1
1251
dated 15.9.1995 and remitted the matter to the appellate
authority to decide the appeal within 15 days. The High Court
observed that it was conceded that the Minister against whom
the allegation of mala fide are alleged is no more a Minister,
therefore, on the finding that there was an alternative remedy
available to the petitioner, it relegated the petitioner to avail the
said remedy of appeal. The appellate authority, though, upheld
the allegations of illegality and irregularity in conducting
business by the licensee but took a lenient view and instead of
cancellation of licence, treated the period from the date of
cancellation of licence till filing of writ petition and grant of
stay order by the High Court as the period of substantive
suspension as a measure of penalty. It is against this appellate
order, the writ petition was again filed before the High Court,
which was allowed and the matter was remitted to the appellate
authority to decide the matter on the ground of mala fide alleged
against the Minister. In the second batch of the petitions, the
Minister was not made a party. That being so, the High Court
was not in a position to go into the question of mala fide. The
Apex Court held that it could not have directed the appellate
authority to go into the question of mala fide. The Apex Court
held that the words "might and ought" used in Section 11 would
stand in the way operating as res judicata. In our considered
view, the above judgement also lends no support.
1012. In P. K. Vijayan (supra) the words "might and ought"
again came to be considered. One Kamalakshi Amma, landlord,
filed R.C.P. No. 19 of 1974 under Section 11 of Kerala
Buildings (Lease and Rent Control) Act, 1965 for eviction of the
P.K. Vijayan-tenant. Under the proviso thereto, if the the tenant
denies title of the landlord or claims right of permanent tenancy,
1252
the Rent Controller was required to decide whether denial or
claim is bona fide and if a finding is recorded positively in
favour of the tenant on the aforesaid issue, it will require the
landlord to sue for eviction of the tenant in a Civil Court. The
Rent Controller accepted the plea of P. K. Vijayan in regard to
'bona fide' and relegated the landlord to seek eviction by a civil
Suit. Before the civil proceedings could be initiated, the tenant
filed D.A. No. 11730 of 1986 before the Land Tribunal under
Kerala Land Reforms Act claiming that the lease was of
agriculture land and as a cultivating tenant, he is entitled to get
assignment of title of the land under Section 72B of the Land
Reforms Act which postulates that the cultivating tenant of any
holding or part of the holding, the right, title and interest in
respect of which has vested in the Government under Section 72
shall be entitled to assignment of such right, title and interest.
The term "cultivating tenant" was defined to mean a tenant who
is in actual possession of, and is entitled to cultivate the land
comprised in his holding. The Land Tribunal vide order dated
26.11.1976 held that the lease was of commercial building and
not agricultural land and dismissed the petition of the tenant.
The tenant before the Civil Court, relied on Section 106 of the
Land Reforms Act and claimed that the land was demised for a
commercial or industrial purpose and he had constructed a
building thereon for commercial purpose before 20.5.1967,
therefore, by operation of Section 106 of the Land Reforms Act,
he cannot be ejected. He also questioned the jurisdiction of the
Civil Court to decide the question and contended that the matter
has to be referred to the Land Reforms Tribunal under Section
125 (3) of the Land Reforms Act. The Trial Court decided the
matter vide order dated 3.8.1887 in favour of tenant upholding
1253
his contention for reference under Section 125 (3) of the Land
Reforms Act to the Tribunal. The revision of the landlord was
allowed by the High Court holding that the Land Reform
Tribunal cannot decide the dispute in view of its earlier order
under Section 72B and also on the ground of res judicata. The
appeal taken to the Apex Court where it upheld the plea of res
judicata of landlord observing hat the plea of entitlement under
Section 106 of Land Reforms Act was available to the tenant in
the eviction proceedings and if he would have raised at that time
before the Rent Controller, lacking jurisdiction, the Rent
Controller would have referred the matter to the Land Tribunal
for decision under Section 125(3) of the Land Reforms Act.
Having said so, the Apex Court held that the rule of "might and
ought" envisaged in Explanation IV to Section 11 C.P.C.
squarely applies and in para 11 of the judgement said :
"11. However, the appellant merely chose to deny the title
of the landlords and did not raise the plea of S. 106 of the
Land Reforms Act. The rule of "might and ought"
envisaged in Explanation IV to S.11, C.P.C. squarely
applies to the facts of the case and, therefore, it is no
longer open to the appellant to plead that, Civil Court has
no jurisdiction to decide the matter and it shall be required
to be referred to the Land Tribunal.
That apart, in the proceedings under S. 72B the
appellant pleaded that it is a land governed by the
provisions of the Land Reforms Act and that, therefore, he
is entitled to the assignment of the right, title and interest
therein. The Tribunal found that the lease being a
commercial lease, the appellant is not entitled to the
assignment of the right, title and interest in the demised
1254
land which was not vested in the State under S. 72 since the
lease was not of agricultural land demised to the appellant.
In that view of the matter and the appellant having decided
only to avail the remedy of S. 72B and omitted to plead the
remedy of S. 106, it is no longer open to him to contend
that he is entitled to the benefit of S. 106 of the Land
Reforms Act."
1013. The Apex Court further held in para 13 of the
Judgement that "The tenant is expected to raise all the pleas
available under the statute at the relevant time. It is a sheer
abuse of the process of the Court to raise at each successive
stages different pleas to protract the proceedings or to drive the
party to multiplicity of proceedings. It would be fair and just that
the parties to raise all available relevant pleas in the suits or the
proceedings when the action is initiated and the omission thereof
does constitute constructive res-judicata to prevent raising of the
same at a later point of time. Thereby it must be deemed that they
are waived."
1014. The law declared above by the Apex Court in P.K.
Vijayan (supra) is binding upon us. However, we fail to
understand as to how this would apply to the facts of the cases
in hand in the light of the facts of the suits in question which we
have already discussed in detail.
1015. In Gorie Gouri Naidu (supra), the Apex Court held
that inter party judgement is binding upon the parties even if it
is erroneous. The Court said :
"In our view, such decision of the Division Bench is
justified since the said earlier decision in declaring the
deeds of gift as invalid, is binding between the parties.
There is no occasion to consider the principle of estoppel
1255
since considered by the learned single Judge in the facts
and circumstances of the case for holding the said transfers
as valid, in view of the earlier adjudication on the validity
of the said deeds in the previous suit between the parties.
The law is well settled that even if erroneous, an inter party
judgment binds the party if the Court of competent
jurisdiction has decided the lis."
1016. In Premier Cable Co. Ltd. (supra), an assessment
order was challenged in appeal which was dismissed on the
ground of delay. Revision was also dismissed. The writ petition
against the revisional order was also dismissed and the said
order attained finality not being taken to the higher Court. In
these circumstances, the Apex Court held that the levy under the
aforesaid assessment order, which has attained finality, cannot
be challenged by means of a civil suit since it is barred by
principle of res judicata.
1017. In Abdul Rahman (supra), the issue of principle of res
judicata as such was not up for consideration but in the facts and
circumstances of the case, the Court refused the plaintiff to
peruse the remedy in a Court of law. The peculiar facts of the
case are noticed in para 30 of the judgement, which reads as
under :
"30. ...........The issue as regards the status of the 1st
respondent has never been raised before the revenue
authorities. As the appellant herein claimed himself to be a
tenant of Mangal Singh, there was no reason as to why he
could not be said to be aware of the relationship between
the 1st respondent and the said Mangal Singh. He allowed
the proceedings of the Board of Revenue to be determined
against him. The decision of the Board of Revenue attained
1256
finality. His writ petition was also dismissed. Be it also
noted that the civil suit was filed three years after the
adjudication of the rights of the parties in the mutation
proceedings.”
1018. After noticing the aforesaid facts, the Apex Court in
para 31 said:
“31. In the aforementioned situation, in our opinion,
the appellant must be held to have taken recourse to abuse
of process of Court underlying the principle that the
litigation should be allowed to attain finality in public
interest. Although the concept of issues estoppel or
estoppel by records are distinct and separate from the
concept of abuse of process in public interest, the Court
may refuse the plaintiff from pursuing his remedy in a
Court of law. See Johnson v. Gore Wood and Co., ((2002)
2 AC 1).”1019. Thus, the above judgement also lends no support to
attract plea of res judicata in the present case.
1020. In M.T.W. Tenzing Namgyal (supra) the facts were
that Plots No. 1013, 1014 and 1040 (part) situated at Gangtok
belonged to one Chogyal Sir Tashi Namgyal. It was his personal
property forming part of his private estate. One pucca building
was constructed on Plot no. 1014 situated at New Market Road,
Gangtok and it was let out to tenants. On the adjacent land to the
said building there existed a private passage of 12 feet width
made of steps and further on the adjacent south thereto, there
was another building known as Yuthok building situated on Plot
No. 1012. Another passage existed behind the aforesaid two
buildings said to be a private gully being Plot No. 1013. There
were two wooden buildings used as kitchen, latrines and
1257godown for the use of tenants occupying the aforesaid two
buildings at New Market Road and Yuthok. It is said that there
was a retaining wall on the west of Plot No. 1040 (part) which
was the boundary between the land of the Plaintiffs’ private
estate and the land of defendant No. 2. The plaintiffs filed a suit
alleging that the defendants had started construction of a big
pucca building for running a hotel on the land situated on the
south of his land being Plot no.1040 and it was alleged that the
defendants illegally had encroached upon about 6,600 sq. ft.
therein. The defendants denied, and disputing the allegations in
their written statement, though admitted the existence of the
pucca building and the flight of steps, contended that the latter
belonged to Gangtok Municipality and meant to serve as the
exclusive passage to the plot on which defendant no. 2 started
constructing a multi-storeyed building. It was claimed that
beyond the structures of the plaintiffs a precipitated hill edge
exists on the eastern boundary of the defendants’ land and the
same was all through in the possession of the defendants. The
defendants also claimed settlement of their land by virtue of
three documents of the years 1961, 1975 and 1977. The suit was
dismissed by the District Judge, Gangtok on 29.03.1985 but in
appeal the High Court allowed the same and remanded the
matter to the trial court directing to appoint another
Commissioner to make local investigation with reference to the
cloth survey map and actual measurement on the spot so as to
ascertain the actual area of Plot No. 1040 etc. An opportunity
was also given to the parties to re-examine their witnesses etc.
