on
Sukan v. Krishanand, ILR 32 Pat 353 and Sri Bhagwan
Singh and others v. Ram Basi Kuer and others, AIR 1957
Pat 157 to submit that such a plea is not necessary and
alternatively, that if a plea is required, what can be
considered a proper plea. But these two cases can hardly
help the appellant. No doubt, the plaint sets out the fact
that after the purchase by Syed Aulad Ali, benami in the
name of his son-in-law Hakir Alam Ali continued in
possession of the property but it does not say that this
possession was at any time adverse to that of the certified
purchaser. Hakir Alam was the son-in-law of Syed Aulad
Ali and was living with him. There is no suggestion that
Syed Aulad Ali ever asserted any hostile title against him
or that a dispute with regard to ownership and possession
had ever arisen. Adverse possession must be adequate in
continuity, in publicity and extent and a plea is required at
the least to show when possession becomes adverse so that
the starting point of limitation against the party affected
can be found. There is no evidence here when possession
became adverse, if it at all did, and a mere suggestion
in the relief clause that there was an uninterrupted
possession for "several 12 years" or that the plaintiff had
acquired "an absolute title" was not enough to raise such a
plea. Long possession is not necessarily adverse possession
and the prayer clause is not a substitute for a plea. The
cited cases need hardly be considered, because each case
must be determined upon the allegations in the plaint in
2791

that case. It is sufficient to point out that in Bishun Dayal
v. Kesho Prasad, A.I.R. 1940 P.C. 202 the Judicial
Committee did not accept an alternative case based on
possession after purchase without a proper plea."
2927. In B. Leelavathi Vs. Honamma (supra) the Hon'ble
Supreme Court has held that the adverse possession is a
question of fact which has to be specifically pleaded and proved
and in the absence of any plea of adverse possession, framing of
an issue and adducing evidence could not held that the plaintiffs
had perfected towards the title by way of adverse possession.
Paras 11 of the judgment read as follows:
"11. Plea of adverse possession had been taken vaguely in
the plaint. No categorical stand on this point was taken in
the plaint. No issue had been framed and seemingly the
same was not insisted upon by the plaintiff-respondent.
Adverse possession is a question of fact which has to be
specifically pleaded and proved. No evidence was adduced
by the plaintiff-respondent with regard to adverse
possession. Honnamma, the plaintiff in her own statement
did not say that she is in adverse possession of the suit
property. We fail to understand as to how the High Court,
in the absence of any plea of adverse possession, framing
of an issue and evidence led on the point, could hold that
the plaintiff-respondent had perfected her title by way of
adverse possession."
2928. In Dharamarajan Vs. Valliammal (supra) the
Hon'ble Supreme Court has held that in a claim of adverse
possession openness and adverse nature of the possession has to
be proved against the owner of the property in question.
Relevant para 11 of the said judgment reads as follows:
2792

"11. In our opinion none of these questions could be said
to be either question of law or a substantial question of law
arising out of the pleadings of the parties. The first referred
question of law could not and did not arise for the simple
reason that the plea of adverse possession has been rightly
found against the plaintiff. Karupayee Ammal's possession,
even if presumed to be in a valid possession in law, could
not be said to be adverse possession as throughout it was
the case of the appellant Dharmarajan that it was a
permissive possession and that she was permitted to stay
on the land belonging to the members of the Iyer family.
Secondly it has nowhere come as to against whom was her
possession adverse. Was it adverse against the Government
or against the Iyer family? In order to substantiate the plea
of adverse possession, the possession has to be open and
adverse to the owner of the property in question. The
evidence did not show this openness and adverse nature
because it is not even certain as to against whom the
adverse possession was pleaded on the part of Karupayee
Ammal. Further even the legal relationship of
Doraiswamy and Karupayee Ammal is not pleaded or
proved. All that is pleaded is that after Karupayee
Ammal's demise Doraiswamy as her foster son continued in
the thatched shed allegedly constructed by Karupayee
Ammal. There was no question of the tacking of possession
as there is ample evidence on record to suggest that
Doraiswamy also was in the service of Iyer family and that
he was permitted to stay after Karupayee Ammal. Further
his legal heirship was also not decisively proved. We do
not, therefore, see as to how the first substantial question of
2793

law came to be framed. This is apart from the fact that
ultimately High Court has not granted the relief to the
respondents on the basis of the finding of this question. On
the other hand the High Court has gone into entirely
different consideration based on reappreciation of
evidence. The second and third questions are not the
questions of law at all. They are regarding appreciation of
evidence. The fourth question is regarding the admissibility
of Exhibit A-8. In our opinion there is no question of
admissibility as the High Court has found that Exhibit A-8
was not admissible in evidence since the Tehsildar who had
issued that certificate was not examined. Therefore, there
will be no question of admissibility since the document
itself was not proved. Again the finding of the High Court
goes against the respondent herein. Even the fifth question
was a clear cut question of fact and was, therefore,
impermissible in the Second Appeal."
2929. In A.S. Vidyasagar (supra) the Hon'ble Supreme
Court has held that permissive possession is not adverse
possession and can be terminated at any time by the rightful
owner. Relevant para 5 of the judgment reads as follows:
"5. Adverse possession is sought to be established on the
supposition that Kanthimathi got possession of the
premises as a licensee and on her death in 1948, the
appellant who was 4 years of age, must be presumed to
have become a trespasser. And if he had remained in
trespass for 12 years, the title stood perfected and in any
case, a suit to recovery of possession would by then be
time-barred. We are unable to appreciate this line of
reasoning for it appears to us that there is no occasion to
2794

term the possession of Kanthimathi as that of a licensee.
The possession was permissive in her hands and remained
permissive in the hands of the appellant on his birth, as
well as in the hands of his father living then with
Kanthimathi. There was no occasion for any such licence
to have been terminated. For the view we are taking there
was no licence at all. Permissible possession of the
appellant could rightfully be terminated at any moment by
the rightful owners. The present contesting respondents
thus had a right to institute the suit for possession against
the appellant. No oral evidence has been referred to us
which would go to support the plea of openness, hostility
and notoriety which would go to establish adverse
possession. On the contrary, the Municipal Tax receipts,
Exts. B-39 and 40, even though suggestedly reflecting
payment made by the appellant, were in the name of
Kuppuswami, the rightful owner. This negates the assertion
that at any stage did the appellant assert a hostile title.
Even by examining the evidence, at our end, we come to the
same view as that of the High Court. The plea of adverse
possession thus also fails. As a result fails this appeal.
Accordingly, we dismiss the appeal, but without any order
as to costs."
2930. In Goswami Shri Mahalaxmi Vahuji Vs. Shah
Ranchhoddas Kalidas, AIR 1970 SC 2025 the Hon'ble
Supreme Court held that a party cannot be allowed to set up a
case wholly inconsistent with that pleaded in there written
statement. Relevant para 8 of the said judgment reads as
follows:
"8. We may now proceed to examine the material on
2795

record for finding out 'the true character of the suit
properties viz. whether they are properties of a public trust
arising from their dedication of those properties in favour
of the deity Shree Gokulnathji or whether the deity as
well as the suit properties are the private properties of
Goswami Maharaj. In her written statement as noticed,
earlier, the Ist defendant took up the specific plea that the
idol of Shree Gokulnathji is the private property of the
Maharaj the Vallabh Cult does not permit any dedication
in favour of an idol and in fact there was no dedication in
favour of that idol. She emphatically denied that the suit
properties were the properties of the deity Gokulnathji but
in this Court evidently because of the enormity of evidence
adduced by the plaintiffs, a totally new plea was taken
namely that several items of the suit properties had been
dedicated to Gokulnathji but the deity being the family
deity of the Maharaj, the resulting trust is only a private
trust. In other words the plea taken in the written statement
is that the suit properties were the private properties of the
Maharaj and that there was no trust, private or public. But
the case argued before this Court is a wholly different one
viz., the suit properties were partly the properties of a
private trust and partly the private properties of the
Maharaj. The Ist defendant cannot be permitted to take up
a case which is wholly inconsistent with that pleaded. This
belated attempt to bypass the evidence adduced appears to
be more a manor than a genuine explanation of the
documentary evidence adduced. It is amply proved that
ever since Mathuranathji took over the management of the
shrine, two sets of account books have been maintained,
2796

one relating to the income and expenses of the shrine and
the other relating to that of the Maharaj. These account
books and other documents show that presents and gifts
used to. be made to the deity as well as to the Maharaj. The
two were quite separate and distinct. Maharaj himself has
been making gifts to the deity. He has been, at times
utilising the funds belonging to. the deity and thereafter
reimbursing the same. The account books which have been
produced clearly go to show that the deity and the Maharaj
were treated as two different and distinct legal entities. The
evidence afforded "by the account books is tell-tale. In the
trial court it was contended on behalf of the Ist defendant
that none of the account books produced relate exclusively
to the affairs of the temple. They all record the transactions
of the Maharaj, whether pertaining to his personal
dealings or dealings in connection with the deity. This is an
obviously untenable contention. That contention was given
up in the High Court. In the High Court it was urged that
two sets of account books were kept, one relating to the
income and expenditure of the deity and the other of the
Maharai so that the Maharai could easily find out-his
financial commitments relating to the affairs of the deity.
But in this Court Mr. Narasaraju, learned Counsel for the
appellant realising the untenability of the contention
advanced in the courts below presented for our
consideration a totally new case and that is that
Gokulnathji undoubtedly is a legal personality; in the past
the properties had been dedicated in favour of that deity;
those properties are the properties of a private trust of
which the Maharaj was the trustee. On the basis of this
2797

newly evolved theory he wanted to explain away the effect
of the evidence afforded by the account books and the
documents. We are unable to accept this new plea. It runs
counter to the case pleaded in the written statement. This is
not a purely legal contention. The Ist defendant must have
known whether there was any dedication in favour of Shri
Gokulnathji and whether any portion of the suit
properties were the properties of a private trust. She and
her adviser's must have known at all relevant times the true
nature of the accounts maintained. Mr. Narasaraju is not
right in his contention that the plea taken by him in this
Court is a purely legal plea. It essentially relates to
questions of fact. Hence we informed Mr. Narasaraju that
we will not entertain the plea in question."
2931. In the matter of plea of adverse possession, mutually
inconsistent or mutually destructive pleas must not be taken in
the plaint. Whenever the plea of adverse possession is raised, it
pre supposes that onwer is someone else and the person taking
the plea of adverse possession is not the actual owner but has
perfected his title by prescription since the real owner failed to
initiate any proceeding for restoring the possession within the
prescribed period under the statute.
2932. In P Periasami Vs. P Periathambi (supra) it was
said:
"Whenever the plea of adverse possession is projected,
inherent in the plea is that someone else was the owner of
the property."
2933. In Mohan Lal v. Mirza Abdul Gaffar (1996) 1SCC
639, the Court said"
"As regards the first plea, it is inconsistent with the
2798

second plea. Having come into possession under the
agreement, he must disclaim his right thereunder and plead
and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his
successor in title or interest and that the latter had
acquiesced to his illegal possession during the entire
period of 12 years, i.e., up to completing the period his title
by prescription nec vi, nec clam, nec precario."
2934. In Karnataka Board of Wakf Vs. Government of
India & others (2004) 10 SCC 779, the Court held that
whenever the plea of adverse possession is projected, inherent
therein is that someone else is the owner of the property. In para
12 it said:
"The pleas on title and adverse possession are
mutually inconsistent and the latter does not begin to
operate until the former is renounced."
2935. The decision in Mohal Lal (supra) has also been
followed in Karnataka Board of Wakf (supra) and in para 13,
the Court said:
"As we have already found, the respondent obtained
title under the provisions of the Ancient Monuments Act.
The element of the respondent's possession of the suit
property to the exclusion of the appellant with the animus
to possess it is not specifically pleaded and proved. So are
the aspects of earlier title of the appellant or the point of
time of disposition. Consequently, the alternative plea of
adverse possession by the respondent is unsustainable."
2936. The propositions laid down above, in our view,
admit no exceptions and we are in general respectful agreement.
2937. Thus in the light of the above legal principles, we
2799

shall endeavour to find out whether Muslims are in possession
of the property in suit i.e. Suit-1 from 1528 AD continuously,
openly and to the knowledge of plaintiff and Hindus in general,
and, if so, its effect. Here we may remind that property in suit
with reference to Suit-1 means the inner courtyard and the
building.
2938. First of all, the pleadings need be seen to find out
entry of Muslims for taking possession of the property in suit, as
claimed, from 1528 AD. Their case is that (a) the disputed
structure was raised by Emperor Babar after conquering India
and during the period when he stayed at Ayodhya through his
Governor/Commander/Counselor (Vazir) Mir Baqi in 1528 AD.
(b) After construction of the disputed structure he dedicated it as
Waqf in general for the benefit of entire Muslim and Muslims,
therefore, have a right of worship therein. (c) Emperor Babar
after the above construction of the disputed mosque (disputed
structure) made a grant of Rs. 60/- per annum from his royal
treasury towards Khitabat (recitation of Khutb), repair and
miscellaneous expenses of disputed mosque. (d) The above
grant continued during Mughal regime. During the period of
Nawabs of Awadh, the amount of grant was increased to Rs.
302 Anna 3 paissa 6 per annum. The above grant continued by
British Government also and at the time of first settlement.
2939. It is in fact not disputed by learned counsels for the
parties that Babar-Nama, whether translated by A.S.Beveridge
or others i.e. John Layden, William Erskine, F.G.Talbot,
Elphinstone etc. none contain anything to show that Babar ever
entered Ayodhya city or crossed Saryu river or otherwise
reached thereto. The description available in Babar-Nama (the
description for the period 3rd April, 1528 to 17th September,
2800

1528 is not available), shows that Babar reached near Ayodhya
on 28.3.1528 AD and stayed about 2-3 kos away but with
respect to his visit or entry in Ayodhya, at least in Babar Nama,
there is nothing. Therefore, the question that he himself visited
Ayodhya and commanded for construction of a mosque thereat
does not arise. Similarly whether he issued such a command to
anyone is also not shown. Al least is is not proved at all. The
claim of the Muslim parties that as a result of dedication by
Babar, they came in possession, therefore, renders baseless and
falls on the ground.
2940. It is also not in dispute that there is no evidence,
documentary or otherwise, which may show that Babar or any
of his agent made any waqf or dedicated any property for public
use or that the Muslims in general or in particular were placed in
possession of any part of the land comprising the disputed site
and no direct evidence is available.
2941. We do find the situation improbable due to lapse of
long time but then in order to find out correctness of such a
positive averment, we have an option to look into other material
to search for other probabilities. Reason being that these are the
this is a facts pleaded by defendants 1 to 5 (Suit-1), as is evident
from para 9 and 16 of the plaint. This is a fact in issue,
therefore, evidence has to be adduced by the defendants 1 to 5
(Suit-1). The burden lie on them. Since all the four suits were
clubbed together and evidence has been recorded permitting to
be used interchangeably we make no distinction in evidence if
led on behalf of muslim parties. On this aspect, their stand is
substantially same.
2942. The burden primarily lie on the party who desires
the Court to give judgment as to any legal right or liability
2801

dependent on the existence of fact which he asserts. In other
words, a person who has invited a Court to give judgment on
any legal right or liability and in support thereof has pleaded
existence of certain facts to prove the existence of those facts,
the result of the person failing to do so, would go against him.
When the muslim parties plead that the Muslims have
possession over the wakf Maszid Babri since 1528, the burden
of proof lie upon the plaintiffs to prove existence of the said
facts. There cannot be any defence that the matter relates back
to an event which occurred 433 years back, and suit was filed
after more than 400 years, therefore, it is not possible to produce
any direct evidence. Since it is a fact not admitted by the other
side, i.e., the Hindu parties, burden of proof lie upon the muslim
parties to prove the aforesaid facts. In a issue relating to the title
no presumption can help. This would also not be a matter of
public history for which the Court may resort for its aid to
appropriate books and documents of reference under Section 57
of the Indian Evidence Act, 1872 (hereinafter referred to as
"Evidence Act"). In a title suit, the contents of Gazetteer etc.
also cannot be relied to prove title of the party concerned but
they have to prove the same by producing relevant evidence.
Though we have not excluded various historical documents and
books made available to us to find out the truth, primarily onus
lie upon the muslim parties to place relevant evidence so as to
claim successful execution of the plea of continuous possession.
2943. Issue No. 7 (Suit-1) though not very specifically but
is based on the claim of Muslim parties that they have matured
their title due to adverse possession, this issue has been framed
and, therefore, requisite pleadings and proofs, i.e., onus would
lie upon the defendants no. 1 to 5 and 10. We have reproduced
2802

the pleadings of the defendants 1 to 5 and 10 relevant for the
aforesaid Issue No. 7 (Suit-1) and it is evident therefrom that the
claim for title on account of adverse possession was pleaded
only in para 16 of the written statement of defendants no. 1 to 5
but no such pleading find mention in the written statement filed
on behalf of defendant no. 10. The defendants no. 1 to 5 have
died long back and there is no substitution in Suit-1 except of
defendant no. 2/1. Therefore, strictly speaking, except defendant
no. 2/1, the defendants no. 1 and 3 to 5 cease to be party in Suit-
1. However, no evidence led on behalf of these defendants.
2944. The pleadings of defendant no. 10 are much short of
the requirement of such a case of possession. Despite our best
endeavour, we find no clear averments or something even
suggesting their claim with regard to title on the basis of adverse
possession. The principles laid down for defence based on
adverse possession necessitates party to plead who is the owner
of the property against whom he is possessing the land to his
knowledge, and is continuously, openly enjoying it peacefully
for the period of limitation prescribed under the statute and that
too exclusive and uninterrupted. We find no such pleading in the
written statement of defendant no. 10 (Suit-1). In fact, the
defendant no. 10 in para 19 of its written statement has pleaded
that the plaintiff has neither shown any personal claim or title
over the property in suit nor has been able to set up any right or
title over the said property on the basis of customary or
easementary right. Para 19 of the written statement of defendant
no. 10 in Suit-1 is reproduced as under:
"That the plaintiff has neither shown any personal claim or
title in the plaint over the property in suit nor he has been
able to set up any right or title over the said property on
2803

the basis of customary or easementary right,"
2945. This shows that the defendant no. 10 was aware that
the suit has not been filed by the plaintiff claiming himself to be
the owner of the property in dispute or having a title over the
same in any other manner. Further, from a reading of para 10,
11 and 25 of the written statement of defendant no. 10 together,
it appears that the claim of defendant no. 10 throughout in Suit-
1 is that the ownership of the property in dispute vest in God
almighty after the creation of Wakf and construction of a
Mosque by Mir Baki during the regime of Emperor Babar and
since then, it continuously being used and possessed by
Muslims for worship and none else. In para 17 of the written
statement, defendant no. 10 has pleaded that the plaintiff has
never remained in possession or occupation of the building in
suit, he has no right, title or claim over the said property and as
such the suit is barred by the provisions of Section 41 of the
Specific Relief Act. In para 15, the case set up is that Muslims
had all along remained in possession of the said mosque right
from 1528 AD upto the date of attachment of the said mosque
under Section 145 Cr.P.C. We may add that the date of
attachment is 29th December, 1949. Therefore, in the entire
written statement of defendant no. 10, we fail to find any case of
adverse possession set up by defendant no. 10. So far as simple
possession since 1528 AD is concerned, even in that respect no
evidence has been placed.
2946. It would be useful to refer certain observations of a
Single Judge of this Court in Abdul Halim Khan Vs. Raja
Saadat Ali Khan and others, AIR 1928 Oudh 155, which, in
our view, squarely applies to the facts and pleadings of this case
and we are in respectfully agreement therewith:
2804

"One of the general principles governing the law of
limitation is that a person can only be considered to be
barred, if he has a right to enter and does not exercise that
right within the period fixed by the Limitation Act. The
maxim of law is contra non valentem agree nulla currit
praescriptio (prescription does not run against a party who
is unable to act); vide Broom's Legal Maxims, 9th edn., p.
576. Accordingly possession cannot become adverse
against a person as long as he is not entitled to claim
immediate possession. Ex facie it must follow that a person
who is not in existence cannot be considered to be in a
position to claim whether immediate or otherwise. It is
evident that in the eyes of the law the plaintiff did not come
into existence as long as he was not adopted. His adoption
took place on 27th July 1914. He must be deemed to have
come into existence only then. It was, therefore, obviously
not possible for him to claim possession of the property
before that date, and if he was not in a position to claim it
at all, having not been then in existence, it would be absurd
to say that another person was in possession adversely to
him. One might fairly ask: "Adverse against whom?" It
certainly cannot be adverse against the plaintiff, who
was not then in existence. It may have been adverse
against any other person, but we are not concerned with
such person unless the plaintiff can be shown to have
derived his title from such person." (page189-190)
2947. Recently, in Vishwanath Bapurao Sabale (supra),
the Apex Court in respect to a claim of title based on the
pleading of adverse possession said as under:
"for claiming title by adverse possession, it was necessary
2805

for the plaintiff to plead and prove animus possidendi.
A peaceful, open and continuous possession being the
ingredients of the principle of adverse possession as
contained in the maxim nec vi, nec clam, nec precario, long
possession by itself would not be sufficient to prove adverse
possession."
2948. What should have been pleaded and what a person
claiming adverse possession has to show has been laid down by
the Apex Court categorically in Karnataka Board of Wakf
(supra) :
"11. In the eye of the law, an owner would be
deemed to be in possession of a property so long as there is
no intrusion. Non-use of the property by the owner even for
a long time won't affect his title. But the position will be
altered when another person takes possession of the
property and asserts a right over it. Adverse possession is a
hostile possession by clearly asserting hostile title in denial
of the title of true owner. It is a well- settled principle that
a party claiming adverse possession must prove that his
possession is "nec vi, nec clam, nec precario", that is,
peaceful, open and continuous. The possession must be
adequate in continuity, in publicity and in extent to show
that their possession is adverse to the true owner. It must
start with a wrongful disposition of the rightful owner and
be actual, visible, exclusive, hostile and continued over the
statutory period. ..... Physical fact of exclusive possession
and the animus posdendi to hold as owner in exclusion to
the actual owner are the most important factors that are to
be accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one
2806

of fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e)
his possession was open and undisturbed. A person
pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of true owner, it is for
him to clearly plead and establish all facts necessary to
establish his adverse possession."
2949. Earlier also, a three-Judges Bench of Apex Court in
Parsinni & another Vs. Sukhi (supra) laid down the following
three requisites for satisfying the claim based on adverse
possession:
"5. The appellants claimed adverse possession.
The burden undoubtedly lies on them to plead and prove
that they remained in possession in their own right adverse
to the respondents. .... Possession is prima facie evidence
of title. Party claiming adverse possession must prove that
his possession mast be "nee vi nee clam nee precario" i.e.
peaceful, open and continuous. The possession must be
adequate, in continuity, in publicity and in extent to
show that their possession is adverse to the true owner."
2950. In Maharaja Sir Kesho Prasad Singh Bahadur
(supra), it was held that in order to obtain a favourable finding
of adverse possession, one must have to satisfy all the qualities
of adequacy, continuity and exclusiveness. Reliance was placed
on Kuthali Moothavur Vs. P. Kunharankutty AIR 1922 PC
181.
2951. We can look into this issue from another angle. A
2807

perusal of the entire plaint (suit-1) would show that the
plaintiff's case is not that of title or ownership of the property in
dispute. What he actually claim is that he believes and treat the
site in dispute being the birth place of Lord Rama having certain
religious symbols like, idol of Lord Rama, Charan Paduka etc.
which is worshipped by Pooja and Darshan since long past
without any obstruction and is entitled to exercise his aforesaid
right of worship without any interference. He expressed an
apprehension of removal of existing idols of Lord Rama kept at
the place in dispute, the boundary whereof is mentioned at the
bottom of the plaint (suit-1), hence, he has sought a declaration
that he is entitled to visit and worship the place in dispute
without any obstruction according to religious scriptures of
Hindus and the defendants have no right to interfere in the
aforesaid right of the plaintiff. He further has sought a
permanent mandatory injunction restraining the defendants from
removing idols of Lord Rama from the place they are, not to put
lock on the entry door and not to create any obstruction in Pooja
and Darshan in any manner. The boundary given at the bottom
of the plaint shows that the premises in dispute in Suit-1
constitute only the "inner courtyard" and "building" existed
thereat. In fact, the plaintiff has not even mentioned the
existence of any building but he has simply said that at the place
at which the idols of Lord Rama were existing on the date of
filing of the suit be not removed. The plaint is verified and
signed on 13th January 1950 and filed in the Court on 16.1.1950.
Therefore, averments in various paragraphs of the plaint
obviously relate at least to that date.
2952. There is no claim of ownership or title by the
plaintiff. It is a simple suit seeking continuous enforcement of
2808

right of worship and a restraint order against the defendants
from creating any obstruction in exercise of the said right. In the
absence of any claim set up by the plaintiff about his title etc.,
we find no occasion on the part of the defendants to claim that
they are possessing property in dispute continuously, openly and
to the knowledge of the plaintiff, and Hindus in general, when
all this has nothing to do with the plaintiff's right of worship
which he claims to have been exercising much before the date of
filing of the suit and want continuance of that right without any
interference. So far as the plea of holding possession of the
property in dispute against the Hindus in general, we find that a
statement under Order X Rule 2 C.P.C. was made on behalf of
the plaintiff on 15.09.1951 wherein it has clearly been stated
that Suit-1 is not a representative suit but has been filed for
enforcing personal right of worship of the plaintiff, as is evident
from following:
"Q. In what capacity does the plaintiff seek to exercise
the relief which he seeks in the plaint.
Ans. In my individual capacity.

Q. What is your individual capacity.
Ans. My individual capacity is distinct from public
capacity and in this matter an idol worshipper."
2953. The case set up by the defendant-muslim parties
against the plaintiffs in this case is a bit in deviation to what
actually the dispute is. The plaintiffs neither asserted his
possession over the property in dispute nor disputed anybody's
possession. 'Possession' means what we understand even if it has
to be seen in the context every time as defined and discussed in
detail above. The consensus of the meaning of the word
possession or what the term "possession" connotes is something
2809

showing actual power over the object concern, amount of will
one can exercise, and intention to possess something. Not the
least, the power of authority to exclude others is also an integral
part thereof. Possession is nine parts of the law means the
person in possession can only be ousted by one whose title is
better than his. All these factors, in our view, are absent when a
person claims exercise of a right other than based on possession.
The plaintiff has sought to assert right of worship at the place in
dispute, alleging some kind of interference at the end of
defendants. He has sought a declaration about his right of
worship, and, its enforcement without any restriction and further
that the place in dispute as it stood on the date he filed the suit
should remain undisturbed since he had been exercising his right
of worship with the same status in the past also. The later
question necessarily give birth to another question as to whether
the status of the place in dispute, as stated on the date of filing
of the suit, was actually the same for sufficiently past time as
claimed by the plaintiff. That may be one which need to be
decided on the basis of evidence, but so far as principal question
is concerned it remains the same, i.e., enforcement of right of
worship only, without claiming title, ownership or possession of
the property. A worshipper when go to a religious place does
not come into possession of the place of worship since it is a
kind of incorporeal right not connected directly with the
possession of the property in the sense, the term "possession in
law" usually is known but it is a kind of enjoyment of a property
and that too temporarily, for a small time, though frequently. As
stated by the Privy Council in Mosque known as Masjid
Shahid Ganj (supra) the right of worshipper may be regarded
as an individual right. It is not a sort of easement in gross but an
2810

ultimate in general right of a beneficiary. This individual
character of the right to go to a mosque or temple for worship
matters nothing when the land is no longer a waqf or a temple.
If for one or the other reasons the subject itself goes or
disappear the right of all beneficiaries would also go and then
the worshipper cannot ask for recovery or reconstruction of the
endowment on the ground that since he had a beneficiary right
of worship, for his right cannot extend beyond subject matter. In
this case, the defendant, probably to defeat this assertion of the
plaintiff that the property in dispute is a temple open for worship
by a Hindu, pleaded the construction of mosque in 1528 AD and
continuous possession and worship by muslims since then. The
initial onus lie upon the plaintiff, but having discharged the
same, it shifts to the muslim side. The onus is different than
burden. Onus may continue to shift. That being so, obviously
the onus lie upon the muslim parties to prove it. To start, they
proceeded with two inscriptions claimed to be fixed on the
property in dispute since the time it was constructed. Those
inscriptions, we have already discussed in detail while
discussing issues relating to period of construction, and have
held that it is not proved that those inscriptions were installed in
1528 AD or that the building in dispute itself was constructed in
1528 AD and the muslim parties pleading this fact have not
been able to prove it. The two inscriptions have been held
unworthy of any reliance.
2954. Next comes a complaint dated 28.11.1858 submitted
by Thanedar Sheetal Dube and some other documents which we
shall discuss a bit later. But at this stage we may point out that
the claim of adverse possession in the light of Article 144 or
extinction of title vide Section 27 of the Limitation Act, in a
2811

case where enforcement of a right of worship is involved, may
not be attracted.
2955. When a right of worship is claimed and it is said that
no obstruction should be created therein, it is a de die indium
right and interference, if any, as and when made also would
confer a fresh cause of action. The Privy Council in Hukum
Chand Vs. Maharaj Bahadur Singh (supra) has said that the
section of the Swetambari in placing charans with the nails in
three of the shrines is a wrong of which the Digambaris are
entitled to complaint and is a continuing wrong, as to which
under Section 23 a fresh period begins to run at every moment
of the day on which the wrong continues.
2956. That being so, since the cause of action is a
continuing one, the question of any benefit under Article 144 of
LA 1908 even otherwise would not arise.
2957. If we take the Issue 7 (Suit-1) as if it only talks of
possession of the property in suit continuously, openly from
1528 to the knowledge of plaintiff, and Hindus in general, and
having no concern with the building, the nature of possession,
whether adverse or otherwise, even then we find that Muslims
have completely failed to prove the same. Except of bare
pleadings, nothing has been brought on record to prove that the
Muslims kept possession of the property in Suit from 1528 and
onwards. The issues pertaining to date of construction have
already been decided by us and we have recorded a finding that
the Muslim parties have failed to prove that the disputed
structure was constructed in 1528. In view of the aforesaid
finding, the question of possession of property in dispute by
Muslims in 1528 even otherwise would not arise. There are a
few published documents, i.e., books which throw some light
2812

about the persons visiting the disputed site between 1528 to
1858. The first one is a Travellers' Account of William Finch
who visited India between 1607 to 1611. Therein neither he
found any such Mosque in the area called fort of Ram Chandra
nor he found any Muslim person visiting that area. Instead he
has mentioned that Hindus visit the place in the belief that it is
the place belong to Lord Rama. This Traveller's Account has
been published by William Foster in his book "Early Travels in
India" (supra) (Book No. 60). At page 176 thereof (Exhibit 19
Suit 5, Register 21 Page 271), William Finch has said:
"the castle built foure hundred yeeres agoe. Heere are also
the ruines of Ranichand(s) castle and houses, which the
Indians acknowled(g)e for the great God, saying that he
tooke flesh upon him to see the tamasha of the world. In
these ruines remayne certaine Bramenes, who record the
names of all such Indians as wash themselves in the river
running thereby; which custome, they say, hath continued
foure Iackes of yeeres ..."
2958. Then comes the Traveller's Account of Father
Joseph Tieffenthaler, who visited Oudh area sometimes between
1766 to 1771. He mentions, Emperor Aurengzebe got the
fortress called Ramcot demolished and got a Muslim temple,
with triple domes, constructed at the same place. Others say that
is was constructed by 'Babor'. Fourteen black stone pillars of 5
span high, which had existed at the site of the fortress, are seen
there. Tieffenthaler did not find any Muslim visiting the said
place which is clearly the place in dispute. Tieffenthelar,
however, has referred to the visit of Hindus and their worship in
the disputed site by going for parikrama thrice and prostrating
on the ground.
2813

2959. Then comes Walter Hamilton's "East India
Gazetteer" (supra) (first published in 1828). On page 353
under heading 'Oude', he says:
"This town is esteemed one of the most sacred places
of antiquity."
Pilgrims resort to this vicinity, where the remains of
the ancient city of Oude, and capital of the great Rama, are
still to be seen; but whatever may have been its former
magnificence it now exhibits nothing but a shapeless mass
of ruins. .... among which are the reputed site of temples
dedicated to Rama, Seeta, his wife, Lakshman, his general,
and Hanimaun (a large monkey), his prime minister. The
religious mendicants who perform the pilgrimage to Oude
are chiefly of the Ramata sect, who walk round the
temples and idols, bathe in the holy pools, and perform the
customary ceremonies."
2960. In 1858 came another "Gazetter" of Edward
Thornton (supra) (Book No. 10) (Exhibit 5, Suit-5). There also
is a mention of building of a Mosque after demolition of a
temple. It also says that the Mosque is embellished with
fourteen columns of only five or six feet in height, but of very
elaborate and tasteful workmanship. It also talks of a
quadrangular coffer of stone, whitewashed, five ells long, four
broad, and protruding five or six inches above ground as the
cradle in which Rama was born as the seventh avatar of Vishnu;
and is accordingly abundantly honoured by the pilgrimages and
devotions of the Hindus. This clearly show the existence of the
Bedi found by Tieffenthaler at the disputed site, reiterated by
Edward Thornton in his Gazetteer published in 1858, and that
the Hindus used to visit the property in suit but there is nothing
2814

to show that at any point of time Namaz was offered by
Muslims and they used to visit it.
2961. There are some documents also and their effect may
be perused hereat. The first document is a letter/application
dated 28th November, 1858 of Sheetal Dubey, Thanedar
(Exhibit-19, Suit-1) (Register -5, page 61) which says as under:
‫غریب پرور سلمت‬
‫خداوندآج کے روز مسمی نہگ سنگھ فقیر خالصہ سییاکن ملییک پنجییاب بیییچ‬
‫مسجد جنم استھان کہ ہون اور پوجا گورگوینیید سیینگھ مقییرر کیییا اور نشییان‬
‫شری بھگوان کہ کھڑا کیا اور پچیس نفرسیکھ بہی واسییطے حفییاظت وقییت‬
‫کہڑا کرنے نشان کہ وہاں پر۔ واجب ت ھا عییرض کیییا ٓافتییاب دولییت اقبییال کییا‬
‫روشن ہو فقط‬
‫عرضی‬
‫ء‬۱۸۵۸ ‫ نومبر‬۲۸ ‫فدوی سیتل دوبے تھانے دار اودہ مورخہ‬
^^xjhc ijoj lyker]
[kqnkoUn vkt ds jkst+ eqlEeh fugax flag Q+d+hj [kkylk lkfdu
eqYd iatkc chp elftn tUe vLFkku ds gou vkSj iwtk xq: xkskfcUn
flag eqdjZj fd;k vkSj fu'kku Jh Hkxoku ds [kM+k fd;k vkSj iPPkhl
uQ+j fl[k Hkh okLrs fgQ+kt+r oD+r [kM+k djus fu'kku ds ogka ij gSaA
okftc Fkk vt+Z fd;kA vkQ+rkc nkSyr bd+cky dk jkS'ku gks [kq'kA
Q+d+r
vthZ
fQ+noh 'khry nqcs Fkkusnkj vo/k eksj[kk 28 uoEcj lu~ 1858 bZ ۰
(Hindi Transliteration)
Gareeb Parwar salamat Khuda wand,
Today Mr. Nihang Singh Faqir Khalsa resident of
Punjab, organised Hawan and Puja of Guru Govind
Singh and erected a symbol of Sri Bhagwan, within the
premises of the Masjid. At the time of pitching the symbol,
25 sikhs were posted there for security. Deemed necessary
so requested. May your regime progress. Pleasure.
2815

Applicant.
Your obedient servant
Sheetal Dubey, Thanedar Oudh
Dated November 28, 1858."

2962. A perusal of the said letter/application shows that it
was a kind of information conveyed by the above police official
seeking instructions for further action but do not show either
that the Muslims were in possession of the property or the
building in dispute or the disputed site or that there used to be
any Namaz therein. But this, however, shows that on the site in
dispute, existence of Mosque is recognised.
2963. The letter dated 30th November, 1858 (Exhibit 20,
Suit-1) (Register 5, page 65) is a complaint made by Syed
Mohd. claiming himself to be a Khateeb (Moazzim Maszid
Babri) at Oudh. The contents of this document have also been
published in a Book which has been placed before us. Exhibit
17 (Suit-5) (Register 20, pages 187-197) contains photocopy of
frontispiece and Annexure-4 from the book "Babri Masjid" by
Syed Shahabuddin Abdurrhman, 3rd Edn. 1987 published at
Azamgarh. It contains contents of a petition of Mohammad
Asgar on 30.11.1858. The typed Hindi transliteration supplied
by the plaintiffs (Suit-5) at page 197 Register 20 (paper no.
107C1/81) reads as under:
^^¼ckcjh efLtn½
tukc vkyh eqd+ke x+kSj dk gS efLtn eqd+ke bcknr eqlyekuku
gS u fd c[ks+ykQ+ ml ds cotsg gquwn dh o lkfcd+ esa d+Cy esa
veynkjh ljdkj eq d +k e tue LFkku dk lngk cjl ds fu'kku
iM+k jgrk Fkk o vgy s gq u wn iwt k djrs Fk sA pcwrjk clkft'k
f'ko xqyke Fkkusnkj vo/k ds cSjkfx;ksa us 'kck'kc esa rk lqnwjs gqDe
ljdkj ds okLrs eqekfu;r ds ukfQt+ gqvk Fkk ccqyUnh ,d okfy'r
rS;kj djk fy;kA ml oD+r lkgsc fMIVh dfe'uj cgknqj us ceksftc
gqDe tukc lkgc dfe'kuj cgknqj ds Fkkusnkj dks ekSdwQ+ fd;k o cSjkxh
2816

ij tqekZuk eqrv;~;u gqvk vc fQ+ygky bl pcwrjs dh Hkh rjoehuu
lok xt+ rS;kj djk fy;k gS bl lwjr ljhg ft;knrh lkfcr gS ysgkt+k
mEehnokj gWwa fd cuke eqjrtk [kka dksroky 'kgj lqnwj gqDe gksos fd
dksroky cp'e [kqn eksvkbZuk djds meqjkr tnhn [kqnok Mkysa o
ejnqeku gquwn dks ckgj efLtn djsa A
lS;~;n eksgEen [k+rhc
eksvfTt+u efLtn ckcjh okd+S vo/k
30 uoEcj 1858 bZ^^
Respected Sir, It is matter of your honour's attention.
Kindly consider the fact that Masjid is a place of worship
of the Muslims and not that of Hindus. Previously the
symbol of Janamasthan had been there for hundreds of
years and Hindus did Puja. Because of conspiracy of Shiv
Ghulam Thandedar Oudh Government, the Bairagis
constructed overnight a Chabutra up to height of one
'Balisht' until the orders of injunction were issued. At that
time the Deputy Commissioner suspended the Thanedar
and fine was imposed on Bairagis. Now the Chabootra has
been raised to about 1¼ yards. Thus sheer high-
handedness has been proved. Therefore it is requested that
Murtaza Khan Kotwal City may be ordered that he himself
visit the spot and inspect the new constructions and get
them demolished (sic) and oust the Hindus from there; the
symbol and the idol may be removed from there and
writing on the walls be washed.".
Sd/- Syed Mohammad Khatib,
Moazzim Masjid Babri sites in Oudh
Dated November 30, 1858." (ETC)
Copy of letter dated 30.11.1858 is Exhibit 20 (Suit-1)
(Register-5 page 65).
2964. This complaint is also in the same line as that of the
2817

letter dated 28th November, 1858 (Ex.-19, Suit 1). It also does
not show that regular Namaz was offered in the disputed
building or disputed site or that the Muslims used to visit
regularly or occasionally treating it a place of worship. On the
contrary, complaint says that the Hindu religious symbols have
been placed inside and for hundreds of years Hindus are
worshipping thereat. This goes against the claim that Namaz
was going on. It proves that no namaz inside at least till 30 th
November, 1858 when the above complaint made or was
offered. Further, at the disputed site, worship by Hindus was
continuing and that too for the last hundreds of years.
2965. Exhibit 21 (Suit-1) (Register 5 page 69-72A) is a
report dated 01.12.1858 submitted by Sheetal Dubey Thanedar
Oudh communicating the order of higher authority to Sant
Nihang Singh, Faqir for leaving the place but receive no reply.
Sheetal Dubey reported what actually transpired. There is
nothing to show that actually the aforesaid/Nihang was evicted
from the disputed site or that symbol of worship etc., he had
created, was removed. It also appear that Sheetal Dubey sought
further instructions from higher authority. To us, this document
also does not help the Muslims to prove their possession at the
disputed site and the building.
2966. Exhibit 22 (Suit-1) (Register 5, page 73) is again a
report dated 6th December, 1858 of Sheetal Dubey informing
that the notice of eviction was served upon Nihang Singh Fakir.
This also does not inform the consequences of such service.
2967. It appears that an order was passed to oust the Fakir
and remove symbol and to arrest him and send to the Court.
Exhibit A-70 (Suit-1) (Register 8, Page 573) is a copy of the
said order dated 15th December, 1858.
2818

‫ عرضییی تھانیییداراودہ دوبییارہ ک ھڑا کرنیے‬۸۸۴ ‫ءمقدمہ‬۵۸ ‫نقل حکم مقدمہ‬
۶ ‫نشییان در مسییجد جنییم اسییتھان ٹیییک سیینگھ فقیییر خالسییہ کییے منفصییلے‬
‫ء‬۱۸۵۸ ‫دسمبرسن‬
‫ نومییبر سیین نییک‬۳۰ ‫آج یک مقدمہ روبکار ہوکہ دریافت ہوا کیہ حسییب حکییم‬
‫فقیرکو جو مسجد بابری میں بیٹھا ہے روانہ کیا۔‬
‫حکم ہواکہ‬
‫پروانہ بنام تھانیدار آودہ کیا جاوے کہ اگر فقیر نہیں آتییاہے تییو اسییکو گرفتییار‬
‫ء‬۵۸ ‫ دسمبر سن‬۵ ‫کرکے روانہ حضور کریں۔‬
‫دستخط حاکم‬
"Copy of the order dated 05.12.58, Suit No.884.
Application Thanedar Oudh for re-erecting the symbol in
the Majid Janam Asthan, Tek Singh Faqir Khalsa.....
(Sic)...decided on December 6, 1858.
In the case was Robekar issued today. It was known
that as per order dated November 30, 1858, the Faqir
sitting in the Masjid Babri be ousted. Parwana to the
Thanedar Oudh with the order ..... (Sic)... that if the
Faqir does not move from there, he should be arrested
and sent to the Court. December 5, 58.
Signature of the officer in English.
Note ............is not legible."
2968. Pursuant thereto Thanedar P.S. Oudh submitted
report i.e. Ex. A-69 (Suit 1) (Register 8 Page 569) on the same
date of its compliance i.e. removal of religious symbol and
ouster of Faqir from the mosque. It says:
‫ عرضیییی‬۸۸۴ ‫ء مقیییدمہ نومیییبر‬۱۸۵۸ ‫ دسیییمبر‬۱۰ ‫نقیییل حکیییم میییورخہ‬
‫تھانیداراودہ دربارہ کھڑا کرنے نشان درمسجد جنییم اسییتھان سیینت ٹیییک‬
ِ ‫سنگھ فقیر خالصہ کے محلہ رام کوٹ )کوٹ رام چندر( منفص‬
‫ دسمبر‬۱۵ ‫ل‬
‫ء‬۱۸۵۸ ‫سن‬
‫آج روبکار ہوا جسمیں جھنڈا مسجد جنم استھان سے اکھاڑا گیا جو فقیییرآ‬
2819

