Objections to the maintainability of the suit

There are several substantial objections to the maintainability of the suit. At least three of them stare on the face of the record.

FlRST: The Asthan Sri Ram Janma Bhumi is a holy place worshipped as a Deity by the Hindus. According to Hindu Sastras: Kalau Sthanani Pujyante: that is, in the Kaliyuga it is the Holy Spots which are fit objects of worship. Therefore, besides the presiding Deity of Bhagwan Sri Rama Lala Virajman in the building, Who is undoubtedly a juristic person, there is the Deity of Asthan Sri Rama Janma Bhumi having a juridical personality of His own. Both were necessary parties to the leading suit. While the Deity of Asthan Sri Rama Janma Bhumi needs no proof of consecration, the fact that the Idols at Sri Rama Janma Bhumi constitute a duly consecrated Deity must be deemed to be admitted in the plaint by the Muslims themselves. After alleging the fact of the placing of the Idol inside the alleged mosque and its desecration on 23.12.1949, a grievance has been made that the City Magistrate attached it and handed over its possession to Sri Priya Dutta Ram as Receiver, and shortly thereafter, an injunction was issued on 16.1.1950, on the allegations that the building was a temple with Deities installed in it; that the result was that while Hindus were permitted to perform Puja of the Idols placed within the building, the Muslims were not allowed even to enter it; and that this had continued for nearly twelve years when the plaint was filed on 18.12.1961. It is common knowledge that Hindus do not worship an Idol unless it is duly consecrated as a Deity, and that the Courts do not protect the worship of any Idols unless they are recognised as Deities. Yet, the Plaintiffs did not breathe a word of dissent to say that the Idols in suit were not a duly consecrated Deity. And they did not object to the appointment of a Receiver to arrange for the worship of the Idol placed inside the building, even when the matter of appointment of the Receiver was taken up after the death of Sri Priya Dutta Ram in 1970 and the appointment of Sri K.K. Ram Verma by the City Magistrate, and not even when the High Court directed the appointment of another person as Receiver in place of Sri K. K. Ram Verma, to perform the following duties. (Vide - Judgment Dated 23.7.1987 in F.A.F.O. No. 17 of 1977, arising from suit No. 12 of 1961):

"The duties of the Receiver should not only include the performance of Pooja and various religious activities and festivals, associated with the idols in the premises, but also their proper and regular maintenance.........

"The Pujaris and various employees should be paid their salaries regularly and the offerings should be collected by the Receiver carefully and should be credited daily in the present account in the State Bank of India ........

The High Court could not have made such an arrangement for the maintenance of the Puja of the Idols inside the building in suit unless they were duly consecrated as a Deity.

Lastly, while asking for possession over the building premises, the Plaintiffs need not have asked for the removal of the Idols and other objects of Hindu worship, if they were mere chattel and not Deities, and having asked for their removal, they cannot have it without impleading them as Defendants.

It is indisputable that a Hindu Idol duly consecrated is a Deity and has a juridical personality of His own. He is capable of owning property and of suing and being sued in a Court. The place where a Deity is installed is termed His Temple, and is deemed to be His property, and inalienable in law. Therefore, the inescapable result is that neither of the two Reliefs claimed, whether for declaration that the building in suit is a mosque or for possession by removal of the Idols placed therein, could be granted in the absence of the Deity.

And this is not a mere technicality. The facts admitted by the Plaintiffs of the leading suit on behalf of the Muslims raise a conclusive presumption that the Idols have been duly consecrated. To summarise: Puja and ceremonies are duly performed as in the case of a properly consecrated Deity, and a very large number of pilgrims visit the place and worship them. A Receiver is appointed by the Court to properly manage and supervise the worship. Regular Pujaris are appointed as in a big temple of repute. And all this has gone on at least since 1949, admittedly, for almost 12 years when the suit was filed in 1961, and continuously thereafter now for more than 40 years, and is protected by an injunction granted by the Court. It must now seem impossible for any Court to grant the relief of possession by the removal of the Idols, who must be regarded in view of these admitted facts to be a duly consecrated Deity and a juridical person as such, without hearing Him. In such a case, a proper suit for possession must be directed against the Deity, inasmuch as no effective decree for possession can be passed unless it is against the Deity who is already seated there and in possession of the place. The question whether the Idols in question are a duly consecrated Deity and the building in question is a mosque and not the property of the Deity or His Temple cannot be effectively adjudicated upon in the absence of the Deity. The Deity was a necessary party to the leading suit by the Muslims, and this defect of non-joinder cannot be cured now, inasrnuch as it was not a mere formal defect, but goes to the root of the matter and has become irremediable because of the lapse of time. The only suit on behalf of the Muslim must fail on this account.

SECONDLY: The leading suit is not maintainable at the instance of the U.P. Sunni Central Board of Waqfs or the Sunni Muslims who have been joined as Plaintiffs.