The trial court appointed another Commissioner who, inter alia,
found that Plot No. 1040 measures 0.69 acres out of which the
land allotted to the defendants was 13, 879 sq. ft. and the total
1258area of constructions made by defendants no. 1 and 2 being the
Denzong Cinema, two shop houses and hotel comes to 13,
616.46 sq. ft., which was accepted by the defendants but
according to the plaintiffs the same was 13, 503.60 sq. ft. The
trial court decreed the suit on 26.02.1988 but the judgment was
reversed by High Court in appeal on 30.06.1994. The Apex
Court noticed that the plaintiffs’ predecessor in interest was late
Chogyal Sir Tashi Namgyal of Sikkim. There is, therefore, no
question of plaintiffs’ having any document of title. The only
document of title which was produced by the plaintiffs in
support of their claim was a ‘Khasra’ showing entry in the name
of ‘Sarkar’ as also in the name of ‘Shri Panch Maharaja Sir Tashi
Namgyal of Sikkim’. Some plots were recorded as Private
Estate. Plots No. 1013, 1014 and 1040 were recorded in the
name of Shri Panch Maharaj Sir Tashi Namgyal but the area of
the plots was not mentioned. In the plaint, besides Plot No. 1013
and 1014, the plaintiffs claimed ownership in respect of Plot no.
1040 (part) and not the entire plot. The manner in which
ownership for part of Plot No. 1040 claimed was not disclosed.
It appears that a suggestion was made long back to pay a lump
sum amount in lieu of the bazar area including the income so
that the private estate may vest in Sikkim Darbar. The said
proposal was accepted on 22.06.1959 after being approved and
sanctioned by the Chogyal and the payment aforesaid was made.
It is in these circumstances the High Court recorded a finding
that all land entered in ‘Khasra’ in the name of “Sir Tashi
Namgyal” did not belong to his private estate. The Apex Court,
however, considered the matter on the assumption that the said
finding of the High Court was not correct in view of the fact that
the plaintiffs’ land in suit were the subject matter of acquisition,
1259it was noticed that Sikkim Darbar granted settlement of a piece
of land in favour of one of the defendants for construction of
Cinema Hall on 10.04.1961. The original plaintiff held shares in
Denzong Cinema Limited. The Cinema Hall started in the year
1969. The State of Sikkim merged with the Union of India in
terms of an agreement on 26.04.1975. In view of Article 371 F
of the Constitution the property and assets vested in the
Government of State of Sikkim. The High Court recorded a
finding that before and after merger of Sikkim with the
Government of India, Plot No. 1040 was always treated as that
belong to the Government and not private estate. The Apex
Court found that the plaintiffs failed to prove their
ownership/title on the plot in question. Having accepted
compensation, the successor in interest is estopped and
precluded from contending that the property did not vest in
Sikkim Darbar and ultimately with the Government of India. In
the circumferences, the Court dismissed the appeal and upheld
the judgment of High Court. With respect to the evidentiary
value of the ‘Khasra’ and ‘Khatian’ the Apex Court in paras 32
and 33 said:“32. The khasra and khatian have not been prepared
under a statute. The question as to whether the same would
be historical material or instrument of title or otherwise,
would depend upon either the statute governing the same
or the practice prevailing in the State. In the event,
however, the records of right were not prepared under a
statute, a presumption of correctness may be raised only in
terms of Section 35 of the Indian Evidence Act.33. However, ordinarily records of right cannot be
treated to have any evidentiary value on the question of
1260title inasmuch as such records are prepared mainly based
on possession.”1021. The case was decided on the facts of its own and we
fail to find any support from the said judgment in respect to the
plea of res judicata in the present cases. This judgment was
relied by Sri Siddiqui in support of his plea of estoppel and
abandonment based on the acquisition notification dated
07.10.1991. He submitted that the said notification was not
challenged by the plaintiffs (Suit-5) and, therefore, it amounts to
acquiescence on their part in respect to their rights, if any, to the
land which was acquired by the State pursuant to the aforesaid
notification and its quashing thereafter by the Court in various
writ petitions would not change the situation.
1022. We do not find any substance in the submission. It is
not in dispute that the notification dated 07.10.1991 and
10.10.1991 whereby the land in question alongwith the others
was sought to be acquired by the State of U.P., were challenged
in a number of writ petitions led by Writ Petition No. 3540 of
1991. The said notifications were quashed by this Court vide
judgment dated 11.12.1992 holding the same to be illegal and
unconstitutional. The effect of the judgment would be as if the
aforesaid two notifications never existed. It cannot be pleaded
that though the two documents quashed by the Court would be
non-est for the persons who were party in those cases but would
have some consequences for others. Once the very document as
a result of its quashing become non-est, it would not result in
any consequence whatsoever in law and even otherwise.
Therefore, it cannot be said that Suit-5 cannot proceed further as
if the plaintiffs have squeezed their rights in land in question.
1023. A similar argument has been made as a result of
1261acquisition of certain land vide Act No. 33 of 1993. Sri Siddiqui
submitted that not only the plaintiffs (Suit-5) did not challenge
the said enactment but also submitted to its provisions by filing
an Application No. 4(o) of 1993 on 04.02.1993 praying for
abatement of the suit in view of Section 4(3) of the Act No. 33
of 1993. Admittedly, sub-section of Section 4(3) of the aforesaid
Act has been declared ultra vires and unconstitutional. Any
provision which is unconstitutional is non-est i.e. still born and
would not result in any consequences. It means as if the said
provision never existed or operated. Even if it was not
challenged by the plaintiff (Suit-5) and they sought to surrender
to the legal consequences of the said Act but if subsequently in
any other proceeding the statutory provision is found to be
unconstitutional i.e. still born, the consequences would be as if
the said provision has no adverse effect. Though reliance has
been placed by Sri Siddiqui on certain judgments of the Apex
Court as well as of this Court but in our view the aforesaid
judgments do not lay down any such law and the reliance is
misplaced.1024. Jai Narain Parasrampuria (supra) was a case where
the suit for specific performance was filed. The Court held that
the relief being discretionary can be refused on the conduct of
the parties. Representing the company, other parties were led to
believe that the company was owner of the property as a result
whereof third parties alter their position. It was thus held by the
Apex Court that the principle of estoppel would apply.
However, the Court did not forgot to add a caution as under:“We may, however, hasten to add that where there
exists a statutory embargo, vesting of title in a person shall
be subject thereto.”1262
1025. Relying on various other authorities on the subject the
Court also held:“The doctrine of estoppel by acquiescence was not
restricted to cases where the representor was aware both
of what his strict rights were and that the representee was
acting on the belief that those rights would not be enforced
against him. Instead, the court was required to ascertain
whether in the particular circumstances, it would be
unconscionable for a party to be permitted to deny that
which, knowingly or unknowingly, he had allowed or
encouraged another to assume to his detriment.
Accordingly, the principle would apply if at the time the
expectation was encouraged (sic).”1026. It was also held by the Apex Court that the principle of
res judicata may not have any application in the aforesaid facts.
1027. In B.L. Sridhar Vs. K.M. Munireddy (supra), the
Court considered the principle of estoppel and said that it is not
a cause of action but a rule of evidence which precludes a
person from denying the truth of some statement previously
made by him but would be attracted when “one person has by
his declaration, act or omission caused or permitted another
person to believe in it to be true and to act upon that belief,
neither he nor his representative shall be allowed in any suit or
proceeding between himself and such person or his
representative to deny the truth of that thick.” Sri Siddiqui could
not show as to how the party represented by him has acted
believing on the statement of the plaintiff (suit-5) so as to attract
the principle of estoppel in the case in hand. The judgment, in
our view, has no application to the facts involved in the present
case.1263
“Order XXIII Rule 1-Whether applicable and attracted to
Application No. 4(o) of 1993 and its consequences, if any”
1028. M/s Hulas Rai Baij Nath (supra) was a case with
respect to the application of Order XXIII Rule 1 CPC. It was
held that Order XXIII Rule 1(1) gives an unqualified right to a
plaintiff to withdraw a suit. It also held that there is no provision
in CPC which required the Court to refuse permission to
withdraw the suit and to compel the plaintiff to proceed with it.
However, if a set off has been claimed under Order 8, CPC or a
counter claim has been filed the position may be different. We
do not find any occasion to have application of the said
authority to the facts of this case. Obviously no application
under Order XXIII Rule 1 has been filed by the plaintiff (Suit-5)
for withdrawal of the suit. The alleged application only drew
attention of the Court to Section 4(3) of Act No. 33 of 1993 and
its consequences and requested the Court to act accordingly. As
soon as the said statute i.e. Section 4(3) seizes to have any legal
consequences having been declared unconstitutional, the
position as it stood before enactment of the said provision would
stand restored.1029. We now come to the Division Bench decision of this
Court in Smt. Raisa Sultana Begam (supra). This Court has
held that there is no provision laying down procedure for
withdrawing the suit, manner in which it can be withdrawn and
the essential physical acts required to be done to constitute
withdrawal, which can be in any form. The Court further held
that withdrawing of suit needs no permission from the Court and
since there is no provision allowing revocation of the
withdrawal application, therefore, an application for withdrawal
of suit becomes effective as soon as it is done i.e. by giving
1264information to the Court. The Court’s order thereon is no part of
the act of withdrawal. On page 322, para 9 of the judgement, the
Court observed:“The right to withdraw has been expressly conferred
by rule 1(1); there is no provision conferring the right to
revoke the withdrawal and there is no justification for
saying that the right to withdraw includes in itself a right to
revoke the withdrawal. As we said earlier, certain
consequences arise from the withdrawal which prevent his
revoking the withdrawal, the withdrawal is complete or
effective as soon as it takes place, and, in any case, as soon
as information of it is conveyed to the Court, and no order
of the Court is required to effectuate it or even to recognize
it.”1030. In Smt. Raisa Sultana Begam (supra), Order 23, Rule
1, as was in the statute book prior to 1976, was under
consideration, which read as under :“1. (1) At any time after the institution of a suit the
plaintiff may, as against all or any of the defendants,
withdraw his suit or abandon part of his claim.(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal
defect, or(b) that there are other sufficient grounds for
allowing the plaintiff to institute a fresh suit for the
subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or abandon such
part of a claim with liberty to institute a fresh suit in
respect of the subject-matter of suit or such part of a claim.1265
(3) Where the plaintiff withdraws from a suit, or
abandons part of a claim, without the permission referred
to sub-rule (2), he shall be liable for such costs as the
Court may award and shall be precluded from instituting
any fresh suit in respect of such subject-matter or such part
of the claim.(4)Nothing in this rule shall be deemed to authorize
the Court to permit one of several plaintiffs to withdraw
without the consent of the others.”1031. The Division Bench, while taking the view as noted
above, disagreed with otherwise view taken by the Hon’ble
Madras, Bombay and Calcutta High Court, and in an earlier
Division Bench of this Court; in Mukkammal Vs. Kalimuthu
Pillay 15 Ind Cas 852 (Mad); Lakshmana Pillai Vs. Appalwar
Alwar Ayyangar (supra); Yeshwant Govardhan Vs. Totaram
Avasu AIR 1958 Bom. 28; Raj Kumari Devi Vs. Nirtya Kali
Debi (1910) 7 Ind Cas 892 (Cal); and Ram Bharos Lall Vs.