‫کےرہا تھا نکال گیا۔‬
‫حکم ہواکہ‬
‫ء‬۱۸۵۸ ‫ د سمبر‬۱۰ ‫مقدمہ خارج ہوکے داخل دفتر ہو‬
^^udy gqdqe eksj[kk 10 fnlEcj 1858 bZ0 eqdnek ua0 884 vthZ
Fkkuknkj vo/k [kM+k djus fu'kku nj efLtn tUeLFkku lUr Vsd flag
Qdhj [kkylk ds eksgYyk jkedksV dksV jkepUnj equQlyk 15 fnlEcj
1758 vkt jkscdkj gqvk ftlesa >aMk efLtn tUeLFkku ls m[kkM+k x;k
tks Qdhj vkds jgrk Fkk fudkyk x;kA
gqdqe gqvk fd eqdnek [kkfjt gksds nkf[kys nQ~rj gksA**
"Copy of the order dated December 10, 1858 Suit
No.884 on the application of Thanedar Oudh for re-
erecting the symbol within Masjid Janam Sthan. Saint Tek
Singh Faqir, Khalsa, resident of Mohalla Ram Kot, (Kot
Ram Chandra), decided on December 15, 1858. Robekar
issued today in which Jhanda (flag) was uprooted from the
Masjid Janam Asthan and the Faqir residing therein was
ousted. Ordered that the case be consigned to the office.
Dec. 10, 1858."
2969. Exhibit 31 (Suit 1) (Register 5, Page 117-121) is
another application dated 05.11.1860 by Mir Rajab Ali
complaining that a Chabootara and a pillar made within Babari
Masjid Oudh may be removed after due enquiry as it is in
violation of law. However, there is a mention that whenever the
Moazzim calls for Azan, Bairagis create nuisance by blowing
Conch shell. Nothing more is said therein.
2970. Exhibit 54 (Suit-4) (Register 12 page 359) is an
application dated 12th March, 1861 by Mohd. Asghar, Mir
Razab Ali and Mohd. Afzal as Khateeb/Moazzin, Masjid Babri
situated Janam Asthan Oudh stating that some Imkani Singh has
made a Chabutara near Masjid Babri at Janam Asthan Oudh and
despite of order to remove, has not complied the same. There is
2820

nothing to show that there was any compliance even thereafter
and at any point of time later.
2971. It appears that Deputy Commissioner Fyzabad on
18th March 1862 directed to consign the record to office.
2972. There are some further documents i.e. Ex. A-16
(Suit 1) (Register 7, page 185-191); Ex. A-14 (Suit 1) (Register
7 Page 181); Ex. A-17 (Suit 1) (Register 7 page 193-197)
regarding the grant of village Bahooranpur and Sholapuri in lieu
of the cash grant of Rs.302 and 3 and a half anna for
maintaining the mosque subject to showing a conduct of peace
and to perform all duties of landholders in matter of police and
political service as required by them by the authorities and not
to favour in any way the enemies of British Government. It
appears that the three persons were more interested in obtaining
the land grant and the building in dispute was used by them as
object for such gain cover but no document shows that at any
point of time either the Muslims attended the mosque to offer
Namaz therein till then or that even those persons who were
alleging or representing themselves as Khatib or Mutwalli of the
mosque ever made any arrangement for ensuring offering of
Namaz by Muslims therein.
2973. Exhibit A-13 (Suit-1) (Register 6 page 173) is an
application dated 25.09.1866 by Mohd. Afzal Mutwalli Masjid
Babri situated at Oudh complaining about a Kothari constructed
by some Bairagis and that they are also trying to built a temple
near mosque. The request was made to stop them and remove
construction already made.
2974. The above complaint was made by Mohd. Afzal
though earlier only Mohd. Asgar and Mir Rajab Ali has claimed
themselves to be Mutwalli of the said mosque and obtained
2821

grant in their name. How and in what manner Mohd. Afjal
became Mutwalli is not known.
2975. Exhibit 29 (Suit-1) (Register 5, page 105) dated 12th
October, 1866 is an order of Deputy Commissioner, Faizabad on
the complaint of Mohd. Afzal against Tulsidas and others
directing consignment of record to office.
2976. It appears that Mohd. Asgar as Khatib and Mohd.
Afjal as Muazzim Masjid Babari moved an application dated
22nd February, 1870 stating their claim on 21 trees of Imli on the
ground that Masjid Babari situtated at Janam Asthan is ancestral
and under the possession of them since ancient times hence a
decree be issued in respect to graveyard and Imli trees in their
favour.
2977. By order dated 22nd August, 1871 Exhibit 25 (Suit
1) (Register 5 page 87) the claim of Mohd. Asgar about
ownership of graveyard was rejected but regarding the tamarind
trees, his claim was allowed.
2978. Exhibit 30 (Suit 1) (Register 5 page 107) is a memo
of appeal no. 56 filed against the order dated 3rd April 1877 of
Deputy Commissioner Faizabad whereby he had granted
permission to Hindus to open a new door in the northern outer
wall of the disputed building. It was complained that the wall
being that of the mosque, this alternation could not have been
allowed to Hindus. It also complained that on 7th November,
1873 Mahant Baldev Das was ordered to remove idol i.e.
Charan Paduka but has failed to comply. Hence permission to
open a door in the wall of Masjid Babari could not have been
given to him. He also complained of making of a "Chulha" in
the compound for Puja by Baldeo Dass Bairagi and request was
made for removal of this new construction.
2822

2979. Exhibit 15 (Suit 1) (Register 5 page 41-43) is a
report submitted by the Deputy Commissioner on the appeal of
Mohd. Asgar permitting opening of a door on the northern outer
wall of the disputed building. He treated outer compound i.e. the
outer courtyard as Janam Asthan and the disputed building
inside the grilled partition wall as mosque and said that for the
convenience of visitors to Janam Asthan and rush on fair days,
the said opening was allowed in public interest. He also declared
attempt of Mohd. Asgar lacking bona fide.
2980. Mohd. Asgar filed suit no.374/943 Exhibit 24 (Suit
1) (Register 5 page 83-85) claiming rent against user of
Chabutara and Takhat near the door of Babari Masjid for
organizing Kartik Mela at the occasion of Ram Navmi regarding
1288-1289 Fasli. It shows that in the courtyard and Chabutara,
since ancient times, Mela Kartiki and Ram Navmi was being
organized. This suit was dismissed on 18th June, 1883.
2981. An application dated 2nd November, 1883, Exhibit
18 (Suit 1) (Register 5 Page 55) was submitted by Mohd. Asgar
as Mutwalli Masjid Babari claiming that he is entitled to get the
wall of mosque whitewashed but is being obstructed by
Raghubar Das though he has right only to the extent of
Chabutara and Rasoi.
2982. The Assistant Commissioner thereafter passed the
following order on 22nd January, 1884 Exhibit 27 (Suit 1)
(Register 5 Page 95):
۱۹۴۳۵ ‫ء مقدمہ نمبر‬۱۸۸۴ ‫ جنوری‬۲۲ ‫نقل فرد منفصیلہ احکام مورخہ‬
‫ء اجلسی جناب اسیسٹینٹ‬۱۸۸۴ ‫ جنوری‬۲۲ ‫واقع جنم استھان اودہ‬
‫کمیشنر صاحب ہبادر فیض آباد‬
‫سید محمد اصغر‬
‫بنام‬
2823

‫رگہوبر داس‬
‫آج مقدمہ بحاضری فریقین پیش ہوا فریقین کو حکم صاحب ڈپٹی‬
‫کمیشنربہادر سے اطلع دی گی اور رگہوبر داس کو فہماش کی گی کہ‬
‫اندرونی و بیرونی احاطہ و دروازہ مسجد کی مرمت وغیرہ نہ کریں اور‬
‫محمد اصغر کو سمجھا دیا گیا کہ بیرونی دروازہ قفل نہ لگایا جاوے یہ‬
‫مناسب ضروری ہے کہ عمل درامد قدیم بحال رکھا جاے اور کوءی دستہ‬
‫اندازی و مداخلت نہ کہ جاو۔‬
‫حکم ہوا کہ‬
‫ء‬۸۴ ‫ جنوری‬۲۲ ‫کاغذات ہذا داخل دفتر ہو المرقوم‬
^^udy QnZ vgdke eksj[kk 22 tuojh 1884 bZ0 eqdnek ua0 19435
okds tUe LFkku vo/k equQlyk 22 tuojh 1884 bZ0 btyklh tukc
vflLVsUV dfe'uj lkgc cgknqj QStkckn
lS;~;n eqgEen vlxj cuke j?kqcj nkl
vkt eqdnek cgkftjh QjhdSu is'k gqvk QjhdSu dks gqDe lkgc fMIVh
dfe'uj ls bfRryk nh xbZ vkSj j?kqcj nkl ds Qgekb'k dh xbZ fd
vUn:uh o cs:uh vgkrk o njoktk elftn dh ejEer oxSjg u djs
vkSj eqgEen vlxj dks le>k fn;k x;k fd ckgjh njoktk dqQ~y u
yxk;k tkosa ;g fugk;r t:jh gS fd vey njken dnhe cgky j[kk
tkos vkSj dksbZ nLr vUnkth u enk[kyr u dh tkosA
gqDe gqvk fd
dkxtkr gktk nkf[ky nQ~ r j gk s vRejdwe
22 tuojh 84 bZ0^^
"Copy of the order sheet dated January 22, 1884 in case
no. 19435-Janamsthan, Judgement dated January 22,
1884, Ijlasi Janab Assistant Commissioner Sahab Bahadur
Faizabad.
Syed Mohd. Asghar vs. Raghubar Das.
Today the case was called out in presence of the
parties. As per orders of the Deputy Commissioner, parties
were informed accordingly. Raghubar Das was restrained
from carrying out repairs etc in the internal and outer part
2824

of the compound and Mohd. Asghar was advised not to
lock the outer door of the mosque. It is necessary that the
old existing orders be observed and complied with and
there should be no interference in it.
Order.
All the papers be consigned.
Dated January 22, 84.
Sd/- English."
2983. Raghubar Das made a complaint dated 27.06.1884
Exhibit 28 (Suit 1) (Register 5 Page 99-101) to the Assistant
Commissioner requesting him to make spot inspection since the
Muslims were violating the order of desisting from
whitewashing the wall.
2984. Then comes the admitted litigation (mentioned in
written statement) relied by the defendant Muslim parties
heavily, i.e., 1885 Suit which also says that in the outer
courtyard there existed Ram Chabutara, Sita Rasoi and the
same visited by Hindus but there is not even a whisper that the
Muslims at any point of time visited the disputed site and
offered Namaz.
2985. In order to find out whether the words or phrases
used by the parties in the plaint amounts to admission or not one
has to find out whether the assertion is clear and unambiguous
or it is sometimes a loose expression due to the reason of
draftman casualness or otherwise. In Mohd. Shah Vs.
Fasihuddin Ansari (supra) while observing that the assertions
of one Gulab were nothing but loose expression, the Court
observed:
"Inadvertent expressions of dubious and ambiguous
meaning cannot be twisted into admissions against the
maker's interest when the surrounding circumstances
indicate that he had been consistently asserting the
2825

contrary over a series of years. Something stronger than
that would be required. Had the assertions been clear and
unambiguous the matter would have been different but
"Imambara mosque compound" is anything but
clear."(Para 33)
2986. It is true that P. Carnegy in his book "Historical
Sketch" (supra) has mentioned in detail about Ramkot and
thereafter he has dealt with the disputed place on pages 20 and
21. Under the heading "Hindu Muslim Differences", he has said:
"The Janmasthan is within a few hundred paces of the
Hanuman Garhi. In 1855, when a great rupture took place
between the Hindus and Muhammadans, the former
occupied the Hanuman Garhi in force, while the
Musalmans took possession of the Janmasthan......The
Hindus then followed up this success, and at the third
attempt took the Janmasthan, at the gate of which 75
Mahomedans are buried in the "Martyrs' grave" (Ganj-
Shahid.) ..... It is said that up to that time the Hindus
and Mahomedans alike used to worship in the mosque-
temple. Since British rule a railing has been put up to
prevent disputes, within which, in the mosque, the
Mahomedans pray; while outside the fence the Hindus
have raised a platform on which they make their
offerings.
2987. This report was published in 1870. If we consider
the above observations of P. Carnegy in the light of the
documents placed on record of the corresponding period, i.e.,
1858 to 1885 as discussed above, we find that till 1885 the
property in dispute remained in possession of Hindus in which
they continued to visit for worship. In the alleged riot of 1855
2826

temporarily Muslims took possession but thereafter the Hindus
regained it. Then the British authorities tried to resolve dispute
by creating a dividing wall sometimes in 1856-57 but it is
evident from the report of 28th November, 1858 and complaint
dated 30th November, 1858 (Exhibit 20, Suit-1) (Register 5,
page 65), that despite grilled dividing wall erected by the
British authorities restraining Hindus from entering the inner
courtyard, worship by Hindus in the inner courtyard continued
against which complaints were made frequently. Sometimes
when they made some new structure for worship, orders were
passed for removal thereof but whether all such orders were
executed, is not known. Amongst all these things, one thing
which we find missing is mention of Namaz or possession of by
Muslims of the disputed building and/or the property in dispute.
2988. Even if we assume some truth in what has been said
by P. Carnegy, it does not mean that the property in dispute
(inner courtyard) was in possession of any particular community
or individual. It shows on the contrary that both Hindus and
muslims, freely, frequently and openly were visiting the place in
dispute for worship and that being so this itself belie the claim
of muslim parties in this suit necessitating answer of the issue in
question in negative, i.e., against the defendants.
2989. The issue in question needs to be answered whether
the muslims being in possession of the property in suit from
1528 AD continuously, openly and to the knowledge of plaintiff
and Hindus in general and if so its effect. Therefore, in order to
get answer of this issue in favour of the defendants at whose
pleading it has been framed, unless it is shown by cogent
material that the muslims came into possession of the property
in suit in 1528 AD, they cannot succeed. As we have already
2827

held while discussing issues relating to period of construction,
this itself could not have been proved that the building in
dispute was constructed in 1528 AD, the question of possession
of property in suit in 1528 AD would not arise. No material to
show possession of muslims from 1528 AD atleast till 1855 is
on record. When the first aspect itself is not proved, the further
occasion to suggest that such imaginary possession was
continuous, open, to the knowledge of the plaintiff does not
arise. Moreover the plaintiff could not have the knowledge of
the possession of muslims from 1528 AD since he claimed to be
a mere worshipper at the property in dispute and on this aspect
also the defendants muslim parties have failed to discharge their
burden. The knowledge and opinion need be qua real owner. No
such owner is pleaded. It is suggested that since a lot of
complaints etc. were made by Rajjab Ali and Mohammad
Asghar since November 1858 and onwards, and they were also
sanctioned grant by the British Government for maintenance of
the mosque in respect whereto no Hindu party raised any
objection, hence by the conduct of Hindus, a presumption can
be drawn that the muslims were in possession of the property
since very beginning.
2990. The conduct of the parties, though is a relevant fact,
but in a title suit cannot succeed simply by referring to one or
the other party, but one has to prove his own case. In M/s
Kamakshi Builders (supra) the Court said:
"24. . . . . Conduct may be a relevant fact, so as to apply the
procedural law like estoppel, waiver or acquiescence, but
thereby no title can be conferred.
25. It is now well-settled that time creates title.
26. Acquisition of a title is an inference of law arising
2828

out of certain set of facts. If in law, a person does not
acquire title, the same cannot be vested only by reason of
acquiescence or estoppel on the part of other.
28. . . . by reason of presumption alone, the burden is not
discharged, a title is not created.
29. A claim of title by prescription by Respondent No. 1
again is not tenable. It based its claim on a title. It had,
therefore, prima facie, no animus possidendi."
2991. Neither the conduct of the plaintiff or other Hindu
parties can help the defendants nor in the absence of any
evidence to show entry of muslims in property in suit from 1528
AD, we find an occasion to decide issue in question in
affirmance. Though not specifically worded but the ingredients
mentioned in issue 7 (Suit-1) reflects to the claim of adverse
possession taken by the defendants muslim parties (Suit-1). We
have no hesitation in holding that such a claim has not been
proved at all.
2992. In order to set up a claim based on adverse
possession, it is incumbent upon the person who has set up this
plea to prove that:
(1) So and so is the owner of the property.
(2) The defendant is possessing the property from a
particular date.
(3) The possession is to the knowledge of the owner,
hostile, continuous, exclusive, uninterrupted and peaceful
with an intention of possession i.e. animus possidendi.
(4) The possession has continued for twelve years and
more and, therefore, the title of owner stands extinguished
creating a title by prescription in such defendant.
2993. Though there are some documents showing the
2829

account statements of the Mosque in dispute but the fact
remains that the defendants have completely failed to discharge
burden of proof even prima facie of the facts as pleaded by them
so as to succeed on this issue. Issue No. 7 (Suit-1) is,
accordingly, decided in negative i.e. against the defendant-
Muslim parties.
2994. Now coming to Issue No. 3 (Suit-3), it has to be
kept in mind that this suit is also confined to the premises within
the inner courtyard and not to the entire premises, i.e., the outer
and inner courtyard including the building. This is what stated
by the counsel for Nirmohi Akhara in his statement made on
17.5.1963 under Order X Rule 1 CPC.
2995. Sri Sarabjeet Lal, Advocate, counsel for the plaintiff
Suit-3) on 17th May, 1963 got his statement recorded and
besides other said:
"The present suit is confined to property shown by letters E
F G H I J K L although the entire area shown by letters E
F G H P N M L E belongs to the plaintiff."
2996. He also stated that the plaintiffs are the owner of the
property in dispute and further said:
"This property is not dedicated to the idol although the
temple is made on the land which is the birth place of
Lord Ram. It is owned by the plaintiff and the temple was
made by the plaintiff."
2997. There is no averment in the entire plaint that any of
the defendant is the owner of the property in dispute, that the
plaintiffs are having possession of the said property in the
knowledge of the true owner, with an intention to possess it
adversely, i.e., hostile possession, continuous and peaceful.
What is said in para 5, if the muslims attempted to prove that
2830

they have ever entered it, it would be wrong, they have not been
allowed to enter it atleast ever since the year 1934. The basic
pleadings to claim adverse possession and necessary ingredients
are ex facie absent. Mere long possession does not constitute
adverse possession [See S.M. Karim Vs. Mst. Bibi Sakina
(supra)].
2998. As already discussed above in detail in order to set
up and succeed on a plea of adverse possession, one has to show
as to who is the true owner, the date from which he is
possessing the property, the knowledge of the true owner of
such possession as also that the possession is hostile and the
possessor has intention to hold possession denying the title of
the true owner or in defiance of the right of the true owner. The
possession is continuous, uninterrupted, peaceful and has
continued for more than 12 years. The entire plaint is
conspicuously missing of all the above kind of pleadings, in the
absence whereof, the plea of adverse possession cannot succeed.
2999. Moreover the statement of the plaintiff's counsel is
that the property is owned by the plaintiff; the temple is made
by the plaintiffs, hence question of holding property in dispute
in a hostile possession, against true owner, does not arise. It also
show that the plaintiffs (Suit-3) had no animus possidendi. That
is completely absent. In the absence of pleadings, though no
evidence is admissible, but we may add at this stage that no
document whatsoever to support the necessary ingredients of
adverse possession even otherwise had been placed on record by
the plaintiffs (Suit-3). Most of the evidence is in respect to the
structures which are in the outer courtyard and the right and
possession of the plaintiffs on the said property in the last
several decades. But so far as the inner courtyard is concerned,
2831

only oral evidence has been produced and the attempt also had
been to show that they use to visit the premises in the inner
courtyard to offer worship of Ram Lala's idol thereat and that
Pujaris of Nirmohi Akhara used to perform Sewa thereat. We
have discussed these witnesses and it has been demonstrated
that virtually all of them on this aspect lack creditworthiness,
hence unreliable.
3000. A lot of documentary evidences have also been filed
by the plaintiff (Suit-3) in support of his claim for possession,
but we find that the same do not help the plaintiff (Suit-3) for
throwing light in respect to the premises within inner courtyard.
Most of the documents are of the period subsequent to the date
of attachment and they are concerned with the premises in outer
courtyard. These are:
(A) Exhibit M1 (Suit-4) (Register Vol. 17, page 7) is a
copy of the application dated 11.06.1956 of Abhiram Das
addressed to Additional District Magistrate, Faizabad in
Case No. 58/73 seeking his permission for change of
thatch.
(B) Exhibit M2 (Suit-4) (Register Vol. 17, page 9) is a
copy of the order dated 26.06.1956 passed by the
Additional District Magistrate, Faizabad to the following
effect:
"S.O. Ayodhya
There is no objection if the thatch is repaired.
Please inform the applicant."
(C) Exhibit M3 (Suit-4) (Register Vol. 17, page 11) is a
copy of the application dated 21.12.1962 by Abhiram Das
addressed to the City Magistrate, Faizabad seeking
permission of celebrating anniversary from 21s to 29th
2832

December, 1962 in the disputed site.
(D) Exhibit M4 (Suit-4) (Register Vol. 17, page 13) is a
copy of the report of Sri Priya Dutt Ram, Receiver of the
disputed premises addressed to the City Magistrate,
Faizabad and it reads as under:
"I am connected with only the premises under
dispute within the railings and the walls on the so-
called Anniversary Day, only two vedic Pundits enter
it, and perform HAWAN on a temporary clay after,
and the same should be allowed this year as well.
As far as function outside the premises, they
have no concern with me.
Of course, it is in my knowledge that on so-
called Anniversary Day, some functions were
organized by Sri Abhiram Dass and also by the
Janambhumi Sewa Samity for the last five years, I
have been out of Faizabad."
(E) Exhibit M5 (Suit-4) (Register Vol. 17, page 15) is a
copy of the order dated 21.12.1962 passed by the District
Magistrate, Faizabad allowing the applicant Abhiram Das
to hold the Ramayan Path and religious ceremonies in the
ground of Janambhumi temple from 21st to 29th December,
1962.
(F) Exhibit M6 (Suit-4) (Register Vol. 17, page 17) is a
copy of the order dated 26.12.1962 of Sri S.N. Sharma,
the then City Magistrate, Faizabad on an application filed
by Sri Abhiram Das directing S.O. Ayodhya to take steps
for maintaining law and order in the observance of
religious function by Sri Abhiram Das in the ground of
Janambhumi temple and one Baba Baldev Das at Sumitra
2833

Bhawan and to prevent any disturbance from Baba Baldev
Das at the Janambhumi temple site.
(G) Exhibit M7 (Suit-4) (Register Vol. 17, page 29) is a
copy of Khatauni 1374 Fasli which has been filed to show
that some land was gifted by worshipper in the name of
Janambhumi Ayodhya in respect whereto the entries were
made in khatauni in December, 1967. The aforesaid land
situate at Tahsil Navabganj, District Kunda.
(H) Exhibit 2 (Suit-3) (Register Vol. 9, page 49) is a copy
of the order dated 9.2.1961 of City Magistrate, Faizabad
permitting replacement of the covers or sirki covers by the
sheets on the applicant's own land uncovered by
attachment provided it is in accordance with the laws of
Municipality. Sri R.L. Verma submitted that this shows
continue possession of plaintiff (Suit-3) on the disputed
land but we do not find anything to fortify the above
submission in the above document and in our view it is
not relevant for the purpose of suit in question.
(I) Exhibit 3 (Suit-3) (Register Vol. 9, page 51) is a copy
of some certificate issued by Municipality Board,
Faizabad. The document is torn and the handwriting part
therein is illegible. In our view, such a document cannot
be relied or accepted for any purpose. In any case, one of
the remark contained therein is as under:
"(3) There will arise no right of ownership over
the land from this certificate on which permission is
granted to build the house or building but the
applicant himself will be responsible of all sort of
dispute whatever may arise in respect of title."
This remark is self speaking and, therefore, lends no
2834

credence to the plaintiffs (Suit-3).
(J) Exhibit 4 (Suit-3) (Register Vol. 9, page 53-57)
contains two copies of the Architect's map and a
certificate no. 397 dated 6th September 1963 of Executive
Officer, Municipal Board, Faizabad for the period
25.3.1964 to 24.3.1965 permitting some construction
pertaining to tin shed. It is sought to argue that since Ram
Chabutara was in the possession of the plaintiff (Suit-3),
they were also permitted to make construction thereon by
Municipal Board, Ayodhya. In any case, it pertains to
outer courtyard.
(K) Exhibit 5 (Suit-3) (Register Vol. 9, page 59) is a copy
of the letter dated 6.2.1961 submitted by Vedanti Rajaram
Chandracharya to the City Magistrate, Faizabad
complaining that they have been permitted by Nagar
Palika, Faizabad to place a tin shed on the outer side of
Janambhumi but the Police is preventing it and says that
they have no authority. Therefore, the Police may be
directed not to create any obstruction in the said function.
(L) Exhibit 6 (Suit-3) (Register Vol. 9, page 61-64) is a
copy of the application dated 27.9.1950/29.12.1950
against the order passed by the City Magistrate under
Section 145 Cr.P.C.
(M) Exhibit 7 (Suit-3) (Register Vol. 9, page 65-67) is a
copy of the order dated 30.7.1953 passed by Sri Prem
Shankar, City Magistrate, Faizabad for consigning record
of 145 Cr.P.C. proceeding since the civil suit was already
pending and, therefore, he directed that subject to further
orders in those matter or when the temporary injunction is
vacated till then the proceedings are being consigned to
2835

record.
3001. Some documents of an earlier period have also been
filed but they also show an arrangement made by the plaintiff
(Suit-3) outside the inner courtyard rather outside the premises
in dispute and, therefore, do not help the plaintiff (Suit-3) for
deciding the issue in question in their favour. These are:
(A) Exhibit 8 (Suit-3) (Register Vol. 9, page 69) is a copy
of the agreement permitting Jhingoo son of Gaya for
providing drinking water to the pilgrimages visiting
Ramjanambhumi site at Ayodhya. It is said to be written
on 11.6.1900.
(B) Exhibit 9 (Suit-3) (Register Vol. 9, page 73-75) is a
copy of agreement of Theka Shop of Janambhumi Ramkot
Ayodhya by Gopal son of Babu in favour of Narottamdas
on 13.10.1942.
(C) Exhibit 10 (Suit-3) (Register Vol. 9, page 77-79) is a
copy of the agreement dated 29.10.1945 regarding Theka
Shop in favour of Narottamdas.
(D) Exhibit 12 (Suit-3) (Register Vol. 9, page 93 to 99) is
a copy of the judgment dated 22.10.1923 of Additional
Subordinate Judge, Faizabad in Appeal No. 10 of 1923
Mahant Narottamdas Vs. Ramswaroop Das. It appears that
a suit claiming possession over a plot no. 163 measuring 2
bigha 2 biswa was raised but the said suit was dismissed
by the Trial Court vide judgment dated 22.10.1923. It is
unrelated with disputed site. The order of the Court said as
under:
"Judgment
The applt as Mahant & manager of the temple
Janam Asthan alias Janam Bhumi, Akhara Nirmohi
2836

situat in M. Kot Ramchandar, Ajudhya sued the
respdt in the Court of the Munsif of Fyzabad for the
recovery of possession of 3 bis. 17 bisw. land out of a
plot no. 163 measuring 2 big 3 bis situate in M. Kot
Ramchandar, Ajudhya Parg. Haweli Oudh on the
allegations that he was the owner for the said plot as
being in possession of the same since a long time.
That in Dec. 1921 the deft wrongfully dispossessed
the plff appt out of the aforesaid land in building A
compound with a chabutra (platform) thereon. Hence
the suit.
The respdt admitted the building of a
compound & chabutra on the plot in question but
denied the claim. He pleaded that the applt had no
right in the land in suit nor had he ever been in
possession of the same. That the land in suit
appertained to the temple of Mast Ram as its
sahan. That it belonged to Mast Ram, who was in
possession of the same. That Bhagwan Das & Gopal
Das chelas of Mahant Mast Ram gave the land in suit
to Bhagwan Das Udasi chela of Mahanta Madho
Ramji by a registered deed dated 25th Oct.. 1892.
That Bhagwan Das Udasi gave the land in suit to
Narayan Das by a registered deed dated 11th
January, 1896. That (Narayan Das) on the death of
Narayan Das, the deft as his chela was in possession
of the land in suit. That the deft & his predecessors in
interest had been in adverse proprietary possession
of the land in suit for the last 30 years. That the claim
was barred by time & plff had not right to sue. The
2837

plff applt in his replication said that the land in suit
marked red in the plan drawn by the amin appointed
for the purpose was all along parti land till the deft
made the chabutra in dispute. That the land in suit
belonged to the nazul and the plff or mahant of the
Janam Ashthan & his predecessors had all along
been in possession and in leased his title on
possession. That no lease from the nazul had been
taken. The deft denied the land in suit to have ever
belonged to the nazul department. The learned
Munsif dismissed the claim. The plff has preferred
this appeal on various grounds taken in the
memorandum of appeal. Now the main point for
determination in this appeal is whether the plff has
been in possession of the land in suit for a long time
and as such is he entitled to recover possession from
the deft.
It is admitted by the plff that the land in suit
belongs to the nazul & that no lease has been
taken from the nazul. The deft is admittedly now in
possession of the land in suit. Under these
circumstances the plff cannot sue the deft for
possession, because possession is, in general, a
good title against all but the true owner, i.e. the
nazul Department.
Again it is admitted by the plff in his
replication that the land in suit was all along parti
land till the deft made the chabutra in dispute. Now
the land in suit bring admittedly parti land, the plff
cannot acquire any right in it by placing a takht on it
2838

as he swear. The deft, therefore, who is in
possession, may not have an indefeasible right as
against the nazul, has yet a better right than the plff
& therefore he may set up the right of the nazul with
land in suit in order to disprove that of the plff.
Besides the plff evidence goes to show that his
lessee used to keep their shops just in front of the
Janam Ashthan gate (vide evidence of PW1).
Assuming that the plff was in possession of any
portion of the plot no. 163 by leasing the same to the
sellers of flowers & batashas he cannot be in
possession of the land in suit thereby, because the
front of the Janam Ashthan is a long way off the land
in suit as is shown by the amin's plan inasmuch as it
has been held that a wrong-two rights by adverse
possession must be confined to the land of which he
is in actual possession. The plff has not been proved
to be in actual possession of the land in suit. It may
be in actual possession of a portion of the plot no.
163 on portion of which is the land in suit, just in
front of the Janam Ashthan gate, but the land in suit
far off the front of the said gate. Hence his rights
be confined to the portion of the plot no. 163 just
in front of the Janam Ashthan gate & not to the
land in suit. Under these circumstances I am of
opinion that this appeal must fail. I therefore
dismissing the appeal with costs confirm the decree
of the Court below. Order 41 rule 30 C.P.C.
22/10/23 Mahmud Hussain"
3002. There are some other documents which, in our view,
2839

cannot be considered as an evidence in favour of the plaintiff
(Suit-3) i.e. Exhibit 1 (Suit-3) (Register Vol. 9, page 15-47),
being a copy of the agreement said to be executed by Panches of
Nirmohi Akhara on 19.3.1949 duly registered in Sub-Registrar's
office, Faizabad. This lays down about the constitution,
functioning etc. of Nirmohi Akhara.
3003. Whatever is stated in the above document is
something to which the defendants are not party at all and,
therefore, on the question of title or possession, the above
document, in our view, is not relevant.
3004. Some documents have been filed to show that the
land in dispute was recorded in revenue records as Nazul land
and the name of Mahant of plaintiff (Suit-3), i.e. Mahant
Raghubar Das was directed to be entered showing that he was in
possession of the entire property in dispute, which are:
(A) Exhibit 11 (Suit-3) (Register Vol. 9, page 89) is a
copy of the Nazul department's certificate dated 30.10.22
stating that the land belong to Nazul and the plaintiff as
Mahant of Janamsthan and his predecessors have all along
been in possession and he has title or possession.
(B) Exhibit 52 (Suit-4) (Register Vol. 12, page 347 to
352) is a certified copy of the Khasra abadi of Mauza
Ramkot, Ayodhya 1931 AD issued by Nazul Office,
Faizabad in February, 1990.
(C) Exhibit 49 (Suit-4) (Register Vol. 11, page 271 to
329) is the copy of the nakal khasra Abadi, Kot Ram
Chandra, pergana Haveli Awadh, Tahasil and District
Faizabad of 1931 A.D. of nazul register. At page 311, the
Hindi transliteration of the aforesaid Exhibit, original
whereof is in Urdu, the entry of plot 583 is as under :
2840

^^uke egy ¼1½ % efLtn vgns 'kkgh
uEcj vkjkth ¼2@1½ % 583
jdck tnhn ¼2@2½ % 305@ 9 fc0 15 fclokalh 4 dN0
uEcj lkfcd ¼3@1½ % vkcknh 444
jdck lkfcd ¼3@2½ % 7 fc0 11 fclokalh 14 dN0
uke ekfyd vkyk ¼4½ % &
uke ekrgrnkj vxj dksbZ gks ¼5½ % &
uke dkfct gky ¼6½ % efLtn oDQ vgns 'kkgh
fdLe ¼7½ % elkftn
jdck ¼8½ % 9 fc0 15 fclokalh 4 dN0
vfyQ cvnk;s yxku ¼2½ fcyk yxku ¼9½ %
ctfj;s fefly uEcjh 427 ua0 6@ 47
jk;xat equQlyk 26 Qjojh lu~ 41 bZ0
nkf[ky [kkfjt cuke egUr jÄqukFk nkl
egUr tue LFkku eqdjZj fd;s x;s
ctk;s jkepju nkl
n0dk0
14-6-41
d.Mgy ¼10½ %
nLr vankth ¼11½ %
eqjyl e; rkjh[k ¼12½ %
jdck ¼13½ %
yxku ¼14½ %
[ksr uEcjh ¼15½ %
dSfQ;y ¼16½ %& efLtn iks[rk oD+Q+ vgns 'kkgh vUnj lgu
efLtn ,d pcwrjk ¼viBuh;½ tks tueHkwfe ds
uke ls e'kgwj gS nj[rku xwyj ,d beyh ,d
ewyfljh ,d] ihiy ,d] csy ,d ¼viBuh;½
efLtn ekSlwek 'kkg ckcj 'kkg ejgwe^^
(Note : Though the original document is horizontal,
but for the purpose of convenience, it has been typed
vertically.)
2841

On page 331, Nazul khasra map's copy has also been filed,
which is part of the Exhibit 49.
3005. It is no doubt true and also admitted by the parties
that the land in dispute commencing from the first settlement of
1861 AD has been mentioned as Nazul and there is no change in
its status. It is also evident from Exhibit-49 (Suit-4) that in plot
no. 583 and the area mentioned therein, name of Mahant
Raghubar Das was directed to be mutated in place of Ram
Charan Das by order dated 6th February, 1941 but this by itself,
in our view, would not be conclusive evidence to show that the
entire property possessed by plaintiff (Suit-3), particularly when
the details of property in respect whereto the mutation was
observed is also mentioned in Clause 16 which refers to the
construction in outer courtyard and even outside the premises in
dispute.
3006. There is an Auditor's report, i.e., Exhibit 32 (Suit-4)
(Register 11 Page 177) for the period 1947-48, but that
document, in our view does not help the plaintiff (Suit-3) for
adjudication of the issues in question.
3007. A copy of the F.I.R. Dated 23rd December 1949 has
been filed by the plaintiff which shows the placement of idols
inside the inner courtyard and it goes against the plaintiff.
Exhibit 51 (Suit-4) (Register Vol. 12, page 337 to 338) is a
copy of the FIR No. 167 dated 23rd December 1949 under
Sections 147, 295, 448 I.P.C. alleging the placement of idols
under the central dome of the disputed building in the night of
22/23.12.1949. The FIR was registered on the information given
by Pandit Ramdev Dubey, Sub-Inspector, In-charge Police
Station, Ayodhya, District Faizabad.
3008. Showing the system and functioning of Nirmohi
2842

Akhara, a document has been filed by the plaintiff (Suit-3)
which, in our view, is not relevant at all, i.e. Exhibit 80 (Suit-4)
(Register Vol. 16, pages 59-64) which is photocopy of the title
page, introduction and pages no. 1 to 6 of "Srimaddev Murari Ji
Ki Jeevani Tatha Sri Guru Parampara Prakash" 1994 Edn. by Sri
Ram Tahal Das Ji. Page 5 of this work shows that in Samvat
1729 (1672AD) Sri Balanand Ji established Akharas.
3009. The defendants, on the contrary, have filed certain
documents, which are also of subsequent period, i.e, post 1950
to show that plaintiff could not have been in possession of the
inner courtyard as they could enter the same with the permission
of Receiver only.
3010. Exhibit A-12 (Suit-4) (Register Vol. 16, pages 120-
123) is a copy of the statement of Sri Abhiram Das dated
18.3.1978 recorded by District Judge, Faizabad and para 3
thereof reads as under:
^3-- tUe Hkwfe efUnj esa iwtk iqtkjh djrk Fkk eU= vkSj cksyrk FkkA
eU= cksyus okys dk uke y{e.k nRr 'kkluh iq= vfEcdk ikaMs gS tks
;gkWa vnkyr esa [kM+s gSaA ogkWa 'kq: esa ckcw fiz;k nRr jke dh fu;qfDr esa
iqtkjh Fkk fof"Vkn~;= 'kSyh ds eryc gS fd ge Hkxoku dh iwtk ds
le; Hkxoku] ek;k vkSj tho rhuksa dh Hkkouk dh tkrh gS vkSj oSfnd
eU= cksyrs gSaA vkSj Hkxoku ds Luku ls ysdj lksyg izdkj dh iwtk
gksrh gS ;g iwtk ,d vkneh }kjk ugha gks ldrhA vxj iqtkjh dks eU=
ekywe gS rks oDr iM+us ij ogh iwtk dj ldrk gSA efUnj ds vUnj
iz o s' k djus ds fy;s ijeh'ku dk vf/kdkj ckcw fiz ; k nRr
jke dk s FkkA**
3011. After attachment, the Receiver took charge and
obviously thereafter none could have entered the attached
portion without permission of Receiver or the Court.
3012. Some further documents filed by the defendants,
which, in our view, not relevant, are:
2843

(A) Exhibit A-14 (Suit-4) (Register Vol. 16, pages 143-
146) is a certified copy of objection dated 16.7.1982 of Sri
Dharam Das filed before Additional District Magistrate
(Administration/Nazul Officer) Faizabad in mutation
proceeding no. 101/133/26/866. It was mentioned therein
that there is a public temple in the disputed premises
where the existing temple was constructed about 450 years
ago at the commencement of Mughal emperor and since
then, it is a subject matter of dispute between Hindus and
Muslims. Rest of the part is not relevant for our purposes.
(B) Exhibit A-15 (Suit-4) (Register Vol. 16, pages 150-
153) is a copy of affidavit dated 16.7.1982 of Dharam Das
before the Nazul Officer, Faizabad in mutation
proceeding. It is almost a true copy of Exhibit A-14.
(C) Exhibit A-3 (Suit-4) (Register Vol. 16, pages 136-
142) is a certified copy of FIR against Dharam Das under
Section 395 I.P.C. in Case Crime No. 87 dated 17.2.1982.
We, however, find no relevance of the said document with
the issue in question.
3013. There are some documents, which contain some
judgements etc. of criminal proceedings, which have been filed
to show that in the matters related to the premises in dispute,
some proceedings were initiated against Mahant of Nirmohi
Akhara showing that Nirmohi Akhara was in possession of
entire premises in dispute, i.e.:
(A) Exhibit C-2 (Register 24, Page 13-22) is a copy of the
judgment dated 03.08.1957 passed by Sri R.K.Sercar, Ist
Addl. Sessions Judge, Fyzabad in Criminal Appeal No.50
of 1951 (Bhashkar Dass Vs. State). This appeal was
preferred against the order of Shri R.B.Saxena, sentencing
2844

the appellant Bhaskar Das to one month simple
imprisonment and fine of Rs.50/-. The appeal was allowed
and the conviction order was set aside.
(B) Exhibit C3 ( (Suit-5) (Register 24 Page 23-28) is a
copy of the order dated 5th September, 1966 passed by Sri
B.S.Shukla, City Magistrate, Faizabad in Case No.533 of
1966 (State Vs. Prem Das & Others) under Section
107/117 Cr.P.C. The allegation pertains to the disturbance
created by the accused persons at Ram Janam Bhumi on
25th March, 1966 on account of a dispute regarding
Pujariship and possession of Ram Janam Bhumi Ayodhya.
(C) Exhibit C4 (Suit 5) (Register 24, Page 29-36) is a
copy of the judgment dated 22.10.1923 of Additional
Sessions Judge, Faizabad in Civil Appeal No.10 of 1923
(Mahant Narottam Das Vs. Ram Swaroop Das). The
aforesaid appeal was filed against the judgment dated 12th
December, 1922 of Sub Judge, Fyzabad dismissing the
suit with costs. The appeal was also dismissed.
(D) Exhibit C7 (Register 24, Page 54-56) is a copy of the
judgment dated 13th May, 1983 of K.K.Singh, IV Addl.
Sessions Judge, Faizabad in Criminal Revision No.60 of
1982 (Dharam Das Vs. Sri Panch Rama Nandi Nirmohi
Akhara through Ram Kewal Das & 2 others). The revision
was filed against the City Magistrate, Faizabad order
dated 6th March, 1982 under Section 145 Cr.P.C.
(E) Exhibit C8 (Suit-5) (Register 24, Page 57-71) is a
copy of the Commissioner's report dated 13.10.1973
submitted by Sri Pareshwari Dutt Pandey, Advocate
Commissioner in Original Suit No.9 of 1973 (Nirmohi
Akhara Vs. Ram Lakhan Saran Das) in the Court of Civil
2845

Judge, Faizabad. The Commissioner has also submitted a
map which included the disputed site also.
(F) Exhibit C9 (Suit 5) (Register 24, Page 73-77) is a
copy of written statement dated 29th December, 1950
submitted by Baba Abhay Ram Das in the proceedings
under Section 145 Cr.P.C. before the City Magistrate,
Faizabad. In para 6 thereof Abhay Ram Das has said that
outside the disputed premises there is some land and
building which is property of Nirmohi Akahara which
they are entitled to use being in possession. In para 8 it
says that no muslim has entered the disputed premises
since 1935 and no prayer has been offered by them.
(G) Exhibit C11 (Suit-5) (Register 24, Page 99-101) is a
copy of the notice dated 22.12.1934 published by Sri
J.P.Nikalsan, District Magistrate, Faizabad with respect to
the fine imposed under Section 15A(2) of the Police Act
and for its realization from the Hindu resident of
Ayodhya.
3014. However, we do not find that the said judgements
are admissible and relevant for the issue in question in view of
the law laid down in Seth Ramdayal Jat Vs. Laxmi Prasad
AIR 2009 SC 2463, which we have already discussed above.
3015. Another set of documents, i.e. Exhibit C1, C5, C6,
C10, brief details whereof is as under, are also not much
relevant to the point in issue:
(A) Exhibit C1 (Suit-5) (Register 24 Page 11) is a
photocopy of the charge certificate dated 5th January 1950
by Priya Dutt Ram Receiver.
(B) Exhibit C5 (Suit 5) (Register 24, Page 37-45) is a
copy of the plaint in suit no.426 of 1989 (Mahant Ram
2846

