The Chief Justice has thrown the proverbial cat among the pigeons by his suggestion for negotiations between the two sides in the Ayodhya dispute. Justice K Sreedhar Rao, looks at the legal implications

Chief Justice Jagdish Singh Khehar has acted with sagacity in asking for an amicable settlement in the Ram Janmabhoomi-Babri Masjid Case. The failure of previous endeavours should not stand in the way of another attempt. There were a total of four suits filed, which were clubbed and jointly tried by the three-judge bench of the Allahabad High court.

The judges, in separate judgments, passed an equitable order on the basis of the facts and evidence directing the division of the disputed land into three parts. The area of the land where the makeshift temple is situated is to be allotted to the Plaintiff-deity. The area where the Ram chabutara and Sita rasoi is shown on the map, is to be allotted to Nirmohi Akhara and the third portion is to be allotted to Sunni Wakf Board.

There were 28 issues framed in the suit and the contentions would be relevant to understand the rival claims.

• Whether Babur/Mir Baqi constructed the mosque in the year 1528 on the area after demolishing an existing Hindu temple.
• Whether the Sunni Wakf Board has title to the property and was in exclusive possession and uninterruptedly performing prayers in the mosque till its dispossession in 1949.
• Whether the Ramlala Virajman deity has title to the property and is in exclusive possession, while uninterruptedly performing prayers and worship
• Whether the other plaintiff, Nirmohi Akhara, has title to the property by adverse possession or otherwise.

The dispute between Hindus and Muslims over worshipping rights started in 1853, resulting in periodic violence. In 1855, the civil administration made arrangements for both Hindus and Muslims to worship, by dividing the mosque premises. In 1885, Raghubar Das, the Hindu mahant of Ram chabutara, filed a civil suit before Faizabad sub-judge for constructions of a temple. The sub-judge and the district judge dismissed the suit but both observed that the mosque was built on a land considered sacred by the Hindus. The order, however, was to maintain status quo on the grounds that it was too late to remedy the grievance.

The fact that the temple was destroyed or was in a ruined state does not take away the title of the deity over the land

Historical records disclose that Muslims and Hindus jointly offered prayers till 1855. The priest of Babri Masjid in 1858, in his petition to the British govt, stated that the courtyard had been used by Hindus for hundreds of years.

The second phase of the litigation started in December 1949 when idols were installed under the middle doom of the temple. The District administration, to avert a law and order problem, locked the gates. Priests were allowed to go inside from an alternative entrance to conduct worship. A comprehensive suit was filed seeking declaration that the entire disputed area belongs to the deity. It sought perpetual injunction against the Sunni Waqf Board and individual Muslims not to interfere in the construction of a temple and for demolition of the mosque.

The Board filed a counter suit for declaration that the disputed property is a public mosque known as Babri Masjid and prayed for delivery of possession of the mosque after removal of the idols. In law, a suit for declaration is not tenable without consequential relief. The Waqf Board did not seek consequential relief of possession but left it to the discretion of the court. Such a suit could not be maintainable in law.

With regard to the title to the disputed property, two of the judges found that the Sunni Waqf Board had no title to the property. However, the other judge held that the Waqf Board, the deity and Nirmohi Akhara were in joint possession and nobody had exclusive possession. Therefore an equal allotment of one-third to each of them should be made. In Hindu law, a deity is a perpetual minor capable of owning the property. The person who manages the property of the deity is only the trustee, as guardian on behalf of the deity, can sue and be sued. In Muslim law, a property dedicated for religious and charitable purposes will be owned by Allah and called Waqf property. The Waqf can be created orally. Once created, its validity is irrevocable. A person can create Waqf of a property rightfully held by him.

There is irrefutable finding that beneath the mosque under the sub-soil, exists a temple. The fact that the temple was destroyed or was in a ruined state does not take away the title of the deity over the land. Similarly, in Muslim law, if a mosque is destroyed or is dilapidated, the property vests in Allah and continues to be Waqf property. It is an inviolable mandate of the holy scriptures of Islam that a person can dedicate a property to Waqf over which he has a right. But a disputed property cannot be dedicated to Waqf. In the present litigation, the disputed property is vested with the deity irrespective of whether temple was destroyed or ruined. It is impermissible in Islam to dedicate the property for Waqf by constructing a mosque over which the deity had lawful rights.

The finding of the majority of the judges was that the Waqf of Babri Masjid was not lawful and valid according to the tenets of Islam. Hence the Sunni Waqf Board cannot claim title over the disputed property.

A different view taken by Justice Sigbhat Ullah Khan is also, in one way, correct because the facts and evidence disclose that in the year 1885 the civil administration managed by British divided the mosque into two parts by putting a divider. It was found by the judges that Hindus were conducting worship in the outer courtyard and the inner courtyard and there had been joint worship by both communities. Therefore construing the disputed property as a joint property would justify the division and distribution of the land in three equal parts.

The first disputed contention about the demolition of the temple and construction of the mosque by Babur/Mir Baqi is a vexed question which relates to historical antiquity. There are historical versions which suggest that Babur demolished the temple and constructed a mosque over the land. Some Left wing historians seriously contest the theory of demolition, pointing to historical accounts by Tulsidas, Babarnama, Akbarnama and the English traveller William Finch, which do not refer to the mosque built by Babur. The ASI excavation did establish a temple structure beneath the sub-soil structure of the mosque. A mosque was built in Ayodhya called Hanumangarhi by a general of Aurangzeb in the 17th century. The land on which it was built was granted to Hindus by Nawab of Awadh on the condition that the Hindus should not prevent Muslims from conducting prayers in the mosque, which had become dilapidated. When Muslims of Ayodhya requested the mahant for permission to reconstruct the mosque, he offered to construct the mosque at his cost.

The world is being divided on religious lines. It is the need of the hour that India should stand united. The cause of secularism would be well served by an amicable settlement, as suggested by the Chief Justice.

—The author is former acting chief justice of
the Gauhati and Karnataka High Courts