Gopee Beebee (1874) 6 NWP 66 respectively. We find, with
great respect, difficult to subscribe the view taken in Smt. Raisa
Sultana Begam (supra). In our view, if the Court was unable to
agree with the earlier Division Bench judgement in Ram
Bharos Lall (supra), the matter ought to have been referred to
the Larger Bench. It is true that the right of the plaintiff to
withdraw suit is absolute as observed by the Apex Court in M/s
Hulas Rai Baij Nath (supra) and once an application is made
by the plaintiff and pressed before the Court, the Court cannot
refuse such withdrawal unless there is a case of counter claim,
set off etc. It would not mean that as soon as an application
informing the Court is moved by the plaintiff that he intends to
withdraw the suit or that an oral information is given, the effect
1266would be that the suit would stand withdrawn.
1032. So long as a suit is not instituted by presenting a plaint
to the Court, the plaint remains the property of the litigant and
would not result in any legal consequence, if he does not present
it to the Court, but when the plaint is presented before a
competent Court of jurisdiction and a suit is ordered to be
registered in accordance with rules, the plaint would become the
property of the Court and it would result in certain legal
consequences, i.e., pendency of a suit or a case before a Court of
law. The said legal consequences cannot be nullified without
any order of the Court by the litigant simply by orally or in
writing informing the Court that he intends to withdraw the suit.
It is true that under Order 23 Rule 1, as it stood before 1976
amendment, there was no provision requiring any specific order
to be passed by the Court allowing the plaintiff to withdraw his
suit but considering the entire procedure of institution of a suit,
it cannot be doubted that a suit, duly instituted, and registered in
a Court of law cannot stand withdrawn without any order of the
Court. In this regard, it would be appropriate to have the
procedure of filing of suit in C.P.C., as it was prior to its
amendment in 1976.1033. Order IV Rule 1 (Allahabad amendment) provides for
institution of suit and reads as under :“1. (1) Every suit shall be instituted by presenting to
the Court or such officer as it appoints in this behalf, a
plaint, together with a true copy for service with the
summons upon each defendant, unless the Court for goods
cause shown allows time to filing such copies.(2) The court-fee chargeable for such service shall be
paid in the case of suits when the plaint is filed and in the
1267case of all other proceeding when the processes applied
for.”1034. The manner of registration of suit was provided in Rule
2 Order IV and reads as under :“2. [S. 58] The Court shall cause the particulars of
every suit to be entered in a book to be kept for the purpose
and called the register of civil suits. Such entries shall be
numbered in every year according to the order in which the
plaints are admitted.”1035. Once a suit is duly instituted, the Court would pass
order issuing summons to the defendants to appear and answer
the plaint. Such summons, vide Order V Rule 3, are required to
be signed by the Judge or such officer as he appointed, and also
the seal of the Court. A suit once duly instituted and registered
in the Court would not struck off from the record of the Court
on the mere communication by the plaintiff orally or in writing
that he intends to withdraw unless an order is passed by the
Court to the said effect, which would have the legal
consequence of bringing the proceedings set in motion by
instituting the suit, to a halt. Mere absence of any provision
permitting withdrawal of the application filed by a plaintiff for
withdrawing the suit does not mean that no such power is vested
in the plaintiff. So long as an order is not passed by the Court, if
the plaintiff informs the Court by moving an application that he
intends to withdraw the application for withdrawal of suit, he
can always request or inform the Court that he does not want to
press the application and the same may be dismissed as not
pressed or withdrawn. It is only where the plaintiff press his
application before the Court requiring it to pass the order for
withdrawal of the Suit, the Court would pass the said order in
1268accordance with law since it cannot compel a plaintiff to pursue
a suit though he want to withdraw the same. It would thus be
wholly unjust to hold that once an application to withdraw the
suit is filed by a plaintiff, he cannot withdraw the same and the
suit would stand dismissed as withdrawn. This would have
serious and drastic consequences in as much as he cannot file a
fresh suit on the same cause of action.1036. Moreover, the existence of a provision i.e. Rule 1(3),
empowering the Court to consider as to whether the plaintiff
should be saddled with the liability of payment of cost or not
also contemplates that an application for withdrawal of suit by
itself would not result in any consequences whatsoever unless
the Court has applied its mind regarding the cost. If what has
been held in Smt. Raisa Sultana Begam (supra) is taken to be
correct, it would mean that there would be no occasion for the
Court to apply its mind on the question of cost under Rule 1(3)
since the suit would stand dismissed as withdrawn as soon as the
plaintiff informs the Court about his decision for withdrawal of
the suit either orally or in writing. This is nothing but making
Rule 3 (1) redundant. The earlier judgement of this Court in
Raja Shumsher Bahadoor Vs. Mirja Mahomed Ali (1867)
Agra H.C.R. 158 wherein this view was taken that the
withdrawal must be regarded as terminating automatically the
proceedings in the suit involving the suit’s immediate dismissal
was not found to be correct subsequently by the Division Bench
in Ram Bharos Lall. We, therefore, find it appropriate in the
entire facts and circumstances to take a different view and have
no hesitation in holding though with great respect to the Bench,
that the law laid down in Smt. Raisa Sultana Begam (supra) is
not correct. In our view, the law laid down in Ram Bharos Lall
1269(supra), Mukkammal Vs. Kalimuthu Pillay (supra), Raj
Kumari Devi Vs. Nirtya Kali Debi (supra) and Yeshwant
Govardhan Vs. Totaram (supra) lay down the correct law. We
also find that a Division Bench of Orissa High Court in Prema
Chanda Barik Vs. Prafulla Kumar Mohanty AIR 1988 Orissa
33 has also taken the same view and did not find itself agreeable
with the Division Bench decision in Smt. Raisa Sultana Begam
(supra). In fact, a Division Bench of Calcutta High Court in
Rameswar Sarkar Vs. State of West Bengal and others AIR
1986 Cal. 19 has gone slightly further by observing that where
there is no provision under the Code providing for withdrawal
of application for withdrawal of suit, Section 151 C.P.C. would
apply.1037. It would be useful to remind ourselves the observations
of the Apex Court in respect to the provisions of the Code in
Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal
AIR 1962 SC 527 “It is well settled that the provisions of the
Code are not exhaustive, for the simple reason that the
Legislature is incapable of contemplating all the possible
circumstances which may arise in future litigation and
consequently for providing the procedure for them.” Referring to
Section 151, the Apex Court in the same judgement also held
“The section itself says that nothing in the Code shall be deemed
to limit or otherwise affect the inherent power of the Court to
make orders necessary for the ends of justice.”
1038. Order XXIII Rule 1 has now been substituted by C.P.C.
(Amendment) Act 104 of 1976 vide Section 74 with effect from
1.1.1977 and the newly substituted provision reads as under :Order XXIII R. 1. Withdrawal of suit or abandonment of
part of claim.–(1) At any time after the institution of a suit,
1270the plaintiff may, as against all or any of the defendants,
abandon his suit or abandon a part of his claim:Provided that where the plaintiff is a minor or
such other person to whom the provisions contained in
rules 1 to 14 of Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned without the
leave of the Court.(2) An application for leave under the proviso to sub-rule
(1) shall be accompanied by an affidavit of the next friend
and also, if the minor or such other person is represented
by a pleader, by a certificate of the pleader to the effect
that the abandonment proposed is, in his opinion, for the
benefit of the minor or such other person.(3) Where the Court is satisfied,–
(a) that a suit must fail by reason of some formal
defect, or(b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject-matter
of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff
permission to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect of the
subject-matter of such suit or such part of the claim.(4) Where the plaintiff–
(a) abandons any suit or part of claim under sub-rule
(1), or(b) withdraws from a suit or part of a claim without
the permission referred to in sub-rule (3),
he shall be liable for such costs as the Court may award
and shall be precluded from instituting any fresh suit in
1271respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorize the
Court to permit one of several plaintiffs to abandon a suit
or part of a claim under sub-rule (1), or to withdraw, under
sub-rule (3), any suit or part of a claim, without the
consent of the other plaintiffs.”1039. Proviso inserted in Rule 1 (1) Order XXIII makes it
very clear where the plaintiff is a minor or such other person to
whom the provisions contained in rules 1 to 14 of order XXXII
extend, neither the suit nor any part of the claim shall be
abandoned without the leave of the Court. The proviso is
mandatory and does not permit withdrawal of a suit filed on
behalf of a minor etc. unless the leave of the Court is obtained.
In the case in hand, plaintiffs no. 1 and 2 are deities who have
been allowed to sue through their next friend.
1040. Plaintiffs no. 1 and 2, being deity, are juristic persons
and plaintiff no. 3 is the person taking care of plaintiffs no. 1
and 2. At this stage, we are proceeding by assuming that
plaintiffs no. 1 and 2 are deities and, therefore, a juristic person
individually though the question whether they are ‘juristic
person’ has also been raised separately which we shall deal later
on but for the purpose of objection raised hereat with reference
to Order XXIII Rule 1 we proceed to treat plaintiffs 1 and 2 as
deity.1041. A deity has been held to be a ‘minor’ and cannot sue on
its own but through a Shebait or Manager or any other person
who can file suit on its behalf. In Shiromani Gurudwara
Prabandhak Committee, Amritsar v. Shri Som Nath Das and
others, AIR 2000 SC 1421 the Apex Court held that the deity is
a minor and its welfare can be looked into by the
1272Shebait/Sarvakar/Manager or the next friend. In such a case the
leave of the Court is necessary for withdrawal of suit as required
by proviso to Rule 1(1) and, therefore, also the question of
withdrawal of the suit as soon as the application is made cannot
arise at all.1042. In State Bank of India Vs. Firm Jamuna Prasad
Jaiswal (supra) the Hon’ble Single Judge followed the Division
Bench judgment in Smt. Raisa Sultana Begam (supra) in order
to hold that withdrawal application cannot be allowed to be
withdrawn except where it was a case of fraud. Since we have
held the judgement in Smt. Raisa Sultana Begam (supra) as
not laying down a correct law, the Single Judge judgement in
State Bank of India Vs. Firm Jamuna Prasad Jaiswal (supra)
also cannot be said to be a good law. Same is the fate of other
Single Judges judgements in Ram Chandra Mission (supra)
and Upendra Kumar (supra) which also rely on Smt. Raisa
Sultana Begam (supra). Therefore, all the aforesaid judgements
would not help Sri Siddiqui in any manner.1043. We may also observe hereat that so far as the present
case is concerned, no application under Order XXIII Rule 1 has
been filed by the plaintiff (Suit-5) seeking withdrawal of the suit
and instead the alleged application is with reference to Section 4
(3) of Act 33 of 1993. Therefore, Order XXIII Rule 1 even
otherwise would not be attracted in the present case.