Gopal Das & others Vs. Ashok Singhal & Others) filed in
Court of Civil Judge Fyzabad. The above suit was decided
on 04.12.1991.
(C) Exhibit C6 (Suit 5) (Register 24, Page 47-51) is a
copy of a Commissioner's report dated 08.11.1989 in O.S.
No.426 of 1989 (Mahant Gopaldas & Others Vs. Vishwa
Hindu Parishad & Others) submitted by Sri Uma Kant
Malviya, Court Amin, Civil Court, Faizabad.
(D) Exhibit C10 (Suit-5) (Register 24, Page 81-92)
claims to be a copy of the statement of expenditure from
December, 1985 to April, 1987 incurred by Sri Ram
Janmabhumi Nyas and also contains some details of the
said trust.
3016. These documents also, in our view, do not lend any
help to the plaintiff (Suit-3). Even otherwise fail to serve any
purpose for adjudication of the issue in question with respect to
possession either way.
3017. On behalf of defendants, it was pointed out that
other Hindu parties have also supported their claim that the idol
under the central dome inside the inner courtyard was placed in
the night of 22nd/23rd December, 1949, meaning thereby till then
there could not have been any occasion of possession for
Nirmohi Akhara, hence, the question of possession or loss of
possession of the premises within the inner courtyard for the last
12 years does not arise at all. In this regard, the argument of Sri
P.N. Mishra in respect to Register 3 was pointed out, which was
as under:
(A) Record of proceedings of Suit-2 (contained in Register
3) which has already been dismissed as withdrawn was
referred by Sri Mishra. He sought to rely on the written
2847

statement filed therein on behalf of the defendant No.1 to
5 i.e. Zahoor Ahmad, Haji Feku, Haji Mohd. Faiq, Mohd.
Shami and Mohd. Achhan Miya dated 18th January, 1951
(Page 41-46 Register Vol. 3) to show that it has
consistently been the case of the Muslim parties that
Namaz was offered in the disputed building till 16th
December, 1949 and he strongly relied on para 22 thereof
which read as under:
^^nQk 22- ;g fd eqn~nkvysgqe eqthc dks bYe ugha gS fd
tk;nkn eqrnkfo;k ;kuh efLtn ckcjh ds vUnj dksbZ ewfrZ gS- 16
fnlEcj lu~ 1949 bZ0 rd mlesa uekt gqbZ- ml oDr rd ml
es dksbZ ewfrZ u Fkh ysfdu vxj dksbZ ewfrZ efLtn ds vUnj fdlh
'k[l us pksjh o cnfu;rh ls ckn rkjh[k etdwj j[k fn;k gS- rks
mlls efLtn dh ljhgh csgqjerh o ukikdh eqrlfOoj gS- vkSj
Qsy etdwj dkuwuu eqtfjekuk gS- vkSj vxj eqn~nbZ ;k dksbZ
nwljk 'k[l efLtn etdwj esa ewfrZ iwtus ;k n'kZu djus ds x+jt
ls efLtn ds vUnj nkf[ky gksuk pkgrk gS rks og tqeZ dk
eqrZfdc gS- pqukps ,slh gkyr es vnkyr nhokuh nknjlh erywck
nsus ls dkflj gS- cgj gky mlls eqn~nbZ ;k fdlh xSj eqfLye
dks efLtn etdwj es dksbZ gd ugha iSnk gks ldrkA^^
"Section 22. The respondent Mujib has no knowledge
of any idol in this controversial building that is Babri
Masjid. Upto December 16, 1949 Namaj was offered
in it upto that time there was no Murti. But after that
if any person with wrong intentions, has placed one,
it would be considered as desecration and would be
treated as a criminal act and if the petitioner or any
other person enters the Masjid with the intention of
doing Puja of the idol or for Darshan, it would be
considered as a criminal act. Therefore in such
circumstances the civil court cannot provide any
2848

relief. However as a result of this the petitioner or
any non Muslims would have no right in the Masjid."
(E.T.C.)
(B) He (Sri Mishra) submitted that for the first time the
stand was changed when suit 4 was filed and that changed
stand continued thereafter, as is also evident from the
written statement filed on 11.5.1989 (Page 125-141
Register 3) on behalf of U.P.Sunni Central Wakf Board in
Suit 2 wherein in para 22 he tried to explain his earlier
stand to bring in Suit 4 within the period of limitation.
Para 22 reads as under:
"That the muslims have remained regularly offering
prayers in the mosque in question upto 22.12.1949
and Friday prayers were also offered upto
16.12.1949 and as such the idols kept in the mosque
in a stealthy and mischievous manner in the night of
22nd/23rd December, 1949 will not confer any right or
title upon the plaintiff or upon anyone else to perform
Pooja in the said mosque."
3018. Referring to the above submissions, it is said that
even if it is found that Namaz was last offered in the inner
courtyard on 16th December, 1949, it rule out any possibility of
claim of possession of the plaintiff (suit-3). Learned counsel for
the parties submitted that the record of Suit-2 has not been
detached since the evidence was filed collectively after clubbing
all the suits.
3019. Register 4 contains Exhibit- 1 to 15 (Suit-2). The
said documents have been retained in view of the order passed
by this Court while dismissing Suit 2 as withdrawn since all the
suits were proceeding collectively and the evidence were
2849

allowed to be adduced and relied on interchangeably. It contains
exhibits 1 to 15 filed by plaintiffs (suit 2). However, none of the
party has placed reliance on any of the said documents during
the course of the argument, therefore, we refrain from referring
any of the above document of Register 4.
3020. Register 5 contains 34 exhibits filed by plaintiffs
(Suit 1). Exhibits 1 to 14 are copies of the affidavits/ statements
filed by certain Muslims before the Magistrate in proceedings
under Section 145 Cr.P.C. wherein they have admitted that since
1935 Muslims have not offered any Namaz in the disputed
building and it is continuously in possession of the Hindus and
also they have no objection in case the disputed building is
handed over to Hindus. The aforesaid documents to the extent to
prove the fact that the same were filed before the Magistrate and
constitute part of the record of 145 Cr.P.C. proceeding before
the City Magistrate is not disputed but to believe the contents
thereof, in our view, it was necessary to produce the authors of
the documents and to give an opportunity of cross-examination
to the other parties against whose interest the documents contain
certain averments. None of the author of the said documents
have produced and they are also not party to the proceedings
individually. We have no benefit of testifying the correctness of
the contents of the said documents. In the absence of any one
available to prove the contents of the said documents, in our
view, the same cannot be relied and therefore, nothing turn out
from the aforesaid documents either in favour or against any of
the parties.
3021. The question as to whether the idols were kept in the
disputed structure under the central dome on 22nd/23rd
December, 1949 or were already there, has been considered and
2850

decided above, and, therefore, in view of those findings, it
cannot be said that the plaintiff (Suit-3) possessed the premises
in dispute in the capacity as Shebait or manager or owner twelve
years prior to the date of accrual of cause of action.
3022. Some of the Hindu parties including plaintiffs (Suit-
5) have taken a categorical stand that the idols were placed
inside the building under central dome in the inner courtyard in
the night of 22/23 December, 1949. OPW 1, witness produced
by the plaintiffs (Suit-5) though has made statement to much
extent in favour of the plaintiff (Suit-3) in respect to various
other aspects, but so far as the inner courtyard is concerned,
about the idols, he has also joined stand with the plaintiffs (Suit-
5). This issue we have already decided and, therefore, need not
to discuss further hereat. But what at this stage we say is that
issue 3 (Suit-3) was the responsibility of the plaintiffs (Suit-3) to
prove, which they have miserably failed.
3023. Whatever the evidence has been produced by the
plaintiffs (Suit-3), none has said anything about the adverse
possession of the plaintiff and that too in regard to premises in
inner courtyard. Twenty witnesses have been produced but even
a single one has not uttered a word about adverse possession of
plaintiffs on the suit property. Adverse possession is a question
of fact. It has to be specifically pleaded and proved. In the
absence of proper pleading, evidence, oral or documentary, the
claim of title based on adverse possession neither can be
entertained nor can be accepted.
3024. Besides, when the plaintiffs have stated that they are
the owner of the property in dispute and the disputed structure
which according to the plaintiffs (Suit-3) was a temple, owned
by them, the question of entertaining the plea of adverse
2851

possession does not arise at all. In any case, the assertion of the
plaintiff that the defendants have never entered the premises in
dispute since 1934 pre supposes that prior to 1934 their entry in
the disputed premises is admitted. With regard to the period
subsequent to 1934, we find that the evidence placed by the
plaintiff (Suit-3) did not prove that the defendant-Muslim
parties could never enter the premises in dispute till its
attachment by the Magistrate under Section 145 Cr.P.C. This
aspect we have already considered in detail while discussing
Issue No. 12 (Suit-4) and Issue No. 3 (a) (Suit-5) and have
recorded a finding that in all probabilities Namaz in the building
in dispute i.e. inner courtyard was offered on 16th December,
1949. In view of the above, we have no hesitation in deciding
Issue No. 3 (Suit-3) in negative i.e. against the plaintiff.
3025. Issue No. 8 (Suit-3) is virtually a reversal of the
previous one. It is based on the plea of the defendant muslim
parties that the property in dispute is in their possession since its
very inception and, therefore, if the plaintiffs have any right
whatsoever, it has extinguished due to expiry of more than 400
years since the date when the Babari mosque was constructed
i.e. 1528 AD.
3026. At the outset we would like to mention that question
of extinction of right of plaintiff would arise only if they have
such right. On the one hand the plaintiffs have miserably failed
to prove any title or ownership in respect to the property in
dispute and secondly they themselves have pleaded acquisition
of title by adverse possession on account whereof issue no. 3
(Suit-3) has been framed but having failed therein, in our view,
the question of conferring a right upon the defendants, as a
result of extinction of such illusory right of the plaintiff, would
2852

not arise. This issue in effect is in reference to Section 27 of LA
1908 which is not attracted.
3027. Besides others, two documents are heavily relied by
the defendant-Muslim parties on this issue i.e. the judgments in
Suit-1885 as well as dated 30.3.1946 of Civil Judge, Faizabad in
Regular Suit No. 29 of 1945, Shia Central Board of Wakf Vs.
Sunni Central Board of Wakf (Exhibit A-42, Suit-1) (Register 8,
Pages 431-432). It is contended that Mahant Raghubar Das in
Suit-1885 had not disputed that on the west side of Chabutara,
there was a Mosque and the District Judge, Faizabad on his spot
inspection found that the said mosque was constructed more
than 300 years ago by Babar, the said observation is nothing but
his finding which had not been disturbed in the Second Appeal
by the Judicial Commissioner and, hence, the claim of the
defendant-Muslims parties on the said Mosque since 1528 is
duly proved. The plaintiffs cannot wriggle of the said judgment
and findings recorded therein, to stress upon their claim
otherwise. Referring to the judgment dated 30.3.1946 it is
contended that there also the Civil Judge has recorded a finding
that the Mosque was constructed by Babar and not by Mir Baki
in 1528 and that being a finding recorded in a judgment, which
is judgment in rem, the issue stands closed for all purposes. The
defendants' claim on the Mosque since 1528, therefore, is duly
proved.
3028. The effect of the judgment in Suit-1885 we have
already discussed in detail while considering the issues relating
to res judicata, estoppel etc. Without going in details and
repeating all the things again, suffice is to mention that Mahant
Raghubar Das sought permission to make a temple on Ram
Chabutara, which existed in the outer courtyard measuring
2853

21"X17" and for the said permission filed the aforesaid Suit.
There was no dispute about the nature of any structure in the
vicinity and other connected issues as to who constructed it,
when it was constructed etc. Whatever has been observed by the
District Judge in his judgment, cannot be said to be a finding on
an issue since there was no such issue at all and, hence, the same
would not help the defendant-Muslim parties in the present
suits.
3029. Various authorities on the question of res judicata
we have already referred to above, but since for the purpose of
the issue in question again those very documents have been
relied, we propose to give more authorities on the subject which
make the things further clear as to how such observation cannot
be treated to be an adjudication of an issue creating a right in the
party.
3030. In Prosunno Kumari Debya Vs. Golab Chand
(supra), the Judicial Committee said that to attract the principle
of res judicata one has to see that necessary and proper issues
were raised, tried and decided in suit and the decree is untainted
by fraud or collusion.
3031. In Profulla Chandra Vs. Prabartak Trust AIR
1954 Cal. 8, in para 15, 16, 18, 19 and 20, the Court observed:
"Res judicata or as it is also sometimes called Res
Adjudicata literally means "the thing adjudged", and the
doctrine known by that name rests on the principle that a
matter, once adjudged cannot be reopend. In its practical
application the doctrine or the rule of res judicata bars the
trial of an issue, previously decided. In essence, therefore,
the rule postulates a previous decision or adjudication & a
recurrence of the matter of issue, there or then adjudiced
2854

or decided. It is the decision or adjudication which
operates as res judicata ..... In the application, therefore, of
the rule as res judicata, what matters is the decision and
not the reasoning of the Court and one requirement of the
rule is the identity of the issue or eadem questio. ...... As
pointed out by Bankes L. J. in the case of --'Jones v. Lewis
(1919) 1 KB 328 (A), it is the "decision and not the reason
of the decision"- which operates as res judicata. This is
clearly supported by the pronouncement of the Judicial
Committee in the case of -'Broken Hill Proprietary Co. Ltd.
v. Municipal Council of Broken Hill, (1926) AC 94 (B)
.....the plea of res judicata succeeded because in each of
them the 'res' in the later proceeding had already been
adjudged in the earlier and the issue in either was eadem
questio. .... what mattered was the decision and not the
reasoning of the Court on the former occasion. .... The
principle enunciated by Bankes L. J. as set out above, and
affirmed or recognised in the other cases cited, as shown in
the preceding paragraph, was accepted by the Full Bench
of this Court in -- 'Santosh Kumar v. Nripendra Kumar',
AIR 1949 Cal 430 (FB) (F) and also by our earlier Full
Bench in the well-known and oft-quoted case of - 'Tarini
Charan v. Kedar Nath AIR 1928 Cal 777 (FB) (G) where
Rankin, C. J. observed at pages 782 of the Report that
"what is conclusive between the parties is the
decision of the Court and that reasoning of the Court
is not necessarily the same thing as its decision. The
object of the doctrine of res judicata is not to fasten
upon parties special principles of law as applicable
to them inter se, but to ascertain their rights and the
2855

facts upon which those rights directly and
substantially depend, and to prevent this
ascertainment from becoming nugatory by
precluding the parties from reopening or
recontesting that which has been finally decided.
The first part of this observation clearly restates the above
principle and in the lines that follow, read in the light of
the later Full Bench case, above cited, there appears to be
nothing which detracts from the correctness or efficacy of
the said principle or whittles down its scope. That this is so
becomes abundantly clear when we turn to the submission
which was accepted by the Full Bench in this latter case of
AIR 1949 Cal 430 (FB) (F)'. That submission appears at
page 431 of the Report and is in these terms:
"What is res judicata is the point directly decided or
the order passed & not the reason thereof."
The language shows a full and complete acceptance
of the principle, quoted above, from (1919) 1 KB 328 (A)
and the Full Bench must be taken to have put upon it the
seal of its own authority. .... The position is thus well
established that I what is res judicata is the decision and
not the reason thereof."
3032. This decision very succinctly elaborate as to when
the principle of res judicata would be attracted and, in our view,
apply with full force in this case.
3033. Now coming to the judgment dated 30.3.1946, we
propose to consider it in a bit detail though we are satisfied that
even this judgment cannot be relied for the purpose for which
defendant-Muslim parties have referred the same. It has been
relied on by the defendants-Muslim parties to show that the
2856

building in dispute has already been held to be a Sunni mosque
and that judgment of the Civil Judge, Faizabad has attained
finality. Our attention was drawn to the following finding of the
Civil Judge, namely, "My conclusion therefore is that the
mosque in suit was founded by Babar Shah and not by Abdul
Baqi. I answer the issue accordingly." Having gone through the
above judgment, firstly we find that it was an inter se dispute
between Shia Central Board of Waqf and Sunni Central Board
of Waqf. In the present case the judgment is relevant only to
show that such a suit was filed and decided by the concerned
Court as also its result. The findings are recorded on various
issues inter parties, i.e. those who were before the Civil Judge
Faizabad in the above case are binding but the learned counsel
for the defendants Muslim parties could not show as to how the
same would bind the plaintiffs Suit-1 or other Hindu parties in
rest of the suits since none was impleaded in the aforesaid suit.
Besides a careful reading of the said judgment shows the
following facts:
1. It was an admitted case by both the parties that the
mosque in dispute known as Babri mosque was
constructed during the reign of Babar four centuries ago.
2. The said mosque was included in the list of Sunni
Waqfs prepared by Chief Commissioner of Waqfs under
section of U.P. Act 13 of 1936 i.e. U.P. Muslim Waqf Act
and notified on 26th February 1944. The claim of Shia
Waqf Board was that the said mosque is a Shia Waqf
together with Idgah attached to it at Jalpa Nala, Ajodhia
and village Bahranpur Pargana Haveli and 20 Bighas
additional land known as Sholapur grove in Mohal
Bahoranpur Tahsil and District Faizabad.
2857

3. Five issues were framed therein and for our
purposes issues no. 1, 2 and 3 are relevant which are
reproduced as under:
"1(a) Was the mosque in suit built by Abdul Baqi as
alleged by the plff ? If so, was he a Shia as alleged ?
or
(b) Whether the mosque was constructed by Babar
Shah as alleged by deft ?
2. Is the suit within time ?
3. Has the mosque in suit being used by the
members of the Sunni sect as alleged by the deft for
over 12 years ? If so, its effect ?"
4. In respect of issue no. 1 the Court has taken note of
pedigree of Abdul Baqi which was pleaded by the
defendant Sunni Waqf Board and says as under:
S.A. Baqi
/
S. Hizabi Ali
/
Hussain Ali
/
Sukoowat Bibi=Rajab Ali
___________ /___________
/ / /
Ali Naqi M. Afzal M. Asghar
/
T.M. Razi
______/_________
/ /
Kalab Husain M. Zaki

5. In March 1945 when the suit was filed Kalab
Husain came to be represent Mutwalli and a year
ago, M. Zaki was Mutwalli.
6. Referring to Babur Digest part II, page 1 (2nd
Edition), the Civil Judge has quoted an Arabian
2858

adage that "All people follow the religion of their
kings". He further noted:
"It is said that the saying was exemplified to
the fullest extent in Persia where whole of the
people have become Shias since the occasion
of the Safee (Safavi) dynasty in AD 1499. The
process of assimilation was less rapid in India,
where though several of Nawabs or local
Governors were Shias (Shias.........). This was
eminently the case in Oude (Oudh), the
Nawabs of which were predictory Viziers
(Wazirs) of the empire."
7. The mosque in suit was admittedly built
during the time of Babar who ruled from 1526-1530
and it is clear from the passage quoted above that
the Persians have become Shias before that period.
8. The Civil Judge besides oral evidence
considered the following two documentary
evidence:
(i) Documents pertaining to grant of cash
Nankar; and
(ii) Documents relating to grant received
from the Government.
9. A gazetteer making reference of disputed
mosque at page 173 and 174 was considered by the
Civil Judge and in regard to the disputed mosque the
Civil Judge observed as under:
"It shows that according to local
affirmations Babar came to Ajodhia in 1528
AD and halted there for a week during which
2859

he destroyed the Janamasthan temple and on
its site built a mosque using largely the
materials of the old structure. The author then
goes on to remark that no record of the visit is
to be found in Musalman historians but it must
have occurred about the time of Babar's
expedition to Bihar. The first Settlement
Report also gives the same history of this
mosque and adds that according to Leyden's
Memoirs of Babar, the Emperor encamped
about 5 or 6 miles from Ajodhia and stayed
for a week settling the surrounding country
through it was remarkable that his doings at
Ajodhia were wanting in his own memoirs
(Baburnama)."
10. Serious arguments advanced raised against the
authenticity and admissibility of the facts stated in the
gazetteer aforesaid in respect whereof the Civil Judge held
as under:
"The history of the mosque in the Gazetteer & the
Settlement Report was also sought to be impugned on
the ground that Babar's visit to Ajodhia was not
mentioned in any historical work & the Settlement
Officer was not required to make any such
investigation. I am unable to accept these contentions
also as the works are works of reference and
admissible u/s 57 of the Evidence Act. Moreover, in
dealing with the matters like the present when no
direct evidence is available, such works based on
investigations on the spot and local tradition assume
2860

great importance & unless disproved by superior
evidence must be accepted as containing a correct
history of the subjects mentioned therein."
11. The Civil Judge thereafter referred to two
inscriptions which were also referred in gazetteer and
discussed in the same as under:
"Lastly, there are the two inscriptions in the mosque
which have been reproduced in my inspection notes.
These are also referred to in the Gazetteer &
according to the date in the inscription on the
pulpit it was built in 923 hijri while according to
the other it was in 935 H. corresponding with 1528
A.D. These inscriptions were the sheet-anchor of the
plff's case but I am of the opinion that they are
inconclusive.
The first inscription contains three couplets in
Persian & when translated runs as follows;
"By the order (‫ )بفرمودہ‬of Shah Babar, whose
justice went up to the skies (i.e. was well known)
Amir (Noble) Mir Baqi of lofty grandson built this
resting place for angels in 923 hijri".
The second inscription is more elaborate and
contains in the usual high-flown language an eulogy
of Babar and describes Mir Baqi of Sophahian as his
admirer & the builder of the mosque. This inscription
no doubt supports the plffs' case, because it does not
say that it was by the order of Babar Shah & it only
refers to the reign of Babar but 1st couplet in the 1st
inscription near the pulpit clearly supports the
theory that Babar had ordered the building of the
2861

mosque as stated in the Gazetteer & the settlement
report."
3034. The above judgment shows that on the question that
the building in dispute was constructed in 1528 there was no
dispute between the parties since it was a lis inter se between
two Wakfs Board. The nature of building that it was a Mosque
was also not in dispute. The only question was whether it is a
Shia Wakf or a Sunni Wakf. The entire matter had proceeded in
this context. We have no hesitation to say that this judgment is
neither binding upon the plaintiffs before us nor can be relied on
to contend that a particular finding recorded therein is final and
that it should be treated to be a judgment in rem.
3035. One more aspect. The judgment shows that in the
year 1928, Syed Abdul Baki, claimed to be the first Mutwalli
appointed by Babar itself, and in genealogy Mohammad Zaki
was seventh in generation. It is apparently unbelievable that
commencing from 1528 till 1945, i.e. more than 400 years, there
could be only seven generations in the entire genealogy. We
have no hesitation in not accepting the same.
3036. Before us, the case set up and argued by the
defendants is that Babar never entered Ayodhya and, hence,
there did not arise any occasion for him either to get the alleged
temple demolished or direct for construction of a Mosque, but it
was Mir Baki who had been there and got it constructed. In the
judgment relied on by the defendants, an issue was raised,
whether Mosque was built by Abdul Baki or Babar. A finding
was recorded that it was constructed by Babar as pleaded by
Sunni Board. Evidently, the case set up before this Court is
wholly different and inconsistent to what was pleaded and
ultimately decided in the above judgment.
2862

3037. Further, there is nothing on record to show that
name of the Mir Baki was Syed Abdul Baki or that Syed Abdul
Baki was the same person as Mir Baki. In "Babarnama" no
person is named as Mir Baki or Syed Abdul Baki. No document
showing that there existed person in the name of Mir Baki or
Abdul Baki in 1528 has been placed before us. When Babar
himself never entered Ayodhya, the question of appointment by
him of a Mutwalli would not have arisen. Even otherwise, on
the question as to who constructed the disputed structure and
when, we have already recorded a finding that the plaintiffs
(Suit-4) or the Muslim parties have failed to prove that the
disputed structure was constructed in 1528 either by Babar or
any of his agent on his command.
3038. Moreover, a judgment by itself is not a piece of
evidence except to the extent it is provided under Section 41 to
43 of the Evidence Act.
3039. In the context of Section 43 of Evidence Act, it is no
doubt true that a judgment is admissible provided it is a relevant
fact in issue as held in Seth Ramdayal Jat Vs. Laxmi Prasad
(Supra). In a civil case, the judgment of a Criminal Court may
be relevant where the fact in issue is about the existence of such
a judgment or not, but not more than that. The evidence
discussed in the judgment of a Criminal Court or the fact that a
person has confessed his guilt in his statement is not admissible
in evidence in a civil suit. This is what was held in Perumal Vs.
Devarajan & others AIR 1974 Mad. 14 and was quoted with
approval in Seth Ramdayal Jat (supra). The Apex Court also
approved a Patna High Court decision in Lalmani Devi &
others Vs. Jagdish Tiwary & others AIR 2005 Pat. 51. The
Court said that acquittal or conviction in a criminal case has no
2863

evidentiary value in a subsequent civil litigation except for the
limited purposes of showing that there was a trial resulting in
acquittal or conviction, as the case may be. The findings of the
Criminal Court are inadmissible. The Apex Court also followed
its earlier decision in Anil Behari Ghosh Vs. Smt. Latika Bala
Dassi & others AIR 1955 SC 566 taking the same view. There
appears to be a somewhat different authority in Shanti Kumar
panda (supra) where an observation was made that an order
passed by the Executive Magistrate in proceedings under
Section 145/146 Cr.P.C. is an order by a Criminal Court based
on a summary inquiry. The order is entitled to respect and
weight before the competent Court at the interlocutory stage. In
Ramdayal Jat (supra), the Apex Court observed that this
observation in Shanti Kumar Panda (supra) is per incurrium
being in conflict of a three-Judges decision in K.G.
Premshanker Vs. Inspector of Police & another JT 2002 (8)
SCC 87. The argument of possibility of conflict in decisions
was rejected in Seth Ramdayal Jat (supra) stating:
"27. In regard to the possibility of conflict in
decisions, it was held that the law envisages such an
eventuality when it expressly refrains from making the
decision of one Court binding on the other, or even
relevant, except for certain limited purposes, such as
sentence or damages. It was held that the only relevant
consideration was the likelihood of embarrassment."
3040. The Court further held that the Civil Court must
decide a suit on its own keeping in view the evidence which
have been brought on record before it and not in the light of the
evidence brought on record in the criminal proceedings. The
Court also observed that an earlier decision in M/s Karam
2864

Chand Ganga Prasad & another Vs. Union of India & others
1970 (3) SCC 694 holding that the decision of the Civil Court
will be binding on the Criminal Courts but the converse is not
true was overruled in K.G. Premshanker (supra) and this fact
has been noticed also in Syed Askari Hadi Ali Augustine
Imam & another Vs. State (Delhi Administration) & another
JT 2009 (4) SC 522.
3041. Then it considered the question of admissibility of
an admission made by a party in a previous civil proceeding. It
was held that admission in the civil suit is admissible. With
respect to an admission made in a pleading, the Court relied on
Gautam Sarup Vs. Leela Jetly (supra) where it was held that
an admission made in a pleading is not to be treated in the same
manner as an admission in a document. An admission made by a
party to the lis is admissible against him proprio vigore. The
same thing was reiterated in Ranganayakamma & another Vs.
K.S. Prakash JT 2008 (8) SC 510.
3042. Here the admission in Suit 29/1945 was that of
Sunni Board that the disputed structure was constructed by
Babar and therefore this admission may operate against it but
the findings of civil court shall not bind the plaintiffs.
3043. Yet another angle, the plaintiffs set up the case of
being owner of the property in dispute, i.e., the land and
building both having constructed the building also. However, no
evidence whatsoever has been put forth to support the
ownership or title over the property in dispute. In the entire
plaint there is no averment as to how the plaintiff claim to own
the property in dispute. In para 2 they have asserted that
Janamsthan, i.e., Janambhumi is the birthplace of Lord Rama
situate in Ayodhya and always belong to the plaintiff no.1. How
2865

and in what manner it belong to plaintiff no. 1 is not stated.
Then in para 3 of the plaint it is said that a temple building of
Janambhumi existed on the disputed land and the said temple
ever since is in possession of the plaintiff no. 1 (para 4). But
here also it is not said as to how and when they came into
possession of the property in dispute. In the statement under
Order X Rule 2 CPC the plaintiffs have said that the temple was
made by the plaintiff and the land which is the birthplace of
Lord Rama is owned by the plaintiff. But in support of the
above two statements no evidence has been placed at all. Sri
Verma sought to rely on a registered deed of the bye-laws of
Nirmohi Akhara wherein Janamsthan is also mentioned amongst
the properties of Nirmohi Akhara and submits that this
document clearly shows that the place in dispute is owned by
the plaintiffs (Suit-1). We fail to understand as to how a
document sought to be prepared by plaintiff himself can create a
right or title on a property and in any case can be used as an
evidence against a third party. Merely because they got it
registered and have placed on record a certified copy thereof,
that does not mean that the contents thereof and their truth stand
proved. The only effect of filing a certified copy of a document
after obtaining from the authority in whose possession legally it
ought to be is that a formal proof stands dispensed with but that
does not mean that the correctness of the contents thereof also
will stand proved unless it is proved by producing cogent
evidence. When a certified copy is filed or when an old
document of thirty years is produced from proper custody, what
shall be deemed to stand proved has been considered time and
again.
3044. In V. Seethaya & Ors. Vs. P. Subramanya
2866

Somayajulu & Anr. A.I.R. 1929 Privy Council 115, it was
held:
"Their Lordships agree with the learned Chief Justice and
his coleagues in the High Court that the document was
admissible as evidence of the terms of the lost original. The
document is over 30 years old and is produced from
proper custody. By S. 90, Evidence Act of 1872, the Court
may therefore presume the signatures authenticating the
copy to be genuine."
3045. In the context of Sections 65 and 90 of the Evidence
Act, a Single Judge of Calcutta High Court in Khetter Chunder
Mookerjee Vs. Khetter Paul Sreeterutno 1880 ILR 5
(Calcutta) 886 observed that Section 90 provides where any
document, purporting or proved to be thirty years old is
produced from any custody which the Court in the particular
case considers proper, the Court may presume that the signature
and every other part of such document, which purports to be in
the handwriting of any particular person, is in that person's
handwriting; and, in the case of a document executed or
attested, that it was duly executed and attested by the persons by
whom it purports to be executed and attested. The Court said
that the execution of a document produced from proper custody,
and more than thirty years old, need not be proved, if the
document is produced.
3046. In Land Acquisition Officer and Mandal Revenue
Officer Vs. V. Narasaiah (2001) 3 SCC 530 it was held that the
certified copy of a registered sale deed would be admissible in
evidence. The above decision was approved by the Constitution
Bench of the Apex Court in Cement Corpn. Of India Ltd. Vs.
Purya (2004) 8 SCC 270.
2867

3047. In Sarabjit Rick Singh Vs. Union of India (2008) 2
SCC 417 the Court in para 39 said :
"It may be true that a document does not prove itself. Its
contents, unless admitted, should be proved in terms of the
provisions of the Evidence Act, unless the contents of the
documents are said to be admissible by reason of a
provision of a statute, as for example, Section 90 of the
Evidence Act. But what misses the aforementioned
submission/contention is that whereas the contents of the
document is to be proved for the purpose of trial but not for
the purpose of arriving at an opinion in regard to existence
of a prima facie case in an enquiry."
3048. Sri Verma, relying on the work of Sri A. Ghosh in
the "Law of Endowment (Hindu & Mahomedan)" by A.
Ghosh, Second Edn. published by Eastern Law House, Calcutta
(page 148-149) submitted that even hearse statements are
admissible in suit for recovery of possession filed by Shebait
who is wrongly ousted and reads as under:
"In a suit to recover property claimed by the plaintiffs as
shebaits lately in possession and wrongfully ousted
therefrom, it was held that the statements made by the
ancestors of plaintiffs and defendants were receivable as
evidence. It is enough to say that possibly, possession and
user in the apparent capacity of shebaits might, if
unrebutted by any other evidence at all, be sufficient as
evidence of title (so far as it goes) to make out a prima
facie case in favour of the plaintiffs. In Srish Chandra v.
Rakhalananda 41 C.W.N. 1103 Guha and Mitter, JJ.

discussing the question whether hearsay statements in regard to instalation and sheba of a deity are admissible or 2868 not, held that "the evidence given on the side of the plaintiffs, so far as it consisted of the statements by the plaintiffs in their evidence given in Court in support of the position that the deities Radha Gobinda and Lakshmi Narain Jiu were worshipped by them and maintained by the Kashimbazar Estate from generation to generation, that the plaintiffs' family had been doing the worship at the cost of the said Estate; that one of the plaintiffs, 65 years of age, heard about the origin of vritti from his father and the tradition descended from father to son, and the worship of the deities continued on the expenses paid, Rs. 4000 as vritti or annual grant, by the Kashimbazar Estate: that the vritti was received from the last five generations and the history of its origin came down as tradition in the family from father to son, as deposed by another plaintiff aged 63 years, was subjected to the comment that it was altogether inadmissible inasmuch as it was hearsay evidence. It was also contended on the 'authority' of the decisions in Lekraj Kuer v. Baboo Mahpal Singh 7 I.A. 63 : 5 C. 744 that regard being had to the provisions of Sec. 2 of the Indian Evidence Act, which has repealed all rules of evidence, not contained in any of the statutes or regulations, it was for the plaintiffs to make out that the evidence given by them was admissible under some provisions of the Indian Evidence Act. It is to be noticed in this connection that Sec. 2 (1) of the Indian Evidence Act repeals the whole of the English Common Law on Evidence so far as it was in force in British India before the passing of the Indian Evidence Act, and that provisions of the law, in effect, prohibits the employment of any kind of evidence not specifically 2869 authorised by the Act itself. It must be recognised, however, that the principle of exclusion adopted by the Indian Evidence Act, should not be applied so as to exclude matters which may be essential for the ascertainment of truth. Applying this principle to the case before us, the evidence of tradition in the family of the plaintiffs, can not be characterised and placed in the category of mere hearsay evidence inadmissible under the law .... The evidence coming from the plaintiffs' side, consisted of a tradition handed from time immemorial; and the evidence given by some of the plaintiffs was admissible as statement of opinion as to a family tradition, which was founded upon information derived from deceased persons. The relaxation of the rule as to reception of hearsay evidence must be held to be permissible where such a course tends to the due investigation of truth, and the attainment of justice." 3049. In a title suit, complete evidence showing ownership has to be placed on record. In Karnataka Board of Wakf Vs. Government of India & others (2004) 10 SCC 779, the Apex Court said that in a title suit, concrete evidence showing ownership must be placed on record. In para 8, the Court said:

"The contention of appellants that one Arabian saint Mahabari Khandayat came to India and built the Mosque and his lineal descendents possessed the property, cannot be accepted if it is not substantiated by evidence and records. As far as a title suit of civil nature is concerned, there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions. The question for resolution herein is the factum of ownership, possession and title over the suit 2870 property. Only admissible evidence and records could be of assistance to prove this."

3050. Further, with respect to Section 4 of Wakf Act, 1954, it observed that the Wakf Board could exercise its rights only over existing wakf properties since the suit property itself is not an existing wakf property. The appellant cannot exercise any right over the same. It further observed in para 12 that a plaintiff filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. 3051. The defendants muslim parties have set up a claim that the building in dispute got constructed by Babar through his Commander Mir Baqi in 1528 AD and was given as public waqf to muslims resulting in a right vested in muslims in general. It is also said that the muslims have continued to keep possession in the shape of waqf over the Babari mosque from 1528 AD up to the present. It is further said that in case it is found that any temple existing on the site of the disputed structure in that case also the possession of the defendant muslim parties over the property in dispute for the last 400 years which is in the knowledge of the plaintiff to the suit or other Hindus and, therefore, they have lost any right over the property in dispute. It is not the case of the defendants that the Hindus in general or the plaintiffs are the owner of the property in question. 3052. In order to decide issue 8 (Suit-3), whether the rights of plaintiff have extinguished for want of possession over 12 years prior to the suit it has to be seen as to in which capacity the plaintiffs are claiming possession, what they have proved and only then the question of extinction will arise. A right extinguished, if somebody is deprived of possession of a property for more than 12 years under Section 28 of the LA 2871 1963 and Section 27 of LA 1908 which are pari materia. The question of extinction of right would arise if somebody has right over the property and that too in the capacity as owner. If one is not owner of the property in question the occasion of loss of right or extinction of such right does not arise. In the case in hand since the plaintiffs have completely failed to show that they have right as owner over the property in dispute, or a title vested in the plaintiffs regarding the property in question, the occasion of loss of such right or extinction of such right does not arise at all. It is also not the case where the defendants have admitted title or ownership of the plaintiffs and hence they have no occasion to lead any evidence to prove such title. Had it been so, something could have been said and there could have been an occasion for this Court to consider whether the plaintiffs had the possession in the property in dispute for preceding 12 years prior to the date of filing of the suit or not. 3053. In Mohammad Shah Vs. Fasihuddin Ansari & others AIR 1956 SC 713 is the case where the plaintiffs admit that the defendant is in possession of certain property but they (plaintiffs) assert that the possession of the defendant is on behalf of Sunni Mohammad community. For this reason, the plaintiffs say that a declaratory suit will lie and no need to sue for possession. It is also contented that no question of limitation or adverse possession can arise because firstly the possession is and always has been that of the community through the defendant and secondly because the defendant is a trustee under a trust for a specific purpose and so cannot set up a title hostile to the trust. In that case neither of the side possessed any document of title. It was held that the burden lies upon the plaintiffs. Defendant is admittedly in possession and except for 2872 the fact that he (defendant) is in possession on their (plaintiffs') behalf (a fact which the defendant denies), the plaintiffs are out of possession. Hence, the plaintiffs must prove that the defendant is in possession on their behalf. It also held that a stranger to the trust could have encroached on the trust estate and would in course of time have acquired a title by adverse possession. But a Mutwalli cannot take up such a position. 3054. Sri Verma, however, submitted that before the Magistrate, in the proceedings under Section 145 Cr.P.C., a number of evidences were filed by the Muslim parties admitting that the possession of the property in dispute is with the Hindus. Muslims have never visited since 1934 the said building and the same may be handed over to Hindus. It is contended that the said documents are admissible in evidence having been filed in statutory proceedings and that would show that the defendants' claim for adverse possession has no basis at all. 3055. We may clarify at this stage since we are referring and mentioning at many places the register number and page number in respect to the documentary evidence filed by the parties that the documents (exhibits) are running in a few thousand pages. Condition of most of the documents is also precarious being quite old. Many were already in torn conditions and it was difficult to preserve so as to be used by the Court during arguments. In the circumstances, various documents filed by the parties in these cases marked 'exhibits', for the convenience of the parties, were directed to be scanned and bound in the form of registers, which have been prepared and are 42 in numbers. We, therefore, while discussing the exhibits and other documents filed by the parties, for convenience, refer the register number and page number thereof 2873 for tracing it out smoothly.

3056. Register Nos.1 and 2 contain documents and papers relating to the proceedings conducted under Section 145 Cr.P.C. and have in all, 322 pages (Register 1 page 1-132 and Register 2 pages 133-322).

3057. Our attention is drawn to written statement dated 17th January, 1950 (Page 69-75 Register 1) of one Srivastava Narayan Prasad Sinha raising the question of ownership/ proprietorship of the disputed premises stating that he is representative of Raja Ram Narain, who enter into a treaty on 22nd August, 1757 and 23rd February, 1758 claiming possession including Faizabad Nazul area. He submitted that under the orders of Emperor Babur, a temple of Lord Ram Chandra Ji and Vishnu, situated at the place, was dismantled and using the material including pillars affixed there, the disputed building was constructed. He also refers to the existence of two places of worship within the enclosure of the disputed premises and continued worship by Hindus in the said two places. He gave some other facts showing how Raja Ram Narain came into picture, who own and possess the disputed premises Sri Sinha, however, neither has come up in the Civil Court to raise such a claim nor is represented before us. The version contained in his written statement filed before the Magistrate in the proceedings under Section 145 Cr.P.C. remain his ex parte version having not been proved as per the prescribed procedure in law. Therefore, we find it difficult to look into those aspects, as said by him in the aforesaid written statement. 3058. Our attention was also drawn to the affidavit filed by Sri Anisur Rahman, S/o Maulvi Vaziruddin along with his criminal transfer application No.208 of 1950 (Page 87-94 2874 Register 1) wherein para 2 he said "...the courtyard of the mosque is separated by a wall from a small temple which is situated to its East." It also says "Hindus and muslims of Ajodhya have been peacefully and calmly carrying on their worship in the temple and prayers in the mosque respectively from times immemorial."

3059. Sri P.N. Mishra, and Sri Verma, learned counsels drew our attention to paragraphs 4 and 5 of the affidavit which reads as under:

"4. That on the 9th of November, 1949 it was found that two tombs and about 25 graves which lay outside the compound of the Babari mosque had been levelled down and the mosque in the cemetery known as the "Qanati"

mosque had been dug up and a new platform adjacent to the aforesaid mosque was constructed and an idol placed on that platform."

"5. That from 22.11.1949 the Hindus of the place started their 'Jap' (worship) on that place in which a large number of Hindus were collected and for that reason the police advised the muslims not to say their prayers in the surviving Babari mosque all the 5 times while the 'Jap' continued but confine it to Fridays only. In order to avoid a communal clash the muslims acted on the advice and continued to say their prayer every Friday upto December 16, 1949. Except for the Friday prayers the mosque used to be kept locked and guarded by the Police."

3060. It is contended that though the above affidavit is a part of the transfer application filed before this Court, which has already been rejected vide judgment dated 30th May, 1950 by 2875 Hon'ble B. Bhargava as His Lordship then was, but the facts asserted therein amounts to admission on the part of the Muslims and therefore, facts contrary to what have been pleaded by them subsequently can validly be ignored. They are estopped from changing their statement. It is said that it is an admission and therefore, is binding on the Muslim parties. They cannot take a stand which has been taken by them through their representative Anisur Rahman in the above matter. 3061. Then also drew our attention to certain affidavits filed by Sri Hasnu, S/o Aladin and Wali Mohammad S/o Hasnu dated 8th February, 1950 (Register 1, Page 95) stating that the disputed building was constructed by demolition of Janam Bhumi temple. Hindu and Muslim both were offering worship. After 1857, Muslims were offering Namaz on Friday inside the mosque. In the outer enclosure, Hindus were worshipping Lord Ram Chandra Ji and except of Friday they were also worshiping inside the mosque. There has been consistent agitation between Hindu and Muslim. In 1934 some part of the mosque was damaged but all Hindus were acquitted. Thereafter Muslims stopped offering Namaz and Hindus are continuously worshipping since then and till date. The deponents have no objection if the said mosque is handed over to Hindus. Copies of affidavits filed by Sri Peeru S/o Varati dated 11.02.1950 (Page 101 Register 1); Mohd. Umar S/o Wazir dated 11.02.1950 (Page 105 Register 1); Azimullah S/o Razab dated 13.02.1950 (Page 109 Register 1); Latif S/o Abdul Aziz dated 13.02.1950 (Page 113 Register 1); Mohd. Hussain S/o Wasau dated 14th February, 1950 (Page 119 Register 1); and Abdul Jalil S/o Abdul Wahid dated 14th February, 1950 (Page 121 Register 1) were also placed before us. Besides the affidavits, the aforesaid persons 2876 also filed their separate written statements before the concerned Magistrate in the proceeding initiated under Section 145 Cr.P.C., which are also part of the record i.e. Register 1. All these affidavits have similar contents. 3062. Register 2 also contain copies of affidavits worded in the similar languages, as noticed above, which have been filed by the following:

1. Jaan Mohammad S/o Husaini dated 14.02.1950 (Page 137)

2. Abdul Sattar S/o Shamsher Khan dated 16.02.1950 (Page 141)

3. Abdul Ganni S/o Allah Bux dated 16.02.1950 (Page

143)

4. Rozeed S/o Tunnu Dated 16.02.1950 (Page 147)

5. Hosaldar S/o Ghirau dated 16.02.1950 (Page 151)

6. Ramzan S/o Jumman dated 16.02.1950 (Page 153)

7. Gulley Khan S/o Nawab Ali dated 16.02.1950 (Page

157)

8. Mohd. Ismail dated 16.02.1950 (Page 161)

9. Abdul Shakur S/o Eedan dated 16.02.1950 (Page

165)

10. Abdul Razzak S/o Wazir dated 16.02.1950 (Page

171)

11. Naseebdar S/o Jahan dated 24.02.1950 (Page 177) 3063. The above affidavits in Register 2 are also accompanied with the written statement of the said persons. It is mentioned on the back of the written statement that the same were received by the Magistrate, verified by the persons claims to have filed the same and thereafter were taken on record.

3064. The admissibility of the aforesaid affidavits and the 2877 contents thereof was disputed by Sri Jilani, and other counsels who have adopted his arguments, stating that said documents were filed before the Magistrate but the averments therein, at the best, are ex parte version and those deponents have neither been examined as witnesses nor the Muslim parties had any occasion to cross examine them. Therefore, the aforesaid documents are inadmissible.

3065. On the contrary, Sri P.N.Mishra and Sri R.L.Verma, learned counsels submitted that the documents filed in statutory proceedings are admissible in evidence to the extent that the facts stated therein amounts to an admission and the same can be relied on by the other party in subsequent judicial proceedings. No authority in support of the above submission covering the issue directly cited by the learned counsels. We are, however, of the view that in the absence of the authors being available for cross-examination by the other side their ex parte version, if any, contained in the documents filed even before a statutory authority, cannot be relied on and cannot partake the nature of an admission binding on a party in the subsequent judicial proceedings.

3066. We may notice at this stage the reply dated 05.04.1950 (Page 195 Register 2) submitted by the then City Magistrate, Faizabad i.e. Sri Markandeya Singh before this Court in the criminal transfer application filed by Sri Annisur Rahman wherein para 3 he said :

"Regarding allegations contained in para 8, I beg to say that on being satisfied from credible sources that a dispute likely to lead to a breach of the peace between Hindus & Muslims in Ayodhya over the question of rights of proprietorship & worship in the buildings claimed 2878 variously as Babri Masjid & Janam Bhumi Mandir, I passed an order u/s 145 Cr.P.C. and attached the said building. The parties were called upon to put in written statement of their respective claims with regard to the fact of actual possession of the subject of the dispute. As a matter of fact the order u/s 145 Cr.P.C. was meant to check an imminent breach of the peace."

3067. So far as the District Magistrate is concerned, on page 199 Register Vol.2 is a letter dated 6th April, 1950 by Sri J.N.Ugra, while forwarding explanation of Sri Markandeya Singh, City Magistrate, Faizabad wherein he has said that he himself (Sri Ugra) has taken charge as District Magistrate, Faizabad on the afternoon of 14th March, 1950 and had nothing to do with the case at any stage. At the cost of repetition we may place on record hereat these two documents which were taken into consideration by this Court and thereafter the transfer application was rejected. There are two written statements filed by Sri Baba Abhayram Das dated 29th December 1950 (Page 203 Register 2) and Baba Baldev Das dated 27.09.1950/29.12.1950 (page 207 Register 2) wherein it has been said that the property in dispute for the last more than 12 years is in possession of Nirmohi Akhara and also owned by it. From 1935, no Muslim person has ever enter the disputed premises and has also not offered any prayer (Namaz) therein. 3068. On Page 211 Register 2 is a statement of Sri Sattar Mohammed S/o Barsani dated 21.04 (year is illegible) stating that the building in dispute was constructed by Babur in 1528 A.D. and was made a public wakf for the benefit of Muslims in general and since then for several hundreds years uninterruptedly Muslims are offering Namaz therein till 2879 December, 1949.

3069. Sri Anisur Rahman also filed his separate written statement dated 08.07.1950/29.12.1950 (Page 215-219 Register

2) and with respect to the nature of the disputed property, period of construction/possession and worship etc. from para 1 to 9 it says as under:

^^nQk 1- ;g fd bekjr eqrukft;k okds eksgYyk jkedksV 'kgj v;ks/;k 'kgu'kkg fgUn ckcj 'kkg dh rkehj djnk efLtn ekSlwe cckcjh efLtn gS- ftl dks 'kgu'kkg etdwj us ckn Qrsg;kch fgUnksLrku nkSjku D;ke v;ks/;k lu 1528 bZ0 esa rkehj djk;k- vkSj reehj djds reke eqlyekuku ds fy, oDQ vke dj fn;k- ftl esa vke eqlyekuku dk gd bcknr gS-

nQk 2- ;g fd ckn rkehj efLtn etdwj 'kgu'kkg ckcj us efLtn etdwj dh f[krkcr o nhxj v[kjktkr ds fy, ,d jde vfr;k lkykuk vius [ktkuk 'kkgh ls eksdjZj fd;k- tks nkSjku lyrur eqx+fy;k etdwj dks cjkcj feyrk jgk- vkSj ckn toky lyrur eqxfy;k uokchu vo/k us bl vfr;k dks dk;e jD[kk- vkSj uokc vklQqn~nkSyk cgknqj us vius tekuk gqdwer esa jde vfr;k etdwj dks btkQk djds eqcfyx 302 :0 3 vkuk 6 ikbZ lkykuk vrk djuk eatwj fd;k- tks jde ckn bUrtk lyrur vo/k fczfV'k xouZesUV us Hkh tkjh jD[kk- vkSj tekuk cUnkscLr vOoy esa xouZesUV cjrkfu; us eqRrofYy;ku dks ctk; uDn vfr;k et+dwj ds eokft;kr 'kksykiqjh o cgksjuiqj eqRrfly v;ks/;k crkSj ekQh fcukcj elkfjQ efLtn ckcjh vrk fd;k-

nQk 3- ;g fd vke eqlyekuku vkSj Qjhd nks;e dk dCtk crkSj oDQ vke bekjr eqrukft;k ;kuh efLtn ckcjh ij 1528 bZ0 ls vkt rd eqlyly pyk vkrk gS-

nQk 4- ;g fd Qjhd nks;e o vke eqlyekuku tk;n vt 400 lky cbYe o vkxkgh Qjhd vOoy o vke vgsys fguwn bekjr eqrukft;k esa crkSj efLtn oDQ vke fcyk fdlh jksd Vksd ds viuh bcknr djrs vkSj uekt i<+rs pys vk, gS-

nQk 5- ;g fd Qjhd vOoy ;k vke vgsys fguwn dk dksbZ gd bekjr 2880 eqrukft;k ;kuh efLtn ckcjh esa u Fkk vkSj u gS- vkSj u mudk dCtk dHkh bl ij jgk gS vkSj u gS-

nQk 6- ;g fd bekjr eqrukft;k ;kuh efLtn ckcjh u dHkh efUnj tUe Hkwfe Fkh vkSj u gS- vkSj u dHkh Jh jkepUnz th dk efUnj jgk- nQk 7- ;g fd Qjhd nks;e o nhxj eqlyekuku us bekjr etdwj ;kuh efLtn ckcjh esa 16 fnlEcj lu~ 49 bZ0 rd uekt tqek ctekr vnk dh-

nQk 8- ;g fd dqN 'kksfj'k ilUn vgsys fguwn us ftl esa dqN eqdkeh Qjhd vOoy Hkh 'kkfey Fkh- 12 uoEcj lu~ 1949 bZ0 dks bekjr eqrukft;k ;kuh efLtn ckcjh ds djhc exj - - - - efLtn ls ckgj esa tki 'kq: fd;k- ftl esa ,d vEcksg dlhj vgsys fguwn dk tek gqvk ftl us fd dqN dOjs vkSj dukrh efLtn dh csgqjerh dh- tc Qjhd nks;e us bl dh [kcj gqDdke ftyk dks nh rks mUgksaus ,d iqyhl xkMZ bl eqdke ij rSukr dj fn;k fd vkbUnk bl fdLe dh gjdr ljt+n u gks-

nQk 9- ;g fd 22 uoEcj lu~ 49 bZ 0 dk s tc ;g e'kg wj gq v k fd bekjr eq r ukft;k ckcjh efLtn in dq N 'kk sf j'k ilUn eq Q fln geyk djuk pkgrs gS - rk s mldh bRryk gq D dke ftyk dk s nh xbZ - rk s mUgk sau s iq y hl xkMZ es a btkQk dj fn;k vkS j gj uekt ds ckn efLtn etdwj esa rkyk yxk;k tkus yxk-^^ "Section 1. That the controversial building situated in Mohalla Ram Kot Ayodhya city was built by the king of Hind Shah Babar and is a Masjid known as Babri Masjid. This Masjid was built by the said king Babar after he won Hindustan in 1528 A.D. in Ayodhya and made it a general Waqf for all the Muslims who have a right to offer prayers there.

