Supreme Court: No basis for Allahabad HC to trifurcate site

New Delhi: The Supreme Court on Saturday found faults with the Allahabad high court verdict by which it had on September 30, 2010 trifurcated the disputed site in three parts, giving one each to idol of Ram Lalla and Hindu sect Nirmohi Akhara and one part to Muslims.

The Allahabad high court judgment partitioning the disputed site in three parts was pronounced on September 30, 2010.

Noting that the high court was called upon to decide the question of title particularly in the declaratory suits, the top court constitution bench headed by the Chief Justice Ranjan Gogoi said, “The high court has adopted a path which was not open to it in terms of the principles” that top court had set-out in the judgment.

“There was no basis in the pleadings before the high court and certainly no warrant in the reliefs, which were claimed to direct a division of the land in the manner that a court would do in a suit for partition,” top court said, taking a dim view of the high court judgment by which it partitioned the disputed site in three parts.

In assessing the correctness of the decree of the high court, the top court today said, “It must be noted at the outset that the high court was not seized of a suit for partition. In a suit for partition, it is trite law that every party is both a plaintiff and defendant.” The top court further noted that high court granted reliefs, which were not the subject matter of the prayers in the suits before it and in the “process of doing so, it proceeded to assume the jurisdiction of a civil court in a suit for partition, which the suits before it were not.”

Having pointed to the flaws in the high court judgment of September 30, 2010, the top court said that the high court was hearing a suit by a worshipper seeking the enforcement of the right to a suit by Nirmohi Akhara, asserting Shebaiti rights to the management and charge of the temple, a declaratory suit on title by the Sunni Central Waqf Board and Muslims, and a suit for a declaration on behalf of the Hindu deities in which an injunction has also been sought restraining any obstruction with the construction of a temple.

Wondering where were the basis for trifurcating the disputed site, the top court today said, “The high court has completely erred in granting relief which lay outside the ambit of the pleadings and the cases set up by the plaintiffs” – idol of Ram Lalla, Nirmohi Akhara and Sunni Central Waqf Board.

Having said this, the top court said that there was “another serious flaw” in the entire approach of the high court in granting relief of a three-way bifurcation of the disputed site as it went ahead partitioning the disputedsite in three parts, even though it had decreed that suit of Nirmohi Akhara and Sunni Waqf Board was time barred.

“Having come to the conclusion that Suit 3 (filed by Nirmohi Akhara) and Suit 4 (filed by Sunni Central Waqf Board) were barred by limitation, the high court proceeded to grant relief in Suit 5 (by idol of Ram Lalla) to the plaintiffs in Suits 3 (Nirmohi Akhara) and 4 (Sunni Central Waqf Board). This defies logic and is contrary to settled principles of law”, said that top court.

The three judges of the Allahbad high court – Justices S.U. Khan, Sudhir Agrawal and Dharam Veer Sharma – took concurring and divergent positions on the issues before them in 2010.

On Sunni Central Waqf Board’s claim over the Babri Masjid, Justice Khan had said that till 1934, Muslims were offering regular prayers and since 1934 till December 22,1949, they were offering only Friday prayers in the premises in dispute. The offering of only Friday prayers was also sufficient for continuance of possession and use.

However, Justice Agrawal said that the Muslim parties have failed to prove that the property in dispute was constructed by Emperor Babur or by Mir Baqi.

The question as to when disputed structure was built and by whom, Justice Agrawal said it cannot be replied with certainty since neither there is any pleading nor there is any evidence/material to arrive at a concrete finding on this aspect.

However, applying the principle of informed guess, he had said that it appears that the building in dispute may have been constructed, probably between 1659 to 1707 A.D. during the regime of Aurangzeb.

Justice Dharam Veer Sharma in turn had said that the mosque if adversely possessed by a non-Muslim will lose its sacred character as a mosque and the Sunni Central waqf Board were not in possession of the Babri Masjid and had filed a suit for recovery of possession.

He said that there was no reliable evidence to show that Muslims offered prayers from times immemorial.

While Justice Khan had said that it is not proved by direct evidence that premises in dispute, including constructed portion belonged to Babar or the person, who constructed the mosque or under whose orders it was constructed. However, he said that the disputed  was constructed as mosque by or under orders of Babar.

Holding that no temple was demolished for constructing the mosque, Justice Khan had said that the mosque was constructed over the ruins of temples, which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque.

Justice Agrawal had held that the matter “mounts to delving into some kind of conjectures but since it is a case which necessarily goes in history and particularly when for sufficiently long time, the things are in dark in the absence of anything to the contrary, the present matter would fall within the domain of preponderance of probability.”

Referring to Holy Quran and Islamic traditions, Justice Sharma had held that it was mandatory on part of a Muslim to first become the owner of the property and thereafter, Wakf the property.

“Since Babar was a Hanafi Muslim and there is nothing on record to suggest that he acquired the title of the temple first, it is apparent that in accordance with divine law, he was not in a position to erect a mosque against the tenets of Islam. Thus, it cannot be construed that there was any valid dedication to the almighty,” Justice Sharma had said in 2010.