1044. Since we have taken a view that the suit did not stand
abandoned or withdrawn as soon as the application was made,
the question of estoppel as argued by Sri Siddiqui is not
attracted and, therefore, the Apex Court’s decision in Deewan
Singh (supra), Jai Narain (supra), Anuj Garg (supra) and
Barkat Ali (supra) would have no application and lend no
1273support to the plaintiffs (Suit-4) and defendants (Suit-5).
1045. Now coming to the authority cited by Sri Verma, we
find that in State of Maharashtra Vs. M/s. National
Construction Company (supra), the Apex Court laid down the
law that bar under Section 11 CPC applies in a matter directly
and substantially in issue in the former suit and has been heard
and finally decided by a Court competent to try such suit.
Meaning thereby that on the matter in issue, in question, there
has been an application of judicial mind and a final adjudication
has been made. If the former suit is dismissed without any
adjudication on the matter in issue i.e. merely on a technical
grounds like non-joinder, that cannot operate as res judicata.
The Apex Court relied on its earlier decision in Sheodhan Singh
Vs. Daryo Kunwar, AIR 1966 SC 1332 where the suit
dismissed for want of jurisdiction was held not to operate as res
judicata. The Court also followed its decision in Inacio Martins
Vs. Narayan Hari Naik, 1993(3) SCC 123. The legal
proposition thus is well settled.1046. Munesh Kumar Agnihotri (supra) was a case where
the parties in two suits were different hence the plea of res
judicata was negatived by the Hon’ble Single Judge. Where
cause of action is different, res judicata has no application in the
subsequent suit as held in Ram Naresh (supra) and in our view
there cannot be any dispute to the said proposition. The same
was the position in Abdul Quadir (supra) where also the Court
found that the cause of action involved in the subsequent suit
was different and the parties were also found to be different.
1047. There are some more authorities cited at the bar.
1048. In Union of India Vs. Pramod Gupta (2005) 12 SCC
1, the application of res judicata in respect to determination of
1274market value and title of respondents was under consideration.
Certain exemplars in the form of judgment and awards in
respect to the acquisition of land and award of compensation
were relied on and it was argued that since Union of India was
party to those proceedings in the matter of determination of
market value, the principle and decision already taken earlier
cannot be disputed by it and is estopped besides that the
challenge is barred by res judicata. The Apex Court negatived it
by giving three exceptions, (1) If the Union of India had not
preferred any appeal against earlier judgments and award, it
would not be estopped and precluded from raising the said
question in a different proceeding since in a given case it is
permissible in law to do the same keeping in view the larger
public interest. (2) Referring to Government of West Bengal
Vs. Tarun K.Roy 2004 (1) SCC 347 it observed that non filing
of an appeal in any event would not be a ground of refusing to
consider the matter on its own merits. (3) Referring to State of
Bihar and others Vs. Ramdeo Yadav and others, 1996(2 )
SCC 493 and State of West Bengal and others Vs. Debdas
Kumar and others 1991 (1) Suppl. SCC 138, it observed that
when public interest is involved in interpretation of law, the
Court is entitled to go into the question. It was held that
principle of res judicata would apply only when the lis was
inter-parties and had attained finality in respect to the issue
involved. The said principle will, however, have no application
inter alia in a case where the judgment and/or order had been
passed by a Court having no jurisdiction therefor and/or in a
case involving a pure question of law. It will also have no
application in a case where the judgment is not a speaking one.
The Apex Court also referred to Ramnik Vallabhdas
1275Madhvani and others Vs. Taraben Pravinlal Madhvani
(2004) 1 SCC 497 and reiterated that the principle of res
judicata is a procedural provision and has no application where
there is inherent lack of jurisdiction. Thus this judgement
inroads an exception in the principle of res judicata where the
matter carry for larger public interest.1049. In Anathula Sudhakar Vs. P. Buchi Reddy and others
(2008) 4 SCC 594 no question of estoppel or res judicata as such
was involved as is evident from para 12 of the judgment
wherein the issues considered by the Apex Court are quoted:(I) What is the scope of a suit for prohibitory
injunction relating to immovable property?(ii) Whether on the facts, the plaintiff ought to have
filed a suit for declaration of title and injunction?(iii) Whether the High Court, in a second appeal
under Section 100 CPC, could examine the factual question
of title which was not the subject-matter of any issue based
on a finding thereon, reverse the decision of the first
appellate court?(iv) What is the appropriate decision?
1050. The Apex Court considered the first question as to
when a mere suit for permanent injunction would lie and when it
is necessary to file a suit for declaration and/or possession with
injunction as a consequential relief and briefly summarized the
principle as under :(A) (a)Where a plaintiff is in lawful or peaceful possession of
a property and such possession is interfered or threatened
by the defendant, a suit for an injunction simplicitor will
lie.(b) A person has a right to protect his possession against
1276any person who does not prove a better title by seeking a
prohibitory injunction. But a person in wrongful
possession is not entitled to an injunction against the
rightful owner.(c) Where the title of plaintiff is not disputed but he is not
in possession, his remedy is to file a suit for possession
and seek in addition, if necessary, an injunction. A person
out of possession cannot seek the relief of injunction
simplicitor, without claiming the relief of possession.(d) Where the plaintiff is in possession but his title to the
property is in dispute or under a cloud or where the
defendants assert title thereto and there is also a threat of
dispossession from the defendant, the plaintiff has to sue
for declaration of title and the consequential relief of
injunction.(e) Where the title of plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish
possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction.(f) A prayer for declaration will be necessary only if the
denial of right and challenge to the plaintiff’s title raises a
cloud on the title of the plaintiff to the property.
(B) A cloud is said to have raised over a person’s title when
some apparent defect in his title to the property or when
some prima facie right of a third party over it is made out
or shown. An action for declaration is remedy to remove
the cloud on the title to the property. On the other hand
where the plaintiff has clear title supported by documents,
if a trespasser without any claim to title or an interloper
without any apparent title, merely deny plaintiff’s title, it
1277does not amount to raining a cloud over the title of the
plaintiff and it will not be necessary for the plaintiff to sue
for declaration and a suit for injunction may be sufficient.
(C) Where the plaintiff, believing that the defendant is only
trespasser or a wrongful claimant without title, files a
mere suit for injunction, and in such a suit, the defendant
discloses in his defence the details of the right or title
claimed by him, which raises a serious dispute or cloud
over the plaintiff”s title then there is a need for the
plaintiff to amend the plaint and convert the suit into one
for declaration. Alternatively, he may withdraw the suit
for bare injunction with permission of the Court to file a
comprehensive suit for declaration and injunction. He
may file the suit for declaration with consequential
relief, even after the suit for inunction is dismissed,
where the suit raised only the issue of possession and
not any issue of title. (emphasis supplied)
(D)If the property is a vacant site, which is not physically
possessed, used or enjoyed, in such cases the principle is
that possession follows title. If two persons claim to be in
possession of a vacant site, one who is able to establish
title thereto will be considered to be in possession as
against the person who is not able to establish title.
(E) In a suit relating to a vacant site filed for a mere injunction
and the issue is one of the possession, it will be necessary
to examine and determine the title as a prelude for
deciding the de jure possession. In such a situation, where
the title is clear and simple, the court may venture a
decision on the issue of title, so as to decide the question
of de jure possession even though the suit is for a mere
1278injunction. But where the issue of title involves
complicated or complex questions of fact and law, or
where court feels that parties had not proceeded on the
basis that title was at issue, the Court should not decide
the issue of title in a suit for injunction. The proper course
is to relegate the plaintiff to the remedy of a full-fledged
suit for declaration and consequential reliefs. Referring to
the Madras High Courts’ decision in Vanagiri (supra), the
Apex Court in Pramod Gupta (supra) observed that the
second suit would be barred only when the facts relating
to title are pleaded, when an issue is raised in regard to
title and parties lead evidence on the issue of title and the
Court instead of relegating the parties to an action for
declaration of title decides upon the issue of title and that
decision attains finality. However, the Apex Court made it
clear in para 20 of the judgment that the question relating
to res judicata was not before it but the question whether a
finding regarding title could be recorded in a suit for
injunction simpliciter, in the absence of pleadings and
issue relating to title is up for consideration. The said
judgment, in our view as such lends no credence to the
plaintiff’s (Suit-4).1051. To the same effect is the judgment in Williams Vs.
Lourdusamy & another (2008) 5 SCC 647 wherein the Apex
Court relied its decision in Sajjadanashin Sayed (supra).
1052. In State of Uttar Pradesh and another Vs. Jagdish
Sharan Agrawal and others (2009) 1 SCC 689 where a suit
was dismissed for non prosecution and there was no decision on
merits and also where the Court found that order IX Rule 9 was
not applicable, it was held that the principle of res judicata will
1279not bar a subsequent suit being inapplicable.
1053. In Mahila Bajrangi Vs. Badribai (2003) 2 SCC 464 in
order to attract doctrine of res judicata, it was held that a
decision on an issue that has been and substantially in issue in
the former suit between the same parties which has been heard
and finally decided would be considered as res judicata and not
merely finding on every incident or collateral question to
arrive at such a decision that would constitute res judicata.