Section 2. That after getting the Masjid constructed Shahanshah Babar, for khitabat and other expenses in respect of the Masjid sanctioned an amount as a recurring gift fund from the Royal Treasury which continued to be 2881 given during the royal regime of Moghuls. After the down fall of this royal kingdom, Nawabeen of Oudh continued the tradition and the recurring grant for the Masjid was regularly paid. Not only this Nawab Asifuddaula of Oudh, increased this amount of grant for the Masjid to Rs. 302- 3annas and 6pies. This amount of recurring gift later continued in the British regime after the down fall of Oudh. During Bandobast first the British Govt. did not paid cash to the Mutawallis, instead they allotted two Mawaziat of Sholapuri and Bahoranpur adjacent to Ayodhya as moafi for the expenditure of Babari Masjid.

Section 3. That the possession of the general Muslim as well as the party number2 as Waqf Aam over the controversial building that is Babri since 1528 continues till date.

Section 4. That the party number2 and general Muslim possess the controversial premises as Masjid offer prayers and recite Namaz in it for more than 400 years, without any hindrance what soever and this fact is well in the knowledge of party number 1 and the Hindus. Section 5. That neither the party number 1 nor the Hindus had any right over the controversial building that is Babri Masjid. They never had nor have any possession over it. Section 6. That the controversial building that is Babri Masjid was never or is Mandir Janam Bhoomi. It has never been a Mandir of Ram Chandraji :

Section 7. That party number 2 and general Muslims offered Namaz Juma till December 16, 1949. Section 8. That some mischievous Hindus including the party number1, On November 12, 1949 began Jaap near 2882 the controversial building that is Babri Masjid in which large number of Hindus gathered and they damaged some of the graves and outer wall of the Masjid. That the party number 2 informed the district officers and they simply posted a guard there so that this act might not be repeated again.

Section 9. That on November 22,1949 when a word was around that some unlawful elements would attack the controversial building that is Babri Masjid, the district officers were informed who increased the number of guards on the spot who began locking the Masjid after every namaz."(E.T.C.) 3070. In para 13 thereof Sri Anisur Rahman also said that Sunni Central Board of Wakf U.P. is a necessary party and that he has right to offer worship in the said building hence the idols placed therein be immediately removed and his right of worship be restored.

3071. Since all these persons have neither been examined nor cross examined before this Court, therefore, these documents can not be read in evidence. Be that as it may, what we find is a piquant situation in this case. The plaintiffs have set up a case claiming ownership of the property in dispute but have failed to discharge their burden particularly when the defendants have not admitted their title. The defendants at the first stance have set up a case based on their title and possession but, thereafter, have pleaded that in any case their possession having continued for hundred years, the title, if any, of the plaintiff stands extinguished. The plea of extinction of title will depend on a proven fact that the other person has a title, only then the question of extinction will arise. If the title has not extinguished 2883 of that person, and no one else is pleaded by the defendant as owner against whom he claims to have matured a title by prescription, the defendants' plea of adverse possession would also fail. We have already referred to various authorities showing necessary ingredients of adverse possession, how and in what manner it has to be pleaded and proved. All these legal mandatory requirements are apparently missing not only in the pleading but parties have also failed to prove their case so far as the question of adverse possession is concerned. We have considered witnesses of Muslim parties i.e. PW 1 to 9 and few others. Many of them have categorically stated that in the entrance gate of dividing wall, no lock ever put till 22 nd December 1949. It is also not the case that there was some other arrangement made to check entry of the members of one community and it was confined to another community. It appears to us, that, no person was restricted from entering the premises in dispute (inner courtyard) and in fact there was no restriction at all whatsoever to any one's visit to the premises in dispute (inner courtyard) for the purpose of worship. The mere entry of Muslims in the premises in dispute in such manner, by no mean can be termed as 'possession' what to say of "exclusive possession" so as to meet the requirement of plea of adverse possession.

3072. The documents or orders under Section 145 Cr.P.C., since do not decide the matter of title, only to a limited extent can been seen. On a question as to who is entitled for possession, it was held in Dinomoni Chowdhrani Vs. Brojo Mohini Chowdharani (supra) that the Police orders referable to Criminal Procedure Act applicable in 1867 and 1876 for preventing breaches of peace are admissible in evidence on 2884 general principles as well as under Section 13 of the Evidence Act to show that such orders were made. They decide no question of title. Under Section 145 Cr.P.C., the Magistrate, if possible, is to decide which of the parties is in possession of the land in dispute and once he take such a decision, he would pass an order declaring such party entitled to retain possession until evicted in due course of law. The Judicial Committee held:

"This necessarily makes them evidence of the following facts, all of which appear from the orders themselves, namely, who the parties to the dispute were; what the land in dispute was; and who was declared entitled to retain possession. For this purpose, and to this extent, such orders are admissible in evidence for and against every one when the fact of possession at the date of the order has to be ascertained."

3073. Even otherwise it cannot be said that the plaintiffs had "possession" of the property in dispute i.e. inner courtyard. They never entered the premises exclusively, prior to 22.12.1949, for the purpose of managing, maintaining or worshipping in the capacity of priest, Pujari or Mahant and, therefore, the question of extinction of their right even otherwise does not arise. OPW 1 a witness produced on behalf of plaintiffs (Suit-5) has stated that in the night of 22 nd/23rd December, 1949 idols from Ram Chabutara in the outer courtyard were shifted to the building in the inner courtyard and placed under the central dome of three domed structure. He has also said that from 23rd December, 1949 and onwards Pooja etc. of the idols were observed by the Mahants and priests of Nirmohi Akhara till the property was attached under Section 145 Cr.P.C. vide order dated 29th December, 1949 of Magistrate. On this aspect neither 2885 any evidence contradicting the said statement has been placed by the defendants muslim parties nor OPW 1 has been cross-

examined on this aspect but this is not admitted by plaintiffs and hence cannot be read in their favour.

3074. However, as we have already said, the Hindus continue to visit inner courtyard for the purpose of worship. It may be said that the members or people of Nirmohi Akhara were not included in those persons, i.e., Hindus. The nature of worship has also been clarified by some of the witnesses that they used to worship the place which they believe as birthplace of Lord Rama in inner courtyard as also images of Gods and Goddesses carved on the black Kasauti stone pillars which were there in the disputed building in the inner courtyard. Therefore, entry of plaintiffs in the inner courtyard as a mere worshipper atleast till the date when the property was attached may not be doubted but the issue in question is about extinction of their rights which means the right in the capacity of the owner or title as contemplated under Section 27 of LA 1908. In this context we find that the plaintiffs have failed to prove any such right, and the question of extinction thereof does not arise. 3075. The suit having been filed in 1959. It cannot be said that in the preceding 12 years the plaintiffs never had possession over the property in dispute (inner courtyard). Neither the plaintiffs could discharge burden of proof that they own the property in dispute nor the defendants could prove by leading trustworthy evidence that the plaintiffs were the owner but remain dispossessed from the property in dispute for over 12 years and that prior or upto the date of the suit, defendants fulfilled all the requirement to clear the plea of adverse possession. Issue no. 8 (Suit-3) is decided accordingly in 2886 negative.

3076. Issue 2 (Suit-4) relates to the possession of the property in dispute of the plaintiffs upto 1949. The burden to prove this issue lie upon the plaintiffs. The concept of property in Suit is different then what it was in Suits-1 and 3. Suits-1 and 3 were confined to the premises covered by the inner courtyard of the disputed site. Suit-4, however, relates to the entire premises, i.e., inner and outer courtyard both excluding a small area in the southern side. The plaintiffs, therefore, have to prove first that they were in possession of the entire property, i.e., inner and outer courtyard both upto 1949 and only then the question of their dispossession from the same in 1949 would arise.

3077. Besides, we may also mention at this stage and shall discuss it later in detail that there is no factual averment in the plaint that the plaintiffs were dispossessed at any point of time in 1949. On the contrary their case is that in the night of 22nd/23rd December, 1949 idols were kept in the building in dispute, i.e., the premises marked as A B C D in the map appended to the plaint which means the inner and outer courtyard both. This placement of idols resulted in obstructing the right of worship of plaintiffs, as well as defiled and desecrated the mosque. These are three different things and their ingredients are also different. However, we shall discuss it in detail later on.

3078 At this stage, we are concentrating on the question whether the plaintiffs have discharged burden of proof about their possession of property in suit as a whole, i.e., inner and outer courtyard, up to 1949.

3079. In para 5 of the plaint (Suit-4) itself the plaintiffs 2887 have averred:

"5. That in the mosque, but outside the main building of the mosque, there was Chabutara 17' x 21' on which there was a small wooden structure in the form of a tent which is still there."

3080. Regarding this Chabutara they have read certain averments pertaining to an earlier litigation between Mahant Raghubar Das and the State in 1885 in which one Mohd. Asghar claiming himself Mutwalli of Babari Mosque also appeared as defendant no. 2. Paragraphs no. 6, 6A, 6B, 6C, 6D, 6E, 6F and 7 relate to the said litigation and various judgements passed therein. It read:

"6. That in 1885, one Mahant Raghubar Dass alleging himself to be the Mahant of Janam Asthan instituted a suit (Original Suit No. 61/280 of 1885) against the Secretary of State for India in Council and Mohd. Asghar, Mutawalli of the Babri mosque, for permission to build a temple on the Chabutra 17' x21' mentioned in para 5 above, in the court of the learned Civil Judge, Faizabad which was dismissed, and an appeal from the said decree was also dismissed.

By the learned District Judge, Faizabad (Civil Appeal No. 27 of 1885). In the sketch map filed alongwith the plaint in Suit No. 61/280 of 1885 the entire building, with the exception of the Chabutra 17' x 21' was admitted to be mosque and was shown as such. 6A. That the cause of action for the suit in Suit No. 61/280 of 1885 in the Court of the Civil Judge, Faizabad, arose on the refusal of the Dy. Commissioner of Faizabad on the representation of some Muslims to grant permission to Mahant Raghubar Dass, Mahant of Janam Asthan for 2888 the construction of a temple on the ground that a temple could not be permitted to be built on land adjoiing the mosque (meaning thereby the Babri Masjid). 6B. "In that suit Regular Suit No. 61/280 of 1885 of the Court of Civil Judge, Faizabad Mahant Raghubar Dass was suing on behalf of Himself, on behalf of Janam Asthan, and on behalf of the whole body of persons interested in Janam Asthan and Mohd. Asghar, Mutawalli of the Babir Masjid was made a defendant."

6C. Mohammad Asghar Defendant Mutawalli of Babir Masjid contested the suit inter-alia on the ground that the land on which the temple is sought to be built is not the property of the plaintiff or of the Asthan, that the said land lies within the Ahata of Babari Masjid and is the property of the Masjid.

6D. That in the suit mentioned above the matter directly and substantially in issue was:-

(i) the existence of the Babari Masjid.

(ii) the right of Hindus to construct a temple on land adjoining the Masjid.

The existence of the mosque was admitted by the plaintiff in that suit and the Suit of the plaintiff was dismissed on the further ground of public policy.

6E. If the building was not a masjid but a temple as alleged in the present suit the matter might and ought to have been pleaded by Mahant Raghubar Dass in the former suit (suit No. 61/280 of 1885 mentioned above) and shall be deemed to have been a matter directly and substantially in issue in that Suit and the plea that the building is not a Masjid but a temple cannot be raised in 2889 the present suit. For the reasons mentioned above the decision in the former suit operates as resjudicate in the present Suit.

6F. That on the admission contained in the plaint of Regular Suit No. 61/280 of 1885 mentioned in the preceding paragraphs it must be taken an established fact that the building now claimed by the Hindus as the temple of Janam Asthan was and is a mosque and not a temple.

7. That the suit mentioned above was a sensational case, in which the entire Hindu public and more specially all the Mahants of Ajodhiya and other respectable Hindus of Ajodhiya and Faizabad were deeply interested." 3081. The sketch map filed alongwith the plaint in Suit- 1885 has been relied upon by plaintiffs as is evident from para 6 of the plaint stating that the said Chabutara was shown therein in the mosque premises. In para 6 referring to the order of the Deputy Commissioner, the plaintiffs said, "a temple could not be permitted to be built on land adjoining the mosque (meaning thereby Babari masjid)." It shows that the plaintiffs also believed that the actual building structure only constitute mosque and rest of the area between the outer wall and the building was land adjoining the mosque and not the mosque itself or part of the mosque itself. The written statement filed by Mohd. Asghar in 1885 suit has been referred to in para 6(C) and copy thereof has also been placed on record as Exhibit A-23, Suit-1, Register 7, page 255, Admitting that the said Chabutara was constructed in 1857, he, however, submitted that the said action was unauthorised. In para 5 he admits that Sita Rasoi and a Kuti has also been constructed and despite of the orders having been issued the same are not removed.

2890

3082. The map appended to the plaint in Suit-1885 is also on record as Exhibit A 22 (Suit-1), (Register 7 page 239) and it would be appropriate to reproduce the said map (only disputed site):

Note: The rectangular area covered by letters W B W1 W2 on the extreme southern side is not the part of property in dispute in Suit-4.

3083. There is an endorsement at the bottom of the said map as under:

"A B C D E is in the possession of the Hindus. W E F G H is in possession of Mohammedans."

3084. It also shows that the partition wall 'F G' has one entrance gate and on its northern side there was a barbed window. In the outer courtyard three structures are shown, i.e., Chabutara, Chappar and Sita Chulha. (also called Sita Rasoi and Chhatti Pujan Sthal) 3085. The correctness of the map was not disputed in 1885 2891 Suit. The Court in 1885 appointed Gopal Sahai Amin's Commission to prepare the map by spot inspection and submit report. This map was submitted alongwith report dated 6th December 1885. The report is Exhibit A 24 (Suit-1) (Register 7, page 275) and the Gopal Sahai Amin Commissioner's map is Exhibit A 25, (Suit-1) (Register 7, page 277). There is nothing on record to show that this map was ever disputed by defendant no. 2, i.e., Mohd. Asghar in the said suit. Therefore, as long back in 1885 in the outer courtyard three non Islamic structures existed and the premises of the outer courtyard was claimed to be possessed by Hindus which by itself was not disputed. Only this much was contested that this possession is unauthorised. Issue no. 5 (Suit-1885) pertains to the correctness of the measurement of Chabutara and in the judgement dated 24.12.1885 of the trial court, i.e., Sri Hari Kishan, Sub-Judge Faizabad, he said:

^^fuLcr rudhg iUtqe ds ekSd+s ij iSekb'k dh vkSj iS e kb'k uD +' kk lgh gS tk s eq r kfcd+ eq U ntkZ nkok gS fd eq g Een vlx+j dk s Hkh ml rknkn eq U ntkZ vt+h Z nkok es a vc dq N mtz + u jgk cfYd og dqN rknkn dqN bUp esa de gS rknkn Q+hV lgh gSA** "Regarding Issue no. 5 I took the measurement on- the-spot and found the map to be correct which is in consonance with the plaint. Mohd. Asghar also does not have any objection whatsoever with regard to the figure mentioned in the plaint, rather the measurement is a few inches less but number of feet is correct." 3086. For Chabutara and other things, the finding recorded by trial court, not disputed in appeal, and also before us by the plaintiffs (Suit-4), who in fact, rely on the said judgement, are as follow:

2892

^^fuLcr rud+hg 'k'kqe ceqykfgtk ekSd+k t+kfgj gS fd pju ;kuh iknq d k uD +' k gS fd ftldh ijlfr'k gk sr h gS flok; blds pcwrjs ls efUnj ckdS+; pcwrjs ij ,d ewjr Bkdqj th j[kh gqbZ gS ftldh ijfLr'k gksrh gSA pcwrjk ed+c+wtk eqn~nbZ gS fd tks dqN ml ij p<+kok p<+rk gS og eqn~nbZ ysrk gS fd bl ckr ;kuh p<+kok dks bl oD+r eqgEen vlx+j eqn~nkySg Hkh rlyhe djrs gSaA xokgku eqn~nbZ ls dCt+k eqn~nbZ dk c[kwch lkfcr gS fd bl otg ls nhokj dVgjsnkj gn fgUnw eqlyeku vygnk vlsZ ls d+k;e gqbZ gS ftldk ft+dz vkbUnk ekSd+s ij gksxkA xokgku eqn~nkySg d+Ct+k pcwrjk eqn~nbZ ls uokd+fQ+;r t+kfgj djrs gSaA njfe;ku efLtn o pcwrjs ds ,d iq[rk nhokj dVgjsnkj gS fd uD+'kk eqjfRrck vehu blykgs nkok ds eqykfgtk ls c[k+wch dSfQ;r ekSd+k equdf'kQ+ gks ldrh gS vkSj lkQ+ t+kfgj gS fd gqnwn njfe;ku efLtn o pcwrjs dh d+k;e dh xbZ gS vkSj bldh rkbZn ljdkjh x+t+sfV;j ls tks d+Cy eqrkuktk gky ds eqjfRrc gqvk c[kwch gkfly gS fd is'krj fgUnw o eqlyeku nksuksa bl eqd+ke ij ijfLr'k djrs Fks lu~ 1855 esa ckn yM+kbZ njfe;ku fgUnw o eqlyeku ,d nhokj dVgjs dh okLrs jQ+s fut+k ds cuk nh xbZ fd vUnj mlds eqlyeku o ckgj fgUnw yksx ijfLr'k djsaA** "Regarding Issue no. 6 it is clear from the spot inspection that 'Charanpaduka' is placed there which is being worshipped. Besides this Chabutra, an idol of Thakur Ji is also placed there which is also being worshipped. The Chabutra is occupied by the plaintiff and whatever offerings are offered are taken by the plaintiff. The respondent Mohd. Asghar also accepts this fact concerning offerings and its acceptance by the plaintiff. From the statements of the witnesses of the plaintiff his possession is well established and, therefore, barbed wire wall exists since long separating Hindus from Muslims which will be mentioned at the appropriate stage. The witnesses of the respondent express ignorance about the 2893 possession of the plaintiff over the Chabutra. There is a barbed wire wall between the Masjid and the Chabutra which may be evident from a perusal of the map prepared by Amin and the situation becomes clear from it that limit has been created between Masjid and the Chabutra which is verified by Government Gazetteer which was prepared prior to the dispute in question. Earlier, both Hindus and Muslims used to worship at this place. In 1855, after the riot between Hindus and Muslims, a barbed wire fencing was erected to avoid any clash between Hindus and Muslims so that Muslims may offer prayers inside and Hindus outside."

3087. In appeal, the District Judge, with respect to the existence of the structures at the premises in dispute, in judgment dated 18.03.1886, Exhibit A 27 (Suit-1), Register 7, page 319/320, observed:

"The entrance to the enclosure is under a gateway which pears the superscription "Allah" ---- immediately on the left is the platform a chabutara of masonry occupied by the Hindus. On this is a small superstructure of wood in the form of a tent.

This chabutara is said to indicate the birthplace of Ramchandra. In from of the gateway is the entry to the masonry platform of the masjid. A wall pierced here and there with railings divides the platform of the masjid from the enclosure on which stands the "Chabutara"." 3088. This position of the outer courtyard had continued thereafter inasmuch as when Suit-1 was filed on 16th January, 1950 the Civil Judge appointed an Advocate Commission of Sri Shiv Shankar Lal who also prepared a map wherein the three 2894 structures, i.e., Chabutara, Bhandar and Sita Rasoi have been shown to exist in the outer courtyard in same way. The plaintiffs have not placed any evidence to show that so far as the premises in outer courtyard, and these three structures are concerned, possession of Hindus was ever disturbed or denied or they were ever dispossessed. It is also not said that Muslims ever entered and visited premises in outer courtyard with animus possidendi, On the contrary it appears that during the fairs held at Ayodhya, i.e., Ramnavami fair etc., the rush of Hindu public used to swell so much so that the executive authorities found it necessary to have another gate for safety purposes and sometimes in 1873-74 this gate was constructed and opened in the northern wall which the defendants Hindu parties called "Singh Dwar". 3089. So far as the premises in the inner courtyard is concerned, it appears to be true that the Britishers divided the premises with the intention that the Muslims shall worship in the inner courtyard and Hindus in the outer courtyard but immediately since thereafter, i.e., from 1858 and onwards we find a lot of documents on record demonstrating that the Hindus continued to enter the premises in the inner courtyard also and offered worship thereat. There was no restriction in the entry inside the inner courtyard in any manner. The entrance door in the dividing grilled wall was never locked. It is difficult to hold that the possession of the premises inside the inner courtyard remain only with the plaintiffs. Here the "possession" means right possession, uninterfered possession by the unwanted person and capacity to control others interference. 3090. There is no evidence that the Muslims had the possession of the property in dispute after its construction in the form of mosque by a Muslim Ruler before Tieffenthaler' visit 2895 but on the contrary, Hindus continued to enter the disputed premises and worship thereat as we find mention, as long back as in 18th century, in the Travellers Account of Joseph Tieffinthaller who visited Oudh area between 1766-1771 and his write up was published in 1786. We have already quoted the relevant extract above. This fact was also reiterated in the subsequent Gazetteers of Edward Thornton which was published in 1858.

3091. The plaintiffs (Suit-4), however, have filed certain Statements of Account and Auditor's Report, orders under Section 92 CPC, waqf related documents etc. to claim that the maintenance of the building in dispute was entrusted to Mutawalli who was looking after the mosque and, therefore, symbolic possession of the building in dispute had to be with Muslims. We may have a bird eye view of these documents also.

3092. These documents can be placed in five categories,

(i) copies of revenue records; (ii) income-expenditure accounts;

(iii) the documents relating to repair of the damaged building in 1934 riot; (iv) the orders under Section 92 C.P.C.; and (v) correspondence with the Sunni Board regarding wakf and its registration etc. 3093. In the first category, i.e. copies of revenue records, comes the following:

(A) Exhibit A-30 (Suit-1) (Register 7, page 333-335) is a copy of the Khewat Patwari Mauza Bahoranpur of the period 1332 Fasli (1929 A.D.). In respect of certain plot number, it mentions the name of Mir Mohammad Zaki as Numberdar and in the column of partners it mentions the name of Mohd. Zaki, Amzad Ali and Mir Nazim.

2896

This document relates to Mauza Bahoranpur's property wherein Mir Mohammad Zaki is shown as Numberdar. His successor, in his reply dated 20th November 1945 (Exhibit A-66, Suit-1), in para 9 has claimed that his property is not wakf but Nankar Maafi. We are not concerned with the said property of Mauza Bahoranpur and, therefore, do not propose to make any comment on the said document. Suffice is to say that this document does not help Muslim parties in any manner. (B) Exhibit A-37 (Suit-1) (Register 7, page 417) is a copy of Khasara Abadi Mashmoola Misil bandobast Sabik relating to Mauza Ramkot Pargana Haweli Awadh Tehsil and District Faizabad dated 20.03.1950. (C) Exhibit A-38 (Suit-1) (Register 7, page 419) is a copy of the Naqual Khasara Mashmoola Misil bandobast Sabik Mauza Ramkot Pargana Haweli Oudh Tehsil and District Faizabad.

(D) Exhibits A-39 and A-40 (Suit-1) (Register 7, pages 421 and 423) are the copies of the map Kishtwar Misil Bandobast Sabik Mauza Ramkot Pargana Haweli Tehsil and District Faizabad dated 09.03.1950 and Intekhab Naksha Abadi Mauza Ramkot Pargana Haweli Tehsil and District Faizabad.

(E) Exhibit A-41 (Suit-1) (Register 7, page 425) is a copy of the Khewat Mauza Bahoranpur.

3094. These revenue documents have been placed to show that there is mention of existence of a mosque in the area in dispute by referring plot area. The revenue entries do not create any right. When contested, particularly in a title suit, the facts have to be proved on their own. Even otherwise what is 2897 contained in the revenue entries would not show that a particular party was in possession. As we have already discussed above, the possession of the plaintiffs (Suit-4) even if we assume what they claim to be correct, is not of a continuous nature. The alleged Mutawalli of the disputed structure or the disputed waqf is not before the Court. Even the so called Pesh-Emam or Moazzim have not appeared even as a witness in this case. On the one hand the plaintiffs claim that till 1949 there was a Mutawalli, a Pesh-Emam and a Moazzim for maintaining the mosque as also taking care of regular Namaj by muslims but strangely none of them have taken any step as a result of the incident of 22/23 December 1949. There is not even a complaint by any of them what to say of their deposition as witness in these cases. It is contended that an affidavit of Pesh-Emam, Abdul Gaffar was filed in a writ petition pending before this Court against the order dated 01.02.1986 passed by the District Judge for opening of locks. We cannot take notice of such affidavit since the deponent has not appeared in the witness box offering himself for testifying creditworthiness of his averments. These revenue records, therefore, to our mind do not help the plaintiffs in any manner on the issue with which at present we are confronted with.

3095. The legal status of entry in revenue record was considered and the Court held that it does not confer ownership or title. Relying on an earlier decision in Jattu Ram Vs. Hakam Singh, 1993 (4) SCC 403, in Suraj Bhan Vs. Financial Commissioner, 2007 (6) SCC 186 the Apex Court said:

"9. ....It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in 2898 the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh 1993 (4) SCC 403)."

3096. In the second category, i.e, income-expenditure accounts comes:

(A) Exhibit A-72 (Suit-1) (Register 7, page 337-355) is a copy of the accounts alleged to be submitted by Syed Mohd. Zaki in Case No. 64 in the Court of Tahsildar Faizabad on 9th July 1925 for the period 18.04.1923 to 06.04.1924 with respect to the income from the grant of Mauza Bahoranpur and Sholapur.

(B) Exhibit A-31 (Suit-1) (Register 7, page 357-377) is a copy of the accounts alleged to be submitted by Syed Mohd. Zaki in Case No. 64 in the Court of Tahsildar Faizabad on 31.03.1926 for the period 07.04.1924 to 28.03.1925 with respect to the income from the grant of Mauza Bahoranpur and Sholapur.

(C) Exhibit A-32 (Suit-1) (Register 7, page 379-399) is a copy of the accounts alleged to be submitted by Syed Mohd. Zaki in Case No. 64 in the Court of Tahsildar Faizabad on 23.08.1927 for the period 29.03.1925 to 24.04.1926 with respect to the income from the grant of Mauza Bahoranpur and Sholapur.

(D) Exhibit A-33 (Suit-1) (Register 7, page 401-407) is a copy of the accounts alleged to be submitted by Syed Mohd. Zaki in Case No. 64 in the Court of Tahsildar Faizabad for the period 25.09.1941 to 12.09.1945 with ‫‪2899‬‬ ‫‪respect to the income from the grant of Mauza‬‬ ‫‪Bahoranpur and Sholapur.‬‬ ‫‪(E) Exhibit A-35 (Suit-1) (Register 7, page 413) is a copy‬‬ ‫‪of accounts of income and expenditure relating to 1.4.1947‬‬ ‫‪to 31.03.1948 as per Section 57 of U.P. Muslim Waqf Act,‬‬ ‫‪1936.‬‬ ‫‪(F) Exhibit A-36 (Suit-1) (Register 7, page 415-‬‬ ‫‪416)=Exhibit A-54 (Suit-1) (Register 8, page 501) is said‬‬ ‫‪to be a copy of the auditor's report for the period 1947-‬‬ ‫‪1948 finalized on 27.07.1948 and contains following‬‬ ‫‪noting on page 416:‬‬ ‫وقف ‪ ۲۶‬فیض آباد کے خدمات کی جانچ کی گءی۔ انہوں نے بتایا کہ سابق‬ ‫متولی کے بیان سے نہ توکاغذات وقف بنے ہیں اور نہ یہ معلوم ہوسکا کہ کیا‬ ‫بقایا ہے اور کیا تحویل ہے ۔ وقف کی امدنی ‪ ۵۰۰‬روپیہ سے زاءد ہیں۔‬ ‫جسکی وصولی تحصیل جواد حسیر صاحب نے اکتوبر ‪ ۱۷‬سے کی ہے‬ ‫جسکی وجہ سے صرف ‪ ۸۲‬روپیہ وصول ہو سکیں ہیںپیچھل مطالبہ بورڑ‬ ‫بھی معلوم نہیں کہ وصول ہوا ہے یا نہیں دفتر سے ڈیمانڈ نوٹس جاری کیا‬ ‫جاءے تاکہ متولی جواد حساین کو معلوم ہو سکے کہ کیا بقایا ہے انہوں نے‬ ‫استدعا کی ہے کہ پیچھل مطالبہ سابق متولیان سے لیا جاءے دفتر سے اس‬ ‫سلسلہ میں مناسب اقدام کیا جاءے میں نے ان کو ہدایت کر دی ہے کہ وہ‬ ‫حسابات وغیرہ باقاعدہ لکھیں۔‬ ‫دستخط‬ ‫‪27.8.48‬‬ ‫دفتر کے متعلقہ کلرک ڈیمانڈ نوٹس جاری کرتے وقت مطالبہ بورڈ کی‬ ‫تسخیص ‪ ۵۰۰‬روپیہ پر کریں اطلعًا تحریر ہے لکھیں تحریر ہے لکھیں‬ ‫تاکہ ڈیمانڈ رجسٹر میں غلط اندراج نہ ہو جاءے۔‬ ‫‪"Inspected the accounts of Imam Waqf number 26. He told‬‬ ‫‪that the previous Mutwalli did not possess any documents‬‬ ‫‪and as such it could not be ascertained as to how much‬‬ ‫‪amount is due and how much is in arrears. The income of‬‬ 2900 the Waqf is more than Rs. 500/- which is realized by Jawad Husain Saheb from October 17, as a result of which only Rs. 82/- could be realized and it is also not known as to whether previous dues or arrears are being recovered or not. Demand notice be issued by the office so that Mutwalli Jawad Husain may know as to the amount in arrears. He has desired that earlier accounts be demanded from the previous Mutwalli. Appropriate steps be taken by the office in this behalf. I have instructed him to maintain proper accounts.

Concerned clerk in the office while issuing demand notice should write separately that the amount of demand fixed by the Board is Rs.500/- so that no incorrect entry is incorporated in the demand register." (E.T.C.) (G) Exhibit A-60 (Suit-1) (Register 8, page 513) is a copy of the statement in Form 38 U.P. Muslim Waqf Act NO. 13 of 1936 with respect to annual income of the waqf property from rural property, Hajjam (Barbars), houses and shops etc containing the note dated 27.9.1943 of Inspector Wakfs that amount realized under a particular head has not been shown. It reads:

‫دفتر سنی سنٹرل بورڈ آف وقف یو۔ پی۔ لکھنوء‬ ‫ مشمولہ مثل۔۔‬۱۹۳۶ ‫ سن‬۱۳ ‫۔ یو۔پی۔ مسلم وقف ایکٹ نمبر‬۳۸ ‫ذیل فارم رجسٹری وقف زیر دفعہ‬ ۲۶ ‫نمبر سلسلہ‬ ‫ضلع کا نام و تحصیل و گاءوں جاءداد موقوفہ موضع بہورن پور و آراضی شعلہ‬ ‫پوری بحال بہورن پور پرگنہ حویلی اودھ تحصیل و ضلع فیض آباد‬ ‫نام وقف مع ولدیت و سکونت۔۔۔ کوءی وقف نہیں ہے۔ عطیہ شہنشاہ بابر و نواب‬ ‫سعادت علی خاں‬ ‫متولیان و دیگر اشخاس کے نام جو انتظام وقف سے مطعلق ہوں مع پورا پتہ‬ ۴/۵ ‫محمد ذکی و کلب حسین ایک قتہ‬ ‫‪2901‬‬ ‫جواد حسین و محمد حسین و عابد حسین ‪۴/۵‬‬ ‫نورالحسن و ابو محمد و غلم اصغر ‪۴/۵‬‬ ‫دستاویز وقف یا رسم و رواج کے مطابق متولیان کے عہدہ کی جانشینی کا طریقہ‬ ‫نمبردار بحال معافی انتظامات کرتا رہتا ہے کوءی خاص قاءدہ اور نہیں ہے‬ ‫انتظام وقف کی اسکیم کی تفصیلت۔۔۔۔ مسجد مذکور کی سفیدی و مرمت و فرش‬ ‫روشنی وغیرہ اور تنخواہ معذن و پیش امام و خرچہ رمضان شریف و عیدگاہ‬ ‫حالیہ کا انتظام بھی ہوتا ہے جو فرد حساب میں درج ہے‬ ‫وقف کے متعلق تمام دستاویزات استحقاق اور دیگر دستاویزات متعلقہ کی بابت‬ ‫تفصیلت ۔۔۔۔ موضع بہورن پور ‪۳۵۱/۶۰‬‬ ‫‪۱۷۷/۸‬‬ ‫بحال بہورن پور‬ ‫آراضی شعلہ پوری‬ ‫جاءدادہاے موقوفہ کی تفصیلت جو شناخت کے لءے کافی ہوں۔۔۔۔ کوءی وقف نامہ‬ ‫نہیں ہے۔ صرف سند نانکار ہے منجانب گورنمنٹ‬ ‫جاءدادہاے موقوفہ کی سالنہ آمدنی ۔۔۔۔۔ ‪۱۵۲‬روپیہ‬ ‫آراضی دیہات سے۔۔۔۔ ججام مرطب ‪ ۱۴‬روپیہ‬ ‫مرمت مکانات وغیرہ ۔۔۔‬ ‫دیگر ذراءع سے۔۔۔۔۔ ‪ ۳۰۵‬روپیہ‬ ‫میزان‬ ‫‪ ۱۰‬سرکاری مالگذاری ابواب۔ لگان اور ٹیکس جو جاءداد ہاءے موقوفہ بابتہ‬ ‫سالنہ ابواب رقم سے‬ ‫گورمنٹ کو سالنہ واجب الدا ہو‬ ‫سالن ہ مصارف کی تفصی ہلت بموجب دستاویز یا رسم ورواج‬ ‫خییرچ تحصیییل وصییول مبلییغ ۔۔۔۔۔۔ بطورحییق نمییبرداری ملییک حسیین‬ ‫‪۱۱‬‬ ‫نمبردار۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫تنخواہ متولی۔۔۔۔۔۔محمد ذکی حسین ‪240/00‬‬ ‫‪ ۱۲‬الف‬ ‫جواد حسین وغیرہ ‪۸۴‬۔‪۵‬۔ نمبر لزمی معہ جمعہ ‪۲۶۵‬‬ ‫نورالحسن وغیرہ ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫خیراتی اغراض۔۔۔۔۔۔۔۔مخصوص مذہبی کام کے لءے‬ ‫ب‬ ‫خاندان سے مراد ‪؎۱‬واقف کے والیدین ‪ ؎۲‬واقییف کیی زوجیہ یییا وافقیہ کیا شیوہر‬ ‫‪ ؎۳‬واقف کی اولد ‪ ؎۴‬دیگر افراد جییو واقییف سیے اسییکے کسییی مورشییا مییرد‬ ‫عورت کے ذریعہ رشتہ رکھتے ہوں ‪؎۵‬وہ افراد جو واقف کے ساتھ رہتے ہوں یییا‬ ‫اسکے زیر پرورش ہوں۔‬ ‫‪ ۱۳‬کل پس ماندہ رقم جو متولی کے پاس جمع ہو ۔۔۔۔کوءی رقم جمع نہیں ہے۔‬ 2902 ‫ دیگر تفصیلت ۔ جاءداد مذکور میں بہت سے کھوٹ دار ہیں سالنہ حصہ پاتے‬۱۴ ‫ہیں۔ جو مسجد کے سالنہ خرچہ سے بچتا ہے اور نمییبردار کییو حییق نمییبرداری‬ ‫ملتا ہے۔‬ ‫ء‬۱۹۴۳ ‫۔ستمبر‬۴۶‫ تاریخ جسمیں رجسٹرکیلءے درخواست دی گءی ہو۔۔۔۔۔۔‬۱۵ ‫کیفیت۔ نوٹ۔ فی الحال جملیہ ک ھوٹ داران وقییف نہییں تسییلیم کرتیے ہییں بلکیہ‬ ‫نانکار معافی کہتے ہیں لہذا ہم لوگوں کو اپنے حق کے لءے استقرار کا دعوی‬ ‫عدالت مجاز میں کرنے کا ارادہ ہے جسکا موقعہ بضابطہ عطا فرما یا جاوے‬ ‫میں بحلف تصدیق کرتا ہوں کہ مندرجہ بال اطلعات بالکل صحیح اور درست ہیں‬ ‫اور میں نے کوءی بات سنی سنٹرل بورڈ آف وقف سے پوشیدہ نہیں رکھی ہے۔‬ Office of the Sunni Central Board of Waqf, U.P., Lucknow.

1. Serial No. 26

2.Name of the Village Bahoranpur and Arazi District and Tehsil, Sholapuri Bahal, Pargana Havei, village and property Oud, District Faizabad. Mauqoofa

3. Name of the There is no waqf, Atiya Emperor Waqf, parentage Babar and Nawab Saadat Ali Khan and the place of its existence

4. Name of Mohd. Zaki, Kalbe Husain Mutwallis and other Rs. 4/5 persons related to (Numberdar Moazzin Kalbe management of Hussain) Waqf with complete Javvad Hussain. Mohammad address Hussain and Abid Hussain Sheikh........ Rs.4/5 Nurul Hasan, Abu Mohammad and Ghulam Asghar......................Rs.4/5

5. Documents of Numberdar Bahal Mafi makes Waqf or the method arrangement and there is no of selection for the other special rule.

office of Mutwallis as per custom.

6.Details of scheme Arrangement of whitewash and of Waqf repairs of the aforesaid Mosque, lighting, salary of Moazzin and 2903 Pesh Imam, expenditure on Ramzan Sharif and Masjid Eidgah and other necessary works are done, which are entered in the account sheet.

7. Details of various Mauza Bahoranpur... 351/6/- documents relating Arazi Sholapuri ..... 177/8 to Waqf as well as other documents

8.Details of There is no waqfnama. Only Maukufa property certificate of Nankar issued by the which is adequate Government is there.

for identification

9.Annual income of 152/-

Maukoofa property From Aarazi village 14/- (Hazam Murattab) From shops etc. -

Total:                 Rs.305/-
10.              Govt. Illegible
Malguzari, Abwab,
Lagaan and Taxes
which is to be paid
annually regarding
maukoofa property
and was paid to the
Government
annually.

Details of annual expenditure according to documents or customs.

11. Expenditure on Mohd. Zaki and Nikhat Tehsil and Hasan.................74/50 recovered Rs.......... Javvad Hussain etc..84/50 as right of Nurul Hasan etc.. 84/50 Numbardari, ..............................Rs.240/-

Numberdar Malik Towards wages: Rs. 265
Hasan
(a)     Salary      to For special religious work and
Mutwalli               other work........(illegible)

(b) For      donation
purposes

11.Total remaining No amount is in balance with the 2904 balance with the Mutawalli.

Mutawalli.

12. Other details There are a number of Khewatdaar in the Waqf property aforesaid who are being PAID their share out of the remaining amount after annual expenditure of the Masjid and the Numberdars gets their right of Numberdari.

13. Date in 26th September 1943 application for registration was moved Note: At present all the Khewatdaars do not recognize it as waqf, instead they call it Nankar Maafi. Therefore we are intending to file a suit in the Court for our rights for which permission be granted.

I state on oath that the above information are correct to the best of my knowledge and belief and nothing has been concealed from the Waqf Board."

(H) Exhibit A-55 (Suit-1) (Register 8, page 503) is a copy of the account of income and expenditure with respect to the year 1947-48 and reads as under:.

‫سنی سن ٹرل وقف بور ڈ یو ۔پی لک ھنؤ‬ ‫ء حسب دفعہ‬۱۹۴۸ ‫مارچ‬۳۱ ‫ء لغایت‬۱۹۴۷ ‫ذیل حساب آمدنی و خرچ بابتہ سال یکم اکتوبر‬ ‫ مسجد بابری ضلع فیض آباد‬۲۶ ‫ مشمولہ مثل دفعہ‬.....‫ء‬۱۹۳۶ ‫ یو۔پی مسلم وقف ایکٹ‬۵۷ ‫نام وقف یا واقییف بادشییاہ بییابر‬ ۲۶ ‫نمبر وقف‬ ‫نام ضلع ۔۔۔۔فیض آباد‬ ‫نام متولی جواد حسین‬ ‫سییال گزشییتہ نسییبت جییاءداد موقییوفہ‬ ‫ الف رقم غیییر وصییول شییدہ‬۱ ‫زرعی و سکنی‬ ‫ڈگریات‬ ‫ب‬ ۹۸ ‫ الف لگان نسبت جاءداد زرعی جوبابتہ سال حال واجب الوصول ہو‬۲ ۱۶ ‫ب آمدنی سیر و خود کاشت‬ ‫ج آمدنی ساءر )باغات تالب جنگلت وغیرہ معہ تفصیل‬ ‫‪2905‬‬ ‫کرایہ مکانات دو کانات و آراضی سکنی‬ ‫د‬ ‫دیگر آمدنی‬ ‫ر‬ ‫‪۲۷/۴‬‬ ‫مال گزاری سرکاری ٹیکس واجب الداہو‬ ‫‪۳‬‬ ‫‪۷۰/۱۲‬‬ ‫خالص آمدنی بعد منہاءی مال گزاری ٹیکس‬ ‫‪۴‬‬ ‫رقم جو ادس کی اولد یا خاندان کیلءےیا کسی نجی کام‬ ‫‪ ۵‬الف‬ ‫کیلءے ازروءے وقف نامہ واجب الداہو‬ ‫رقم جو ازروےوقف نامہ براءے کار خیر واجب الدا ہو‬ ‫ب‬ ‫کسی قسم کا قرضہ یا باریااداءیگی جو ذمہ جاءد موقوفہ شروع‬ ‫‪۶‬‬ ‫ل بار کرایہ مالگزاری ابواب ٹیکس و‬ ‫سال واجب تھا )مث ً‬ ‫تنخواہ یا مال گزارہ یا ڈگری وغیرہ‬ ‫کسی قسم کا قرضہ یا باریااداءیگی جو ذمہ جاءد موقوفہ آخر‬ ‫‪۷‬‬ ‫ل بار کرایہ مالگزاری ابواب ٹیکس و‬ ‫سال واجب تھا )مث ً‬ ‫تنخواہ یا مال گزارہ یا ڈگری وغیرہ‬ ‫قرض دیا ہوا روپیہ یا بینک میں جمع شدہ جو سال کے شروع‬ ‫‪۸‬‬ ‫میں تھا۔‬ ‫قرض دیا ہوا روپیہ یا بینک میں جمع شدہ جو سییال ک یے آخییر‬ ‫‪۹‬‬ ‫میں تھا۔‬ ‫ر‬ ‫آنہ‬ ‫پ‬ ‫واقعی خرچ اندرون سال‬ ‫ر‬ ‫آ‬ ‫پا‬ ‫واقعی ّآمدنی اندرون سال‬ ‫‪27 4‬‬ ‫‪-‬‬ ‫‪ ۱‬سرکاری مالگذاری و ابواب‬ ‫‪ ۱‬ال وصولی ازبقایا سال گزشتہ‬ ‫ٹیکس‬ ‫ف بابتہ جاءداد زرعی و سکنی‬ ‫‪ ۲‬مطالبہ وقف بورڈ معہ حوالہ‬ ‫ب وصولی ازبقایا سال گزشتہ‬ ‫نمبر و تاریخ رسید‬ ‫بابتہ ڈگریات‬ ‫‪----------------‬‬ ‫‪82 -‬‬ ‫‪-‬‬ ‫‪ ۲‬ال لگان‬ ‫ف‬ ‫‪12 8‬‬ ‫‪-‬‬ ‫‪ ۳ 16 -‬صرف تحصیل وصول و‬ ‫‪-‬‬ ‫ب سیر و خود کاشت‬ ‫انتظام جاءداد‬ ‫‪ ۴‬صرفہ مرمت و تعمیرجاءداد‬ ‫ج ساءر باغات جنگلت تالب‬ ‫وغیرہ معہ تفصیل‬ ‫‪ ۵‬اخراجات مقدمات‬ ‫‪------------------- - -‬‬ ‫‪56‬‬ ‫‪ ۶‬مسجد‬ ‫‪------------------- - -‬‬ ‫‪ ۷‬مدرسہ‬ ‫‪------------------- - -‬‬ ‫‪ ۸‬نزر دینا زد فاتحہ‬ ‫‪------------------- - -‬‬ ‫‪ ۹‬خیرات و امداد و غرباء و‬ ‫د کرایہ مکانات و دوکانات و‬ ‫مساکین‬ ‫آراضیات سکنی‬ ‫‪ ۱‬دیگر امور خیر مطابق وقف‬ ‫ر دیگر آمدنی معہ تفصیل‬ ‫‪ ۰‬نامہ‬ ‫‪ ۱‬تنخواہ متولی اگر ہو‬ ‫‪ ۳‬ال جو روپیہ بینک سے نکالگیا‬ ‫‪۱‬‬ ‫ف‬ ‫‪ ۱‬رقم جو واقف یا واقف کے‬ ‫ب جو روپیہ قرض کا وصول‬ ‫‪ ۲‬خاندان کو ازروے وقف نامہ‬ ‫ہوا‬ ‫دی گءی ہو۔‬ ‫‪ ۱‬اخراجات متفرق‬ 2906 ۳ ‫ جو روپیہ بینک میں جمع کیا‬۱ ‫ گیا۔‬۴ ‫ جو روپیہ قرض دیا گیا۔‬۱ ۵ 95 12 - ‫میزان اخراجات‬ 98 - - ‫میزان کل‬ 2 4 ‫پسماندہ رقم معہ تفصیل جہان‬ ‫تحویل جو شروع سال تھی‬ ‫جمع ہو‬ (؎۲ ‫مطابق نوٹ‬ ‫؎دکھلءی‬۲ ‫مطابق نوٹ‬ ‫دکھلءی جاوے‬ ‫جاوے‬ 98 - - ‫میزان کل‬ 98 - - ‫میزان کل‬ ‫کل رقم مطالبہ جو واجب الوصول میں سے وصول ہونے سے باقی رہ گءی ۔۔۔۔۔۔۔‬ ‫میں بحلف تصدیق کرتا ہوں کہ مندرجہ بال اندراجات و رسیدات متعلقہ جنکی‬ ‫صحت و اصلیت کی جانچ میں نے کرلی ہے میرے علم و یقین میں صحیح و درست‬ ‫ہیں اور میں نے کوءی بات پوشیدہ نہیں رکھی۔‬ ‫دستخط متولی معہ پورا پتہ‬ ‫جواد حسین بقلم نورالحسن ساکن سنہواں‬ ‫ڈاکخانہ درشن نگرضلع فیض آباد‬ Sunni Central Waqf Board U.P. Lucknow Statement of income and expenditure from 1st October 1947 to March 31, 1948 under section 57 U.P. Muslim Waqf Act 1936, included in File no. 26 Masjid Babri.