According to the Plaintiff's case, the waqf includes, besides the building claimed to be the 'Babari Masjid' and the adjoining land alleged to be a grave-yard, the revenue free grant of Zamindari in villages Sholepur and Bahoranpur near Ayodhya for their upkeep. All this required a Mutawalli to manage the property and apply it to the purposes of the waqf. But the plaint0does not disclose whether there ever was a Mutawalli of the property in suit. None of the Plaintiffs is or has claimed to be the Mutawalli. Primarily it is the Mutawalli who is entitled to sue for the recovery of waqf property. It is significant in this context to notice that according to the Plaint, the alleged 'Babari Masjid' was demolished substantially in 1934 and was rebuilt by the Government, not by any Mutawalli. Even the First Information Report of the alleged desecration and occupation of the disputed 'mosque' was lodged by a Police Officer, and not by any Mutawalli or even a Muslim worshipper. Obviously there was no Muslim worshipper or Mutawalli interested in its possession or use as a 'mosque', or to come forward to repair it in 1934 or to lodge the F.I.R. in 1949.

As to the Sunni Central Board of Waqfs, U.P., who claims the disputed 'mosque' to be a Sunni waqf, and as such statutorily duty bound and authorised to look after it, the Board was fully aware of the incident as it happened on 23.12.1949, itself, and of all the preceding actions of the Hindu's which were openly hostile and adverse to the alleged waqf, through their Inspector Mr. Mohammed lbrahim, who had been deputed to make local inquiries at Ayodhya. Even then the Waqf Board took no steps for 12 long years for recovery of the disputed 'mosque'. That shows their lack of interest. That apart, the Sunni Waqf Board has no authority or competence under the law in respect of the disputed property or the alleged waqf. The Board is a creature of the U.P. Muslim Waqfs Act, 1936, since repealed and re-enacted by its 1960 version. Under that Act after the prescribed enquiry by the Commissioner of Waqfs, his report along with the lists of the Shia Waqfs was forwarded to the Shia Central Board of Waqfs, and that of the Sunni Waqfs was forwarded to the Sunni Central Board of Waqfs, by the U.P. Government and each of the two Waqf Boards were required to publish the report along with their respective lists in the Official Gazette, under sub-section (1) of Section 5.

According to the Plaint of the leading Suit the report and the list relating to the alleged Waqf in suit was published in the U.P. Gazette dated 26.2.1944. Strangely, the particulars of the disputed 'mosque' or the grave-yard, do not find any place in the list of Waqfs published in the Government Gazette dated 26.2.1944, relied upon by the Plaintiffs On issue No. 17, raised in the suit on this point it has been found by the Civil Judge, vide-judgment dated 21.4.1966 that "no valid notification under section 5(1) or U.P. Muslim Waqf Act No. XIll of 1936 was ever made so far relating to the specific disputed property of the present suits at hand. Indeed, the Supreme Court has found in the case of Ghulam Abbas v. State of U.P. A.I.R. 1981 SC 2198: (at pages 2217-18, paragraph 17): that the said notification is "of doubtful validity and probative value" and that it is of no legal effect, in view of the fact that the list of Waqfs published therein was not the list of Sunni Waqfs attached to the Report of the Commissioner of Waqfs. A survey of the alleged Waqf having been made under the 1936 Act, a fresh survey and inquiry into the Waqf character of the property in suit is barred under the 1960 Act. At any rate, the question whether the property in suit is a Waqf could only be referred to and decided by the Tribunal under the 1960 Act, and the Sunni Central Board of Waqfs or the other Muslim Plaintiffs could not have sued for the declaration claimed by the them in the Civil Court. So far as the Muslims are concerned, the remedy under the Act is exclusive.

Although not pleaded in the Plaint, it was orally pleaded by the Plaintiffs that by judgement dated 30.3.1946 in suit No. 29 of 1946 between the Shia and the Sunni Central Boards of Waqfs of U.P., the property in suit had been held to be a Sunni Waqf. This suit had been filed by the Shia Board, which claimed it to be a Shia Waqf to get over the effect of the Waqf Commissioner's report on the assumption that the ''Babari Masjid'' had been notified to be a Sunni Waqf in the said Gazette notification dated 26.4.1944 under section 5(1) of the U.P. Muslim Waqfs Act, 1936. In view of the finding arrived at in the present suit and also in Ghulam Abbas's case by the Supreme Court, that the said notification was invalid, that suit No. 29 of 1945 could not have been filed under section 5(2) of the Waqf Act, with the result that the judgement in that suit is without jurisdiction and the findings recorded therein are of no legal effect.