1054. In Bishwanath Prasad Singh Vs. Rajendra Prasad
and another (2006) 4 SCC 432 a deposit made under Section 83
of the Transfer of Property Act, 1882 was held to be procedural
in nature and not to constitute a decision on an issue directly and
substantially arises in an earlier suit so as to operate res judicata
even if before allowing the deposit to be made under Section 83,
the Court has passed a detailed order dealing the rival
submissions.1055. In Srikant Vs. District Magistrate, Bijapur and others
(2007) 1 SCC 486 referring to its earlier judgments, the Court
held that the doctrine of constructive res judicata is confined to
civil action and civil proceedings and inapplicable to illegal
detention and the action brought for a writ of habeas corpus.
However, where an earlier application for habeas corpus has
been rejected, a second application on the same ground may not
be permissible but if there are some fresh grounds even such a
bar would not apply. This judgment, therefore, has nothing to do
with the issue of res judicata engaging attention in the present
suits.1056. In Saroja Vs. Chinnusamy (2007) 8 SCC 329, the
Court summarized conditions to attract the doctrine of res
judicata under Section 11 C.P.C. as under :1280
(i) There must be two suits-one former suit and the other
subsequent suit;(ii) The Court which decided the former suit must be
competent to try the subsequent suit;(iii) The matter directly and substantially in issue must be
in the same either actually or constructively in both the
suits.(iv) The matter directly and substantially in issue in the
subsequent suit must have been heard and finally decided
by the Court in the former suit;(v) The parties to the suits or the parties under whom they
or any of them claim must be the same in both the suits;(vi) The parties in both the suits must have litigated under
the same title.1057. In Saroja’s case (supra) the interesting thing is that a
suit no. 233 of 1989 was filed on 19.4.1989 by one Saroja, her
minor children Suganthamani and Ramesh against her husband
Kuppusamy and his tenant for declaration of title and permanent
injunction in respect of a property “A”. During the pendency of
the suit, Kuppusamy, husband of Saroja, sold the suit property
by a registered sale deed dated 13.6.1990 for a consideration of
rupees one lac to the appellant Saroja. She (appellant) filed
another suit being O.S. No. 493 of 1990 for declaration of title
and permanent injunction claiming absolute ownership and
possession of the suit property purchased by her from
Kuppusamy claiming that she had been in continuous
possession of the suit property from the date of purchase and the
Patta, Chittha and adangal also stood in her name. The suit was
contested. When the later suit was pending, the earlier suit was
decreed ex-parte in favour of respondent no. 3 and her minor
1281children. The subsequent suit was also decreed but in appeal the
decree was reversed and the judgment of the first Appellate
Court was confirmed by the High Court in second appeal. The
Apex Court also confirmed the above judgment holding that a
decree which is passed ex parte is as good as a decree passed
after contest.1058. In Bharat Sanchar Nigam Ltd. and another Vs. Union
of India & others JT 2006 (3) SC 114, the application of
principle of res judicata in tax matters was considered and it was
held that every assessment year gives a new cause of action
since different assessment orders are to be passed and, therefore,
the order in respect to one assessment proceedings shall not
operate as res judicata for the subsequent assessment years. The
Court further held as under :“20. The decisions cited have uniformly held that res
judicata does not apply in matters pertaining to tax for
different assessment years because res judicata applies to
debar courts from entertaining issues on the same cause of
action whereas the cause of action for each assessment
year is distinct. The courts will generally adopt an earlier
pronouncement of the law or a conclusion of fact unless
there is a new ground urged or a material change in the
factual position. The reason why courts have held parties
to the opinion expressed in a decision in one assessment
year to the same opinion in a subsequent year is not
because of any principle of res judicata but because of the
theory of precedent of the precedential value of the earlier
pronouncement. Where facts and law in a subsequent
assessment year are the same, no authority whether quasi
judicial or judicial can generally be permitted to take a
1282different view. This mandate is subject only to the usual
gateway of distinguishing the earlier decision or where the
earlier decision is per incuriam. However, these are fetters
only on a coordinate bench which, failing the possibility of
availing of either of these gateways, may yet differ with the
view expressed and refer the matter to a bench of superior
strength or in some cases to a bench of superior
jurisdiction.1059. The discussion made above as also in the light of the
principles of law laid down in the various precedents, some of
which are discussed above, the conclusion is inevitable that in
no manner, it can be said that anything in Suit-1885 may be
construed or taken as to operate as res judicata in the suits up for
consideration before us. In fact, neither the principles of res
judicata nor estoppel is attracted in any manner as the conditions
precedent for attracting the said principles are completely
lacking. It cannot be said that either the suits are barred by
principle of res judicata or that Suit-1885 was filed on behalf of
the whole body of persons interested in Janam Asthan and,
therefore, all the Hindus are barred by the same. It also cannot
be said that the defendants are estopped from denying the title of
Muslim community including the plaintiff of Suit-4 to the
property in dispute in view of the judgments of Suit-1885.
1060. In Smt. Dhana Kuer Vs. Kashi Nath Chaubey, 1967
AWR 290 a Single Judge upheld the decision of the courts
below holding that the suit was barred by Section 11
Explanation VI. An earlier suit was filed by Kashi Nath,
Vindhayachal and Bindeshwari seeking a declaration that Lt.
Jadunandan, husband of Smt. Asharfa has no interest of the
property in suit except a right of maintenance. The trial court
1283dismissed the suit but in appeal the suit was decreed and the
judgment was confirmed in second appeal also. Thereafter Smt.
Dhana Kuer, daughter of Jadunandan and Smt. Asharfa filed
another suit seeking a declaration that Jadunandan died as
separate member of the family. The Court held that the earlier
suit was contested in respect of a private right claimed in
common for oneself and others and, therefore, the judgment was
binding upon the successors who can be validly said to be
represented in the earlier case through the superior member. In
our view, this judgment has no application in the case in hand as
is evident from the facts noted above.1061. Mst. Sudehaiya Kumar and another Vs. Ram Dass
Pandey and others, AIR 1957 All. 270 sought to be relied by
referring para 6 to contend that Explanation VI Section 11
C.P.C. is not confined only to the representative suits governed
by Order 1 Rule 2 but is applicable to other suits as well. This
principle has been explained by the Apex Court in Narayana
Prabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna
Prabhu, AIR 1977 SC 1268 giving an illustration where each
party in a partition suit claiming that the property, the subject
matter of the suit, is joint, asserts a right or title common to
others to make identical claims. If that very issue is litigated in
another suit and decided, the others making the same claim
cannot be held to be claiming a right in common for themselves
and others. Each of them in such a case must be deemed to
represent all those, the nature of whose claims and interests are
common and identical. The crux of the matter to attract
Explanation VI is that interest of a person concerned has really
been represented by the other; in other words his interest has
been protected after in a bonafide capacity. If there be any clash
1284of interest between the persons concerned and is assumed
representative, or if the later deem to collusion, or, for any other
reason mala fide involves to defend the claims, it cannot be
considered to be a representative interest as held in Surayya
Begum (Mst) Vs. Mohd. Usman and others, 1991(3) SCC 114.
Sri Siddiqui is also relied upon Bidhumukhi Dasi Vs. Jitendra
Nath Roy and others, 1909 Indian Cases (Calcutta) 442;
Singhai Lal Chand Jain Vs. Rashtriya Swayam Sewak Sangh,
Panna and others, AIR 1996 SC 1211 (para 13); and
Shiromani Gurdwara Parbandhak Committee Vs. Mahant
Harnam Singh C. (Dead), M.N. Singh and others, AIR 2003
SC 3349 (paras 17 and 19) but we find nothing therein to help
him on this aspect of the matter.1062. What we notice from the contentions of Sri Siddiqui is
that his plea of res judicata is not limited to the suit or issue in
suit having been raised, heard and decided but it is in respect to
certain facts which are contained in the record of Suit-1885 with
respect to the nomenclature of site or building or object and its
location etc. He claims that mention of the above amounts to an
admission by the plaintiff of Suit-1885 about the title, nature
etc. of the said building or site or locality even if it was not in
issue or nothing was decided on this aspect. Ignoring the issues
raised in Suit-1885 and the decision of the Court, certain
observations of the learned District Judge made during his
personal visit of the site are also being claimed as a finding of
fact binding on the parties not only to Suit-1885 but also to all
those who go and intend to visit the aforesaid entire site either
as worshipper or otherwise. The submissions is extremely far
fetched and too remote to be accepted and applied in the case in
hand.1285
1063. We answer the Issues No. 5 (d) (Suit-1), 7(c) and 8
(Suit-4), and 23 (Suit-5) in negative.1064. The Issue No. 29 (Suit-5) is:
“Whether the plaintiffs are precluded from bringing
the present suit on account of dismissal of suit no. 57 of
1978 (Bhagwan Sri Ram Lala Vs. State) of the Court of
Munsif Sadar, Faizabad?”1065. It is not disputed that Suit No. 57 of 1978 was
dismissed for non compliance of Court’s order with respect to
payment of Court fees. Neither any issue was raised nor argued
nor decided by the said Court. Therefore, bar of res judicata is
not at all attracted by the order dismissing Suit 57 of 1978
inasmuch as the said order dismissing the suit on technical
ground does not come within the purview of judgment or a
decision or issue as defined in Section 2 (9) CPC. The issue no.
29 (Suit-5) is therefore answered in negative and in favour of
plaintiffs.1066. Issue no. 7(b) (Suit-4) only pertains to the capacity of
Mohammad Asghar in which he contested Suit-1885. It is not
disputed by the parties that initially when the suit was filed by
Mahant Raghubar Das there was only one defendant, i.e., the
Secretary, Council of India. Mohammad Asghar later on filed an
impleadment application claiming himself to be the Mutwalli of
Babari Masjid and the said application was allowed whereupon
he was impleaded as defendant no. 2. He pursued the case
accordingly before the trial court and the appellate court. It is
thus matter of record that in Suit-1885 Mohammad Asghar was
allowed to pursue the matter as Mutawalli of Babari Masjid. No
party has disputed this factum which is purely a matter of
record. What has been in fact suggested by the counsel for
1286Hindu parties is that mere factum that Mohammad Asghar’s
application was allowed in Suit-1885 permitting him to pursue
the matter as defendant no. 2 in his alleged capacity of
Mutawalli as Babari Masjid, whether it would bind the Hindu
parties in the present cases. This, however, is not the issue. The
only issue before us whether he was impleaded and pursued
Suit-1885 as Mutawalli of Babari Masjid which is a fact derived
from the record of Suit-1885 and, therefore, has to be decided in
affirmance particularly in view of the fact that nothing has been
said by the defendants (Suit-4) to disprove or contradict it.