Name of District : Faizabad Number of Waqf. : 26.

Name of the Waqf or Waqif ..Badshah Babar. Name of Mutawalli- Jawad Husain.

1(Alif) Outstanding amount of the previous year in respect of Waqf property. Agricultural and residential plots. (Bay)..............

2 (Alif) Rent in respect of agricultural land of previous year which is yet to be realized Rs. 98/-.

(Bay) Income from seer and self cultivation Rs. 16=98 (Jeem) Income (Sair orchards, ponds, forests etc) with details..

2907

(Dal) Rent from houses and shops and residential plots.. (Rey) other income. ....

3 Malguzari of the Govt. and taxes to be paid Rs.27/4/- 4 Net income after deducting Malguzari and taxes...Rs.

70/12

5 (Alif) Amount to be paid to the relations of the Waqif, or reserved for some other personal as per waqfnama.... (Bey) Amount which is to be spent on charitable purposes. 6 Any debt or encumbrances outstanding in the beginning of the year, e.g. Rent, Malguzari Abwab, Tax and Salaries or Pension or Degrees etc. 7 Any loans or outstanding debt on the waqf property e.g. rent at the end of the year.(e.g.Rent, Malguzari Abwab, Tax and Salaries or Pension or Degrees etc. 8 Amount given as loan and the amount deposited in the bank, in the beginning of the year.

9 Amount of loan or deposited in the bank at the end of the year.

Total Net Rs. Total expenditure during Rs.

Income of As.          the year                 As.Ps.
the    Waqf Ps.
during the
year
1.(A)                  1. Govt. Malguzari Abwab 27-4-0
Receipt of             Tax
arrears of             2.Demand of the Board
the previous           with reference no. and date
year        in         of the receipt.
respect of
agricultural           3.Expenditure    on    Tehsil
land     and                                           12-8-0
                       wasool and management of
residential
plots.                 property.
                       4. Expenditure on repair of
(Bey)
                       waqf property.
                                                       2908

Receipt               5. Expenditure on litigation
from      the         6. Litigation on mosque      56-0
degrees of            7. Madrasa litigation
the previous          8. Nazro, Niyaj and Fateha
year.                 9. Charity and help to the
2.(Alif)       82-0-0 poor.
Lagan                 10. Other charities as per
                      Waqf Names

(Bey) Seer 16-0-0 11. Salary of Mutawalli, if and self any.

cultivation           12. Amount paid to the
                      Waqif or his family as per
(Jeem) Sair,          Waqf nama.
orchards,             13.            Miscellaneous
forest,               expenditure
ponds etc.            14. Amount deposited in the
(give                 bank.
details)              15. Amount given as loan.

(Dal) , Rent           Total amount               95-12
of houses,
shops and              Previous balance           02-4-0
residential
plots.                 Total expenditure Balance
                       with details where it is
(Rey) other            deposited as per note no. 2 98-0-0
income with
details
1.(Alif)
Amount with
drawan
from      the
bank
(Bey)
Amount of
loan
received.

Total

Balance as 98-0-0 Total expenditure Balance per note no. with details where it is 2 deposited as per note no. 2 98-0-0 Grand 98-0-0 Grand Total 98-0-0 ‫‪2909‬‬ ‫‪Total‬‬ ‫‪Total amount of the demand of the Board which is yet to be‬‬ ‫‪realized.‬‬ ‫‪I verify on oath that I have checked the entries and‬‬ ‫‪receipts there of which are correct to the best of knowledge‬‬ ‫‪and belief and nothing has been concealed.‬‬ ‫‪Signature and Address of the Mutawalli.‬‬ ‫"‪Sd/- Jawad Husain S/o Noorul Hasan R/o Sahanwa.‬‬ ‫‪(I) Exhibit A-57 (Suit-1) (Register 8, page 507) is a copy‬‬ ‫‪of account of income and expenditure with respect to the‬‬ ‫‪period from 1.4.1948 to 31.3.1949 and reads as under:‬‬ ‫سنی سن ٹرل وقف بور ڈ یو ۔پی لک ھنؤ‬ ‫ذیل حساب آمدنی و خرچ بابتہ سال یکم اکتوبر ‪۱۹۴۷‬ء لغایت ‪۳۱‬مارچ ‪۱۹۴۸‬ء حسب دفعہ ‪۵۷‬‬ ‫یو۔پی مسلم وقف ایکٹ ‪۱۹۳۶‬ء مشمولہ میں ‪ ۴۶‬مسجد بابری ضلع فیض آباد‬ ‫نام متولی جواد حسین‬ ‫نام وقف یا واقف بادشاہ بابر‬ ‫نام ضلع فیض آباد نمبر وقف ‪۲۶‬‬ ‫رقم غیر وصول شدہ۔۔۔۔۔۔ سال گزشتہ نسبت جاءداد موقوفہ زرعی و سکنی‬ ‫‪ ۱‬الف‬ ‫۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ڈگریات‬ ‫ب‬ ‫لگان نسبت جاءداد زرعی جوبابتہ سال حال واجب الوصول ہو۔‬ ‫‪ ۲‬الف‬ ‫‪531/2/-‬‬ ‫آمدنی سیر و خود کاشت۔‬ ‫ب‬ ‫آمدنی ساءر باغات تالب جنگلت وغیرہ معہ تفصیل‬ ‫ج‬ ‫کرایہ مکانات دو کانات و آراضی سکتی‬ ‫د‬ ‫دیگر آمدنی‬ ‫ر‬ ‫‪39/9/6‬‬ ‫واجب الداہو۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ابواب ٹیکس‬ ‫مال گزاری سرکاری ٹیکس‬ ‫‪۳‬‬ ‫خالص آمدنی بعد منہاءی مال گزاری ٹیکس۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‪70/12‬‬ ‫‪۴‬‬ ‫رقم جو ادس کی اولد یا خاندان کیلءےیا کی نجی کام کیلءے ازروءے وقف‬ ‫‪ ۵‬الف‬ ‫نامہ واجب الداہو‬ ‫رقم جو ازروےوقف نامہ براءے کار خیر واجب الدا ہو۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫ب‬ ‫کسی قسم کا قرضہ یا باریااداءیگی جو ذمہ جاءد موقوفہ شروع سال واجب تھا‬ ‫‪۶‬‬ ‫ل بار کرایہ مالگزاری ابواب ٹیکس و تنخواہ یا گزارہ یا ڈگری وغیرہ‬ ‫)مش ً‬ ‫کسی قسم کا قرضہ یا باریااداءیگی جو ذمہ جاءد موقوفہ آخر سال واجب تھا‬ ‫‪۷‬‬ ‫ل بار کرایہ مالگزاری ابواب ٹیکس و تنخواہ یا گزارہ یا ڈگری وغیرہ‬ ‫)مش ً‬ ‫قرض دیا ہوا روپیہ با بینک میں جمع شدہ جو سال کے شروع میں تھا۔‬ ‫‪۸‬‬ ‫قرض دیا ہوا روپیہ با بینک میں جمع شدہ جو سال کے آخر میں تھا۔‬ ‫‪۹‬‬ ‫ر‬ ‫پ آ‬ ‫واقعی خرچ اندرون سال‬ ‫ر‬ ‫پا آ‬ ‫واقعی ّآمدنی اندرون سال‬ ‫‪2910‬‬ ‫‪39‬‬ ‫‪9 6‬‬ ‫‪ ۱‬سرکاری مالگذاریو ابواب‬ ‫‪ ۱‬ال وصولی ازبقایا سال گزشتہ‬ ‫ٹیکس‬ ‫ف بابتہ جاءداد زرعی و سکنی‬ ‫‪ ۲‬مطالبہ وقف بورڈ معہ حوالہ‬ ‫ب وصولی ازبقایا سال گزشتہ‬ ‫نمبر و تاریخ رسید‬ ‫بابتہ ڈگریات‬ ‫‪----------------‬‬ ‫‪400 - -‬‬ ‫‪ ۲‬ال لگان‬ ‫ف‬ ‫‪12‬‬ ‫‪- -‬‬ ‫‪ ۳‬صرف تحصیل وصول و‬ ‫‪- -‬‬ ‫ب سیر و خود کاشت‬ ‫انتظام جاءداد‬ ‫‪ ۴‬صرفہ مرمت ع تعمیرجاءداد‬ ‫ج ساءر باغات جنگلت‬ ‫تالب وغیرہ معہ تفصیل‬ ‫‪ ۵‬اخراجات مقدمات‬ ‫‪------------------- - -‬‬ ‫‪202‬‬ ‫‪- -‬‬ ‫‪ ۶‬مسجد‬ ‫‪------------------- - -‬‬ ‫‪ ۷‬مدرسہ‬ ‫‪------------------- - -‬‬ ‫‪ ۸‬نزر دینا زد فاتحہ‬ ‫‪------------------- - -‬‬ ‫‪ ۹‬خیرات و امداد و غرباء و‬ ‫د کرایہ مکانات و دوکانات و‬ ‫مساکین‬ ‫آراضیات سکنی‬ ‫‪ ۱۰‬دیگر امور خیر مطابق وقف‬ ‫ر دیگر آمدنی معہ تفصیل‬ ‫نامہ‬ ‫‪ ۱۱‬تنخواہ متولی اگر ہو‬ ‫‪ ۳‬ال جو روپیہ بینک سے‬ ‫ف نکالگیا‬ ‫‪ ۱۲‬رقم جو واقف یا واقف کے‬ ‫ب جو روپیہ قرض کا وصول‬ ‫خاندان کو ازروے وقف نامہ‬ ‫ہوا‬ ‫دی گءی ہو۔‬ ‫‪ ۱۳‬اخراجات متفرق‬ ‫‪ ۱۴‬جو روپیہ بینک میں جمع کیا‬ ‫گیا۔‬ ‫‪ ۱۵‬جو روپیہ قرض دیا گیا۔‬ ‫‪253 9 6‬‬ ‫میزان اخراجات‬ ‫‪400 - -‬‬ ‫میزان کل‬ ‫پسماندہ رقم معہ تفصیل جہان ‪156 6 6‬‬ ‫تحویل جو شروع سال تھی‬ ‫جمع ہو‬ ‫مطابق نوٹ ‪(؎۲‬‬ ‫مطابق نوٹ ‪؎۲‬دکھلءی‬ ‫دکھلءی جاوے‬ ‫جاوے‬ ‫‪400‬‬ ‫‪- -‬‬ ‫میزان کل‬ ‫‪400 - -‬‬ ‫میزان کل‬ ‫کل رقم مطالبہ جو واجب الوصول میں سے وصول ہونے سے باقی رہ گءی ‪۱۳۱/۲‬‬ ‫میں بحلف تصدیق کرتا ہوں کہ مندرجہ بال اندراجات و رسیدات متعلقہ جنکی صحت و‬ ‫اصلیت کی جانچ میں نے کرلی ہے میرے علم و یقین میں صحیح و درست ہیں اور میں‬ ‫نے کوءی بات پوشیدہ نہیں رکھی۔ مجھے متولی جواد حسین صاحب نے مجاز کیا ہے‬ ‫کہ ان کی طرف سے حساب جانچ کر آوں۔‬ ‫دستخط متولی معہ پورا پتہ‬ ‫نورالحسن ساکن سنہوان ڈاکخانہ درشن نگر‬ ‫ضلع فیض آباد‬ ‫‪Sunni Central Waqf Board U.P. Lucknow‬‬ ‫‪Statement of income and expenditure from 1st April 1948 to‬‬ 2911 31st March, 1949 under section 57 U.P. Muslim Waqf Act 1936, included in File no. 26 Masjid Babri Name of the District: Faizabad Waqf no. : 26.

Name of the Waqf and Waqif ..Badshah Babar. Name of Mutawalli- Jawad Husain.

1. (Alif) Outstanding amount of the previous year in respect of Waqf property, agricultural and residential plots. (B).......

2. (Alif) Rent in respect of agricultural land of previous year which is yet to be realized Rs. 531/-20 (Bay) Income from seer and self cultivation .... (Jeem) Income (Sair orchards, ponds, forests etc) with details..

(Dal) Rent from houses and shops and residential plots.. (Rey) other income. ....

3. Malguzari of the Govt. and taxes to be paid Rs.39/9/6

4. Net income after deducting Malguzari and taxes...

5. (Alif) Amount to be paid to the relations of the Waqif, or reserved for some other personal as per waqfnama.... (Bey) Amount which is to be spent on charitable purposes.

6. Any debt or encumbrances outstanding in the beginning of the year, e.g. Rent, Malguzari Abwab, Tax and Salaries or Pension or Degrees etc.

7. Any loans or outstanding debt on the waqf property e.g. rent at the end of the year.(e.g.Rent, Malguzari Abwab, Tax and Salaries or Pension or Degrees etc.

8.Amount given as loan and the amount deposited in the bank, in the beginning of the year.

9. Amount of loan or deposited in the bank at the end of the 2912 year.

Total Net Rs. As. Total expenditure during Rs.

Income of Ps.        the year                 As.Ps.
the    Waqf
during the
year
1.(A)                1. Govt. Malguzari Abwab 39-9-6
Receipt of           Tax
arrears of           2.Demand of the Board
the                  with reference no. and date
previous             of the receipt.
year      in
respect of           3.Expenditure on Tehsil
agricultural         wasool and management of 12/-
land     and         property.

residential 4. Expenditure on repair of plots. waqf property.

5. Expenditure on litigation (Bey) 6. Litigation on mosque 202-0 Receipt 7. Madrasa litigation from the 8. Nazro, Niyaj and Fateha degrees of 9. Charity and help to the the poor.

previous 10. Other charities as per year. Waqf Names

2.(Alif) 400/- 11. Salary of Mutawalli, if Lagan any.

12. Amount paid to the (Bey) Seer Waqif or his family as per and self Waqf nama.

cultivation 13. Miscellaneous expenditure (Jeem) 14. Amount deposited in the bank.

Sair,

15. Amount given as loan.

orchards,
forest,
                     Total amount
ponds      etc.
                     Previous balance
(give
details)             Total          expenditure 253-9-6
                     Balance    with     details
                                                              2913

(Dal) , Rent               where it is deposited as 156-6-6
of     houses,             per note no. 2
shops     and
residential
plots.

(Rey) other
income with
details
2.(Alif)
Amount
withdrawn
from       the
bank
(Bey)
Amount of
loan
received.

Total            400/-0 Total                           400-0

Total amount of the demand of the Board which is yet to be realized. Rs.131-2 Anna I verify on oath that I have checked the entries and receipts there of which are correct to the best of knowledge and belief and nothing has been concealed. Signature and Address of the Mutawalli.

Sd/- Jawad Husain S/o Noorul Hasan R/0 Sahanwa, Darshan Nagar, district Faizabad."

(J) Exhibit A-59 (Suit-1) (Register 8, page 511) is a copy of the Statement of income and expenditure for the period from 1.4.1949 to 31.3.1950 under section 57 U.P. Muslim Waqf Act 1936, included in 26 Masjid Babri District Faizabad. It reads:

‫‪2914‬‬ ‫سنی سن ٹرل وقف بور ڈ یو ۔پی لک ھنؤ‬ ‫ذیل حساب آمدنی و خرچ بابتہ سال یکم اکتوبر ‪۱۹۴۹‬ء لغایت ‪۳۱‬مارچ ‪۱۹۵۰‬ء حسب دفعہ ‪۵۷‬‬ ‫یو۔پی مسلم وقف ایکٹ ‪۱۹۳۶‬ء مشمولہ مثل وقف نمبر ‪ ۴۶‬مسجد بابری ضلع فیض آباد‬ ‫نام ضلع فیض آباد نمبر وقف ‪ ۲۶‬نام وقف یا واقف بادشاہ بابر نام متولی ۔۔۔۔۔جواد حسین‬ ‫روپییییییییییہ‬ ‫‪ ۱‬الف رقم غیروصول شدہ۔۔۔۔۔۔۔ سال گزشتہ نسبت جاءداد موقوفہ زرعی و‬ ‫‪۱۰۰‬‬ ‫سکنی‬ ‫ب ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ڈگریات‬ ‫‪۵۳۱/۱۰/۱‬‬ ‫‪ ۲‬الف لگان نسبت جاءداد زرعی جوبابتہ سال حال واجب الوصول ہو۔‬ ‫ب آمدنی سیر و خود کاشت۔‬ ‫‪۵۳۱/۱۰/۱‬‬ ‫ج آمدنی ساءر باغات تالب جنگلت وغیرہ معہ تفصیل ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫د کرایہ مکانات دو کانات و آراضی سکتی ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫ر دیگر آمدنی ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫‪۴۱/۳/۴‬‬ ‫مال گزاری سرکاری ٹیکس ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔واجب الداہو‬ ‫‪۳‬‬ ‫خالص آمدنی بعد منہاءی مال گزاری ٹیکس۔‬ ‫‪۴‬‬ ‫‪ ۵‬الف رقم جو ادس کی اولد یا خاندان کیلءےیا کی نجی کام کیلءے‬ ‫ازروءے وقف نامہ واجب الداہو ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫ب رقم جو ازروےوقف نامہ براءے کار خیر واجب الدا ہو ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔‬ ‫کسی قسم کا قرضہ یا باریااداءیگی جو ذمہ جاءد موقوفہ شروع سال‬ ‫‪۶‬‬ ‫ل بار کرایہ مالگزاری ابواب ٹیکس و تنخواہ یا گزارہ یا‬ ‫واجب تھا مث ً‬ ‫ڈگری وغیرہ‬ ‫کسی قسم کا قرضہ یا باریااداءیگی جو ذمہ جاءد موقوفہ آخر سال واجب‬ ‫‪۷‬‬ ‫ل بار کرایہ مالگزاری ابواب ٹیکس و تنخواہ یا گزارہ یا ڈگری‬‫تھا مث ً‬ ‫وغیرہ‬ ‫قرض دیا ہوا روپیہ با بینک میں جمع شدہ جو سال کے شروع میں تھا۔‬ ‫‪۸‬‬ ‫قرض دیا ہوا روپیہ با بینک میں جمع شدہ جو سال کے آخر میں تھا۔‬ ‫‪۹‬‬ ‫پ آن ہ روپی ہ‬ ‫واقعی خرچ اندرون سال‬ ‫واقعی ّآمدنی اندرون سال پ آن ہ روپی ہ‬ ‫‪۴۱‬‬ ‫‪ ۱‬سرکاری مالگذاریو ابواب ‪۳ ۴‬‬ ‫‪۱۰۰ - -‬‬ ‫‪ ۱‬ا وصولی ازبقایا سال‬ ‫ٹیکس‬ ‫گزشتہ بابتہ جاءداد زرعی‬ ‫و سکنی‬ ‫‪ ۲‬مطالبہ وقف بورڈ معہ حوالہ‬ ‫ب وصولی ازبقایا سال‬ ‫نمبر و تاریخ رسید‬ ‫گزشتہ بابتہ ڈگریات‬ ‫‪۴۹‬‬ ‫‪۶ -‬‬ ‫‪----------------‬‬ ‫‪۵۳۱ ۱۰ -‬‬ ‫‪ ۲‬ا لگان‬ ‫‪۱۲‬‬ ‫‪ ۳‬صرف تحصیل وصول و ‪- -‬‬ ‫‪- -‬‬ ‫ب سیر و خود کاشت‬ ‫انتظام جاءداد‬ ‫‪۵۶‬‬ ‫‪- -‬‬ ‫‪ ۴‬صرفہ مرمت ع‬ ‫ج ساءر باغات جنگلت‬ ‫تعمیرجاءداد‬ ‫تالب وغیرہ معہ تفصیل‬ ‫‪ ۵‬اخراجات مقدمات‬ ‫‪------------------- - -‬‬ ‫‪۱۸۰‬‬ ‫‪- -‬‬ ‫‪ ۶‬مسجد‬ ‫‪------------------- - -‬‬ ‫‪2915‬‬ ‫‪ ۷‬مدرسہ‬ ‫‪------------------- - -‬‬ ‫‪ ۸‬نزر دینا زد فاتحہ‬ ‫‪------------------- - -‬‬ ‫‪ ۹‬خیرات و امداد و غرباء و‬ ‫د کرایہ مکانات و دوکانات‬ ‫مساکین‬ ‫و آراضیات سکنی‬ ‫‪ ۱۰‬دیگر امور خیر مطابق‬ ‫ر دیگر آمدنی معہ تفصیل‬ ‫وقف نامہ‬ ‫‪ ۱۱‬تنخواہ متولی اگر ہو‬ ‫‪ ۳‬ا جو روپیہ بینک سے‬ ‫نکالگیا‬ ‫‪۲۴۰‬‬ ‫‪ ۱۲‬رقم جو واقف یا واقف کے ‪- -‬‬ ‫ب جو روپیہ قرض کا‬ ‫خاندان کو ازروے وقف‬ ‫وصول ہوا‬ ‫نامہ دی گءی ہو۔‬ ‫‪ ۱۳‬اخراجات متفرق‬ ‫‪ ۱۴‬جو روپیہ بینک میں جمع‬ ‫کیا گیا۔‬ ‫‪ ۱۵‬جو روپیہ قرض دیا گیا۔‬ ‫‪۵۷۸ ۹ ۴‬‬ ‫میزان اخراجات‬ ‫‪۶۳۱ ۱۰ ۱‬‬ ‫میزان کل‬ ‫‪۵۳ - ۸‬‬ ‫پسماندہ رقم معہ تفصیل‬ ‫تحویل جو شروع سال‬ ‫جہان جمع ہو‬ ‫تھی‬ ‫مطابق نوٹ ‪؎۲‬دکھلءی‬ ‫مطابق نوٹ ‪(؎۲‬‬ ‫جاوے‬ ‫دکھلءی جاوے‬ ‫‪۶۳۱ ۱۰ -‬‬ ‫میزان کل‬ ‫‪۶۳۱ ۱۰ ۱‬‬ ‫میزان کل‬ ‫کل رقم مطالبہ جو واجب الوصول میں سے وصول ہونے سے باقی رہ گءی‬ ‫میں بحلف تصدیق کرتا ہوں کہ مندرجہ بال اندراجات و رسیدات متعلقہ جنکی صحت و اصلیت‬ ‫کی جانچ میں نے کرلی ہے میرے علم و یقین میں صحیح و درست ہیں اور میں نے‬ ‫کوءی بات پوشیدہ نہیں رکھی۔‬ ‫دستخط متولی معہ پورا پتہ‬ ‫جواد حسین بقلم عابد حسین‬ ‫ساکن سہنوان ڈاکخانہ درشن نگر‬ ‫ضلع فیض آباد‬ ‫‪Sunni Central Waqf Board U.P. Lucknow‬‬ ‫‪Statement of income and expenditure from 1st April 1949 to‬‬ ‫‪31st March, 1950 under section 57 U.P. Muslim Waqf Act‬‬ ‫‪1936, included in File no. 26 Masjid Babri‬‬ ‫‪Name of the District: Faizabad‬‬ ‫‪Waqf no. : 26.‬‬ ‫‪Name of the Waqf and Waqif ..Masjid Babri.‬‬ ‫‪Name of Mutawalli- Jawad Husain.‬‬ ‫‪1. (Alif) Outstanding amount of the previous year in respect of‬‬ 2916 Waqf property, agricultural and residential plots.

Rs.100/-

(B).......

2. (Alif) Rent in respect of agricultural land of previous year which is yet to be realized Rs. 531/-10-1 (Bay) Income from seer and self cultivation .... (Jeem) Income (Sair orchards, ponds, forests etc) with details.. Rs. 531-1--1 (Dal) Rent from houses and shops and residential plots.. (Rey) other income. ....

3. Malguzari of the Govt. and taxes to be paid Rs.41-3-4

4. Net income after deducting Malguzari and taxes...

5. (Alif) Amount to be paid to the relations of the Waqif, or reserved for some other personal as per waqfnama.... (Bey) Amount which is to be spent on charitable purposes.

6. Any debt or encumbrances outstanding in the beginning of the year, e.g. Rent, Malguzari Abwab, Tax and Salaries or Pension or Degrees etc.

7. Any loans or outstanding debt on the waqf property e.g. rent at the end of the year.(e.g.Rent, Malguzari Abwab, Tax and Salaries or Pension or Degrees etc.

8.Amount given as loan and the amount deposited in the bank, in the beginning of the year.

9. Amount of loan or deposited in the bank at the end of the year.

Total Net Rs. As. Total expenditure during Rs.

Income of Ps.           the year                 As.Ps.
the   Waqf
during the
year

1.(A) 100/- 1. Govt. Malguzari Abwab 41-3-4 Receipt of Tax 2917 arrears of 2.Demand of the Board the with reference no. and date 49-6-

previous            of the receipt.
year      in
respect of          3.Expenditure on Tehsil
agricultural        wasool and management of       12/-
land     and        property.

residential 4. Expenditure on repair of plots. waqf property.

5. Expenditure on litigation 56/-

(Bey) 6. Litigation on mosque 180-0 Receipt 7. Madrasa litigation from the 8. Nazro, Niyaj and Fateha degrees of 9. Charity and help to the the poor.

previous 10. Other charities as per year. Waqf Names

2.(Alif) 531- 11. Salary of Mutawalli, if Lagan 10-1 any.

12. Amount paid to the 240/-

(Bey) Seer          Waqif or his family as per
and      self       Waqf nama.
cultivation         13.           Miscellaneous
                    expenditure
(Jeem)              14. Amount deposited in
Sair,               the bank.
orchards,           15. Amount given as loan.
forest,
ponds etc.          Total amount                   578-9-4
(give
details)            Previous balance               53-0-8

(Dal) , Rent        Total expenditure              631-10
of houses,
shops and           Balance     with  details
residential         where it is deposited as
plots.              per note no. 2
                    Grand Total
(Rey) other
income with
details
3.(Alif)
Amount
                                                            2918

with
drawan
from     the
bank
(Bey)
Amount of
loan
received.

Grand       631-      Total                       631-10
Total       10-1

Total amount of the demand of the Board which is yet to be realized.

I verify on oath that I have checked the entries and receipts there of which are correct to the best of knowledge and belief and nothing has been concealed. Signature and Address of the Mutawalli.

Sd/- Jawad Husain S/o Noorul Hasan R/0 Sahanwa, Darshan Nagar, district Faizabad."

(K) Exhibit A-56 (Suit-1) (Register 8, page 505) is a copy of another Auditor's report for 1948-49 signed by the Auditor on 23.2.1950.

(L) Exhibit A-58 (Suit-1) (Register 8, page 509) is a copy of another Auditor's report for 1948-49 signed by the Auditor on 23.12.1950. The observations of the Auditor read as under:

"REPORT OF AUDITOR FOR 1949-50 included in Waqf File no. 26 of Babri Masjid, Distt. Faizabad

1. No.of Waqf 26. (b) Name of Waqf or Waqif Masjid Babri Faizabad

2. Name of Mutavalli and his address . Jamad Hussain Sahab village Shahnawan P.O. Darshan Nagar ,Distt 2919 Faizabad.

3.Gross Annual income which should have been realized during the year 1949-50 Rs.531/10/1

4. Land Revenue and taxes which should have been paid during the year Rs.41/3/4

5. Net income for the year Rs.490/6/9

6. Amount applied for the benefit of the waqif or his descendants or family or any other private purpose under the terms of the deed of waqf. Rs. X

7. Contribution to the board u/s 54 :Rs. 24/8/3

8.Arrears on the opening date of the year :Rs.100/-/-

9. Amount actually realized by the Muttwali during the year 1949-50 Rs.631/10/1

10. Unrealized amount on the closing date: Rs..x (col. No. 3+8-9)

11.A. Balance in he hands of the Mutwalli at the close of year Rs.53/-/8 Total Rs.53/-/8 B. Balance with the Bank at the close of the year: Rs.x Name of Bank .....x...

12. The amount of liabilities on waqf at the close of the year Rs......

13. A. Certified that the entries as above have been reported by me on the basis of the original or certified copies of documents and records by the Mutwalli.

B. Certified that the expenditure of Rs.....x......as detailed overleaf incurred by the mutwalli is illegal and improper or due to failure to recover money or other property or loss or waste of money or other 2920 property caused by the neglect or misconduct of the Mutwalli (section 41 of Muslim Waqf Act, 1936). C. Certified that the list of waqf property appended to the statement of accounts submitted by the mutwalli is verified by me from records produced by the mutawalli.

(Sd) M. Husain 23.12.50 Signature of Auditor

14. Main defects of the administration of the waqf with suggestion, if any:-

.....Please see overleaf..................

(Sd) M. Husain (Please fill in the form with care and add a page if necessary) Waqf No. 26 ‫( مسجد بابری‬Masjid Babri) Faizabad.

"Mutwalli's nephew Hamid Husain presented the accounts, as Mutwalli was not feeling well.

(i) As regards the property of this Waqf it consists of ‫( موقوت زمیندار واقعہ بہرن پور شعلہ پییوری ضییلع فیییض آبییاد‬Maukoof Zamindar, r/o Bahoranpur, Sholapuri, District Faizabad) according to a Royal grant by Shahehnshah Babar.

(ii) The income of this Waqf is Rs. 531/10/1, in proof of his income the Mutwalli sent his ‫( کھتتونی‬Khatauni) which was not a certified copy. He should be asked to keep a certified copy of ‫( کھتونی‬Khatauni).

1. As regards the expenditure no receipts were genuine except the receipt of land revenue and the Waqf contribution. They have shown an amount of Rs. 240/- for ‫ ( خاندان وقف‬Family of Waqf) In proof of this amount they show no paper to me therefore I assess this amount ‫( خاندان وقف‬Khandan Waqf) also 2921 therefore they should be asked that how they take this amount.

(iv) In Dec. 1949 the mosque has been taken by the Govt. due to disturbances therefore they (Mutwalli Javad Hussain) should be asked to keep this amount in Bank, because there is no expenditure on the mosque at present.

(v) The ‫( متییولی‬Mutwalli) should be given instructions that he should keep his accounts properly and at present there is no need of expenditure therefore from Dec. 1949 all the income should be deposited in Bank. At present a case is going on and the expenditure is met by contribution. In my opinion the income of the property should be deposited in Bank through office." 3097. These documents said to have been submitted by the so called Mutawalli Javvad Hussain or Syed Mohd. Zaki. Except of the Exhibit A72, A31 and A33 all other documents claimed to be submitted with the Sunni Board and true copies received therefrom have been filed. These documents cannot be termed to be "public documents" under Section 74 of the Evidence Act. Nobody has proved the truth of the contents of the said documents. One of the document which is said to be duly audited, i.e., Exhibit A58, for our benefit, the auditor's comments are also on record and it says, "as regards the expenditure no receipts were genuine."

3098. So far as the Exhibits A72, A31, A32 and A33 are concerned, the same contains the details of the income earned from Mauja Bahoranpur and Sholapur. The purpose for which these documents are sought to be relied, therefore, remain untouched qua the property in dispute.

3099. In the third category i.e. documents relating to repair 2922 of damaged building in 1934 riot, comes:

(A) Exhibit A-49 (Suit-1) (Register Vol. 8, page 477) is a copy of order dated 12th May 1934 showing that Muslims were permitted to start the work of cleaning and repairs of the disputed building from 14th May 1934 onwards. It reads as under:

"The Mohammadans have been permitted to start the work of cleaning of the Babri mosque from Monday 14th May. I have also asked them to get estimates needed for the repair of the mosque. For the purpose their contracting I would be allowed access to the mosque when necessary.

Once the mosque is cleaned up, it will be possible to use it for religious services. This can be allowed but processions & demonstrations should not be allowed.

The guard should be returned on it.

S.P. to be informed."

(B) Exhibit A-43 (Suit-1) (Register 8, page 459) is a copy of order dated 6th October 1934 passed by Deputy Commissioner/District Magistrate Faizabad for payment of compensation. It reads as under:

"These amounts for payment of compensation are approved subject to any orders that may be passed on objections."

(C) Exhibit A-51 (Suit-1) (Register Vol. 8, page 483) is claimed to be an application dated 25.2.1935 submitted by the contractor concerned complaining about non-payment of his claim despite repair work having been performed. This also reads as under:

‫غریب پرورسلمت جناب عال ٰی‬ ‫گذارش ہے کہ تابیدار کو بابری مسجد کا ٹھیکہ دیا گیا تھا اسییکا کییام عرص یہ‬ ‫ہوا تیار کر دیا اسمیں کچھ سو دو سو روپیہ کا کییام بییاقی رہ گیییا ہتے بغیییر‬ ‫‪2923‬‬ ‫رپیہ کے تابیدار کوبہت سخت تکلیف ہے یہ جو سو دو سییو رپییہ کییا کییام بییاقی‬ ‫ہے اسکو مکمل کرنے سے مجبور ہے اور کوی دوسرا کاروبار بھتی بغیییر‬ ‫روپیہ کے نہیں چلتا جییس سیے کیہ اپنییی ونیییز بچییوں کییی تکلیییف دور کرییں۔‬ ‫اسکےعلوہ جسوقت کام کرنے کے لے حکم دیا گیا تھا اسوقت ساتھ ہی ی یہ‬ ‫حکم ہوا تھا جیسے جیسیے روپییہ وصییول ہوگییا ویسیے ہی روپییہ تمکییو دیییا‬ ‫جاوےگا معلوم ہوا کیہ وصییولیابی عرصیہ سیے ہورہی ہے اور کییافی روپییہ‬ ‫وصییول ہوچکییا عرصیہ ہوا زبییانی حضییور سیے تکلیییف بیییان کیییا ت ھا اس‬ ‫درمیان تابیدار کی طبعت اچھی نہیں تھی اسوجہ سیے حضیور سیے دوبیارہ‬ ‫اپنی مصیییبت بیییان نیہ کییر سیکا۔ دوییم مکانییات جییوکی بییوجہ بلییوہ کیے جییل‬ ‫گےتھے جسکو تعمیر کرنے کے لے تابیدار کو حکم دیا گیا تھا جسییمیں س یے‬ ‫‪ ۱۳‬مکان کی کھپںیل وغیرہ قبل بارش کے درست کییر دیییا۔ کچ یھ دروازہ‬ ‫وغیرہ کا کام باقی رہ گیا ہے جسمیں ک یہ کچ یھ درختییان اور ج ھاڑ وغیییرہ‬ ‫بحکم جناب ڈپٹی کمشنر صاحب فیییض آبییاد ذریعیہ نییزول نییاءب تحصییلدار‬ ‫صاحب بہادر فیض آباد کے تابعدارکو عطا ہوا تھا اور یہ کہا گیا تھا کہ جب‬ ‫تمکو روپیہ ملے گا اسوقت تمھارے بل سے اسییکی قیمییت لیییا جاو ٔیگییا علوہ‬ ‫جو مکان نامکمل ابھی پڑے ہیں اسکے مطابق بھی سامان اکٹھا کییر رک ھا‬ ‫ہے مگر بدرجہ مجبوری روپیہ نیہ ہتونے کیے وجیہ سیے بیٹھتہ رہتا۔ لہتذا ذریعیہ‬ ‫درخواست ہاذا گییذاران کییر امیییدوار ہوں کیہ تابعییدار کییی اس مصیییبت پییر‬ ‫حضور خیال کر کے روپیہ دینے کا حکم صادر فرماویں گے۔‬ ‫واجب جانکر عرض کیا آ ٔندہ مالک حضور‬ ‫تفصیل جو مکانات بناے گے ہیں مسمات)‪ (۱‬مقصودًا )‪(۲‬حبیب اللہ )‪(۳‬‬ ‫حاجی نور محمد )‪ (۴‬خیرات حسین محلہ مگل پورا )‪ (۵‬شہادت علی )‪(۶‬‬ ‫رحمت علی محلہ بیگم پورا )‪ (۷‬عابد علی )‪ (۸‬امین اللہ )‪ (۹‬افضال اللہ )‬ ‫‪ (۱۰‬محمد کریم محلہ سوٹ ہٹی )‪ (۱۱‬مول بخش )‪ (۱۲‬محمد بخش محلہ‬ ‫قاضیانہ )‪ (۱۳‬ظہور علی ۔‬ ‫عرضی فدوی تہور خاں ٹھکیدار ساکن لل باغ فیض آباد‬ ‫۔ ‪۲۵‬فروری سن ‪۳۵‬ء‬ ‫]‪^^xjhc ijoj lyker] tukc vkyh‬‬ ‫‪xqtkfj'k gS fd rkcsnkj dks ckcjh efLtn dk Bsdk fn;k x;k Fkk‬‬ ‫‪bldk dke vjlk gqvk rS;kj dj fn;k blesa dqy lkS nks lkS #i;s dk‬‬ 2924 dke ckdh jg x;k gS vkSj #i;s ds rkcsnkj dks cgqr gh l[r rdyhQ gS fd ;g tks lkS nks lkS #i;s dk dke ckdh gS bldks eqdEey djus ls etcwj gS vkSj dksbZ nwljk dkjksckj Hkh cxSj #i;s ds ugha pyrk ftlls dHkh viuh o uht cPpksa dh rdyhQ nwj djsa blds vykok ftl oDr dke djus ds fy;s gqDe fn;k x;k Fkk ml oDr lkFk gh ;g gqDe gqvk Fkk fd tSls tSls #i;k olwy gksxk oSls gh #i;k gedks fn;k tkosxk ekywe gqvk fd olwy;kch vjls ls gks jgh gS vkSj dkQh #i;k olwy gks pqdk vjlk gqvk tckuh gqtwj ls rdyhQ c;ku fd;k Fkk bl njfe;ku rkcsnkj dh rfc;r vPNh ugha Fkh bl otg ls gqtwj ls nksckjk viuh eq'khcr c;ku ugha dj ldkA nks;e edkukr tks fd cotg cyos ds ty x;s Fks ftldks rkehj djus ds fy;s rkcsnkj dks gqDe fn;k x;k Fkk ftlesa ls 13 edku dh [kijSy oxSjg dOy okfjl ds nq#Lr dj fn;k dqN njokts oxSjg dk dke ckdh jg x;k gS ftlesa dqN nj[rku vkSj >kM+ oxSjg cgqdqe tukc fMIVh dfe'uj lkgc cgknqj QStkckn ds tfj;s utwy uk;c rglhynkj lkgc cgknqj QStkckn ds rkcsnkj dks vrk gqvk Fkk vkSj ;g dgk x;k Fkk fd tc rqedks #i;k feysxk ml oDr rqEgkjs fcy ls mldk dher fn;k tkosxk vykok tks edku ukeeqdEey vHkh i<+s gSa mlds eqrkfyd Hkh lkeku bdV~Bk dj j[kk gS exj c otg etcwjh #i;ku gksus dh otg ls cSb jgk fygktk tfj;s nj[okLr gktk xqejku dj mEehnokj gwWa fd rkcsnkj dh bl eq'khcr ij gqtwj [k;ky dj ds #i;k nsus dk gqDe lkfnj Qjek;sxsa okftc tku dj vtZ fd;k vkgUnk ekfyd gqtwjA rQlhy tks edkukr cuk;s x;s gSa eqlEekr edlwnu] gchcqYyk ¼2½ 3- gkth uwj eqgEen 4- [ksjkr gqlsu eqgYyk eqxyiqjk 5- lgknr vyh 6- jger vyh eqgYyk csxe iqjk 7- vkfcn vyh 8- vehu mYyk 9- vQtky mYyk 10- eqgEen djhe eqgYyk lkSVgVh 11- ekSyk cDl 12- eqgEen c['k eqgYyk dft;kuk 13- tgwj fe;kaA vthZ fQnoh rgOoj [kka Bsdsnkj lkfdu ykyckx QStkckn nLr[kr rgOoj [kkWa 25-2-35^^ Most Respected Sir, I beg to say that I was granted contract of Babri 2925 Masjid. The work has already been completed about a year before, barring certain small piece of work for a value of Rs. 100/- or 200/-. The applicant is in dire need of money and only little work to the extent of Rs. 200/- is remaining, which I cannot carry out. The applicant has no other business. Kindly provide relief to me and my family. Besides, at the time of contract, it was agreed upon that part payments will be made according to Vasoolyabi. I have come to know that the enough revenue has been collected. I have already told orally to you that I was in trouble and needed money. During this time the applicant was not feeling well, so, he could not convey his grievance again. Secondly, the applicant was required to construct the houses which were burnt during the riot, out of which 13 houses of Khaprail have been repaired before the rains commenced. A small piece of work in relation to doors etc is remaining. Further under the orders of the Deputy Commissioner Faizabad through Tehsildar (Nuzul) Faizabad, certain trees and shrubs were allotted to the applicant with the assurance that whenever the applicant gets money the price of the aforesaid would be deducted from the bill. The applicant has already collected material for repairs of the remaining houses. But due to paucity of of required money the applicant remained idle. So, I would request you to kindly consider my grief sympathetically and provide money to me and for this purpose. kindly issue necessary orders. Deemed necessary, so prayed.

Malik Hujoor.

Details of the houses constructed : (1) Mst. Maqsudan, (2) Habibullah, (3) Haji Noor Mohammad (4) Khairat 2926 Hussain, Mohalla Mughalpura, (5) Sahadat Ali 6. Rahmat Ali, Mohalla Begumpura (7) Abid Ali (8) Aminullah (9) Afzalullah (10) Mohd. Karim Mohalla Sothati (11) Maula Bux (12) Mohd. Bux Mohalla Kaziana (13) Zahoor Miyan.

Applicant Tahavvar Khan Contractor, r/o Lal Bagh Faizabad 25.2.35."

(D) Exhibit A-45 (Suit-1) (Register 8, page 467) is the copy of the order dated 26th February 1935 of the Deputy Commissioner Faizabad for payment of Rs. 7000/- to the contractor for the work he had discharged at the disputed mosque.

(E) Exhibit A-44 (Suit-1) (Register 8, page 461-465) is copy of the estimate submitted by Zahoor Khan, contractor, Lal Bagh Faizabad on 15th April 1935 for repairs of the building in dispute.

(F) Exhibit A-48 (Suit-1) (Register 8, page 473-476) is a copy of inspection report dated 21st November 1935 of Sri Zorawar Sharma, Assistant Engineer Faizabad verifying the work performed by contractor and recommending for payment as claimed by him but after making some alternation therein.