The real evidence is that of the inscription in the building in suit, which describes it as "the alighting place of angels" built by "the good hearted Mir Baqi", who was admittedly a Shia Muslim, and whose descendants to whom the Nankar grant of revenue-free Zamindari was allegedly made for the upkeep of the disputed 'mosque' as its alleged Mutawalli, although they denied that to be the object of the grant, were also indisputably Shia Muslims. Now, Allah the owner of all Waqf property under the Muslim Law, is neither a Shia nor a Sunni, but the distinction between a Shia Waqf and a Sunni Waqf lies in the sect to which the Waqif, or the founder of the Waqf belongs. The Waqif is the first Mutawalli, and in the absence of any appointment of the Tauliat, his heirs are the Mutawallis after him, and the sect of the Mutawalli of a Waqf is strong evidence of the sect to which a Waqf belongs. Therefore, the alleged Waqf of the alleged 'Babari Masjid', if there was a Waqf, could only be a Shia Waqf.

There being no valid notification under section 5(1) of the U.P. Muslim Waqfs Act, 1936, in respect of the property in suit, or the alleged 'Babari Masjid', and the judgment in suit No. 29 of 1945 between the Shia and the Sunni Boards of Waqfs in U.P., being a nullity, the Sunni Waqf Board has no right whatsoever to maintain the suit, for its right to administer a Waqf or to sue in respect of it, flows entirely on the basis of a valid notification under section 5(1) of the Act specifying it as a Sunni Waqf.

So far as the other Plaintiffs are concerned, they must also establish that the property in suit is a Sunni Waqf, before they could be allowed to sue in respect of it. The only basis of the suit is the notification dated 26.2.1944. That has been found not to related to the property in suit. Therefore, they too have no right to maintain the suit, whether in respect of the disputed 'mosque' or the disputed grave-yard. The finding of the Supreme Court in Ghulam Abbas's case between the Shia and the Sunni Muslims that the said notification dated 26.2.1944 is "of doubtful validity and probative value" has foreclosed the matter for ever.

But the Plaintiffs have claimed that they represent the entire Muslim community and have purported to file the suit in a representative capacity, without, however, making a single Shia Muslim as a party to the suit, and that inspite of their knowledge of the claim that it was a Shia Waqf, and the, frequent disputes between the Shias and the Sunnis, particularly in Avadh. The Plaintiffs' right of suit depends on the character of the Waqf being a Sunni Waqf as opposed to a Shia Waqf. Since there was a dispute as to that, and the Shia Waqf Board had even filed a suit claiming the property in suit to be a Shia Waqf, the Plaintiffs cannot properly represent the Shia Muslims or the Shia Waqf Board. They were undoubtedly necessary parties to the suit, for in their absence the question whether the property in suit, if it be a Waqf, is,a Sunni Waqf or not cannot be properly adjudicated upon, and in the absence of a finding that it is a Sunni Waqf, the Plaintiffs cannot maintain the suit, after the finding that the gazette notification dated 26.2.1944 was invalid and does not relate to the property in suit.

A further aspect of the non-maintainability of the suit at the instance of the Plaintiffs sans the Mutawalli of the alleged Waqf must also be considered. The Plaintiffs other than the Waqf Board claim to be worshippers having a right of saying their prayers in the disputed ‘mosque'. That right belongs to every Muslim who is so minded. According to the Privy Council in the Shahidganj Mosque case: AIR 1940 PC 116 = 67 IA 251: The right of a Muslim worshipper is an individual right. It is not a sort of easement in gross, but an element in the general right of a beneficiary to have the waqf property recovered by its proper custodians and applied to its proper purpose. He may, if he sues in time, procure the ejectment of a trespasser and have the property delivered to the possession of the Mutawalli or of some other person for the purposes of the waqf. This case is clear authority for the proposition that a worshipper has no right to the possession of a mosque. The right to possession of a mosque belongs only to its Mutawalli. Under the U.P. Muslim Waqfs Act, the Waqf Board concerned of the sect to which a particular Waqf belongs may appoint a Mutawalli, but its functions are supervisory. A Waqf Board is not supposed to act as a Mutawalli. In the light of clause (o) of section 19(2) of the U.P. Muslim Waqfs Act, 1960, which gives the Waqf Board the power to remove or appoint a Mutawalli and to put the Mutawalli so appointed in possession of Waqf property under the Act, it surely could not file a suit for possession of Waqf property, in exercise of its general power of filing suits relating to Waqfs, under clause (q) of section 19(2). In a case like the one in hand, if the Sunni Waqf Board thought that there was Waqf of the property in suit and there was no Mutawalli thereof, or if there was a Mutawalli he was not acting properly, it should have appointed a proper person as a Mutawalli of that Waqf and directed him to sue for possession of the Waqf property.

Thus in either view of the matter, the suit for possession, which is the second relief claimed, is not maintainable at the instance of the Plaintiffs sans the Mutawalli. And in view of the Plaintiffs' own allegation of complete ouster and dispossession of the Muslims from the property in suit, the claiming of the relief of possession and that too by the removal of the Idols and other objects of Hindu worship, was essential, for, without that the declaration claimed would have been futile and could not be decreed in view of the Proviso to Section 42 of the Specific Relief Act, 1877, which was in force when the suit was filed in 1961.