Issue No. 7(b) (Suit-4) is decided accordingly in affirmance
and in favour of plaintiffs (Suit-4).(D) Relating to Waqfs Act No. 13 of 1936, 16 of 1960 and
certain incidental issues:1067. Under this category fall Issues No. 5(a), 5(b), 5(c),
5(d), 5(e), 5(f), 17, 18, 23, 24 (Suit-4); 9, 9(a), 9(b) and 9(c)
(Suit-1); 7(a), 7(b) and 16 (Suit-3) and 28 (Suit-5).
1068. Issues No. 17, 5(a), 5(c) and 5(d) (Suit-4) stood
decided on 21.04.1966. The said issues read as under:“Whether a valid notification under Section 5(1) of the
U.P. Muslim Waqf Act No. XIII of 1936 relating to the
property in suit was ever done? If so, its effect?”
“Are the defendants estopped from challenging the
character of property in suit as a waqf under the
administration of plaintiff no.1 in view of the provision of
5(3) of U.P. Act 13 of 1936?”“Were the proceedings under the said Act conclusive?”
“Are the said provision of Act XIII of 1936 ultra-vires as
alleged in written statement?”1069. Learned Civil Judge considered issues no. 17, 5(a) and
12875(c) (Suit-4) in detail vide his order dated 21.04.1966 and in
view of his findings recorded thereon, issue no. 5(d) (Suit-4)
was not pressed by the defendants.1070. The order dated 21.4.1966 is as under :
“All the above four suits were consolidated together
on 6.1.1964 on the basis of the joint statement of the
parties to all the above suits, which is available at paper
No. 184A, of the leading case Original Suit No.12 of 1961.
Issues covering the subject matter of all the above
mentioned four suits were commonly framed in the leading
case, Original Suit No. 12 of 1961 on 5.3.64, which are 16
in number. An additional issue No. 17 was framed on
17.4.65, which is available in the English Notes of the said
date in the leading case.Issue No. 5 (d) was initially taken-up for disposal as
a preliminary issue for determination whether the question
involved in issue No. 5 (d) should be referred to the
Hon’ble the High Court, under Section 113 (Proviso)
C.P.C.; or not. Before an answer to issue No. 5 (d) could
be given by this court, the defendants of the leading case
presented an application paper No. 239/C; whereby they
prayed that the plaintiff be called upon to produce the
notification contemplated in Section 5 of the U.P. Moslim
Waqf Act. In response to the said application, the plaintiffs
through their application 242/G filed two papers 243/C
and 243/1A as the alleged Government Gazette
Identification made under Section 5 of the U.P. Moslims
Waqf Act. Paper No. 243/C is the attested copy of the
supplement to the Government Gazette of the United
Provinces, dated February 26, 1944-Part VIII; and paper
1288No. 243/1A is the annexure to the said gazette notification
printed in Urdu title: “Fehrist Sunni avaqaf wakai suo me
Muthadda Agra wa Oudh, jinpar bamoojib report
Commissioner Avaqaf, U.P. Moslims Waqf Act No.XIII of
1936 ki Dafat Aayad hoti hai”.Its title page further contains the following words :-
“Fehrist hasl Dafa 5 Act XIII/1936…………………”
In the said list of waqf property paper No.243/1A, the
property in dispute in the above four suits as alleged by the
plaintiffs of the leading case is mentioned at serial No. 26,
of page 11. The entire list of Sunni Waqf property of
Faizabad is mentioned at pages 10 and 11 of paper No.
243/1A. The proforma of the list as well as the entries
against item No. 26 of the said list are reproduced below :-No. Name waquif Name Mutwalli Nauip (sic. Sumar ya Waqf. Maujooda Nawyyet) Jaidad Mauqoofa 26 Badshah Syed This column Babar Mohammad stands blank Zaki Mutwalli against entry Masjid Babari No. 26 of the Qasba list paper No. Shahnawa, 243/1A Dak-Khana Darshan NagarSubsequently, the defendants 1, 3 and 4 of the
leading case filed their objections 247/C and 248/C against
the plaintiffs’ aforesaid papers 243/C, 243/1A and 244/C.In reply to the said objections of the defendants, the
plaintiffs filed their reply 250/C and 251/C against the
1289defendants’ aforesaid objections 248/C and 247/C
respectively.In connection with the subject matter of applications
239/C, 240/C, 251/C and the alleged Gazette Notification
243/C and the list of waqf property 243/1A, leaned counsel
for the parties jointly stated that the following additional
issue may be framed and issue No. 17 which should be
decided first, because issue No. 5, with all its part recedes
to a secondary position in face of the following additional
issue No. 17. Their aforesaid joint request appears to be
sound, and, therefore, the following additional issue No. 17
was framed :-ADDITIONAL ISSIUE NO. 17 :
“Whether a valid notification under Section 5 (1) of
U.P. Moslims Waqf act No. XIII of 1936, relating to the
property in suits was ever done? Its effect?”Naturally issue No. 17, thus, become primarily the
preliminary issue.Learned counsel for the parties were heard at length
in respect of issue No. 17. My findings under issue No. 17,
are given here-under :-FINDINGS ON ISSUE NO.17
The words “Waqf” and “Waqif” have been defined
in Section 3(1) of Act XIII of 1936 Muslims Waqfs Act, U.P.
as below :-“Waqf” means the permanent dedication or grant of
any property for any purposes recognized by the Mosalman
law or usage as religious, pious or charitable and where
no deed of waqf is traceable includes waqf by user; and a
waqif means any person, who makes such dedication or
1290grant”.
It will be evident from the above definition that the
word “waqf is inseparably connected with the word “any
property”, because the ‘Waqf’ can come into existence only
in relation to any property. In this way, whenever the word
‘Waqf” is conveyed to any person, it must necessarily
convey simultaneously the idea or description or a tangible
connotation about the existence of “any property” covered
or included in the ‘Waqf’. What I mean to say, is that if
some one wants another to know that a particular property
is waqf, it will be necessary for him to mention
simultaneously the description of at least tangible
connotation about the identity of the property of the waqf.In the instant case, at hand, item No.26 (page 2 of the
list paper No.243/1A) is totally blank in its last column,
which was prescribed for mentioning the particulars of the
property to be known as ‘waqf” created by Badshah Babar.
The absence of any mention of the tangible identity of the
alleged waqf property of item No. 26, is a fatal-flaw in the
alleged Government Notification paper No.243/C read with
paper No. 243/1A; because no body living in the extensive
district of Faizabad or for that matter living in any part of
India, could or can reasonably make-out as to what is that
specific property, which was proposed to be enlisted as
Sunni Waqf” property in item No. 26, page 11, of paper No.
243/1A. Consequently, a person interested in the property
in suits-living in a distant tract of Faizabad District or in
any other State of India could never understand that the
existing entries of item No. 26 of paper No. 243/1A,
unequivocally relate to the present property in suits. That
1291being so, proviso No. 1, to clause 2 of Section 5 of U.P.
Moslims Waqf Act, 1936 and clause 3 of Section 5 of the
said Enactment cannot come into play, in respect of the
present property in suits; because the alleged Government
Gazette Notification paper No. 243/C read with paper No.
243/1A, at item No. 26, page 11, of paper No. 243/1A, was
meaningless; and because of the blankness of its last
column, the same did not and could not convey to the
public at-large or to for that matter to any one that the said
item No. 26 of 243/1A, related to the present property in
suits. The principle laid down in the ruling ‘Harla. Vs. The
State of Rajasthan, A.I.R. 1951, Supreme Court, p. 467
clearly goes to show that such a notification is no effective
notification in the eyes of law or equity.Learned counsel for the plaintiffs of the leading case
cited before me the ruling AIR 1959, Supreme Court, P.
198, ‘Sirajul Haq Khan and Others Vs. The Sunni Central
Board of Waqf, U.P. and Others” to show that it was
incumbent upon any Hindu also interested in the property
of item No. 26 or 243/1A, to bring a regular suit for
declaration within one year from 26.2.1944 when 243/1A
was published in the U.P. Government Gazette, according
to the provisions of clause 2, of Section 5 of Act XIII of
1936, and since none of the Hindus of India or Faizabad
District or the defendants of the leading case or the
plaintiffs of the connected three cases had brought any suit
for declaration within one year of 25.2.1944, challenging
the validity of item No. 26, page 11, of notification No.