(G) Exhibit A-46 (Suit-1) (Register Vol. 8, page 469) is a copy of report of Mubarak Ali, Bill Clerk dated 27th January 1936 which reads as under:

"The bill of the contractor regarding the construction of the mosque is herewith put up as ordered. As regards the bill for the burnt houses, the estimates of which have been lost, has recently been sent to the Nazul Naib Tahsildar under the orders of D.C. for checking the work done by the ‫‪2927‬‬ ‫"‪contractor on the spot.‬‬ ‫‪(H) Exhibit A-47 (Suit-1) (Register 8, page 471) is a copy‬‬ ‫‪of report dated 29th January 1936 of checking/verification‬‬ ‫‪submitted by A.D. Dixon which reads as under:‬‬ ‫‪"The repairs to the Babri mosque has been checked by‬‬ ‫‪the P.W.D. The payment for this work, amounting to Rs.‬‬ ‫"‪6825/12/-, should, I think, be paid now.‬‬ ‫)‪(I‬‬ ‫‪Exhibit A-52 (Suit-1) (Register Vol. 8, page 489) is‬‬ ‫‪another copy of the complaint made by Tahavvar Khan,‬‬ ‫‪contractor on 30th April 1936 complaining about certain‬‬ ‫‪claims disallowed by the PWD authorities and reads as‬‬ ‫‪under:‬‬ ‫غریب پرور سلمت‬ ‫گزارش ہے کہ سایل کا بل بابت مرمت مکانات واقییع اجودھیییا مبلغ ‪۳۶۰۴‬‬ ‫روپیہ ‪ ۹‬آنا کا تھا جسمیں سےسییایل کییو صییرف ‪ 3287‬روپییہ ‪ ۱‬آنییا ‪ ۶‬پییای‬ ‫دیاگییا ہے کمیی کیی وجیہ ییہ معلیوم ہوتی ہےجیانب نیزول نیایب تحصییلدار‬ ‫صاحب فیض آباد نے دوران جانچ کیام مرمیت ییہ تجیویزکر دییا کیہ دو‪،‬تیین‬ ‫دوروازے کی موٹاءی ڈیڑہ انچ ‪،‬دروازوں کی قیمت مالیتی ‪ ۲۳‬روپیہ ‪۱۲‬‬ ‫آنییا‪ ۱۶ ،‬روپییہ ‪ ۱۱‬آنیہ ‪ ۳‬پییای کیے مبلییغ ‪ ۱۱ ،۱۶‬روپییہ کییر دی جییاے اور‬ ‫کھڑکیوں کی قیمت بجاے مبلغ ‪ ۷‬روپیہ کےمبلغ ‪ ۴‬روپیہ کر دی جییاے ۔عییالی‬ ‫جاہ بوقت جانچ اسٹیمٹنٹ ‪ ۳‬دروازوں کی مو ٹای ڈی یڑہ انییچ اور کہڑکیییوں‬ ‫کی قیمت کم کرکے مجھ کیو پیی ڈبلیو ڈی نیے ‪ ۲۳‬روپییہ ‪ ۱۲‬آنیہ ‪ ۱۶‬روپییہ‬ ‫‪ ۱۱‬آنہ ‪ ۳‬پاءی ‪ ۷‬روپیہ منظییور کییی ت ھی اور اسییی کیے مطییابق سییایل نیے‬ ‫دروازے اور کھڑکیاں سالوں پہلیے لگییا یییا ت ھا اور جانییچ کیے وقییت آفیسییر‬ ‫انچارج جانچ کنندہ کو وہ نءی حالت میں نہیی ملی۔ غالبًا اسی وجہ سے یییہ‬ ‫کمی تجویز کی گی ہے۔ حالنکہ نےدروازہ اور کھڑکیییاں تجییویز شییدہ رقییم‬ ‫میں ہر گز تیار نہیں ہو سکتی ہیں۔ وجوہات بال ساءل امیدوار ہے کیہ ‪ ۳‬ڈور‬ ‫دروازہ سوا انچ اور کھڑکیوں کے ریٹ کی جانچ پی ڈبلو ڈی سے دوبییارہ‬ ‫کرالی جاے اور ساءل کا بقیہ روپیہ مرہمت فرمایا جییاے۔ سییایل کییا بییل بییابت‬ ‫مسجد بابری ‪ ۷۲۲۹‬روپیہ کا تھا جسمیں سے ساءل کو ‪ ۶۸۲۵‬روپییہ ‪ ۱۲‬آنیہ‬ 2928 ‫ آنا کم برامیید کیییا گیییا ۔ حییالنکہ اس یٹیمیٹ جییو‬۴ ‫ روپیہ‬۴۰۳ ‫دیا گیا ہے یعنی‬ ‫ روپیہ کا تھا اور سایل نے اسٹیمیٹ سے کم بل دیا‬۷۳۲۹ ‫منظور ہوا تھا وہ‬ ‫تھا لہذا ساءل کو سمجھایا جاے کہ کون کون سی رقم ساءل کی نہیں برامیید‬ ‫کی گی جس میں حضور سے سایل اس کے متعلق عرض کر سکے ۔‬ ‫ء‬۳۶ ‫ اپریل‬۳۰ ‫فدوی تہور خاں ٹھیکیدار مورخہ‬ ^^xjhc ijoj lyker] xqtkfj'k gS fd lk;y dk fcy ckcr ejEer edkukr okds v;ks/;k eqcfyx 3604 #i;k 9 vkuk dk Fkk ftlesa ls lk;y dks flQZ 3287 #i;k 1 vkuk 6 ikbZ fn;k x;k gSA deh dh otg ;g ekywe gksrh gS fd tukc utwy uk;c rglhynkj lkgc QStkckn us nkSjku [kkfrj dke ejEer ;g rtcht dj fn;k fd nks rhu njokts dh eksVkbZ Ms<+ bap njoktksa dh dher ekfy;rh 23 #i;k 12 vkuk] 16 #i;k 11 vkuk 3 ikbZ ds eqcfyx 16 #i;k] 11 #i;k dj nh tk; vkSj f[kM+fd;ksa dh dher ctk; eqcfyx 7 #i;s ds eqcfyx 4 #i;s dj nh tk; vkyhtgk cjoDr tkap LVsVesaV 3 njoktksa dh eksVkbZ Ms<+ bap vkSj f[kM+fd;ksa dh dher de dj ds eq>dks ih0MCyw0Mh0 us 23 #i;k 12 vkuk] 16 #i;k 11 vkuk 3 ikbZ] 7 #i;k eUtwj dh Fkh vkSj blh ds eqrkfYyd lk;y us njoktk o f[kM+fdka lkyks igys yxk;k Fkk vkSj tkap dsoy vkfQlj bapktZ dqfUunk dks og ubZ gkyr esa ugh feyh xkycu bl otg ls ;g deh rtoht dh xbZ gS gkykafd u;s njoktk o f[kM+fd;ka rtcht 'kqnk jde esa gjfxt rS;kj ugha gks ldrhaA cotwgkr ckyk lk;y mEehnokj gS fd 3 Mksj njokts lok bap o f[kM+fd;ksa ds jsV dh tkap ih0MCyw0 Mh0 ls nksckjk djk yh tk; vkSj lk;y dks cfd;k #i;k ejger Qjek;k tkos lk;y dk fcy ckor elftn ckcjh 7229 #0 dk Fkk ftlesa ls lk;y dks 6825 #0 12 vk0 fn;k x;k gSA ;kuh 403 #0 4 vk0 de cjken fd;k x;k gkayk fd LVhesV tks eUtwj gqvk Fkk og 7329 #0 dk Fkk vkSj lk;y us LVhesV ls de fcy fn;k x;k fygktk lk;y dks le>k;k tkos fd dkSu dkSu lh jdesa lk;y dh ugha cjken dh xbZ ftlesa gqtwj ls lk;y blds eqrkfYyd vtZ dj ldsA fQnoh rgOoj [kka Bsdsnkj rk0 30 vizSy lu~ 36^^ " Gharib Parwar Salamat. I beg to state that my bill for the 2929 repair work of the houses was to the tune of Rs. 3604/- out of which the applicant has been paid 3287/1/6 only the reason for the officer under payment seems to be that the officer Nazul and Naib Tahsildar Faizabad at the time of inspection during repairs, proposed that the thickness of the two doors of 1-1/2 inch, valued at Rs 23/12 and Rs 16/11/3 be reduced to Rs 16/- and Rs 11/- respectively, the price of the windows was reduced to Rs. 4/ instead of Rs 7/. Sir, at the time of inspection of the after reducing the thickness of the three doors to 1-1/2 inches and that of windows the P.W.D. after revision of the price, approved Rs 23/12/-, Rs 16/11/3 and Rs 7/- respectively, and accordingly fixed the doors and windows years back. At the time of inspection of the officer incharge, those were found not in new condition, that is why deduction was proposed although the new doors and windows could certainly not be prepared at the proposed price. Therefore it is requested that inspection and revaluation of 3 doors- 1-1/4 inches and rates of the windows may be made by the P.W.D. and the applicant may kindly be paid his remaining amount. Applicant's bill in respect of Masjid Babri was of Rs. 7229/- out of which he has been paid Rs, 6825/12/- i.e. short by Rs 403/41- though the estimate was approved for Rs. 7329/- and the applicant has been paid lesser amount. Therefore the applicant may kindly be furnished details as to which amount has been deducted so that the applicant may move your honour. Applicant: Tahauwar Khan the Thekedar dated April 30, 1936."

(J) Exhibit A-50 (Suit-1) (Register Vol. 8, page 479) is a letter of Tahawar Khan Thekedar regarding repair work in 2930 the disputed structure and reads as under:

‫ء مشمولہ مثل‬۱۹۳۵ ‫ اپریل‬۱۶ ‫نقل درخواست تہور خاں ٹھیکہدارمورخہ‬ ‫ فیض آباد‬،‫بابری مسجد اجودھیا‬ ‫بحضور جناب حاکم تحصیل صاحب بہادر فیض آباد دام اقبالہ‬ ‫غریب پردرسلمت جناب عالی‬ ‫گزارش ہے بابری مسجد کے بل دینے میں دیری ابھی سے ہو ٔی کہ کلسہ‬ ‫ڈرم کا بنارس میں تیار ہو رہا ہے ابھی تک آیا نہیں مگر اب بل بحکم‬ ‫حضور فورًا داخل کر رہا ہوں پتھرسنگ مرمر بھی جسمیں الّلہ لکھا‬ ‫جاویگا مکمل نہیں کیا یہ دونوں کام جو کہ اندر ایک ہفتہ میں ہو جاو ٔیگا‬ ‫مکانات کے بل کچھ اس ہفتہ کے اندر داخل کر دونگا جو کچھ کام باقی‬ ‫تھا وہ ہورہا ہے واجبًا عرض ہے۔‬ ‫ فیض آباد‬،‫ ساکن لل باغ‬،‫فدوی تہور خاں ٹھیکہدار‬ ۳۵‫۔‬۴‫۔‬۱۶ ‫تہور خاں‬ ^^udy nj[okLr rgOoj [kkWa Bsdsnkj eksj[kk 16 vizSy] lu~ 1935 bZ0 e'kewyk fely ckcjh efLtn v;ks/;k] QStkckn cgwtwj tukc gkfde rglhy lkgc cgknqj QStkckn nkes,dckygw xjhc ijoj lyker tukcs vkyh xqtkfj'k gS fd ckcjh efLtn ds fcy nsus esa nsj bl otg ls gqbZ gS fd dylk Mze dk cukjl esa rS;kj gks jgk gSA vHkh rd vk;k ugha exj vc fcy cgqdqe gwtwj QkSju nkf[ky dj jgk gwWaA iRFkj laxejej Hkh ftlesa vYyk fy[kk tk;sxk eqdEey ugha fd;k ;g nksuksa dke tks fd vUnj ,d gQ~rs esa gks tk;sxk edkukr ds fcy dqN bl gQ~rs ds vUnj nkf[ky dj nwaxkA tks dqN dke ckdh Fkk gks jgk gSA okftcu vtZ gSA vthZ fQnoh rgOoj [kka Bsdsnkj lkfdu ykyckx] QStkckn g0 rgOoj [kka 16-4-35^^ "Copy of the application of Tahawar Khan Thekedar dated 16.4.1935 included in the file of Babri Masjid, Ayodhya, Faizabad.

To the Tehsildar Saheb Bahadur, Faizabad ‫‪2931‬‬ ‫‪Gharib Parwar Salamat.‬‬ ‫‪I beg to say that delay in submitting the bill for Babri‬‬ ‫‪Masjid occurred because Kalsa (pitcher) of the Dome is‬‬ ‫‪being prepared in Banaras and has not yet been‬‬ ‫‪received. But under your orders I am submitting the same‬‬ ‫‪now. The piece of marble stone on which "Allah" will be‬‬ ‫‪engraved, has not yet been got ready. I hope both the said‬‬ ‫‪jobs would be done within a week. The bills in respect of‬‬ ‫‪houses will be submitted within this week. The remaining‬‬ ‫‪work is in progress. Yours sincerely, Tahauwar Khan‬‬ ‫)‪Thekedar resident of Faizabad 16-04-35." (ETC‬‬ ‫‪(K) Exhibit A-53 (Suit-1) (Register Vol. 8, page 493) is a‬‬ ‫‪copy of the application dated 2.1.1936 of Tahavvar Khan,‬‬ ‫‪Contractor for early payment of his dues and reads as‬‬ ‫‪under:‬‬ ‫حضور جناب کے محسن صاحب صدر فیض آباد‬ ‫غریب پرور سلمت‬ ‫جناب عالی گزارش ہے کیہ مکانییات جییوکی اجودھیییا بلییوہ مییں جییل گءے‬ ‫تھے جسکو تابیدار کو مکمل کے ہوےکافی عرصہ ہوا اور تابیدار کییو اب ھی‬ ‫تک روپیہ نہیں مل اور دریافت سیے معلییوم ہوا کیہ اسیٹمٹ مکانییات غییایب‬ ‫ہوگیا اسوجہ سے جناب انجینیر صاحب پی۔ ڈبلو۔ڈی۔ بیابری مسییجد کییا بیل‬ ‫چیک کر کے دوبارہ مثل کو واپس کر دیا مکانات کا بییل بغیییر اسیٹمٹ کیے‬ ‫رہ گیا۔ عالیجاہ اس اسیٹمٹ کییو جنییاب نییایب تحصیییل دارنییزول رییٹ پییی۔‬ ‫ڈبلو۔ڈی۔ سے چیک کراکے دوبارہ تابیدرارس یے اس یٹمٹ لیاگیاجسییکی اردو‬ ‫کاپی میرے پاس موجود ہے اگر حکم ہو تابیداراسکی کاپی پیییش کییر سییکتا‬ ‫ہےمہربانی کر کے میرے مکانوں کا بل جناب انجینیر صاحب کے پاس روانہ‬ ‫کر دیا جاے تاکہ بل چیک ہو جاوے تابیدار کو مییل جییاوے کیییونکہ روپییہ کییی‬ ‫سخت ضورت ہے۔‬ ‫واجبًا عرض ہے۔‬ ‫عرضی‬ 2932 ‫فدوی تہور خان ٹھکیدار ساکن لل باغ فیض آباد‬ ۲‫۔‬۱‫۔‬۳۶‫۔‬ ^^xjhc ijoj lyker tukcs vkyh xqtkfj'k gS fd edkukr v;ks/;k tks fd cyos esa ty x;s FksA ftldks rkcsnkj dks eqdEey fd;s gq;s cgqr vjlk gqvk vkSj rkcsnkj dks #i;k vHkh rd ugha feyk vkSj nj;kQ~r ls ekywe gqvk fd LVhesV edkukr dk xk;c gks x;k bl otg ls tukc bUthfu;j ih0MCyw0Mh0 ckcjh efLtn dk fcy psd djds feLy dks okil dj fn;kA edkukr dk fcy cxSj LVhesV ds jg x;k vkyh tkg bl LVhesV dks tukc uk;c rglhynkj lkgsc utwy jsV ih0MCyw0Mh0 ls psd djkds nksckjk rkcsnkj ls LVhesV fy;k x;kA ftldh mnwZ dkih esjs ikl ekStwn gS vxj gqdqe gks rkcsnkj bldks ;k bldh dkih is'k dj ldrk gS esgjckuh djds esjk edkuksa dk fcy tukc bathfu;j lkgsc ds ikl jokuk dj fn;k tkos rkfd fcy psd gks tk;s rkcsnkj dks #i;k fey tk, D;ksafd #i;s dh l[r t:jr gS okftcu vtZ gSA vthZ fQnoh rgOoj [kka Bsdsnkj lkfdu ykyckx QStkcknA 2-1-36 g0 rgOoj [kkaA "Garib Parvar Salamat, Janabe Ali, Respectfully it is submitted that certain houses in Ayodhya were burnt in the riots, which were constructed by the contractor long back but the contractor could not get the money so far. The query in this behalf revealed that estimate concerning those houses had been lost somewhere and due to which the Engineer of PWD after perusing the bill returned the file. The payment of bill could not be made in absence of estimate. Respected Tehsildar Saheb, Estimate of Nazul rate was obtained from the contractor again, Urdu copy whereof is available with the applicant. If ordered, the applicant can produce the same or copy of the said, My bills in respect of houses may very kindly be sent to Engineer Saheb so that the bills may be checked 2933 and contractor may get money because he is in dire need of money.

Applicant Tahavvar Khan, Contractor, R/o Lal Bagh 2.1.36."

3100. All these documents pertaining to repairing etc. of the building in dispute pursuant to its damage in 1934 riot and show that there was a substantial damage to building including its domes, stones inscriptions etc., which were repaired by Muslim contractors. However, no order has been placed before us to show that as a matter of fact, premises in dispute was ever handed over to Muslims or they were allowed to offer Namaz in the building in dispute. At least their documents do not help the Muslim parties so far as this aspect of the matter is concerned. 3101. In the fourth category, i.e. orders under Section 92 C.P.C., comes:

(A) Exhibit A-29 (Suit-1) (Register 7, page 331)=Exhibit 28 (Suit-5) (Register 23, page 667) is a copy of the order dated 18.12.1929 of Legal Remembrancer of Government of U.P. communicating sanction for institution of a suit under Section 92 C.P.C. The subject matter is mentioned as under:

"The mosque built by Emperor Babar and known as Babar's mosque in village Ramkot, Ajodhya city, and the proceeds and profits of village Bahuranpur and of about 12 Bighas of village Sholapur pergana Haveli, set apart for the upkeep of the said mosque."

It is addressed to the following:

"1. Hafiz Mumtaz Hosain, son of S.Tafazzul Hasain, resident of Bazar Salarganj

2. Haji Agha Mirza, son of Mirza Azam Beg, resident of 2934 Mohalla Sabzimandi,

3.Haji Mohammed Yasin, son of S.Mohammed Hafeez resident of Mohalla Rakabganj, Fyzabad.

4. Hakim Abdul Wahab son of Dr. Khuda Bux, resident of Singarhat.

5. Zahoor Ahmad, son of Noor Mohammad, resident of Mohalla Naugazi and

6. Mohammad Shafi, son of Ghorey, Mohalla Sotahti, Ajodhya."

(B) Exhibit A-68 (Suit-1) (Register 8, page 559) is a copy of the order dated 19.01.1929 passed by Deputy Commissioner Faizabad directing the applicant to file application seeking sanction for filing a suit u/s 92 C.P.C. in respect of Bahoranpur Sahnawa.

(C) Exhibit 27 (Suit-5) (Register 23, Page 665)(the document appear to be incomplete. Neither the date of the order is legible nor to whom it was addressed is mentioned therein and therefore cannot be relied on. However, it is claimed to be is a copy of the Government order according sanction under Section 92 C.P.C. for institution of a suit. The subject matter is mention as under:

"The mosque built by Emperor Babar and known as Babar's mosque in village Ramkot, Ajodhia city, and the proceeds and profits of village Bahuranpur and of about 12 bighas of village Sholapur pergana Haveli Oudh, set apart for the upkeep of the said mosque."

3102. These documents on the one hand show that some muslim persons obtained permission from the Government under Section 92 for institution of the suit but it is an admitted fact that no record is available to show that any suit actually 2935 filed by anyone. In fact what we find is that sanction was granted under Section 92 CPC but further details as to how and why the said sanction was granted and what thereafter happened is not known to us. Due to lack of attending information we are not in a position to take these documents into consideration for forming opinion either way in the context of the issue in question.

3103. In the fifth category, there is correspondence with Sunni Board with regard to Wakf, its registration etc.:

(A) Exhibit A-67 (Suit-1) (Register 8, page 547-558) is a copy of the reply dated 19/20 July 1938 filed by Mohd.

Zaki to Waqf Commissioner pursuant to notice u/s 4 of U.P. Waqf Act 1936.

‫بعدالت جناب وقف کمشنر صاحب بہادر فیض آباد‬ ‫سیییدمحمد ذکییی ولیید سییید محمیید رضییی سییاکن ش یہنوان برگن یہ حییویلی اودہ‬ ‫تحصیل و ضلع فیض آباد‬ ‫درخواست عذرداری‬ ‫جناب عالی‬ ‫غریب پرور سلمت‬ ۴ ‫بمقدمہ مندرجہ عنوان گذارش ہے کہ سایل کےنام ایک نوٹحس جب دفعہ‬ ‫ء عدالت ہذا سے جاری ہو کر تعمیل ہوا ہے‬۱۹۳۶ ‫قانون مسلم اوقاف‬ ‫چنانچہ اسکے جواب میں سایل کے حسب ذیل عذرات ہیں‬ ‫ ۔ یہکہ ضروری شجرہ خاندان سایل یہاں پر انکشاف واقعات مقدمہ‬۱ ‫دفعہ‬ ‫ہذا درج ذیل ہے اور اشخاص مندرجہ شجرہ مذکور کو پابند مذہب شیعہ اثنا‬ ‫عشری تھے اورہیں۔‬ ‫سید عبدالباقی‬ :

‫سید ۔۔۔۔۔۔ علی‬ :

‫سید حسین علی‬ :

‫مسماۃ سکونت بی بی‬ :

                :                           :                       :
        ‫علی نقی‬                       ‫محمد افضل‬                ‫محمد اصغر‬
            :                             :                    :
                                                                       ‫‪2936‬‬

    ‫ناظم علی‬                      ‫امجد علی‬                     ‫محمد رضی‬



      ‫محمد حسین‬       ‫جواد حسین‬      ‫میرحسین‬       ‫کلب حسین‬       ‫محمد ذکی‬

‫سید حسین اصغر‬     ‫سید غلم اصغر‬       ‫سید ابوا لمحمد‬   ‫نورالحسن‬

‫دفعہ ‪۲‬۔‪ :‬یہ کہ بابربادشاہ دہلی نے ایک قطعہ مسجد واقع جنم استھان شہر‬ ‫اجوھیا تعمیر کرایا ۔ اور اسکو مسجد بابری کے نام سے موسوم کیا اور‬ ‫منصب تو لیت و خطابت مسجد مذکور کو سپرد سید عبدالباقی مورث سایل‬ ‫مندرجہ شجرہ کے کیا۔ اور مبلغ ‪ ۴۰‬روپیہ سالنہ نقد و موازی قدیمہ کہ پختہ‬ ‫ّآراضی بطور پٹہ سید عبدالباقی مذکور کو بطور مد و معاش عطا فرمایا۔‬ ‫جو یکے ب دیگرے اولد مورث مذکور کو ملتا چل آیا‬ ‫دفعہ ‪ ۳ :‬یہکہ زمانہ سلطنت اودہ وعہدہ نواب سعادت علیجان بہادر وزیر‬ ‫اورہ مابین بجاے رقم مذکور کے مبلغ تین سو دو روپیہ تین آنہ چھہ پای‬ ‫بطور نانکارو مد و معاش مورث سایل کو ملنا شروع ہوا اور برابر ملتا‬ ‫رہا۔‬ ‫دفعہ‪ ۴ :‬۔ یہ کہ ابتدا سے زمانہ سلطنت برطانیہ اور المحاق صوبہ اودہ سے سند‬ ‫نا نکار نقد گورنمنٹ سے عطا ہوی اور ‪۱۸۶۴‬ء تک مبلغ ‪ ۳۰۶‬نقد سالنہ‬ ‫خزانہ گورنمنٹ سے برامد ہوکر مورث سایل کو ملتا رہا۔‬ ‫دفعہ‪ ۵:‬یہ کہ بعد ازاںجب تجویذ حکام گورمنٹ موضع بہورن پور و آراضی‬ ‫شعلہ پوری پرگنہ حویلی بانقوش زر نقد۔۔۔۔ مذکور کے محمد اصغرو محمد‬ ‫افضل مورثاں و پیش رواں سایل مندجہ شجرہ کو نانکان معافی عطا کیا‬ ‫گیا جب سے مورثان سایل و سایل بمشمول دیگر سرکار کے چلے آتے ہیں۔‬ ‫دفعہ‪ ۶:‬یہ کہ زمانہ بندوبست پختہ اول میں عدالت بندوبست سے ڈگری حقیت‬ ‫ملکیت اعلی مواصفات مذکور کی بابت بحق محمد اصغر و محمد افضل‬ ‫مذکور بتاریخ ‪ ۳‬فروری ‪ ۱۸۷۰‬صادر ہوءی چنانچہ بعد صدور ڈگری‬ ‫مذکور و ڈگریداران و ورثاءے ڈگریداران مذکور بشمول سایل بحیثیت‬ ‫مالک اعلی قابض و متصرف جاءداد کو چلے آتے ہیں۔‬ ‫دفعہ‪ ۷:‬یہ کہ مورثہ سایل و سایل مسجد بابری مذکور کے تحفظ و قیام کے‬ ‫لءے ضروری اخراجات یہی کرتے رہے ہیں۔‬ ‫دفعہ‪ ۸:‬یہ کہ بلحاظ واقعیات مندرجہ بال علی الخصوص بالحاظ اس عمل کے‬ ‫‪2937‬‬ ‫کہ گورمنٹ برطانیہ نے بعد اسحاق صوبہ اودھ اپنی جانب سے رقم نانکار و‬ ‫مدو معاش مذکور و بعد ازاں مواصحات بشکرہ بال مورث سایل کو عطا‬ ‫فرمایاو نیز بوجہ اس کے کہ بندوبست سابق پختہ سے موزمان و پیش رواں‬ ‫سایل کے حق میں ڈگری ملکیت اعلی کی صادر ہوءی۔ جاءداد مذکور‬ ‫مسلم وقف کی تعریف میں ہرگز نہیں آ سکتی اور جاءداد مذکور کی طرح‬ ‫سے ایکٹ قانون مسلم اوقاف نہیں متصور ہو سکتے۔ خصوصًا یہی وجہ ہے‬ ‫کہ عطیہ جاءداد گورمنٹ برطانیہ یعنی غیر مسلم کا ہے اور مشروط ہے۔‬ ‫دفعہ‪ ۹:‬یہ کہ بہر صورت جاءداد مذکور بموجب دفعہ ‪ ۴‬ایکٹ مسلم قانون‬ ‫‪ ۱۹۳۶‬قانون مذکور کی دفعات کی پابندی سے مستثنی ہے کیوں کہ بہت‬ ‫زیادہ حصہ آمدنی کا بطور مد و معاش سایل شرکاہان سایل مندرجہ ک ی‬ ‫ھٹ‬ ‫کےذاتی مصارف میں صرف ہوتاچل آیا ہے۔‬ ‫دفعہ‪ ۱۰:‬یہ کہ بالحاظ رفع حجت و بالحاظ مطالعت حکم عدالت امور‬ ‫دریافت طلب کا جواب درج فہرست )الف( یہ کہ اگر عدالت سایل کی‬ ‫منظوری کے لءے اظہار واقعات مندرجہ درخواست ہذا کافی نہ متصور ہو‬ ‫تو سایل کو موقع عطا فرمایا جاوے کہ وہ اپنے عذرات کو اپنے وکیل کے‬ ‫ذریعہ سے عدالت مجاز میں بتاریخ معینہ پیش کرے۔‬ ‫فدوی‬ ‫سید محمد ذکی سایل‬ ‫‪۱۹/۱/۱۹۳۸‬‬ ‫‪"Before the Court of the Commissioner Faizabad. Syed‬‬ ‫‪Mohd.Zaki S/o Syed Mohd.Razi R/o Mauza Shahnawan‬‬ ‫‪Pargana Haweli Oudh Tehsil and District Faizabad.‬‬ ‫‪Objection‬‬ ‫‪Gharib Parwar Salamat.‬‬ ‫‪In the matter of the above subject, it is submitted that‬‬ ‫‪a notice under Section 4 of the Muslim Waqf Act 1936 has‬‬ ‫‪been issued by the Court and served upon me. Therefore in‬‬ ‫‪reply to the same, the applicant submits the following‬‬ ‫‪objections:‬‬ 2938 (1) That the necessary pedigree of the applicant belonging to the Shia Sect case is as under:

Syed Abdul Baqi :

Hajbar Ali :

Syed Hussain Ali :

Mst. Sakunat Bibi :

    :                   :                :
Mohd. Asghar         Mohd. Afzal   Ali Taqi
      :                 :            :
Mohd. Razi         Amzad Ali       Nazim Ali
      :                 :                :
::                :           :            :
Mohd. Zaki Kalbe Hussain :                 :
(Applicant)    (alive)        :            :
                              :            :
:               :                :         :

Munir Husain Javvad Hussain Mohd.Hussain :

:

: : : :

Nurul Hasan Syed Abu Mohd. Syed Ghulam Syed Asghar Hasnain Asghar Section 2. That the King Babar, Delhi, got constructed a Masjid at Janam Sthan, City Ayodhya and named it as Masjid Babri. He nominated Syed Abdul Baqi ancestor of the applicant as indicated in the above pedigree and Rs. 40/- cash annually and gifted 13 Bighas Arazi Pucca on contract which continued to received by his successor generation by generation.

Section 3. That from the era of Saltanant Oudh, Nawab Saadat Ali Khan Bahadur Wazir Oudh instead of the aforesaid grant began to give Rs, Three hundred and two, Annas three and six pie as Nankar which was being regularly received.

2939

Section 4. That from the era of Sultanate Britania after annexation of province of Oudh a certificate of cash grant Nankar of Rs. 302/- 3 Annas and 6 Pie annually was being received by the ancestor of the applicant till 1862 from the Government Treasury.

Section 5: In pursuance of the decision of the Government the property of Arazi Sholapuri and Mauza Bahoranpur was declared Nazul and the same were given as Maafi to Mohd. Asghar and Mohd. Afzal, ancestors of the applicant the Government Mauza Bahoranpur and Arazi Sholapur, Nazul property.

Section 6: That from First Settlement ownership right of the property aforesaid was entered in favour of Mohd. Asghar and Mohd. Afzal, ancestors of the applicant vide order dated 3rd February 1870 passed by the Settlement Officer and the applicant and their ancestors have been in continuous possession over the said property.

Section 7: That the ancestors and the applicant have been incurring required expenditure for the protection and upkeep of the mosque.

Section 8: That in view of the fact that after annexation of Oudh the British Government granted cash Nankar to the ancestors of the applicant as compensation and thereafter a decree of right over the property in dispute in favour of the ancestors of the applicant was passed; therefore, the property cannot vest in Waqfs and the same is not covered under Muslim Waqf Act since the property has been granted by the British Government, i.e. Non-Muslim.

Section 9: That in any case the property in dispute is out of 2940 the purview of the restriction imposed by Section 2 of Muslim Waqfs Act 1936 because a considerable portion of income is spent by the applicant towards persona requirement.

Section 10: That the applicant is filing this objection in compliance of the order of the Hon'ble Court which may kindly be accepted and taken on record . In case the objections are not found sufficient or satisfactory, the applicant be afforded opportunity to plead his case through counsel before the Hon'ble Court.

Applicant Syed Mohd. Zaki 19/20/7/1938 (B) Exhibit A-65 (Suit-1) (Register 8, page 537) is a copy of the notice dated 11.04.1945 given by the Secretary Shia Waqf Board to Sunni Central Waqf Board.

(C) Exhibit A-66 (Suit-1) (Register 8, page 539-545) is a copy of the letter/reply dated 20.11.1943 of Kalbe Husain Mutwalli of the disputed building which reads as under:

‫ملحظہ جناب سیکریٹری صاحب سنی وقف بورڈ لکھنؤ‬ ‫ء‬۴۳ ‫اکتوبر سن‬۲۷ ‫ مورخہ‬527 ‫جواب چیٹی نمبر‬ ‫؎یہ بلکل غلط ہےکہ ہندوسادھو مسجد میں کوی زیادتی کییر رہتا ہےھتے۔‬۱‫۔‬ ‫مسجد کے بیرونی احاطہ کے اندر جہاں وہ لوگ جسییکی بییابت انکییو عییدالت‬ ‫سے حق حاصل ہے اس چپریہ کا شمالی حصہ گر گیا ہے جو اسی طییرح پیڑا‬ ‫ہوا ہے۔ ممکن ہے کہ کچھ ٹیڑھتا ہتو گیییاہو یییا گییر جییانے سیے کچیھ زیییادہ‬ ‫معلوم ہوتا ہو۔ جس قت وہ چپریہ نبوانے لگیں گے اسیی کیی پیمیاءش کرکیے‬ ‫حضور کو مطلع کرونگا۔ اس چپر سے مسجد کا کوءی تعلق نہیں ہے۔‬ ‫ یہ کہ چٹای فیرش جاءنمیاز وغیییرہ صییرف روزمیرہ کییی ضییورت‬: ۲ ‫نمبر‬ ‫ب ھر کییو موجییود رہتییا ہے بییاقی فییرش جاءنمییاز وغیییرہ علحییدہ مولییوی‬ ‫عبدالغفارپیش امام کے یہاں رکھا رہتا ہے۔ جسکو موذن ہر جمعہ کییو لیے اتییا‬ ‫ہے اور نماز جمعہ پھر وہیں رکھ دیا جاتا ہتے کیییوں کیہ اکییثر فییرش وغیییرہ‬ ‫‪2941‬‬ ‫مسجد سے چوری ہو گیا ہے۔ اس وجہ سے کل فرش ہروقت نہیں رہتا۔‬ ‫نمیییبر ‪ :۳‬ییییہ کیییہ سیییفیدی اور مرمیییت اکتیییوبر سییین ‪ ۴۱‬مییییں ہوی ت ھی۔‬ ‫ٹھکیدارسفیدی کی ایک نقل رسید مزدوری خانہ خییدمت ہتے۔ دوسییرے سییال‬ ‫بوجہ ہواءی اڈہ کی تعمیر سے اینٹ اور مسالہ نہیں ملتا تھا بوجہ سفیدی نہیں‬ ‫ہو سکی۔ صرف زینا باہر سے ہوا تھا امسال ضرورت سییفیدی اور مرمییت‬ ‫کی ضرورت ہے جسکی میں فکر کر رہا ہوں‬ ‫نمبر ‪ :۴‬پیییش امییام کییی تنخییواہ مییاہ اگسییت سین ‪ ۴۳‬آخییر شییوال حییال تییک‬ ‫صرف ‪۷‬روپیہ باقی ہے اور کوی بقایا نہیں ہے۔ ایییک نقییل رسییید پیییس امییام‬ ‫ارسال خدمت ہے۔‬ ‫نمبر ‪ :۵‬مسجد کہ متعلق نہ کوی وقف ہے نہ کییوی اسییوقت تییک کییوی متییولی‬ ‫مقرر ہوا۔ جاءداد متعلقہ شییاھی معییافی ہے جییو مورثییان کییو ملییی ت ھی اور‬ ‫جاءداد مذکور کا بحیثیت مسلمان ہونےکے انتظییام و دیک یھ ب ھال و مرمییت‬ ‫وغیرہ کیا کرتا پھر اسطرح میں بھی۔ ‪۱۷‬فروری ‪۴۱‬ء سے نمبردار مقییرر‬ ‫ہوا ہوں اور مسجد کا کام انجام دیتا ہوں۔‬ ‫نمبر ‪ :۶‬یہ کہ بموجب حکم ‪ ۲۷‬اکتوبر ‪ ۴۳‬سنی وقف بورڈجناب سید رحمت‬ ‫حسیین صییاحب اییڈوکیٹ کیے پییاس بغیرض جانییچ حسییابات گییا ت ھا اڈییٹر‬ ‫صاحب نے ‪ ۴۱‬نومبر یوم اتوار کو جانچ کیلے بلیا ہے۔‬ ‫نمبر ‪ :۷‬ہملوگوں کو اسکی بلکل خبر نہیں ہے کہ وقف کمیشیینر صییاحب ن یے‬ ‫کیا فیصلہ کیا تھا چونکہ وقف بورڈ نے جایداد سیینی وقییف بییورڈ مییں شییامل‬ ‫کی گی ہے اسوجہ سیے مجبییورًا اسییکے احکامییات کییی پانبییدی کییر ر ہا ہوں‬ ‫اسییکے متعلییق عییدالت دیییوانی سیے مجبییورًا چییارہ جوہوںکیییوں کیہ بینییاءے‬ ‫مخاصمت بعد گرفت پیدا ہوگی جسکا منتظر ہوں۔‬ ‫نمبر ‪ :۸‬یہ رقم چندہ اس کاغذ کے ساتھ جمع ہونا چییاہے کیہ جایییداد جسییکی‬ ‫امدنی سے یہ رقم ادا کی جاتی ہے وقف نہیں بلکہ ناانکار معییافی ہے جسییکی‬ ‫نقلیں فراہم کر کے آیندہ روانہ کرونگا جو روپییہ بوقییف چنییدہ فرا ہم ہتے کییل‬ ‫حسابات پیش کرنے کے بعد روانہ کرونگا اگییر کچیھ کمییی رہ جاو ےگ تییو‬ ‫پھر روانہ کرونگا۔‬ ‫نمبر ‪ :۹‬یہ جایداد وقف نہیں ہے بلکیہ نانکییار معییافی ہے جسییکی نقلییں فرا ہم‬ ‫کرکے روانہ کرونگا۔‬ ‫نمییبر ‪ :۱۰‬حسییاب خییرچ بالکییل صییحیح ہےجسییکی تصییدیق حییاکم تحصیییل‬ ‫‪2942‬‬ ‫صاحب بہادر کر چکے ہیں یہ غلط ہے کیہ سییفیدی مسیجد نہییں ہوءی حسیاب‬ ‫سفیدی صحیح ہے امسال سفیدی نہیں ہوءی انتظام کر رہا ہوں۔‬ ‫نمبر ‪ :۱۱‬پیش امام کی تنخواہ ماقبل والے سال کی ‪ ۳۵‬روپیہ باقی تھی اور‬ ‫حال کی ‪ ۴۰‬روپیہ تھی جو اس سال ادا کی گی اس طرح موزن کی تنخواہ‬ ‫باقی رہ گی تھی جسکا حساب مداخلہ عدالت کو بھی دک ھا چکییا ہوں۔ نقییل‬ ‫رسید پیش امام روانہ ہے۔‬ ‫نمبر ‪ :۱۲‬یہ بدنظمی کی شکایت بالکل غلط ہے۔ عالیجاںیہ مسجد ایسے موقعہ‬ ‫پر واقعہ ہے کہ اکثر بلوے ہوچکے ہیں اور ہر وقت ایدنشہ نقص امیین کییا رہتییا‬ ‫ہے اسوجہ سے صورتحال کو دیکھ کر انتظام کیا جاتا ہے۔‬ ‫دوسری وجہ شکایت کی محض میرے شیعہ ہونے مولییوی پیییش امییام وغیییرہ‬ ‫کرتے ہیں اور دوسروں کو بھی امادہ کرتے ہیں ورنہ ایسا کچھ نہیں ہے۔‬ ‫لہذا یہ ادب گزارش ہے کہ ہمارےجوابات کییو حضییور ملحظ یہ فرمییاءیں اگییر‬ ‫کسی الفاظ میں کوی گستاخی ہوءی ہو تو معاف فرمادیں اگر کچھ کمی رہ‬ ‫گی ہو تو اس سے مطلع فرمادیں‬ ‫المرقوم ‪ ۲۰‬نومبر ‪۱۹۴۳‬ء‬ ‫بقلم خود سید کلب حسین ولد سید محمد رضی‬ ‫ساکن بہورن پورہ ڈاکخانہ درشن نگر ضلع فیض آباد۔‬ ‫‪^^oeqykfgtk cuke lsdzsV~h lkgsc lqUuh oDQ cksMZ] y[kuÅ cuke fpV~Bh‬‬ ‫‪uEcjh 527 eksofjs[kk 27 vDVqcj] lu~ 43 bZ0‬‬ ‫‪ua0 1& ;g fcydqy xyr gS fd fgUnw lk/kw efLtn esa dksbZ T;knrh dj‬‬ ‫‪jgk gS efLtn ds c s: uh gkr s d s vUnj tgk a og yk sx ftldh‬‬ ‫‪ckcr mudk s vnkyr ls gd gkfly gS ml ij NIij ;k dk‬‬ ‫‪lq e kyh fgLlk fxj x;k gS tks mlh rjg iM+k gqvk gSA eqefdu gS‬‬ ‫‪fd dqN Vs<+k gks ;k fxj tkus ls dqN T;knk ekywe gksrk gSA ftl o[r‬‬ ‫‪og Nifj;k cuokus yxsxsa mldh iSekbl djds gqtqj eqRryk d:axkA‬‬ ‫‪ml NIij ls efLtn dk dk sb Z reYyqd ugh a gS A‬‬ ‫‪ua02& ;g fd pVkbZ Q'kZ tkuekt+ oxSjg flQZ jkstejkZ dh t:jr Hkj‬‬ ‫‪dks ekStwn jgrk gSA okdh Q'kZ tkuekt+ oxSjg vykfgnk ekS y oh‬‬ ‫‪vCnqy xQ~Qkj isl beke ds ;gk a jD[kk jgrk g S ftldk s‬‬ ‫‪eq v fTtu gj tq e s dk s ys vkrk gS vkS j ckn uekt + tq e k fQj‬‬ ‫‪ogh a j[k fn;k tkrk gS D;k sa f d vdlj QlZ oxS j g efLtn‬‬ 2943 ls pk sj h gk s x;k gS A ml otg ls dq y Q'kZ gjo[r ugh a jgrkA ua03& lqQsnh vkSj ejEer vDVwcj lu~ 41 ls gqbZ FkhA Bsdsnkj lqQsnh dh ,d ud+y jlhn et+nwjh [kkuk f[kner gSA nwljs lky cotg gokbZ vM~Ms dh rkehj ds bZaVs vkSj elkyk ugha feyrk FkkA bl otg ls lqQsnh ugha gks ldhA flQZ t+huk ckgj gqvk FkkA belky t:jr lqQsnh vkSj ejEer dh t:jr gS ftldh eSa fQdzz dj jgk gwaA ua04& is'k beke dh ru[okg ekg vxLr lu~ 43 vkf[kj 'kkcku gky rd flQZ 7 :0 ckdh gS vkS j dk sb Z cdk;k ugh a gS A ,d udy jlhn isl beke gjlky f[kner gSA nQk 5& efLtn ds eqrkfyd u dksbZ otg gS vkSj u dk sb Z ml o[r rd dk sb Z eqroYyh eq d jZ j gq v k gS A tk;nkn eqrkfydk lkgh eqvkQh gS tks ewfjlku dks feyh Fkh vkSj tk;nkn et +d wj dk uEcjnkj ogS f l;r eq l yeku gk su s ds bUrtke o ns[kHkky o ejEer oxSjg fd;k djrk gSA bl rjg ls Hkh 16 Qjojh] 41 ls uEcjnkj eq d jZ j gq v k gw a vkS j efLtn dk dke vutke n sr k gw a A nQk6& ;g fd oekSfto gqDe 26 vDVqcj lu~ 43 bZ0 lqUuh oDQ cksMZ tuko ls jger gqlSu lkgsc] ,MksdsV ds ikl oxjt tkap fglkckr x;k FkkA vkMhVj lkgsc us 21 uoEcj ;kSe brokj dks tkap ds fy;s cqyk;k gSA nQk 7& ge yksxksa dks bldh fcydqy [kcj ugha gS fd oDQ dfe'uj lkgsc us ;g QSlyk fd;k Fkk pwWafd oDQ~ cksMZ us tk;nkn lqUuh oDQ~ cksMZ esa 'kkfey dh xbZ gSA bl otg ls etcwju mlds vgdkekr dh ikcUnh dj jgk gwaA blds eqrkfyd vnkyr nhokuh ls etcwju pkjktqbZ djus dk gwaA fcuk; eq[kkfler ckn xtV iSnk gksxh ftldk eqUrftj gwaA nQk 8& ;g jde pUnk bl mt+ ds lkFk tek gksuh pkfg;s fd - - - ftldh vkenuh ls ;g jde vnk dh tkrhg gS oDQ+ ugha gS cfYd ekfydkuk eqvkQh gS ftldh udysa Qjk;e djds vkgUnk joku-- d:axk tks #i;k ckcr pUnk cksMZ Qjkg~e ds dqy fglkckr is'k djus ds ckn jokuk d:axk vxj dqN deh jg tk;sxh rks fQj jokuk d:axkA nQk 9& ;g tk;nkn oDQ~ ugh a gS cfYd ukudkj ekQh gS 2944 ftldh udysa Qjkgse djds jokuk d:axkA nQk 10& fglkckr [kpZ fcYdqy lgh gS ftldh rLohd gkfde rglhy lkgsc cgknqj dj pqds gSaA ;g xyr gS fd lQsnh efLtn ugha gqbZ fglkc lqQsnh lgh gSA belky lqQsnh ugha gqbZ gS bUrtke dj jgk gwWaA nQk 11& is'k beke dh rU[okg ekg dCy okys lky dh 23 :0 ckdh Fkh vkSj gky dh 40 :0 Fkh tks bl lky vnk dh xbZA bl rjg eqvfTtu dh ru[okg ckdh jg xbZ Fkh ftldks fglkc eqnfo[kyk vnkyr esa Hkh fn[kk pqdk gwaA udy jlhn is'k beke jokuk gSA nQk 12& ;g couTeh dh f'kdk;r fcYdqy xyr gSA vkyhtkgk ;g efLtn , sl s ekS d s ij okd s gS fd vdlj cyo s gk s pq d s gS vkSj gj lky - - -vUns'kk uq[l veu dk jgrk gSA bl otg ls lwjrgky dks ns[krs gq;s - - bUrtke fd;k tkrk gSA nwljh otg f'kdk;r dh egd esjs f'k;k gksus ls ekSyoh is'k beke cxSjg djrs gSa vkSj nwljksa dks Hkh veknk djrs gSaA ojuk ,slk ugh gS fygktk ovno xqtkfjl gS fd gekjs vck gqtwj eqykfgtk djek dj vxj dskbZ vyQkt xqLrk[kh - - - -ekQ Qjek;sxsaA vxj dqN deh jg xbZ gks rks - - - - vyejde 20 uoEcj lu~ 1943 bZ0^^ " Before Secretary, Sunni Waqf Board, Lucknow, letter no. 5607 dated 27.10.43, reply letter no. 527 dated 27.10.43.

1. That it is totally wrong that Hindu Sadhus are exceeding their limits in the mosque. The northern portion of the thatch over the land over which they own right conferred by the Court, has fallen down and is lying as it was. It is possible that on account of being bent or fallen it appears to be bigger in size. When they will start erecting the thatch, your honour will be informed after measurement. That cottage has no concern with the mosque.

10.That floor mats (used for sitting at the time of offering Namaz) are available only to the extent of routine use.

Remaining floor mattress etc. are separately kept with 2945 Maulvi Abdul Gaffar, Pesh Imam, which are brought by the Moazzin on Fridays and are kept back at the same place after Namaz because most of the mattresses have been stolen from the mosque and for that reason the entire mattresses are not available at all times.

3. Whitewashing and repairs were carried out in October 1941. Copy of the contractor's receipt of whitewash with respect to wages to labourers is filed. The following year due to construction of aerodrome there was paucity of bricks and sticking material. For this reasons whitewashing could not be carried out. Only the outer stairs was whitewashed. This year, there is requirement of whitewashing and repairs for which I am concerned.