243/1A; hence the defense of the defendants of the leading
case and the suits of the plaintiffs of the connected three
1292cases are barred by clause 3, of Section 5 of Act XIII/1936;
whereby the aforesaid declaration of waqf by the waqf
Commissioner, U.P. at item No. 26 of paper No. 243/1A,
had become final and conclusive.Bowing down to the principle laid down in the
aforesaid ruling of Hon’ble the Supreme Court, I
respectfully wish to point-out that the said ruling is
distinguishable from the facts of the present cases at-hand;
because in the aforesaid ruling, it was taken for granted
that a valid notification of the proposed waqf property was
duly made in the U.P. Government Gazette under Section
5(1) of Act XIII of 1936; whereas in the present cases, at-
hand, the alleged notification as contemplated in Section 5,
clause (1) of Act XIII of 1936, i.e. item No. 26 of the list
paper No. 243/1A, does not amount to a valid notification;
because the same does not convey the idea or the identity
or necessary particulars about the property proposed by
the waqf Commissioner to be listed as Sunni Waqf Property
dedicated by Badshah Babar. I have already pointed out
above that the definition of the word “Waqf” in Section
3(1) of Act XIII of 1936, necessarily relates to some
specific property. This means that a clear mention of the
property included in a waqf must necessarily be made
when making a mention of a particular waqf. This has not
been done in item No. 26 of paper No. 243/1A, inspite of
the fact that column No. 4, of the above noted proforma
was specifically prescribed for that end. In this connection,
I may profitably refer to the aforesaid ruling itself, which
has been cited on behalf of the plaintiffs of the leading
case, in which their Lordships of Hon’ble The Supreme
1293Court have themselves held as under :-
“That expression ‘any person interested in a waqf”,
must mean ‘any person interested in what is held to
be a waqf’. It is only persons, who are interested in a
transaction, which is held to be a waqf, who could
sue for declaration that the decision of the
Commissioner of Waqfs in that behalf is wrong and
that the transaction in fact is not a waqf under the
Act.”The above under-lined words, as used by their
Lordships of Hon’ble The Supreme Court, clearly point-out
that persons interested in a property held as waqf by the
Waqf Commissioner, will be duty bound to bring a suit for
declaration within one year from the date of notification
against the decision of the Waqf Commissioner if the
notification had conveyed to them, the identity or the
particulars of the proposed waqf property; and not
otherwise. As pointed out above, item No. 26, of the
notification list paper No.243/1A is utterly blank in its
column No. 4 due to which no body could understand as to
what property was intended to be included in the said item
No. 26. That being so, the said notification is meaningless;
and does not carry the sanctions provided in clause 3 of
Section 5 of Act XIII of 1936 with it.The entry of the name of Badshah Babar as Waqif, of
a property in Faizabad District, as given in column No. 2,
of item No. 26 of paper No. 243/1A, is not enough to
convey the idea of the identify of the present property in
suits, because Badshah Babar was the Emperor of the
Moghal empire in India, who never resided in Faizabad
1294District according to the pages of history of which a
judicial notice can be taken by this Court, Secondly, there
is no knowing as to how many waqfs were created by
Badshah Babar in various parts of Faizabad District.In column No. 3 of item No. 26 of paper No. 243/1A
is given the name of the Mutwalli as Syed Mohammed Zaki
Mutwalli Masjid Babari, Qasba Shah Nawa, Dak-Khana
Darshan Nagar. A judicial notice of this fact can be taken
by this Court, that qasba Shah Nawa lying within the
jurisdiction of Post Office Darshan Nagar is at a distance
of about 8 to 10 miles from Ayodhya. As the said entry of
the particulars of the Mutwali stands in column 3 of item
No. 26 of paper No. 243/1A, it shows on the face of it that
Syed Mohammed Zaki might have been a Mutawalli of a
mosque built by emperor Babar in Qasba Shah Nawa, Post
Office Darshan Nagar. In this way, the entries of columns 2
and 3 also of item No. 26 of paper No. 243/1A are so vague
and mis-leading that a number of the public at-large,
residing in any part of our vast country India, who might
be interested in the present property in suits, could never
understands from the same that by the notification of item
No. 26, of paper No. 243/1A, which was the present
property in suits, which was proposed to be listed and
declared as Sunni Waqf property by the Commissioner of
Waqf U.P.No explanation, whatsoever, has been offered on
behalf of the plaintiffs of the leading case at the time of
arguments on issue No. 17 or in the plaintiffs’ reply, paper
No. 250/C as to why column No. 4, of item No. 26 of paper
No. 243/1A was left blank. In para 5 of the plaintiffs’ reply
1295paper No. 250/C, all that has been contended in that
connection is that there is no vagueness in the entry
relating to the mosque in suit at item No. 26, of paper No.
243/1A; because in its column No. 2, the name of Badshah
Babar is clearly mentioned and in its column No. 3, the
name of present Mutwalli Syed Mohammed Zaki Mutwalli
Masjid Babari, is mentioned with his residential address as
Qasba Shah Nawa, Post Office Darshan Nagar. It is
noteworthy that in column No.3, of entry No. 26, of paper
No. 243/1A, it is nowhere mentioned that Qasba Shah
Nawa, Post Office Darshan Nagar was the residential
address of Syed Mohammed Zaki. Consequently, it has
been simply twisted at the end of para 1 of paragraph 5, of
the plaintiffs’ reply paper No. 250/2C, contains the
‘Sakoonat’ of residence of Syed Mohammed Zaki. As a
matter of fact, a perusal of column No. 3 of item No. 26 of
the notification list paper No. 243/1A, will clearly convey
to the reader that Syed Mohammed Zaki was a Mutwalli of
some mosque built by Babar in Qasba Shah Nawa Post
Office Darshan Nagar. As such, the aforesaid explanation
of the plaintiffs has no force.At the end of para 5, in paper No. 250/3C, another
explanation of the above was offered on behalf of the
plaintiffs of the leading case as under :“The plaintiffs’ allegation being that the building in
suit is mosque built by King Babar whose dynasty and
accounts of his conquest are matters of history well known
to all educated persons in India.”The aforesaid explanation in the first place, conveys
the impression that the plaintiffs of the leading case are
1296themselves conscious of the fact that it was a fatal lacuna
in the aforesaid notification paper No. 243/C read with
paper No. 243/1A whereby the description or particulars
or identity of the waqf property mentioned in item No. 26,
of paper No. 243/1A was omitted in column No. 4 or for
that matter in any of the columns of item No. 26, of paper
No. 243/1A. Secondly, the aforesaid explanation is
confined to the alleged presumed knowledge of the
educated persons only-totally ignoring that even
uneducated persons whose number surpasses the number
of education persons in this country, had also a right
vested in them to assail the entries of item No. 26 of paper
No. 243/1A.Thirdly, it will be too remote to presume that the
factum of the conquest of Emperor Babar over certain
parts of India, which one can derive from the pages of
popular books of history taught in schools and colleges
must necessarily convey the details of those properties or
buildings also, which were built by Emperor Babar in
various parts of this vast country at different times.Lastly, it is to be remembers that it is not the case of
the plaintiffs of the leading case that property in suit was
originally a temple, which was ever conquered by Emperor
Babar, who got it remodeled in the shape of a mosque. The
case of the aforesaid plaintiffs is contained in their plaint
in leading case, as well as in the statement of the plaintiffs’
learned counsel made under order X, rule 2 C.P.C. on
20.1.64, at paper No. 187A, is that the property in suits is
the originally mosque, which was built for the first time at
its place, by Emperor Babar in 1528 AD in the shape of a
1297mosque which he had dedicated to the followers of Islam
thereafter. That being so, the knowledge of the educated
persons regarding the conquest of Emperor Babar derived
from the pages of popular history books cannot profitably
utilized by the plaintiffs of the leading case because
according to the plaintiffs’ own case, the property in suits
was not conquered property but a property which was
originally and for the first time built at its place by
Emperor Babar for use of the Moslim public.In view of the facts and reasons discussed above, I
hold under issue No.17 that no valid notification under
Section 5(1) of U.P. Moslim Waqf Act No. XIII of 1936 was
ever made so far relating to the specific disputed property
of the present suits at-hand. The alleged Government
Gazette Notification paper No. 243/C read with the list
paper No. 243/1A do not comply with the requirements of a
valid notification in the eyes of law and equity as I have
already discussed above. The aforesaid two papers,
therefore, serve no useful purpose to the plaintiffs of the
leading cases.In view of my above findings I hold that the bar
provided in Section 5(3) of U.P. Act No. XIII of 1936 does
not hit the defence of the defendants of the leading case
and their suits which are connected with the aforesaid
leading case. Issue No. 17 is answered accordingly.In view of my findings given above, the subject
matter of issue No. 5 (a) also stands automatically decided
against the plaintiffs of the leading case; and in favour of
the defendants of the leading case and the plaintiffs of the
connected cases. Issue No. 5(a) also, therefore, stands
1298answered accordingly.
My findings under issue No. 17, given above,
automatically answer issue No. 5(c) also, accordingly.
Consequently, issue No. 5(c) is answered in the negative.In this way, only two parts (b and D) of issue No. 5
stand for decision now. Issue No. 5 (b) will be taken up for
disposal along with the remaining issues.As regard issue No. 5 (d) counsel for the defendants
of the leading case to report today whether issue No. 5 (d)
is still prepared in face of my above findings under issues
Nos. 17, 5 (a) and 5(c)?”1071. After delivery of the aforesaid order, the learned
counsels for defendants in Suit-4 made the following noting :“In view of the finding of Court it is not necessary to
press Issue no. 5 (d) at present. As such Issue No. 5 (d) is
not pressed.”1072. After referring to the above statement of the learned
counsels for defendants (Suit-4), learned Civil Judge passed
following order in respect to Issue No. 5(d) (Suit-4).“Learned counsel for the defendants of the leading
case has endorsed above that he does not press issue no. 5(d) in view of the findings on issue nos : 17, 5(a) and 5(c),
hence issue no. : 5(d) need not be answered by this Court.Consequently put up on 25.5.66 for final heading of
the above mentioned cases.”1073. Issue No. 9 (Suit-1) is similar to Issue No. 5(a) (Suit-4).
It reads as under:“Is the suit barred by provision of Section 5(3) of the
Muslim Waqfs Act (U.P. Act 13 of 1936)?”1074. With respect to Issue No. 5(a) (Suit-4) the learned Civil
1299Judge in his order dated 21.04.1966 has recorded the following
findings:“In view of my findings given above, the subject
matter of issue No. 5 (a) also stands automatically decided
against the plaintiffs of the leading case; and in favour of
the defendants of the leading case and the plaintiffs of the
connected cases. Issue No. 5(a) also, therefore, stands
answered accordingly.”1075. Issue No. 9 (Suit-1) being similar, also stands decided
accordingly in terms of the judgement dated 21.04.1966 of the
learned Civil Judge, i.e., in favour of the plaintiff (Suit-1).
1076. Issues No. 7(a) and 7(b) (Suit-3) pertain to the
notification under 1936 Act and read as under:“Has there been a notification under Muslim Waqf Act Act
No. 13 of 1936) declaring this property in suit as a Sunni
Waqf?”“Is the said notification final and binding? Its effect?”