4. Salary of Pesh Imam from August 43 till the month of Shaban to the tune of Rs. 7/- is in arrears and there is no other dues except it. Copy of a receipt of payment of salary to Pesh Imam is filed.

5. There is neither any waqf in respect of the mosque nor any Mutwalli has been appointed till date. The property is Nankar Shahi Maafi which was granted to the ancestors of the applicant on account of being a Mussalman and Numberdar and they looked after the management and repairs etc. Likewise, from 17.2.1941 I have been appointed Numberdar and performs the work of mosque.

6. That order dated 27.10.1943 of Sunni Waqf Board was sent to Sri Syed Rahmat Hussain, Advocate for purposes of audit of accounts. Wadekar Saheb called for scrutiny on 21 November , Sunday.

7. We are not aware as to what decision had been taken 2946 by the Waqf Commissioner since Waqf Board. Since the property in question has been included in the Sunni Waqf Board, for this reason, being helpless I am abiding by this order. For this purpose, being left with no option I intend to approach the Civil Court since cause of action will arise after gazette publication for which I am waiting.

8. This amount of subscription should be deposited with the stipulation that the property from which this amount is fetched, is not a waqf rather it is Malikana Maafi, copy of which would be submitted after procuring the same. The amount which is available will be submitted after complete accounting and in case there is any defect, that would be again sent.

9. This property is not Waqf rather it is Nankar Maafi, copy of which will be sent after procuring it .

10. Account of expenditure is totally correct which has been verified by the Tehsildar. It is wrong that the mosque was not whitewashed. Account of whitewashing is correct. This year no whitewash was carried out and I am managing for the same.

11. Salary of Pesh Imam was in arrears of Rs. 35/-of the previous year and for the current year Rs. 40/- which has been paid to him. In this way, the salary of Moazzin stands due and the account regarding it has been given to the Court. Copy of receipt of Pesh Imam is filed.

12. That the complaint of mismanagement is wholly wrong. Sir, this mosque has been built on such a place where often riots took place and every year there is apprehension of breach of peace. Therefore, seeing the situation, arrangement is made. The second reason of 2947 compliant is since I am a Shia, Maulvi, Pesh Imam are against me and also provoke others too. Otherwise, it is not so. Therefore, it is respectfully prayed that my reply may kindly be considered and in case it contains anything mischievous I may be pardoned and if any defects has crept in, the same may kindly be communicated to me. Syed Kalabe Husain, s/o Mohd. Razi, r/o Bahoranpur, P.O. Darshan Nagar, Fyzabad. 20.11.1943."

This document shows that the movable items necessary for namaz were not kept in the building in dispute and were brought every time on Friday by Muazzin and after namaz, the same were taken away. This also shows an admission of the author that there was only Friday namaz in the building in dispute and the outer courtyard has nothing to do with mosque.

(D) Exhibit A-62 (Suit-1) (Register 8, page 519) is a copy of the notice dated 25.11.1948 from Secretary Sunni Waqf Board Lucknow to Munshi Javvad Husain to the following effect:

۴۸ ‫ نومبر‬۲۵ ‫ مورخہ‬۵۰۰۷ ‫؎نقل مراسلہ‬ ‫ یو۔پی۔لھکنؤ۔‬،‫منجانب سکرٹری سنی سنٹرل وقف بورڈ‬ 26 ‫منشی جواد حسین صاحب مشمولہ مثل وقف نمبر‬ ‫مسجد بابری ضلع فیض آباد‬ ‫منشی جییواد حسییین صییاحب مسییجد بییابری ایودھیییا فیییض آبییاد۔ نورالحسیین‬ ‫ فیض آباد ک یے متییولی سییید کلییب‬۲۶ ‫صاحب کے خط سے معلوم ہوا کہ وقف‬ ‫ جون سیے اپ ان کییی جگیہ بطییور متییولی‬۲۷ ‫حسین کا انتقال ہو گیا ہے اور‬ ‫کام کر ہے ہیں مگر اس امرکی اطلع اپ نے دفتر وقف بییورڑمیں نہی یں دی‬ ‫تحریر کیجءے کہ کلب حسین صاحب کے بعد حق تولیت آپ کییو کییس طییرح‬ ‫حاصل ہے ۔ نیزدرخواست تو لیت معہ ایک روپیہ فیس درخواسییت ب ھی روا‬ ‫نہ کیجءے۔‬ 2948 ‫دستخط سکرٹری‬ "Copy of Murasla 5007/26/7 dated 25.11.1948 from Secretary Sunni Central Waqf Board U.P. Lucknow.

Munshi Jawad Husain Saheb included in the Waqf No. 26, Masjid Babri, District Faizabad.

To, Munshi Jawad Husain, Masjid Babri, Oudh, Faizabad. I have come to know from a letter from Noorul Hasan that on November 26 Mutawalli Syed Kalbe-Husain of Faizabad expired and since June 27 you are working as Mutawalli. But you have not informed the Board about this so far. Please inform us as to how you inherit right of Tauliat through Syed Kalbe Husain. More over the also sent Rs. 1/- as fees along with application for Tauliat . Sd/-

Secretary ( English ) 25/11/48."

It appears that earlier Mutwalli Syed Kalbe Husain died in June 1948 and, thereafter, Jawad Husain took over charge to function as mutwalli on 27.6.1948. (E) Exhibit A-61 (Suit-1) (Register 8, page 515) is a copy of the application filed by Abdul Gaffar Pesh Imam sent to the Waqf Commissioner Faizabad complaining about non payment of salary by the Mutwalli Syed Mohd. Zaki of the disputed building.

‫نقل درخواست عبد الغفار پیش امام مسجد بابری واقعہ رام کوٹ شہر اجود‬ ‫ء‬۱۹۳۸ ‫ اگست‬۲۰ ‫ھیا قبض آباد‬ ‫پیش کردہ روبرو جناب وقف کمشنر بہادر‬ ‫ضلع فیض آباد‬ ‫ ضلع فیض آباد‬۲۶ ‫مشمولہ مثل دفعہ‬ ‫بحضور جناب وقف کمیشنر بہادر ضلع فیض آباد۔ جناب عالی دامہ اقبالہ۔‬ ‫فدوی منجاب محمد سید ذکی صاحب مہتمم بابری مسجد )واقع موضع رام‬ ‫‪2949‬‬ ‫کوٹ شہر اجودھیا(بطور پیش امام مسجد مذکور مشارہ۔۔۔ مقرر ہے مہتمم‬ ‫مزکور کبھی تنخواہ باقاعدہ ادا نہیں کرتا ہے چنانچہ ‪ ۳۱‬دسمبر ‪۱۹۳۵‬ء‬ ‫تک مبلغ روپیہ ‪ ۲۷۴‬ذمہ مہتمم مذکور فدوی کا بابت تنخواہ یا فتنی تھا‬ ‫جسکی بابت مہتمم مذکورنے ایک اقرار نامہ بتاریخ ‪ ۲۵‬جولءی ‪۳۶‬ء‬ ‫تحریر کر دیا۔ جسکی رو سے ۔۔ ‪ ۳۱‬اکتوبر ‪۳۸‬ء کل رقم بامشتاط ادا ہونا‬ ‫تحریر تھا مگر اسوقت تک صرف مبلغ ‪ ۵۰‬روپیہ محصول ہوا اور مبلغ‬ ‫‪ ۲۳۴‬روپیہ ہنوز غیر سودی تھا۔ ابتداء رقم مذکور کے مبلغ ‪ ۱۵۵‬روپیہ‬ ‫یکم جنوری ‪۳۶‬ء من تہ ‪ ۳۱‬جولءی ‪۳۸‬ء مبلغ پابند تنخواہ اور یاتنی‬ ‫مہتمم مذکور سے دلیا جاءے گا۔ لہذا اقبال ادب گزارش ہے کہ از راہ‬ ‫خاوندی رقم یاتنی مہتہم مذکور سے دلیا جاءیگا حکم صادر فرمایا‬ ‫جاوے ۔۔۔المرموم ‪ ۲۰‬اگست ‪۱۹۳۸‬ء دستاویز اقرار نامہ محمولہ در منسلک‬ ‫درخواست ہذا ہے۔ بعد معاینہ درج ہذا سے عرضی مدعی عبدالغفار پیش‬ ‫امام مسجد بابری واقع رام کوٹ شہر ایودھیا ساکن محلہ قضیانہ شہر‬ ‫اجودھیا۔ دستخط عبدالغفار‬ ‫‪"Copy of the application of Abdul Ghaffar Pesh Imam‬‬ ‫‪Babri Masjid situated at Ram Kot, Ayodhya City dated‬‬ ‫‪August 20, 1938 submitted Before the Waqf Commissioner,‬‬ ‫‪District Faizabad in respect of Waqf No.26.‬‬ ‫‪Before the Waqf Commissioner, District Faizabad‬‬ ‫‪Sir,‬‬ ‫‪That the applicant was appointed as Pesh Imam on‬‬ ‫‪monthly salary of Rs. 5/- by Mahammad Syed Zaki‬‬ ‫‪Mutawalli Babri Masjid Situated at Mohalla Ram Kot,‬‬ ‫‪Ayodhya city. The Mohtamim (Manager/Mutwalli) never‬‬ ‫‪pays his salary regularly. As such upto December 31, 1935.‬‬ ‫‪Rs 274/- fell due against the said Mohtamim, regarding‬‬ ‫‪which the said Mohtamim executed an agreement on July‬‬ ‫‪25, 1936 according to which, the entire amount due was to‬‬ ‫‪be paid by October 31, 1938. But till now only Rs 40/-‬‬ ‫‪could be paid and Rs.234/- without interest is still due.‬‬ ‫‪2950‬‬ ‫‪Besides, a sum of Rs. 155/- towards salary from 1.1.1936 to‬‬ ‫‪31.7.1938 @ Rs.5/ per month is also due. As such, total Rs.‬‬ ‫‪389/- is still due. Therefore with all the due respect, it is‬‬ ‫‪prayed that the arrears of my salary may kindly be ordered‬‬ ‫‪to be paid. Sd/-August 20, 1938.‬‬ ‫‪The document of agreement as referred to above is‬‬ ‫‪enclosed. It may be returned after perusal. Applicant:‬‬ ‫‪Abdul Ghaffar, Pesh Imam Masjid Babri Situated at‬‬ ‫‪RamKot, Ayodhya City, R/o Mohalla Kaziana,Ayodhya‬‬ ‫"‪City.‬‬ ‫‪(F) Exhibit A-63 (Suit-1) (Register 8, page 523-527) is a‬‬ ‫‪copy of the report dated 10.12.1949 of Mohd. Ibrahim in‬‬ ‫‪respect of Waqf No. 26 Masjid Babri. It reads as under:‬‬ ‫نقل رپورٹ مسٹر محمد ابراھیم صاحب وقف سکریٹری مورخہ ‪۱۰‬دسییمبر‬ ‫‪۴۹‬ء بابت مسجد بابری مشمولہمثل ‪ 26‬یوسی بابری فیض آباد‬ ‫مسجد بابری اجودھیا‬ ‫سکرٹری صاحب۔ مسجد بابری اجودھیا کے متولیان پہلے یکے بعد دیگییرے‬ ‫میر اصغر صاحب۔ محمد رضی صاحب محمد ذکیی صیاحب۔ کلیب حسیین‬ ‫صاحب سابق متولی کا انتقال ہو گیا ہے ل ہذا دوسییرے متولیییان مییں تکییرار‬ ‫سوال پیدا ہوا کہ موضع سیہنواں مسییجد میذکور کیے لءے وقییف ہے مسییجد‬ ‫مذکور کا متولی ہمیشہ موضع سہنواں کییا نمییبردار ہوگییا۔ چلایییا ہے کیہ جییو‬ ‫نمبردار ہوتاہے وہی مسجد مذکور کا متولی بھی ہوتا ہے۔ محلہ مییں دریییافت‬ ‫سے اور تحقیقات سے معلوم ہوا کیہ موضییع سیہنواں کیے موجییودہ نمییبردار‬ ‫جناب جواد حسییین صییاحب ہییں اور و ہی وصییول تحصیییل کرتیے ہییں اور‬ ‫مسجد مذکور کا انتظییام ب ھی کرتیے ہییں۔ ل ہذا نیذیر حسیین صییاحب مکھییا‬ ‫موضع سہنواں نے بیان دیا کہ موجودہ نمبردار جنییاب جییواد حسییین صییاحب‬ ‫ہیں اور یہی وصول تحصیل کرتے ہیں اور مسیجد میذکور کیے متیولی بھتی‬ ‫ہیں۔ جناب جواد حسین صاحب کا بیییان قلمبنید کیییاانہونے اقییرار کیییا کیہ مییں‬ ‫نمبردار ہوں اور متولی ہوں اور انہوں نے اپنا بیان دیا کہ محنت سے تو بہت‬ ‫کام انجام دونگا اور مسجد کا ایک پیسیہ ب ھی غبیین نیہ کردنگییا اور باقاعییدہ‬ ‫‪2951‬‬ ‫حساب کتاب رکھونگا ور وقف بورڑ کے ہر حکم کی تعمیل بھی کرونگییا۔‬ ‫ٓصییحب کییا نییام‬ ‫اسی حالت میں مناسب یہ معلوم ہوتا ہے کہ جناب جواد حسین‬ ‫بطور متولی درج کر لیا جاوے۔ شہر فیض آباد میں سے معلوم ہوا کیہ ہنییدوں‬ ‫اور سکھوں کے خوف سے کوی شخص عشاء کیوقت نمییاز مسییجد مییذکور‬ ‫میں نہیں پٹھتا ہے اور رات کو اگر کویء مسافر مسجد میں رہ جاتا ہے تییو‬ ‫اسکو ہندو وغیرہ بہت تنگ کرتے ہیں۔ مسجد کے سحن کے بیاہر ہنیدوں کیا‬ ‫ایک مندر ہے جہاں بہت سے پنڈہ رہتے ہیں اور جو مسجد میں مسلمان جاتییا‬ ‫ہے اسے برا بھل کہتیے ہییں میوقعہ پیر گیییا اور تحقیقییات سیے معلییوم ہتوا کیہ‬ ‫مندرجہ بال باتیں صحیح ہیں۔ لوگوں نے یہاں تک کیا کہ مسجد کو ہندوں س یے‬ ‫کافی خطرہ ہے کہ اسکی دیوار وغیرہ کمزور نہ کریں مناسب یہ معلوم ہوتییا‬ ‫ہے کہ ایک تحریر ڈپٹی کمشنر فیض آباد کے پییاس روانیہ کییر دیییا جییاوے ک یہ‬ ‫کوءی مسلمانوں کو جو مسجد میں نمییاز پڑھنیے جییاتے ہییں ان کییو تنییگ نیہ‬ ‫کریں اور مسجد مذکور ایک شاہی عمارت ہے اسکے تحفظ کییا کییافی خیییال‬ ‫کیا جاوے۔‬ ‫دستخط مسٹر محمد ابراہیم انسپکٹر وقف بورڈ‬ ‫‪۱۰/۱۲/۴۹‬‬ ‫‪"Copy of the report Mr. Mohammad Ibrahim Saheb waqf‬‬ ‫‪Inspector, dated 10-12-1949 with regard to Babri Masjid‬‬ ‫‪included in the file 26 Waqf Masjid Babri, District‬‬ ‫‪Faizabad.‬‬ ‫‪Masjid Babri Ayodhya.‬‬ ‫‪To the secretary.‬‬ ‫‪The previous Mutawallis of Masjid Babri, were‬‬ ‫‪Mir Asghar Saheb, Mohammad Razi Saheb, Mohd Zaki‬‬ ‫‪Saheb and Kalbe Husain. Kalbe Hussain the previous‬‬ ‫‪Mutwalli has expired. Therefore, the question of successor‬‬ ‫‪Mutwalli has arisen. Village Sahanwa is Waqf for the‬‬ ‫‪aforesaid Masjid. Numberdar of village Sahanwa has been‬‬ ‫‪continuously appointed as Mutwalli of the aforesaid‬‬ ‫‪mosque. The person who is numberdar becomes Mutwalli‬‬ 2952 of the mosque in question. From query in the village it came to light that the present Numberdar of Mauza Sahanwa is Sri Javvad Hussain and he recovers Tehsil and is also Mutawalli of the Waqf Masjid. Statement of Janab Javvad Hussain Saheb was recorded. He admitted that he was Numberdar as well as Mutwalli. He also stated that he would discharge duties of Tauliyat sincerely, would not embezzle even a single pie of the mosque and would maintain regular account and will comply each and every order of the Board. Under these circumstances, it seems proper that the name of Mr. Jawad Husain may be entered as Mutawalli. On investigation in Faizabad city it was revealed that because of the fear of Hindus and Sikhs no one goes into the Masjid to pray Namaz Isha. If by chance any passenger stays in the Masjid he is being put in trouble by the Hindus. Out of the Sahan of Masjid there is a temple where many Pandas reside and they harass the Muslims whosoever visit inside the mosque. I went at the spot and from inquiries it was revealed that the said allegations are correct. Local went on saying to the extent that there is great danger to mosque from Hindus that they may harm its wall etc. Seems proper that a written complaint be sent to the Deputy Commissioner Faizabad so that nobody harasses the Muslims, going into the Masjid to offer Namaz. The Masjid is a Shahi monument and it should be preserved . Sd/- Mr. Mohd. Ibrahim. 10.12.1949"

(G) Exhibit A-64 (Suit-1) (Register 8, page 529-535) is a copy of the report dated 23.12.1949 of Mohd. Ibrahim, Waqf Inspector in respect of Waqf No. 26 Masjid Babri regarding its present condition. It reads as under:

‫‪2953‬‬ ‫نقل رپورٹ مسٹر محمد ابراہیم صاحب وقف انسپکٹر‬ ‫مورخہ ‪ ۲۳‬دسمبر ‪ ۴۹‬ء مشمولہ مثل وقف ‪۲۶‬‬ ‫وقف مسجد بابری ضلع فیض آباد‬ ‫موجودہ حالت مسجد بابری اجودھیا‬ ‫سکریٹری صاحب۔ میں ‪ ۲۲‬دسمبر ‪۴۹‬ء کو اجودھیا بعض تحقیقات‬ ‫موجودہ حالت مسجد بابری و قبرستان تحقیقات کرتا رہا جس سے مندرجہ‬ ‫ذیل حالت اور واقعات معلوم ہوے۔ عرصہ تین ماہ کا ہوتا ہے کہ بابا رھگو‬ ‫داس جنم استھان دیکھنے ایودھیا آءے تھے اور یہاں آکر بیراگیوں سے‬ ‫پجاریوں سے زوردار الفاظوں میں کہا تھا کہ جنم استھان پر راماین کا پاٹھ‬ ‫ہونا شاہءے اس بات کی شہرت تمام اطراف وجوار میں ہوگءی۔ بابا‬ ‫رگہوداس کے چلے جانے کے ایک ماہ کے بعد راماین کے پاٹح کیلیے‬ ‫ہزاروں ہندو اور پوجاری اور پنڈت جمع ہوے۔ ہفتوں پاٹھ رہا۔ اس درمیان‬ ‫میں بیراگیوں نے مسجد کے باہر سامنے اور دکھن والے قبرستان کا زیادہ‬ ‫تر حصہ کھدوا کربرابر کر دیا اور جھنڈی لگا دیا اور چند قبروں کی جگہ‬ ‫پر پتھر رکھ دیا ہے۔ راماین کے پاٹھ کیوقت بھی پولیس کا نتظام تھا مگر‬ ‫تب بھی قبروں کو کھود دیا گیا۔ پولیس نے چار ادمیوں کو پکڑا جو بعد‬ ‫کو ضمانت پر رہا ہوگے۔ خواجہ ہٹی رحمتہ اللہ علیہ کا مزار جو ٹیلہ پر اس‬ ‫قبرستان کے قریب ہی ہے اس مزار کو کھود کر برابر کر دیا۔ اور وہاں‬ ‫ایک بیراگی جھنڈا لگا کر مقیم ہو گیا ہے مسجد کے دروازہ صحن پر جو‬ ‫پختہ قبر ہے اسکو برابر کر کے بیراگی پتھر رکھکر بیٹھے ہیں۔ مسجد کے‬ ‫کنویں کے پاس ایک بیراگی چھپر ڈالکر بیٹھا ہے۔ پاٹھ سے پیشتر مسجد کا‬ ‫گھڑا اورلوٹا توڑا گیا۔ موذن کو مارا۔ اسکے بعد مسجد کے کتبہ‬ ‫کوکھودنیکی کوشش کی پھر دو پردیسی مسلمانوں کو مارا اور وہ کافی‬ ‫زخمی ہوءے۔ اب مسجد کے باہر دو خیمہ ہیں ایک میں پولس کے سپاہیان‬ ‫ہیں اور ایک میں بٹالین کے سپاہی رہتے ہیں اور دونوں کی کل تعداد‬ ‫‪۸،۹‬ہے۔ اب مسجد میں برابر تال بند رہتا ہے یعنی بجز بروز جمعہ کے‬ ‫کسی وقت نماز اور اذان نہیں ہوتی۔ مسجد کے تال کی کنجی مسلمانوں کے‬ ‫پاس رہتی ہے۔ پولیس تال نہیں کھولنے دیتی۔ تال جمعہ کے روز محض ‪۳‬۔‬ ‫‪ ۴‬گھنٹہ کے لے کھول جاتا ہے اور اسی دوران میں مسجد کی سفاءی‬ ‫وغیرہ اور جمعہ کی نماز ہوتی ہے پھر تال بدستور بند کر دیا جاتاتھا۔‬ ‫‪2954‬‬ ‫جمعہ کی نماز ہوتے وقت بیراگی بہت شور کرتے ہیں اور سیڑھی سے جب‬ ‫نمازی نیچے جاتے ہیں تو متصل مکانات سے نمازیوں پر جوتا اور ڈھیل‬ ‫آتا ہے۔ مسلمانان خوف کیوجہ سے کچھ نہیں بولتے۔ رگہوداس کے بعد مسٹر‬ ‫لوہیا بھی اجودھیا اءے تھے اور لیکچر وغیرہ دیا اور کہا کہ قبروں کی‬ ‫جگہ پر پھول وغیرہ کے درختان لگا دو۔ پھر حال میں لکھنؤ سے کوی‬ ‫منتری صاحب ّآے تھے ان سے بیراگیوں نے کہا کہ مسجد جنم بھومی ہے‬ ‫دل دو انہیں نے زیادتی کرنے کو منع کیا اسپر بیراگی ان پر خفا ہوے اور‬ ‫وہ پولیس کی حفاظت میں فیض آباد واپس چلے گے۔ اسی دوران میں‬ ‫اجودھیا کے کنک بھون کے مہنت بڑا استھان مسمی رگھور پرساد‬ ‫ویدانتی جی دیونراءن درسی‪ ،‬آچاریہ اشرفی بھون میں ان لوگوں نے‬ ‫مسلمانوں کو بلنا چاہا۔ پھر بخبر ظہور احمد کے کوءی نہیں گیا۔ ہندوں نے‬ ‫ظہور سے کہا کہ مسلمانوں سے مسجد ہمکو دل دو اور تو بھای بھای ورنہ‬ ‫دشمن ۔ میں رات کو اجودھیا ٹہرگیا۔ صبح کو معلوم ہوا کہ بیراگی مسجد‬ ‫پر زبردستی قبضہ کر رہے ہیں۔ آج جمعہ بھی ہے۔ میں موقعہ پر گیا تو کیا‬ ‫دیکھتا ہوں کہ دس پندرہ بیراگی ڈنڈا اور بھال وغیرہ لیکر مسجد کے‬ ‫صحن میں موجود ہیں اور بہت سے بیراگی مسجد کے دروازہ پر ڈنڈا‬ ‫وغیرہ لیکربیٹھے ہیں۔ اور اطراف و جوانب کے ہندو جمع ہورہے ہیں۔‬ ‫سٹی مجسٹریٹ کوتوال شہر اور پولیس وغیرہ کا کافی انتظام ہے مسلمان‬ ‫جمعہ کی نمازادا کرنے ضرورآویںگے نامعلوم کیا حشر ہو۔ میں اب دریا‬ ‫پار کر کے لکڑ منڈی گونڈہ کے لءے جا رہا ہوں۔‬ ‫‪"Copy of the report of Mohd. Ibrahim Saheb, Waqf‬‬ ‫‪Inspector Abul Bakra dated 23-12-1949 included in the‬‬ ‫‪Waqf file no. 26.‬‬ ‫‪Present condition of Babri Mosque , Ayodhya.‬‬ ‫‪To the secretary,‬‬ ‫‪On December 22, 1949 I visited Ayodhya to inquire‬‬ ‫‪into current state of affairs of the Masjid Babri and‬‬ ‫‪Qabristan and continued throughout the day. It revealed‬‬ ‫‪the following facts:‬‬ ‫‪Three months back Baba Raghu Das came to‬‬ 2955 Ayodhya to see Janamasthan and said emphatically to Bairagis and priests that recitation of Ramayan should be organized at Janamasthan. This news spread all around the nearby areas. After one month of departure of Baba Raghu thousands of Hindus, Pujaris and Pandits assembled there. The path (recitation) continued for weeks. During this period the Bairagis dug and levelled the most of the land in front of the Masjid and southern ‫عشری‬ ‫تھے اورہیں۔‬ ‫سید عبدالباقی‬ ‫سید ۔۔۔۔۔۔ علی‬ ‫سید حسین علی‬ ‫مسماۃ سکونت بی بی‬ ‫علی نقی‬ ‫محمد افضل‬ ‫محمد اصغر‬ ‫ناظم‬ ‫امجد علی‬ ‫محمد رضی‬ ‫علی‬ ‫حسین احمد‬ ‫محمد حسین‬ ‫جواد حسین‬ ‫میرحسین‬ ‫کلب حسین‬ ‫محمد ذکی‬ ‫سید حسین اصغر‬ ‫سید غلم اصغر‬ ‫سید ابوا لمحمد‬ ‫نورالحسن‬ Qabristan and pitched flag over there and placed stones on certain graves. Sufficient police force was deployed at the time of Ramayan recitation, even then certain graves were dug. The police arrested four persons who were later on bailed out. The Mazar of Khwaja Hati Rahamatullah which is situated on a mound near the Qabristan, has been demolished and a Bairagi after pitching a Jhanda (flag) stayed there. On the door of the lawn of the Masjid there was a pucca grave which has been levelled and the Bairagis are sitting after placing stones thereon. Near the well of the Masjid a Bairagi is living under a thatched 2956 roof. Before the path was held, the earthen pot and lota of the masjid were broken. The Moazzin was beaten up. They tried to destroy the inscription of the Masjid. Two Muslim pilgrims were beaten up and as such they sustained severe injuries. Now there are two tents outside the Masjid. One of them is occupied by police personnel. In other tent, sepoy of Batallion are living. Total number of these sepoys would be 8 to 9. Now the door of the Masjid remains locked. That is to say, except for Fridays, there held no Namaz or Azaan. The keys of the Masjid are with the Muslims, but the police does not allow to open the lock, which is opened only on Friday for 3-4 hours. During this period cleaning of the place is done and then Namaz is held. After this is over, the Masjid is again locked. During Friday prayer the Bairagis make hue and cry and when the Namazi pass through the stairs, shoes and rubbish is thrown on them from the adjoining houses. The Muslims are so scared that they do not protest. After Raghu Das, Mr. Lohia also visited Ayodhya and delivered a lecture in which he urged the people to grow flower trees in place of graves. However, some officer from Lucknow visited this place. The Bairagis told him that the Masjid was the Janam Sthan which should be handed over to them. He warned them against any violence. On this, Bairagis became angry with him, so he returned back to Faizabad under police protection. Meanwhile Mahant of Kanak Bhawan, Ayodhya, Raghubar Das, Vedanti Ji, Deo Narain Darsi, Acharyaji Ashrmi, attempted to invite Muslims for a talk. But no Muslim except for Zahoor Ahmad, turned up. The Hindus told him 2957 that the Masjid should be handed over to them, only then the two communities would be brothers otherwise enemies. I did stayed at Ayodhya in the night. In the morning, I came to know that Bairagis are trying to take possession over the Masjid forcefully. Today is Friday I visited the spot when I saw that 10-15 Bairagis armed Dandas and spears had assembled in front of the door of the mosque. Many of the Hindus of nearby localities were also asssembled there. City Magistrate, Kotwal city and police force were posted there. I do not know as to what will happen to the Muslims who would certainly come here for offering Friday prayers. Now I am proceeding to Lakad Mandi, Gonda. Sd/- 23.12.49" (ETC) 3104. These documents show at the best that, Namaj, only on Friday, used to be offered in the disputed structure in the inner courtyard and for rest of the period the building remain unattended by muslim. So far as the report of Waqf Inspector dated 10.12.1949 and 23.12.1949 are concerned almost all the witnesses of plaintiffs (Suit-4) who have been examined on this aspect have expressed their ignorance about his visit on the dates on which Mohammad Ibrahim claimed to have prepared the said reports. Neither the author has been examined nor even otherwise the two documents have been proved. The documents cannot be termed to be "public document" merely because the copy thereof has been issued by the Sunni Board since they do not answer the description of "public document" under Section 74 of the Evidence Act. Even otherwise the truth of the contents of these two documents, in accordance with law, was necessary to be proved. Mere filing of a document or marking as 'exhibit' does not mean, that the truth of the facts mentioned therein shall 2958 be deemed correct unless proved otherwise. We have already referred to the relevant law on this aspect and need not to repeat hereat.

3105. Besides above, there is a copy of the notification dated 26th February, 1944 under U.P. Act of 1936 (Exhibit A-34 (Suit-1) (Register 7, page 409-411) but this document is no more relevant since it has already been held invalid so far as the property in dispute is concerned vide the Civil Judge, Faizabad's order dated 21.04.1966. The plaintiffs have sought to mention that it is a Government Gazette but a perusal of the document shows that it is a document of the Sunni Board titled as a notification and not a copy of the Government Gazette. 3106. Exhibit A-71 (Suit-1) (Register 8, page 577) is a copy of Shajra Nasab (family tree) of owners of Mauza Bahooranpur, Pargana Haweli Oudh, Tahsil and district Faizabad Haqqiat Maafi in the form of Zammdari. A major portion of the document is illegible and could not be read or transliterated in Hindi and as such the portion which could be read is being quoted hereunder along with English translation.

‫شجرہ نسب مالیکان موضعہ بہورن پور پرگنہ حییویلی اودھ تحصیییل ضییلع‬ ‫فیض آباد حقیقت معافی بشکل زمیںداری مالداری‬ ‫سید عبدالباقی‬ :

‫سید ۔۔۔۔۔۔ علی‬ :

‫سید حسین علی‬ :

‫مسماۃ سکونت بی بی‬ :

‫علی نقی‬ ‫محمد افضل‬ ‫۔۔۔۔۔۔۔۔۔۔۔‬ ۴/۵ ۴/۵ ۴/۵ "Shajra Nasab (family tree) of owners of Mauza Bahooranpur, Pargana Haweli Oudh, Tahsil and district Faizabad Haqqiat Maafi in the form of Zammdari 2959 Mooris Ali Caste: Syed.

:

Syed Abdul Baqi :

Syed Zuber Ali :

               :                      :
        Syed Husain             Mohd. Gaus
              :
         Bibi Sakaran
                  :
           :              :                 :
        Mohd. Afzal Ali Taqi            (Sic)
            4/5             4/5           4/5

3107. Considering the entirety of the above evidence and discussion and in the absence of anything contrary, we are satisfied that prior to 1855, there is no evidence of possession by Muslims of the property in suit. They did not have possession of the premises in outer Courtyard atleast since 1856-57 when the dividing wall was raised by the Britishers. They at the best might have enjoyed only the right of passage so as to enter the inner courtyard. The entry in the outer courtyard using part of the premises as passage would not constitute 'possession'. As we have already discussed in detail, the possession means power of control over the matter of subject. If it is a physical control, it should be either actual or a possession of a nature which is so treated in the eyes of law. Possession is a polymorphous term. It has different meanings in different contexts. One of the simple definition is a visible possibility of exercising physical control over a thing compelled with the intention of doing so either against all the world or against all the world except some persons. All these things are missing so far as the premises within the outer courtyard is concerned wherein there existed non Islamic structures which were visited and worshipped by 2960 Hindus continuously since as long as back as noticed by Tieffenthaler in 18th century i.e. between 1766 to 1771 when he visited Avadh area. The possession in the outer courtyard was open and to the knowledge of Muslim parties, inasmuch, a person, claimed himself to be the Mutwalli of the Mosque in dispute, made several complaints, as is evident from the documents of 1858 and onwards, but the fact remains that those structures continued in the said premises and the entry of Hindus and their worship also continued. In this context, the claim of the plaintiffs that the entire property in dispute i.e. the outer and inner courtyard had been in their possession upto 1949 cannot be accepted.

3108. However, so far as the inner courtyard is concerned, though it cannot be said that the muslims never visited the premises in the inner courtyard or no Namaj ever was offered therein till 1949, but that by itself would not constitute possession of the property in dispute in the manner the term 'possession' is known in law. This is a beneficiary enjoyment by the plaintiffs muslim parties shouldering with their Hindu brethren and visiting premises within the inner courtyard for the purpose of worshipping in their own way. On this aspect various angles we have already noticed above. An additional factor is that on the one hand it is the claim of plaintiffs that since regular Namaj used to be held in the disputed building and the requisite material like Farsh, pitchers, broom etc. was also present and in the custody of Moazzim, but, no such material was found by the Receiver when he took charge of the premises in the inner courtyard pursuant to Magistrate's order dated 29.12.1949. The inventory which he had prepared, nowhere mention any item which relates to muslim use for Namaj and instead all the items 2961 relates to worship by Hindus. None has made any complaint that the goods meant for Namaj have been damaged, looted or stolen by anybody. There is a complete silence on this aspect of the matter. In 1934 when there was a riot and there was substantial damage to the building, in respect to the goods allegedly kept in the disputed building a claim was made by Syed Mohd. Zaki giving details of those items but nothing of that sort has happened in December, 1949 or thereafter. Meaning thereby we have no option but to draw an inference that no such material existed thereat. This also weaken claim of the muslim with regard to exclusive possession, in the form of continuous worship.

3109. This is not the end. The documents referred above may not prove the claim of possession of the property in suit as such, but cumulative effect thereof is explicit that there was no abandonment by Muslims of the property in dispute. They continued to exercise their claim over it, got its recognition from Britishers in the form of grant. The maintenance of building by Muslims to the extent of disputed structure and partition wall is also evident. The defendants have not shown anything otherwise. The entry of Muslims in inner courtyard for Friday Prayer is also evident. The status of Hindus and Muslims both, in visiting the place in dispute is common i.e. worshippers. The only difference is that Hindus visit entire property while for Muslims it was confined to inner courtyard. Once the possession, may be a part of the premises, is proved, it relates back unless proved otherwise.

3110. Subject to what we have said above, the plaintiffs have failed to prove that the property in suit, i.e., premises marked as A B C D in the map appended to the plaint was in 2962 possession of the plaintiffs up to 1949. However, we may clarify that so far as the premises constituting inner courtyard is concerned this much can be said that Muslims and Hindus alike used to go therein and, therefore, possession of premises in the inner courtyard, if technically it can be said, remained with the members of both the communities. But so far as the outer courtyard is concerned, the plaintiffs lost possession thereof atleast from 1856-57 and onwards.

3111. So far as dispossession from the property in suit in 1949 is concerned, we are of the view that the question of dispossession of plaintiffs from outer courtyard does not arise since it was not in their possession in 1949 and prior thereto, as we have already discussed. So far as the inner courtyard is concerned they have discontinued with the possession atleast from 23rd December, 1949 and onwards while possession of Hindus which was earlier enjoyed by them alongwith members of Muslim communities is continue. So far as dispossession is concerned, neither the plaintiffs have alleged that they were dispossessed at any point of time nor have proved the same. Issue no. 2 (Suit-4) is, therefore, answered in negative and against the plaintiffs.

3112. Issue No. 10 and 15 (Suit-4) are covered by our findings already recorded in relation to issues 7 (Suit-1), 3 and 8 (Suit-3) and 2 (Suit-4) and, therefore, for the reasons stated therein, both these issues are answered in negative and against the plaintiffs and Muslims in general.

3113. So far as Issue No. 28 (Suit-4) is concerned, in view of our discussion and findings qua Issues No. 3 and 8 (Suit-3), it is evident that the disputed site has to be understood bifurcated in outer courtyard and inner courtyard. So far as outer courtyard 2963 is concerned, it is evident that the Hindu religious structures existed therein since last more than 150 years i.e. sometimes after 1856-57 and they are being managed and administered by the Priest of Nirmohi Akhara, defendant no. 3, Therefore, to that extent, i.e. to the extent only upto outer courtyard, the disputed site can be said to be possessed by defendant no. 3 and the plaintiff ceased to have possession of outer courtyard accordingly. So far as the inner courtyard, which is another part of the disputed site, it does not appear that the same remain in possession of any of the parties exclusively. This aspect also we have already considered above. The premises within inner courtyard remained to be visited by the members of both the communities meaning thereby there was no obstruction to any one to enter the same. This continued till 22nd December, 1949 and since thereafter the plaintiffs are ousted even therefrom but this ouster is immaterial since it was under the orders of District authorities initially and Court's order subsequently. Hence, not being voluntary, it would not make any difference. 3114. However, the defendants no. 3 is not able to prove that it was in possession of the disputed site, which for the purpose of the present suit, means the premises shown by letters A B C D in the map appended to the plaint, i.e., the inner courtyard and outer courtyard including the disputed structure. In the same manner plaintiffs have also failed to prove the same. These aspects we have already discussed in detail while considering issues no. 7 (Suit-1), 3 and 8 (Suit-3) and 2 (Suit-4). For the reasons and discussions therein, we answer issue 28 (Suit-4) holding that since the plaintiffs have already failed to prove their possession of the disputed premises as we have said while considering issue no. 2 (Suit-4), the further question 2964 whether the plaintiffs were never in possession does not arise. It is covered by our above discussions, reasons and findings. The defendant no. 3, however, has also failed to prove its possession of the disputed site (i.e., outer and inner courtyard including the disputed building) in its entirety ever. This we have discussed above. Issue 28 (Suit-4) is answered accordingly. 3115. So far as Issue No. 4 (Suit-4) is concerned, it is again based on the plea of adverse possession. None of the defendants in the suit in question has pleaded the ingredients as are necessary to encompass a claim of adverse possession. On the contrary, pleadings are that the place in dispute itself is a deity being birthplace of Lord Rama, has continuously been visited by Hindus for worship. In any case exclusive possession by Hindus of the premises in dispute has not been proved for the entire land in dispute, i.e., the disputed site. It is only the premises covered by the outer courtyard, as we have already discussed, since 1856-57, i.e., after the erection of dividing wall by the Britishers, muslims people have not used the same for any purposes, but so far as inner courtyard is concerned, the premises therein has not remained confined to be used only by Hindus. At times muslims have also visited to offer Namaj thereat. Therefore, so far as the outer courtyard is concerned, it may be said that the right of prayer by Hindus had perfected having continued exclusively for more than a century but the same would not apply so far as the premises within the inner courtyard is concerned, which has been used by both the sides may be more frequently by Hindus and occasionally or intermittently by muslims. Issue 4 (Suit-4) is answered accordingly.

3116. Issue 16 (Suit-5) at the first instance is covered by 2965 what we have discussed and held in regard to issues no. 7 (Suit-

1), 3 and 8 (Suit-3) and 2, 4, 10, 15 and 28 (Suit-4). Only one more aspect need be considered hereat. We have already answered the issues regarding plaintiffs 1 and 2 that they are juridical persons. The premises in dispute insofar as held to be the birthplace, if any, having been held to be a juridical person, question of its possession and the application of doctrine of adverse possession would not be attracted. Therefore, the question of loss of title would not arise. Consequently, the question of reacquisition of title also would not arise. 3117. The issue in question (latter part) has been framed based on the pleadings in para 29 of the plaint. It says that the idols were kept in the building in dispute in the night of 22/23 December, 1949. They remain thereat continuously. The attachment of the premises within inner courtyard by Magistrate and giving charge to Receiver did not affect the position of idol since they continued to stay where they were and continued to remain in possession of the property in dispute thereat. For their ejectment from the premises in question a suit could have been filed within 12 years. Suit-4 was filed on 18th December, 1961. Though it is true that the plaintiffs 1 and 2 were not party to the said suit and, therefore, an order of ejectment in their absence may not be passed against them but this is also true that their continuance in the inner courtyard is not on account of a total inaction on the part of muslim parties but due to the interim injunction order passed by the trial court directing the parties to maintain status quo. Later on similar orders were passed by this Court and Apex Court also. It is well settled that act of the Court shall prejudice none. Irrespective of whether the plaintiffs 1 and 2 are party in any suit or not but the order of injunction benefits 2966 them and restrain muslim parties from taking any action otherwise. The injunction order was passed on 16th January 1950 in one or the other manner is continuing till date. Later on similar orders were passed by others including this Court also. Therefore, the plaintiffs 1 and 2 in effect are the beneficiaries of judicial orders for retaining their position in the inner courtyard of the disputed site. It is well established that actus curae neminem gravabit.

3118. In Kerala State Electricity Board and another Vs. M.R.F. Limited and others, 1996 (1) SCC 597 the Court said:

"......it has been held by the Privy Council that one of the first and highest duties of all the Court is to take care that act of the Court does not cause injury to any of the suitors."

"There is no manner of doubt it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. The principle of restitution as enunciated by the Privy Council in rodger's case (Supra) has been followed by the Privy Council in later decisions and such principle being in conformity to justice and fair play be followed."

3119. In Gursharan Singh and others Vs. New Delhi Municipal Committee and others, AIR 1996 SC 1175, it has been held:

"In view of the legal maxim "acts curiae neminem gravidity" which means that an act of court shall prejudice no man, N.D.M.C. is justified in making a claim for interest over the arrears which have remained unpaid for more than 12 years because of the interim orders passed by this 2967 Court. This aspect of the matter has been examined by this Court in the case of Raj Kumar Dey and Ors. v. Tarapada Dey and Ors. [1988]1SCR118 . Although in the interim orders it has not been stated that in event of dismissal of the appeals and the writ petition, the appellants and the writ petitioner shall be liable to pay interest over the arrears of the licence fee, but that shall not debar this Court from passing any order in respect of payment of reasonable interest over the said amount."

3120. In Kanoria Chemicals and Industries Ltd and others Vs. U.P. State Electricity Board and others, JT 1997(2) SC 545 the Court said:

"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner inspite of his failure. We do not think that any such unjust consequence can be countenanced by the courts."

3121. In South Eastern Coalfields Ltd. Vs. State of M.P. and others 2003 (8) SCC 648, the Court recognized the principle that wrong order should not be perpetuated by keeping it alive. Recognizing the maxim auctus curiae neminem gravabit, it was held that no one shall suffer by an act of the Court and such a rule is not confined to an erroneous act of the Court but act of the Court embraces within its purview all such 2968 acts as to which the Court may form an opinion in any legal proceedings that the Court would not have so acted had it been correctly apprised of the facts and law. It is duty of the Court to apply the restitution putting the parties in the same position as they would have been, had the order, subsequently found to be erroneous by the Court, would not have been passed. In para 28 of the judgment, it was held-

"The injury, if any, caused by the act of the court shall be undone and the gain which the parties would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the Courts, persuading the Court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be cannot be countenanced." (emphasis added) 3122. The decision in South Eastern Coalfields Ltd. (supra) taking note of the above principle has also been followed by this Court in Civil Misc. Writ Petition No. 41872 of 1992, Shesh Mani Tiwari Vs. District Inspector of Schools, Jaunpur and another, decided on 17.12.2009.

2969

3123. In this context we are not inclined to admit the claim of the plaintiffs 1 and 2 which is based on the situation which has arisen, amongst other also, due to the judicial orders. We, therefore, answer issue no. 16 (Suit-5) by observing that in this case plea of adverse possession is not attracted either for the plaintiffs 1 or 2 or as claimed by defendant no. 4 and, therefore, relying on the plea of adverse possession neither there was any occasion of extinction of title, if any, of plaintiffs 1 and 2 nor reacquisition thereof. Issue no. 16 (Suit-5) is answered accordingly.

(K) Issues relating to characteristics of Mosque, dedication by Babur and whether a valid waqf was created. 3124. Issues no. 6 (Suit 3), 1, 1(B)(b), 1(B)(c), 19(d), 19(e), 19(f) (Suit 4) and 9 (Suit 5) fall in this category. 3125. Issue no.6 (Suit 3) is:

"Was this alleged mosque dedicated by Emperor Babar for worship by Muslims in general and made a public waqf property?"

3126. The necessary pleadings relevant for the above issue are in para 15 of the written statement of defendants no.6 to 8 and in para 15 of the replication filed by plaintiffs (Suit 3), which are as under:

**/kkjk 15& ;g fd ftl tk;nkn dk eqn~nS;ku us nkok fd;k gS og 'kgu'kkg fgUn ckcj ckn'kkg dh rkehj djnk e'kthn ekSlwes ckcjh elftn gS ftldks lgu'kkg etdwj us vius othj + + + +ds ,greke ls + + + + rkehj djk;kA vkSj eqlyekuku ds fy;s oDQ vke dj fn;k ftlesa reke eqlyekuku dk gd bcknr gSA** ¼Written Statement½ Para 15- That the property which has been claimed by the plaintiffs is the Babri Mosque built by Emperor Babar of India in his name, who got it built through his Minister . . . . and thereafter he made a waqf and 2970 consecrated to Muslims wherein Muslims have right of worship." (E.T.C.) "Para 15.- The allegations contained in para 15 of the written statement are totally incorrect and are denied. The property in suit is neither a mosque nor is it known as Babri Mosque, nor was it built by Emperor Babar through Mir Abdul Baqi. Nor was it made wakf. The property in suit is the temple of Janma Bhumi." (Replication) 3127. Issues No. 1, 1-B(b), 1-B(c), 19(d), 19(e) and 19(f) (suit 4) are:

Issue No.1 "Whether the building in question described as mosque in the sketch map attached to the plaint (hereinafter referred to as the building) was a mosque as claimed by the plaintiffs?"

Issue No.1-B(b) "Whether the building stood dedicated to almighty God as alleged by the plaintiffs ?" Issue No.1-B(c) "Whether the building had been used by the members of the Muslim community for offering prayers from times immemorial? If so, its effect?" Issue No. 19(d) "Whether the building in question could not be a mosque under the Islamic Law in view of the admitted position that it did not have minarets?" Issue No. 19(e) "Whether the building in question could not legally be a mosque as on plaintiffs' own showing it was surrounded by a graveyard on three sides?" Issue No. 19(f) "Whether the pillars inside and outside the building in question contain images of Hindu Gods and Goddesses? If the finding is in the affirmative, whether on that account the building in question cannot have the character of Mosque under the tenets of Islam?"

2971

3128. In the plaint (Suit 4), the relevant pleadings are in paras 1, 2 and 21-B. Defendants no.1 and 2 in para 2 of their written statement hence denied that the alleged mosque was built as dictated by Babar. Similar is the denial by defendant no.3 in his written statement.

3129. In the written statement of defendant no.13, the relevant pleadings are in paras 11-A , 25 and 28 in which it is said:

"11-A....The attempt to raise a mosque-like structure did not succeed; and no 'mosque', deemed to be Waqf according to Muslim Law, ever came into existence. The act of Mir Baqi was a fleeting act of trespass . . . ., and no Muslim could by any such act of trespass or its repetition, confer any right, title or interest in the nature of a Waqf in favour of ALLAH for the purposes of a 'mosque'. "25. That the building in suit was no 'mosque' and its surrounding area was not a grave-yard. . . . . ALLAH DOES NOT accept Namaz offered at a place taken by force, or in a 'mosque' built on land obtained by Gasba or forcibly without title. It seems, therefore, that the three-

domed structure raised at Sri Rama Janma Bhumi . . . ., was not intended to be used as a 'mosque', and it was never used as 'mosque'. . . . . The alleged existence of a grave-yard all round it, also shows that the Muslims could not have gone to offer Namaz in the building, which was abandoned and never used as a 'mosque' by the Muslims."

28. That the following facts would show that the three- domes structure so raised by Mir Baqi was not a 'mosque' at all, namely---

2972

(A) ALLAH does not accept a dedication of property for purposes recognised as pious and charitable, that is, as waqf under the Muslim Law, from a person who is not its rightful owner, for instance, ALLAH would not accept the dedication of stolen property from a thief. By his act of trespass supported by violence, for erecting a 'mosque' ....."

(B) Inspite of all that Mir Baqi tried to do with the Temple, the space always continued to best in possession with the Deities of BHAGWAN SRI RAMA VIRAJMAN and the ASTHAN SRI RAMA JANMA BHUMI. THEIR worshippers continued to worship THEM through such symbols as the CHARAN and the SITA RASOI, and the idol of BHAGWAN SRI RAMA LALA VIRAJMAN on the Chabutra, called the Rama Chabutra. No one could enter the three domed structure except after passing through these places of Hindu worship. According to the tenets of Islam there can be no Idol worship within the precincts of a 'mosque', and the passage to a 'mosque' must be free and unobstructed and open to the 'Faithful' at all times. It can never be land-locked by a Hindu place of worship; and there can be no co-sharing in title or possession with ALLAH, particularly in the case of a 'mosque'. His possession must be exclusive.

(C) A 'mosque', which is a public place of worship for all the Muslims, must have a minaret for calling the AZAN. According to Baillie-

"When an assembly of worshippers pray in a masjid with permission, that is delivery. But it is a condition that the prayers be with izan, or the regular call, and be public not 2973 private, for though there should be an assembly yet if it is without izan, and the prayers are private instead of public, the place is no masjid, according to the two disciples."

(Pt. 1, BK. IX, Ch. VII, Sec. I, p. 605) Indeed, according to P.R. Ganpathi Iyer's Law Relating to Hindu and Mahomedan Endowments, (2nd Edition, 1918, Chap. XVII, at p. 388) there has been no 'mosque' without a minaret after the first half century from the Flight."

(D) There was no arrangement for storage of water for Vazoo, and there were the Kasauti pillars with the figure of Hindu Gods inscribed on them and the Sandalwood beam. Such a place could never be a 'mosque'. (E) There is mention in the Fyzabad Gazetteer of the burial of 75 Muslims at the gate of the Janmasthan and the place being known as Ganj Shahidan, after the battle of 1855 between the Hindus and the Muslims in which the Hindus succeeded in resuming control over the premises, including the three-domed structure. There have been no graves anywhere near the building or its precincts or the area appurtenant thereto, or surrounding it, for the last more than 50 years at least, but if the building was surrounded by a grave-yard soon after the annexation of Avadh by the British, the building could not be a 'Mosque' and could not be used as a 'mosque', for the offering of prayers or Namaz, except the funeral prayers on the death of a person buried therein, that is, the Namaz-Janaz, is prohibited in a grave-yard according to the Muslim authorities."

3130. The defendant no.17 in his additional written 2974 statement has denied para 21-B and further says:

"....Muslim cannot use any open piece of land in question for offering prayers and they also cannot encroach upon the land of religious places of Hindus."

3131. Defendant no.20 has replied the relevant averments of the plaintiffs in respect to the above issues in para 2 and 41 of its written statement:

"2. That the contents of paragraph 2 of the plaint are absolutely wrong and denied. There has never been any battle between Emperor Babar and the previous Ruler of Ayodhya nor any grave yard or mosque as alleged has been built or dedicated by Emperor Babar."

"41. That the following facts also establish that the mosque in dispute has not been built by Babur at all in 1528 nor is a mosque at all:-

(1) The tomb of this disputed Masjid if it is to be looked from behind would show that it is not in the style developed by Turkis during fifteenth century, nor the Mehrab of the Masjid in that style is to be found. Thus there is no tomb in the disputed Masjid as is to be found in other mosques generally.

(2) On the north door in the front facing each other there are two tigers. They are in the style of taking leaps and their tails are just in the same style when a tiger takes the leap. Between these two tigers there is a peacock. This is not a characteristic of a mosque. (3) The various Hindu idols are painted or their scriptions are to be found in the disputed mosque. (4) In the disputed mosque there is no provision for reciting Namaz. To this day it has no minerettes, no 2975 place for storage of water for Vazoo.

(5) The Muslim Faith as adumbrated in Holy Koran does not permit the construction of a mosque on the site of temple after demolishing the temple. (6) Babur never dedicated the property of disputed mosque to ALLAH. Even supposing without admitting that Babur constructed the disputed mosque, yet as it has been done by committing trespass, demolishing the Temple, the abode of God, either by Babur or at his instance by Mir Baqi, the Governor of Oudh, the dedication is wholly invalid and void. The material of the old temple was largely employed in building the mosque and a few if the original columns are still in good preservation. They are of closed grained black stone (Kasauti) bearing various Hindi Bas-reliefs. The outer beam of the main structure being of sandal wood, the height of the columns is 7 to 8 ft., the shape of the base, the middle section and the capital is square, the rest being round or octagonal . . . . . Subsequently, Aurangjeb also desecrated the shrines of Ayodhya which led to prolonged bitterness between Hindus and Musalmans. Latter also occupied Janmasthan by force and also made an assault on Hanumangarhi. Attacks and counter attacks continued under the leadership of Maulvi Amir Ali (See page 352 of Faizabad Gazetteer 1960).

(7) A mosque must be built in a place of peace and quiet and near a place where there is a sizeable and large number of Muslim population. According to the Tenets of Islam, a mosque cannot be built at place which 2976 is surrounded on all sides by temples where the sound of music, of Conch shells or Ghanta Ghariyalis must always disturb the peace and quiet of the place. (8) A mosque must have minerette for calling the Ajan. According to Baille "When an assembly of worshippers pray in Masjid with permission, i.e. delivery. But it is a condition that prayers be with Ajan or the regular call and be public and not private, for though there should be an assembly yet if it is without Izah and the prayers are private instead of public, the place is no Masjid according to the true desciples."

Indeed there has been no mosque without a minerette after the first half century fight. (See P.R. Ganapati Iyer's law relating to Hindu and Muhammadan Endowments 2nd Edition 1918 Chapter XVII, page

388).

(9) According to the claim laid by the Muslims in the present suit, the building is surrounded on sides by a grave yard known as Ganj Shahidan. There is a mention in the Faizabad Gazetteer also of the burial of seventy five Muslims at the gate of Janmasthan and the place being known as Ganj Shahidan after the battle of 1855. Although there are no graves anywhere near the building at Sri Rama Janma Bhumi or in its precincts or the area appurtenant thereto for the last more than 50 years and if the building was surrounded by a graveyard during the British times soon after the annexation of Audh by them the building could not be mosque and could not be used as a mosque for offering of prayers except the funeral prayers."

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3132. In the additional written statement, the defendant no.20 while denying para 21-B of the plaint, in para 2, has further said in para 5:

"That by destruction of the structure, the pillars were also destroyed which were evidence of Hindu Temple. It is not the destruction of Babri Mosque but a Hindu temple. The answering defendant No. 20 is entitled to claim the land in dispute for constructing a temple of Bhagwan Ram on the disputed land."

3133. Issue No.9 (suit 5) is as under:

"Was the disputed structure a mosque known as Babri Masjid?"

3134. The necessary pleadings relevant for the above issue are in para 24 of the plaint which are:

"That such a structure raised by the force of arms on land belongings to the Plaintiffs Deities, after destroying the ancient Temple situate thereat, with its materials including the Kasauti pillars with figures of Hindu gods carved thereon, could not be mosque and did not become one in spite of the attempts to treat it as a mosque during the British rule after the annexation of Avadh. Some salient points with regard thereto are noted below. (A) According to the Koran, ALLAH spoke to the Prophet thus--

" And fight for the religion of GOD against those who fight against you; but transgress not by attacking them first, for GOD loveth not the transgressors. And kill them wherever ye find them; and turn them out of that whereof they have dispossessed you; for temptation to idolatry is more grievous than slaughter, yet fight not against them in 2978 the holy temple, until they attack you therein; . . . . . . . ."

(B) According to all the Muslim authority and precedents and the decided cases also. ALLAH never accepts a dedication of property which does not belong to the Waqf that is, the person who purports to dedicate property to ALLAH for purposes recognised as pious or charitable, as waqf under the Muslim law. By his acts of trespass and violence for raising a mosque on the site of the Temple after destroying it by force, Mir Baqi committed a highly un-Islamic act. His attempts to convert the Temple into a mosque did not, therefore, create a valid dedication of property to ALLAH, whether in fact or in law, and it never became a mosque.

(C) That in spite of all that Mir Baqi tried to do with the Temple, the land always continued to vest in the Plaintiff Deities, and they never surrendered their possession over it. Their possession continued in fact and in law. The Asthan never went out of the possession of the Deity and HIS worshippers. They continued to worship HIM through such symbols as the CHARAN and Sita Rasoi, and the idol of BHAGWAN SRI RAMA LALA VIRAJMAN on the Chabutra, called the Rama Chabutra, within the enclosed courtyard of the building directly in front of the arched opening of its Southern dome. No one could enter the building except after passing through these places of Hindus worship. According to the Muslim religion and law there can be no Idol worship within the courtyard of a mosque and the passage to a mosque must be free and unobstructed and open at all times to the 'Faithful'. It can never be through a Hindu place of worship. There can be 2979 no co-sharing of title or possession with ALLAH in the case of a mosque. His possession must be exclusive. (D) A mosque must be built in a place of peace and quiet, but not to a place where there is a sizeable Muslim population, according to the tenets of Islam, and as insisted upon by it, a mosque cannot be built in a place which is surrounded on all sided by Temples, where the sound of music or conch shells or Ghanta Ghariyals must always disturb the peace and quiet of the place. (E) A mosque must have minaret for calling the Azan. According to Baillie. "When an assembly of worshippers pray in a masjid with permission, that is delivery. But it is a condition that the prayers be with izan. or the regular call, and be public not private, for though there should be an assembly yet if it is without izan. and the prayers are private instead of public, the place is no masjid. According to the two disciples." (Pt. I. BK. IX, Ch, VII Sec. i.p.

605). Indeed, there has been no mosque without a minaret after the first half century from the Flight. (See-P.R. Ganapati Iyer's Law relating to Hindu and Mahomedan Endowments, 2nd Edition, 1918. Chap. XVII, P. 388.) (F) According to the claim laid by the Muslims in their suit No. 12 of 1961, the building is surrounded on all sides by grave-yard known as 'Ganj Shahidan'. There is a mention in the Fyzabad Gazetteer also, quoted herein above, of the burial of 75 Muslims at the gate of the Janmasthan, and the place being known as Ganj Shahidan. After the battle of 1855. Although there are no graves anywhere near the building at Sri Rama Janma Bhumi, or in its precincts, or the area appurtenant thereto, for the last more than 50 2980 years, if the building was surrounded by a grave-yard during the British times soon after the annexation of Avadh by them, the building could not be a mosque, and could not be used as a mosque, for the offering of prayers, except the funeral prayers on the death of a person buried therein, is prohibited in a grave-yard according to the Muslim authorities.

(G) As already stated, there is no arrangements for storage of water for Vazoo and there are the Kasauti pillars with the figures of Hindu Gods and Godesses inscribed thereon in the building."

3135. The defendant no.4 in para 24 has replied as under:

"That the contents of para 24 of the Plaint are also incorrect and hence denied as stated. At no point of time there ever existed any temple at the site of the Babri Masjid and it is absolutely incorrect to say that the said mosque was constructed, after destroying any ancient temple, with the material of the alleged temple. The mosque in question has always been used as a mosque since its construction during the regime of Emperor Babar.

The contents of the sub-paras (A) to (G) of the para under reply are also incorrect and the same are also denied as stated:

(A) : That the contents of para 24(A) of the plaint are also denied as stated. The quotation of Quran is totally out of context and the same is not even correct and complete. (B) That the contents of para 24(B) of the Plaint are also incorrect and hence denied as stated. The land in question undoubtedly belonged to the State when the 2981 mosque in question was constructed on behalf of the State and as such it cannot be said that it could not be dedicated for the purposes of the mosque. Emperor Babar was a Sunni Muslim and the vacant land on which the Babari Masjid was built lay in his territory and did not belong to anyone and it could very well be used by his officers for the purposes of the mosque and specially so when the Emperor Babar himself consented and gave approval for the construction of the said mosque. . . . . . (C) That the contents of para 24(C) of the Plaint are also absolutely false and incorrect and hence denied as stated. .

. . . . The alleged Ram Chabutra has also not remained in existence since the time of Babar but rather the same is the creation of around 1857 period.

It is also incorrect to say that the entry of the mosque could not be possible except after passing through any place of Hindu worship. The concept of the mosque has also been wrongly and incorrectly described in the para under reply.

(D) That the contents of para 24(D) of the Plaint are also incorrect and hence denied as stated. There is no such requirement for the construction of any mosque - that the same should be built in a place of peace and quiet and near to a place where there is a sizeable Muslim population. It is also incorrect to say that the mosque cannot be built in a place which is surrounded by temples, where the sound of music and Konch shell, Ghante Gharyal disturbs the peace and quiet of the place. (E) That the contents of para 24 (E) of the Plaint are also incorrect and hence denied as stated and in reply thereto it 2982 is submitted that there is no specific shape of building a mosque and there is no requirement of existence of any minarets for calling the Azan. The quotations given in the para under reply are also irrelevant and out of the context and the same do not even present a correct law. (F) That the contents of para 24 (F) of the Plaint are also incorrect and hence denied as stated. Whatever was mentioned in the Plaint of Suit No. 12 of 1961 would appear from the copy of the same and the averments of the Faizabad Gazetteer referred to in the para under reply are neither authentic and nor correct. It is also incorrect to say that there were no graves near the building of the said mosque. The fact is that many graves existing in the Ganj-Shaheedan have now been mostly demolished by the Bairagis and that is why they are not now visible. It is reiterated that the mosque is question has been offering regular 5 times prayers upto 22nd December, 1949 and even Friday prayers have been offered in the same till 16th December, 1949 and the Imam of the said mosque who used to lead the prayers even in 1949 namely Maulvi Abdul Ghaffar son of late Mohd Abdul Qadir. He had even filed his affidavit in writ No. 746 of 1986 : Mohd Hashim Vs. District Judge, Faizabad and others, which is still pending in this Court.

(G) That the contents of para 24 (G) of the Plaint are also incorrect and hence denied as stated and in reply thereto it is submitted that there is a pucca well also outside the mosque in question for taking water for the purpose of Vazoo."

3136. Defendant no.5 has denied para 24 of the plaint in 2983 para 24 of his written statement.

3137. In brief, the case of the plaintiffs (Suit 4) or the pro- mosque parties is that the building in dispute was constructed in 1528 AD at the command of Emperor Babar by his commander Mir Baqi, when Babar had conquered Hindustan. He dedicated the said building to Almighty and made it a public wakf. Since then it is being used for offering namaz by muslims in general. It is a public wakf and cannot be treated a Hindu temple. 3138. It is also said that the matter being almost 500 years old, one cannot be expected to adduce evidence to show the facts as to what occurred at that time or what actually existed or happened in 1528 AD, to demonstrate the manner in which waqf of disputed property was created. If the property in dispute has been used as mosque and Namaz has been offered therein, this itself is sufficient evidence to prove the building in dispute as mosque i.e. a waqf validly created. It is the evidence by "user" which must be taken into account by the Court to find out whether there existed waqf or not and whether the building in dispute was dedicated as waqf to God or not. Once there is a waqf, the building and site both belong to God and cannot be treated otherwise so as to change its nature, whether by placing idols or by offering worship etc. 3139. On the contrary, all the learned counsels for pro- temple parties (Hindus) supporting the case of Hindu temple contended that the disputed site itself is a place of specific significance for Hindus being the "birth place of Lord Rama", "an incarnation of Lord Vishnu". This place whether was occupied by Hindus or not but on its own is a "Deity" having been worshipped by Hindus for time immemorial and much earlier from the period when it is said that the disputed building 2984 was constructed. The site in dispute was not owned by any private individual but it belong to a Deity. Neither Babar nor Mir Baqi was owner of the property. There is nothing to show that they obtained or acquired this property by valid means i.e. gift, purchase, etc. In order to constitute a waqf in accordance with Shariyat law one of the crucial factor is that the land must belong to the Waqif. Neither Babar nor Mir Baqi were owner of the property in dispute therefore, had no occasion or right to create a waqf in accordance with Shariyat Law. Construction of a Muslim religious place on the place of another religion is not permitted and that too by demolishing a religious structure of another religion. There was not and cannot be a valid dedication to God. No question arose to create a valid waqf in accordance with Shariyat Law. Once a valid waqf was never created, the claim of the disputed building as a mosque, existing since 1528 AD, is wholly baseless and imaginary. In the absence of existence of a valid waqf, the mere fact that Muslims at some point of time offered Namaz in the disputed building, assuming though not admitting, would not make the same a waqf i.e. mosque (The factum that Namaz was offered in the disputed building is seriously disputed but the argument has been advanced in the alternative).

3140. Besides the documentary and oral evidence, a lot of precedents, judicial and religious literature and history books on the subject have been cited.

3141. In view of our findings recorded on the issues, whether the building in dispute was constructed in 1528 AD by Emperor Babar or any of his agent in negative, the issues in question immediately would also stand negatived. When the building in dispute itself was not constructed in 1528 AD by 2985 Babar or any of his agent, the question of creation of a waqf by dedication to Almighty by any of them would not arise. All these issues without any further discussion thus deserve to be answered against the pro-mosque parties. However, we shall consider these issues further on merits, presuming for the purpose of these issues only, at this stage, that the building in dispute, if constructed in 1528 AD by Babar or any of his officer under his dictates, whether it satisfy the requirement of a waqf, as is known in Sharii i.e. according to tenets of Islamic law or otherwise and other aspects involved in these issues. 3142. The first question, as would crop up immediately, is what is a waqf in law of Shariyat, how it can be created or could be created and what the religious sanctions are in this regard, as also the relevant judicial precedents, if any. 3143. Some aspects of the matter pertaining to waqf have already been discussed while considering the issues relating to U.P. Act 1936 and 1960 but there it was confined only to the extent, it was necessary for adjudication of those issues. Here the issues are simply related with Islamic law on waqf as also the power, privileges, obligations etc. of conqueror or a king or a emperor or an invader, as the case may be. 3144. The Islamic religious scriptures in this regard, relevant for our purposes, have been referred in sufficiently great detail by Sri P.N.Mishra, Advocate assisted by Ms. Ranjana Agnihotri counsel for defendant no.20 (Suit 4) and that itself give enough idea on this subject.

3145. Firstly, he submits that Islam guarantees religious freedom and tolerance. It does not permit usurpation of sacred religious places of others. There does not arise any question of a valid construction of a mosque at a place where a Hindu temple 2986 existed or a place which, for its peculiar nature and specific religious importance, very pious to the persons of another religion, i.e., Hindu. In this regard he referred Holy Quran, Hadith & several other books on islamic laws. 3146. The Holy Quran and the Holy prophet has commanded that no one should be compelled to change religion. Idolater should be allowed to worship in their own way. The Holy prophets have appeared in every community and they should not be compared but respected and a Muslim can maintain good relation with his Pagan (i.e. worshipper of multi- deities) relative.

3147. The Noble Qur'an, Surah-2 Al-Baqarah, Ayat 256 at P. 42 reads as follows:

"256. There is no compulsion in religion. Verily, the Right Path has become distinct from the wrong path. Whoever disbelieves in Taghut and believes in Allah, then he has grasped the most trustworthy handhold that will never break. And Allah is All-Hearer, All-Knower."

3148. The Holy Quran (The Noble Qur'an, Surah 109 Al-Kafirun, Ayat 1-6, page 603) permits people of other religion to carry out their religious practices according to their own religion. English translation of the said Ayat reads as follows:

"1. Say (O Muhammad .. .. .. to these Mushrikun and Kafirun): "O Al-Kafirun (disbelievers in Allâh, in His Oneness, in His Angels, in His Books, in His Messengers, in the Day of Resurrection, and in Al-Qadar)!

2. I worship not that which you worship,

3. Nor will you worship that which I worship.

4. And I shall not worship 2987 that which you are worshipping.

5. Nor will you worship that which I worship.

6.To you be your religion, and to me my religion (Islâmic Monotheism).

3149. The Holy Quran (The Noble Qur'an, Surah-10 Yunus, Ayat 47 at page 214) recognizes birth of Messengers of the Almighty in every community or nation. English translation of the said Ayat reads as follows:

"47. And for every Ummah (a community or a nation) there is a Messenger; when their Messenger comes, the matter will be judged between them with justice, and they will not be wronged."

3150. Sacred Compilation Hadith Sahih Bukhari 3.595 p. 610-611 reveals that Holy Prophet commanded not to give a Prophet superiority over another. Relevant portion of the said Hadith reads as follows:

"The Prophet said, "Do not give a prophet superiority over another, for on the Day of Resurrection all the people will fall unconscious and I will be the first to emerge from the earth, and will see Moses standing and holding one of the legs of the Throne. I will not know whether Moses has fallen unconscious or the first unconsciousness was sufficient for him."

3151. The Sacred Compilation Hadith Sahih Bukhari 4.407 reveals that Holy Prophet allowed a Muslim to keep good relation with his mother who was pagan i.e. idolater. The said Hadith reads as follows:

"Narrated Asma 'bint Abi Bakr: During the period of the peace treaty of Quraish with Allah's Apostle, my mother, accompanied by her father, came to visit me, and she was a 2988 pagan. I consulted Allah's Apostle, "O Allah's Apostle! My mother has come to me and she desires to receive a reward from me, shall I keep good relation with her?" He said, "Yes, keep good relation with her."

3152. Sri Mishra contended that freedom of religion and religious practices to Hindus during Islamic Rule was granted to the Hindus and they were not forced to be governed by Islamic Law.

3153. Law of Shar as interpreted by Great Imam Abu Haneef recognized right of freedom of religion & religious practices of the Hindus of India under Islamic Rulers. Sultan Sikandar Lodi was dissuaded by the Greatest Alim of that age Miyan Abdullah Ajodhani from demolishing a Hindu Temple & putting ban on religious practices of the Hindus. Even Emperor Aurangzeb who later on caused demolition of several Temples of the Hindus throughout his Empire, in his Firman dated 1659 admitted that Shariyat do not permit to demolish old Temples and impose restriction on performance of customary and other religious rituals of the Hindus.

3154. Ibn Battuta tells that Muhammad bin Tughlaq had granted permission to rebuild demolished Idol Temples to the King of China. During the reign of Caliphs, the people of other faith i.e. Zimmis were allowed to carry out processions, observe festivals, beat drums, erect places of worship & maintain images therein.

3155. In Waqiyat-i-Mutaqi written by Rizkulah Mutaqi (b. 1491-92 & d. 1581 A.D.), Tabkats I Akbari by Khwaja Nizamuddin Ahmad (completed in 1592-93 A.D.) and Tarikh- i-Shahi (completed in the beginning of Emperor Jahangir's reign) it has been narrated that once upon a time when Sultan 2989 Sikandar Lodi (1488-1517 A.D.) was the Crown prince and known as Nizam Khan, he sought opinion of Alims for the purpose of demolishing an ancient temple of Hindus at Thaneshwar and putting ban on Hindus from taking holy dip in the Sacred pond at Thaneshwar. Alims unanimously made a request to him for putting that question to Greatest Alim of the age Miyan Abdullah Ajodhani who was available at that place. On being asked, the Great Alim Abdullah Ajodhani replied that Shar does not permit destruction of ancient temple and prohibition of customary rites of the Hindus. From said answer Sikandar Lodi became very much annoyed and drew his sword inter alia stating that 'first I will kill you and thereafter attack Thaneshwar'. Then Alim fearlessly answered that 'everyone has to die on one day and when anyone goes near a tyrant then he does it knowing fully well that his death is certain. I am not worried about my life but I say that if you had nothing to do with Shar then there was no need to put this question to me but since you asked me that question of Shar I replied it in accordance with Shar'. In "Uttar Taimoorkalin Bharat Bhag.1" (History of the Part-Taimoor Sultans of Delhi, Part

1) pages 104, 228 and 322 narrates it as follows:

^^dq # {k s= ij vkdz e .k dh ;sk tuk ckY;koLFkk esa ,slk gqvk fd ,d ckj mlus dq#{ks= ij vkdze.k djuk fu'p; fd;kA bl fo"k; ij vkfyekssa dk er Kkr djus ds fy, mlus mUgsa ,d= fd;kA ml ;qx ds lcls cM+s vkfye ¼fe;ka vcnqYykg vtks/kuh Hkh mifLFkr FksA lHkh us mudh vksj ladsr fd;k fd] ^^budh mifLFkfr esa ge dqN Hkh ugha dg ldrsA^^ fe;ka futke us fe;ka vcnqYyk ls bl fo"k; esa iwNkA mUgksaus iwNk] ^^ogka D;k gksrk gS\^^ fe;ka futke us dgk fd] ^^ml LFkku ij izR;sd izns'k ls dkfQj ,d= gksdj Luku djrs gSaA^^ fe;ka vcnqYykg us iwNk fd] ^^;g izFkk dc ls py jgh gS\^^ 'kgtkns us dgk fd] ^^;g cM+h izkphu izFkk gSA^^ fe;ka vcnqYykg us 2990 iwNk fd] ^^vkids iwoZ eqlyeku ckn'kkgksa us bl lEcU/k esa D;k fd;k\^^ 'kgtkns us dgk fd] ^^blds iwoZ fdlh ckn'kkg us dqN Hkh ugha fd;kA^^ eqYyk us dgk fd] ^^bldk mRrjnkf;Ro mu yksxksa ij gSA iz k phu eaf nj dk s u"V djuk mfpr ugh aA ^^ fe;ka futke us #"V gksdj] dVkj fudky yh vkSj dgk fd] ^^loZizFke eSa rqEgkjh gR;k d#Waxk rnqijkUr ogka vkdze.k d#WaxkA^^ mUgksaus dgk fd] ^^lHkh ds fy, ejuk vfuok;Z gSA fcuk bZ'oj ds vkns'k ds dskbZ Hkh ugha ejrkA tc dksbZ Hkh O;fDr fdlh vR;kpkjh ds ikl tkrk gS rks vius fy, e`R;q fu'p; djds tkrk gSA tks dqN gksuk gS og gksxk fdUrq vkius eq>ls 'kjk dh leL;k ds fo"k; esa iz'u fd;k rks eSaus mldk mRrj fn;kA ;fn vkidks 'kjk dh fpUrk ugha gS rks iwNus dh dksbZ vko';drk ughaA^^ lqYrku us vius dzks/k dks jksdk vkSj dgk fd] ^^;fn vuqefr iznku dj nsrs rks dbZ gtkj dkfQjksa dks ujd igqWapk nsrk vkSj vf/kdak'k eqlyeku mlls ykHkkfUor gksrsA^^ fe;ka vCnqYykg us dgk fd] ^^eq>s tks dqN dguk Fkk eSaus dg fn;k] vc vki tkusaA^^ og njckj ls mB [kM+k gqvkA vU; vkfye yksx mlds lkFk py fn;sA efydqy myek vius LFkku ij [kM+s jgsA fe;ka futke us fdlh vU; vksj /;ku u fn;k vkSj dgk] ^^fe;ka vCnqYykg vki dHkh&dHkh eq>ls HksaV djrs jgsaA^^ ;g dg dj mUgsa fonk dj fn;kA ckY;koLFkk esa mldh ;g n'kk FkhA Fkkus' oj ds Luku ds fojk s/ k dk iz ; Ru mlus viuh ckY;koLFkk esa tc fd og 'kgtknk Fkk ;g lquk fd Fkkus'oj esa ,d dq.M gS] tgkWa fgUnw ,d= gksdj Luku djrs gSaA mlus vkfyeksa ls iwNk fd ^^blds fo"k; esa 'kjk dk D;k vkns'k gS\^^ mUgksaus mRrj fn;k fd ^^izkphu eafnjksa dks u"V djus dh vuqefr ugha gSA tc fd ml dq.M esa izkphu dky ls Luku djus dh izFkk pyh vk jgh gS] mlesa Luku dk fu"ks/k vkids fy, mfpr ughaA^^ 'kgtkns us dVkj fudky yh vkSj ml vkfye dh gR;k dk ladYi djrs gq, dgk fd] ^^rw dkfQjksa dk Ik{kikrh gSA^^ ml cqtqxZ us mRrj fn;k fd] ^^tks dqN 'kjk esa fy[kk gS mls eSa dgrk gwWa vkSj lR; ckr dgus esa dskbZ Hk; ughaA^^ 'kgtknk larq"V gks x;kA /kekZ U /krk ,d fnu mlus vkns'k fn;k fd ^^Fkkus'oj tkdj dqdZ{ks= 2991 ¼dq#{ks=½ dks feV~Vh ls ikV fn;k tk; vkSj og Hkwfe ogka ds /keZfu"B O;fDr;ksa dks otgs evk'k esa uki dj ns nh tk;A^^ ml dky dk efydqy myek ml LFkku ij mifLFkr FkkA mlus 'kgtkns ls iwNk] ^^ogka D;k gS\^^ mlus mRrj fn;k] ^^,d gkSt gS tgka 1000] 2000 dksl ls fgUnw yksx Luku gsrq vkrs gSaA^^ mlus iwNk] ^^dc ls ;g dk;Z izkjEHk gqvk\^^ 'kgtkns us dgk] ^^o"kksZ ls ;g fonvr py jgh gSA^^ efydqy myek us iqu% iwNk] ^^vkids iwoZ ds ckn'kkg bl fo"k; esa D;k djrs Fks\^^ mlus mRrj fn;k] ^^dqN ughaA^^ efydqy myek us dgk] ^^;g rqEgkjk mRrjnkf;Ro ugha dkj.k fd rqEgkjs iwoZ eqlyeku ckn'kkgksa us bl fo"k; esa dqN ugaha fd;k\^^ 'kgtknk bl ckr ls cM+k xje gqvkA mlus dgk] ^^bl dky¼31½ds vkfye cM+s fofp= izdkj ds gSaA^^ la{ksIk esa] ;qokoLFkk esa og bLyke dk bruk cM+k Ik{kikrh FkkAs^^ 3156. In his Farman/Manshur of Emperor Aurangzeb of 15th March, 1659 AD. has said that in accordance with the Sharia the ancient temples, are not to be destroyed as such there should be no interference in offering prayers in temples of the Hindus. In spite of the fact that subsequently this ruler himself caused demolition of several temples, in his Firman dated 1659 he has accepted that sharia neither permit to interfere with the worship of the Hindus nor allows to destroy their temples. 3157. Ibn Battuta who held the office of the Kazi of Delhi as also functioned as Mutawalli of the Mausoleum of Sultan Kutubuddin during the reign of Sultan Mahommed Bin Tughlaq has noted down that Sultan Mahommed Bin Tughlaq had granted permission to the King of China to rebuild the idol temples that were demolished by his army in Himalayan region subject to payment of Jizya. Page 214 of the book 'IBN BATTUTA Travels in Asia and Africa 1325-1354' translated and selected by H.A.R. Gibb (first published in 1929 reprinted in 2007 by Low Price Publications, Delhi) reads as follows:

The king of China had sent valuable gifts to the sultan, 2992 including a hundred slaves of both sexes, five hundred pieces of velvet and silk cloth, musk, jewelled garments and weapons, with a request that the sultan would permit him to rebuild the idol-temple which is near the mountains called Qarajil (Himalaya). It is in a place known as Samhal, to which the Chinese go on pilgrimage; the Muslim army in India had captured it, laid it in ruins and sacked it.' The sultan, on receiving this gift, wrote to the king saying that the request could not be granted by Islamic law, as permission to build a temple in the territories of the Muslims was granted only to those who paid a poll-tax; to which he added "If thou wilt pay the jizya we shall empower thee to build it. And peace be on those who follow the True Guidance."

3158. Syed Amir Ali in his book "The Spirit of Islam" (at p. 272) substantiate that the Islam itself has ever maintained the most complete tolerance in respect of religion and if any excesses was done, it was by the passions of the ruler, using religious element as a pretext. Relevant extract thereof is as under:

"If we separate the political necessity which has often spoken and acted in the name of religion, no faith is more tolerant than Islam to the followers of other creeds. "Reasons of State" have led a sovereign here and there to display a certain degree of intolerance, or to insist upon a certain uniformity of faith; but the system itself has ever maintained the most complete tolerance. Christians and Jews, as a rule, have never been molested in the exercise of their religion, or constrained to change their faith. If they are required to pay a special tax, it is in lieu of military 2993 service, and it is but right that those who enjoy the protection of the State should contribute in some shape to the public burdens. Towards the idolaters there was greater strictness in theory, but in practice the law was equally liberal. If at any time they were treated with harshness, the cause is to be found in the passions of the ruler or the population. The religious element was used only as a pretext."

3159. The 'Spirit of Islam' (at p. 273) records the facts that the Holy Prophet gave guarantee of freedom of religion to the Christians of Najran and the neighbouring territories, inter alia, stating that there would be no interference with the practice of their faith, monks would not be removed from their Monastery and no image would be destroyed. It says:

"Has any conquering race or Faith given to its subject nationalities a better guarantee than is to be found in the following words of the Prophet? "To (the Christians of) Najran and the neighbouring territories, the security of God and the pledge of His Prophet are extended for their lives, their religion, and their property--to the present as well as the absent and others besides; there shall be no interference with (the practice of) their faith or their observances; nor any change in their rights or privileges; no bishop, shall be removed from his bishopric; nor any monk from his monastery, nor any priest from his priesthood, and they shall continue to enjoy every thing great and small as heretofore; no image or cross shall be destroyed; they shall not oppress or be oppressed; they shall not practise the rights of blood-vengeance as in the Days of Ignorance; no tithes shall be levied from them nor 2994 shall they be required to furnish provisions for the troops." 3160. The 'Spirit of Islam' (at p. 273-274) records the facts that during the reign of Caliphs, the people of other faith i.e. Zimmis were allowed to carry out processions, observe festivals, beat drums, erect places of worship. Relevant extract of the said book reads as follows:

"After the subjugation of Hira, and as soon as the people had taken the oath of allegiance, Khalid bin-Walid issued a proclamation by which he guaranteed the lives, liberty and property of the Christians, and declared that "they shall not be prevented from beating their nakus and taking out their crosses on occasions of festivals." "And this declaration," says Imam Abu-Yusuf, "was approved of and sanctioned by the Caliph and his council."

The non-Moslem subjects were not precluded from building new churches or temples. Only in places exclusively inhabited by Moslems a rule of this kind existed in theory. "No new Church or temple," said Abdullah bin Abbas, "can be erected in a town solely inhabited by Moslems: but in other places where there are already Zimmis inhabiting from before, we must abide by our contract with them."

...

The best testimony to the toleration of the early Moslem government is furnished by the Christians themselves. In the reign of Osman (the third Caliph), the Christian Patriarch of Merv addressed the Bishop of Fars, named Simeon, in the following terms: "The Arabs who have been given by God the kingdom (of the earth) do not attack the Christian faith; on the contrary they help us in 2995 our religion; they respect our God and our Saints, and bestow gifts on our churches and monasteries." 3161. Sri Mishra submitted that idolater Hindus were recognised as Zimmis by the Great Imam Abu Haneef. Since Empeor Babar was follower of Imam Abu Hanif's school, had no right to erect mosque over a Hindu shrine. Hindus were recognized as Jimmis in 712 AD by the Great Imam Abu Haneef by virtue of authorities conferred upon the Doctors of Islam by Hadiths for the purpose of showing the people right path on the basis of correct interpretation of Law of Shar. Mahomed Kasim Feristha in his book "Tarikhe Feristha" records that in reply to a question of Sultan Allaooddeen Khiljy, Kaji Mugdis answered him that the Hindus were granted status of Jimmi by the Great Imam Abu Huneef. Sri Mishra quoted page 198 of the English Translation of "History of the rise of the Mahomedan Power in India till the year AD 1612" translated by John Briggs (first published in 1829 reprinted in 2006 by Low Price Publications, Delhi) which reads as follows:

"First question. "From what description of Hindoos is it lawful to exact obedience and tribute?"--Answer. "It is lawful to exact obedience and tribute from all infidels, and they can only be considered as obedient who pay the poll- tax and tribute without demur, even should it be obtained by force; for, according to the law of the Prophet, it is written, regarding infidels, 'Tax them to the extent that they can pay, or utterly destroy them.' The learned of the faith have also enjoined the followers of Islam. 'To slay them, or to convert them to the faith;' a maxim conveyed in the words of the Prophet himself. The Imam Huneef, however, subsequently considers that the poll-tax, or as heavy a 2996 tribute imposed upon them as they can bear, may be substituted for death, and he has accordingly forbidden that their blood should be heedlessly spilt. So that it is commanded that the Juzeea (poll-tax) and Khiraj (tribute) should be exacted to the uttermost farthing from them, in order that the punishment may approximate as nearly as possible to death."

3162. In 712 AD Imam Abu Hanifah recognised the Hindus of Sind and Multan as Jimmis. 'The Mughal Empire' edited by Sri R.C. Majumdar (3rd Edn. 1990 published by Bharatiya Vidya Bhavan, Bombay) at page 538 reads as follows:

In 712 A.D. Muhammad bin Qasim, the conqueror of Sind, accorded the Hindus of Sind and Multan the status of zimmis which was the special privilege of Christians and Jews, the famous Muslim Jurist, Abu Hanifah, recognised this enactment as legal.

3163. It is contended that the Sacred Compilation Jami' At-Tirmidhi (Vol.-5) Hadith 2681, 2682 & 2685 reveal that a learned jurist is greater than a thousand worshippers. Commentator explains that as a learned jurist does not only correct himself and is safe from the illusion of the Saitan, but also he protects others against the plots, conspiracies and errors of the devil and he guides them correctly by teaching the issues of religion. He is superior than a dedicated worshipper who lacks firm knowledge, the benefit of his worship is restricted to his own self, and also it is easy for the Satan to misguide him. From the said Hadith it can be inferred that superiority to the learned jurist has been given only for the purpose to tell the people what is right or wrong according to religion. Said 2997 Hadiths read as follows:

"2681. Ibn Abbas narrated that the Messenger of Allah said: "The Faqih is harder on Ash-Shaitan than a thousand worshippers." (Da'if) Comments:

A dedicated worshipper who does not have firm knowledge, the benefit of his worship is restricted to his own self, and also it is easy for the Satan to misguide him; while a learned jurist does not only correct himself and is safe for the illusion of the Satan, but also he protects others against the plots, conspiracy and errors of the devil and he guides them correctly by teaching the issues of religion. 2682. Qais bin Kathir said: "A man from Al-Madhinah came to Abu Ad-Darda when he was in Dimashq. So he said: "What brings you O my nephew? he replied: 'A Hadith has reached me which you have narrated from the Messenger of Allah'. he said: 'You did not come for some need?' He said: 'No'. He said: 'Did you come for trade?' He said: 'No, I did not come except seeking this Hadith'. So he said: 'Indeed, I heard the Messenger of Allah saying: 'Whoever takes a path upon which he seeks knowledge, then Allah makes a path to Paradise easy for him. And indeed the angels lower their wings in approval of the one seeking knowledge. Indeed forgiveness is sought for the knowledgeable one by whomever is in the heavens and whomever is in the earth, even the fish in the waters. And superiority of the scholar over the worshipper is like the superiority of the moon over the rest of the celestial bodies. Indeed the scholars are the heirs of the Prophets, and the Prophets do not leave behind Dinar or Dirham. The only 2998 legacy of the scholars is knowledge, so whoever takes from it, then he has indeed taken the most able share. (Da'if) 2685. Abu Umamah Al-Bahili narrated: "Two men were mentioned before the Messenger of Allah. One of them a worshipper, and the other a scholar. So, the messenger of Allah said: "The superiority of the scholar over the worshipper is like my superiority over the least of you.' Then the Messenger of Allah said: 'Indeed Allah, His angels, the inhabitants of the heavens and the earths - even the ant in his hole, even the fish - say Sulat upon the one who teaches the people to do good." (Hasan)" 3164. Sri Mishra explained the concept of "Jeziyah" and contended that freedom of religion was subject to payment of Jeziyah. As the Hindus were paying the said tax which was in the nature of a protection tax, it was the duty of Islamic Rulers and army of Islam to protect religious Hindu shrine and life of Hindus. he elaborated the above submission in multifold ways. 3165. The Divine Law of Shar contained in Holy Quran and Hadiths guarantees freedom of religion and religious practices to the Jimmis/ Dhimmiz (protectees) who pay jizya (a tax taken from the non-Muslims who are in the protection of the Muslim government). There were 20 conditions of Jeziyah one of which permits Muslim traveller to stay in Jimmis' temple while other permits them to stay in Jimmis' home for three days. These terms and condition were in practice which is very much apparent from the disclosure of Ibn Battuta that he stayed in the house of an old lady who was a Jimmy as in the city there was only one House of the Governor. Riyazu-S-Salatin, A History of Bengal on its page 67 has recorded the fact that Bakhtiyar Khilaji stayed in a temple within the territory of Kamrup 2999 Kingdom during his retreat from Tibbat campaign without harming the Temple.

3166. Sacred Compilation Hadith Sahih Bukhari 4.386 p. 836-837 reveals that the Holy Prophet's command was for the Muslim army to fight against the persons of other faith till they worship Allah alone or agree to pay jizya. It say:

"Our Prophet, the Messenger of our Lord, has ordered us to fight you till you worship Allah Alone or give Jizya (i.e. tribute); and our Prophet has informed us that our Lord says:-"Whoever amongst us is killed (i.e. martyred), shall go to Paradise to lead such a luxurious life as he has never seen, and whoever amongst us remain alive, shall become your master."

3167. The Sacred Compilation Hadith Sahih Bukhari 4.404 p. 843-844 reveals that asylum to non-Muslims living in Muslim territory was granted by Allah and His Holy Apostle.

Relevant extract of the said Hadith reads as follows:

". . . Narrated said: Abu Huraira once said (to the people), "What will your state be when you can get no Dinar or Dirhan (i.e. taxes from the Dhimmis)?" on that someone asked him, "What makes you know that this state will take place, O Abu- Huraira?" He said, "By Him in Whose Hands Abu Huraira's life is, I know it through the statement of the true and truly inspired one (i.e. the Prophet). "The people asked, "What does the Statement say?" He replied, "Allah and His Apostle's asylum granted to Dhimis, i.e non-Muslims living in a Muslim territory) will be outraged, and so Allah will make the hearts of those Dhimmis so daring that they will refuse to pay the Jizya they will be supposed to pay."

3000

3168. Sacred Compilation Hadith Sahih Muslim (Vol. III) Hadith 1731R1 p. 180-181 reveals that when Holy Prophet appointed anyone as commander of an army he specially commanded them to invite the enemies who are polytheists to three course of action and if they respond anyone of these the commander must accept it and keep from doing them any harm. Out of three options one was to demand Jizya from the people who refused to accept Islam and if they agree to pay no harm should be done to them. The said Hadith reads as follows:

"(1731R1) It has been reported from Sulaiman b. Buraid through his father that when the Messenger of Allah (may peace be upon him) appointed anyone as leader of an army or detachment he would especially exhort him to fear Allah and to be good to the Muslims who were with him. He would say: Fight in the name of Allah and in the way of Allah. Fight against those who disbelieve in Allah. Make a holy war; do not embezzle the spoils; do not break your pledge; and do not mutilate (the dead) bodies; do not kill the children. When you meet your enemies who are polytheists, invite them to three courses of action. If they respond to any one of these, you also accept it and keep from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them. Then invite them to migrate from their lands to the land of Muhajirs and inform them that, if they do so, they shall have all the privileges and obligations of the Muhajirs. If they refuse to migrate, tell them that they will have the status of Bedouin Muslims and will be subjected to the Commands of Allah like other Muslims, but they will not get any share from the spoils of

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2875. In Karbalai Begum vs . Mohd. Sayeed (1980) 4 on 28 November, 1858