1077. Issue No. 17 (Suit-4) which has been decided by the
detailed order dated 21.04.1966 of the learned Civil Judge is
similar to both the above issues. Since it has already been held
that no valid notification under Section 5(1) of 1936 Act in
respect to the property in dispute has been issued, both the
issues no. 7(a) and 7(b) (Suit-3) are answered in negative, i.e., in
favour of the plaintiffs (Suit-3) and against the defendants
therein.1078. Issues No. 5(b) (Suit-4) and 9(a) (Suit-1) are similar
which read as under:“Has the said Act no application to the right of Hindus in
general and defendants in particular, to the right of their
worship?”1300
“Has the said Act no application to the right of Hindus in
general and plaintiff of the present suit , in particular to his
right of worship?”1079. In the plaint (Suit-4) referring to 1936 Act, the plaintiffs
have averred in paras 9 and 10 as under:“9. That in 1936 the U.P. Muslim Wakfs Act XIII of 1936
was passed and under the provisions of the said Act, the
Commissioner of Wakfs made a complete enquiry and held
that Babari Masjid was built by Emperor Babar who was a
Sunni Mohammedan and that the Babari Mosque was a
public wakf. A copy of the Commissioner’s report was
forwarded by the State Government to the Sunni Central
Board of Wakfs and the Sunni Central Board of Wakfs
published the said report of the Commissioner of Wakfs in
the Official Gazette dated 26.2.1944.10. That, no suit, challenging the report of the
Commissioner of Wakfs was filed by the Hindus or by any
person interested in denying the correctness of the report
of the Commissioner of Wakfs, on the ground that it was
not a Muslim Wakf or that it was Hindu temple.”1080. In the Additional Written Statement of defendants No.1
and 2 (Suit-4) para (g), (h) and (i) read as under.“(g) That the Commissioner of Wakf only has to make an
enquiry about number of Shia and Sunni Waqfs in the
district the nature of each waqf, the gross income of
property transferred in the Waqf, the Govt. revenue, the
expenses and whether it is one expected u/s 2. The
Commissioner of Wakf has only to see whether any
transaction is Waqf or not and that to which sect the Waqf
belongs and further whether such Waqf is or is not
1301exempted by sec.2 of the Act. All these things he has to do
in accordance with the definition of Waqf in Section 3(1) of
the Act XIII of 1936, an Act which is exclusively meant for
certain clauses of Muslim Waqfs. The finality and
conclusiveness in intended to give effect to the scheme of
administration under the Muslim Waqfs Act and does not
and cannot confer jurisdiction to decide question of title as
against non-Muslims. The legislature u/s 5(3) does not say
that the court shall take judicial notice of the reports of the
Commissioner of Waqfs and shall regard them as
conclusive evidence that the Waqf mentioned in such
reports are Muslim Waqfs, as was done in Section 10 of the
O.E. Act.(h) That there has been no legal publication of alleged
report and hence no question of any finality arises.(i) That the purpose of publication is only to show to
which sect. the waqf belongs. It does not call upon
objections or suit by persons not interested in what is held
to be a Waqf or not viz. by non muslims.”1081. The written statement dated 25th January, 1963 of
defendant no.2, para 32 (g), (h) and (i) read as under :“(g) That the Commissioner of Wakf only has to make an
enquiry about number of Shia and Sunni Waqfs in the
District the nature of each waqf, the gross income of
property comprosed in the Waqf, the Government Revenue,
the expenses and whether it is one expected U/s 2. The
Commissioner of Waqf has only to see whether any
transaction is Waqf or not, and that, to which sect the Waqf
belongs and further whether such Waqf is or is not
exempted by sec.2 of the Act. All these things he has to do
1302in accordance with definition of Waqf in Section 3(1) of the
Act XIII of 1936, an Act which is exclusively meant for
certain clauses of Muslim Waqfs. The finality and
conclusiveness is intended to give effect to the scheme of
administration under the Muslim Waqfs Act and does not
and cannot confer jurisdiction to decide question of title
as against non-Muslims. The legislature U/s 5(3) does not
say that the court shall take judicial notice of the reports of
the Commissioner of Waqfs and shall regard them as
conclusive evidence that the Waqf mentioned in such
reports are Muslim Waqfs as was done in Section 10 of the
O.E. Act.(h) That there has been no legal publication of alleged
report and hence no question of any finality arises.(i) That the purpose of publication is only to show to
which sect. the Waqf belongs. It does not call upon
objections or suit by persons not interested in what is held
to be a Waqf or not viz. by non muslims.”1082. Defendant No.13 and 14 Baba Abhiram Dass and
Pundarik Misra also in para 32(g) have said :“(g) That the Commissioner of Wakf only has to make an
enquiry about number of Shia and Sunni Waqfs in the
District, the nature of each waqf, the Government Revenue,
the expenses and whether it is one excepted U/s 2. The
Commissioner of Waqf has only to see whether any
transaction is Waqf or not, and that, to which sect the Waqf
belongs and further whether such Waqf is or is not
exempted by Section 2 of the Act. All these things he has to
do in accordance with definition of Waqf in Sec. 3(1) of the
Act XIII of 1936, an Act which exclusively meant for
1303certain clauses of Muslim Waqfs. The finality
conclusiveness is intended to give effect to the scheme of
administration under the Muslim Waqfs Act and does not
and cannot confer jurisdiction to decide question of title as
against non-Muslims. The legislature under Section 5(3)
does not say that the court shall take judicial notice of the
reports of the Commissioner of Waqfs and shall regard
them as conclusive evidence that the Waqf mentioned in
such reports are Muslim Waqfs as was done in Section 10
of the Taluqdari Act.(h) There has been no legal publication of alleged report
and hence no question of any finality arises.(i) That the purpose of publication is only to show to
which section the Waqf belongs. It does not call upon
objections or suit by persons not interested in what is held
to be waqf or not viz. by non Muslims.”1083. Defendant No.13 again in his written statement in paras
33 and 36 has pleaded as under :33. THAT in 1936 the U.P. Muslim Waqfs Act, was
passed. It established two Central Boards of Waqfs in U.P.,
namely the Sunni Central Board of Waqfs and the Shia
Central Board of Waqfs, to supervise and control the
Muslim Waqfs of the two sects respectively. All the existing
Waqfs were required to be surveyed and classified into
Sunni and Shia Waqfs by a Commissioner of Waqfs, who
was required to submit his report to the local Government,
and the Government in its turn was required to send that
report to the Central Board concerned, according to the
sect to which the waqf belonged, whereafter the Central
Board concerned was required to notify in the Gazette the
1304Waqfs of its respective sect. There was no such notification
in respect of the ‘waqf’ of the ‘mosque’ in dispute.
Allegation to he contrary is wrong. The Plaintiff Waqf
Board, has had no jurisdiction in respect of the premises
even if it were a ‘mosque’. Further, it took no action or
positive steps for the custody or the care of the building or
its establishment as a ‘mosque’. No one acted as its
Mutwalli, or Mauzin, or Imam, or Khatib, or Khadim. The
descendant of Mir Baqi who was sought to be planted as
the Mutwalli by the British was an opium addict. He denied
that the grant of revenue free land was waqf for the
purposes of the ‘mosque’, and instead claimed that it was
his Nankar for services rendered to the British, and did not
look after or manage the ‘mosque’ at all.36. THAT the Sunni Central Board of Waqfs, U.P. has
no jurisdiction or competence to meddle with the alleged
‘waqf ; or the alleged ‘mosque’, or to sue in respect thereof
for want of a proper and valid notification in its favour, in
respect thereof, under Section 5 of the U.P. Muslim Waqfs
Act, 1936, the notification published in the Official Gazette
dated 26.2.1944, having already been held to be invalid by
the Court’s finding dated 21.4.1966 on issue No.17, in this
Suit, which has become final and irreversible between the
parties. Further, the suit when filed in 1961, was barred by
the provisions of the U.P. Muslim Waqfs Act, 1960 ; only
the Tribunal constituted under that Act had the jurisdiction
to entertain a suit of this nature, if filed within the
limitation prescribed by it, and the Civil Court had no
jurisdiction to entertain it.1084. Defendant No.17 in his (Additional) written
1305statement dated 14th September, 1995 in para 11 has pleaded as
under :“11. That Sunni Central Board of Waqfs has no legal
authority to file the suit and as such the suit is liable to be
dismissed.”1085. With respect to Issue No. 9(a) (Suit-1) we find
pleadings in paras 25 and 26 of the written statement of
defendant no. 10 which read as under:“25. That the ownership of the mosque in question vests in
the God Almighty and the said mosque is a waqf property
and the waqf character of the said mosque cannot be
challenged by the plaintiff in this suit specially so when the
plaintiff had never challenged the entry of the said waqf
which was made in pursuance of the gazette notification
issued by the State Government of Uttar Pradesh under
provisions of the U.P. Muslim Waqf Act, 1936.26. That the plaintiff’s suit is barred even by the
provisions of the U.P. Muslim Waqf Act, 1936.”1086. With respect to applicability of Wakfs Act, Sri M.M.
Pandey, counsel for plaintiffs (Suit-5) has submitted:(A) The Act needs a close examination. The Preamble
aims at providing better governance and administration of
certain classes of Wakfs and supervision of Mutawalli’s
management. S. 3(1) does not create any ‘new’ class of
Wakf and recognises only those known to the
Mahommedan Law; the Statement of Objects and Reasons
also says so and adds that the Act “is not intended to
deprive the Mutawallis of any authority lawfully vested in
them, nor it aims at defining all the powers, duties and
liabilities of the Mutawallis…” S. 4(1) provides for
1306appointment of a District Commissioner of Wakf “for the
purpose of making survey of all wakfs”. Procedural
powers of Civil Court are conferred on the Commissiioner
for summoning witnesses, production of documents, local
inspection/ investigation u/s 4(4) while making inquiries,
but there are no guidelines how to ‘initiate’ an inquiry,
what notices are required to be issued and to whom. S. 4(3)
confers power on him to make ‘such inquiries as he
consider necessary’; there is no guideline for the manner in
which he should proceed. This seems to be ‘arbitrary’ and
violates the Constitutional requirement of fairness. The
word ‘necessary’ will make Wakf Commissioner’s
discretion to be objective and open to judicial review.The
Act does not provide for framing Rules of procedure for the
Wakf Commisioner to observe before initiating an inquiry.If on particular facts or situation, Notice to a particular
person is essential in the interests of justice and fairness,
the Wakf Commissioner cannot plead that he had
unrestricted discretion whether or not to issue Notice; in
law, every fair procedure is permissible unless specifically
probited. The Act does not prohibit the Wakf Commissioner
to issue notices for giving opportunity to persons interested
while conducting the inquiry. The proceeding before the
Wakf Commissioner is quasi judicial as held in the case of
Board of Muslim Wakfs, Rajasthan Vs. Radha Kishen
(1979)2 SCC 468 (para 25). Further the SC has held in
paras 37 to 39 that where a stranger who is a non-muslim
is in possession of a certain property, his right, title and
interest therein cannot be put to jeopardy merely because
the property is included in the list prepared by the Wakf
1307Commissioner under the U.P. Wakf Act. Although this
decision concerns Section 6(1) of the Wakf Act of 1960, the
SC has observed in para 35 that that Section “is based on
Sub-section (2) of Section 5 of U.P. Muslim Wakf Act of
1936”. This distinguishes the decision from that in 1959 SC
198, Sirajul Haq Khan Vs Sunni Central Board of Wakf
where both Plaintiff and Defendants were Muslims. Thus
Hindus, Nirmohi Akhara and any of the Defdts in OOS 4 of
1989, cannot be treated to be a ‘person interested in a
wakf’ u/s 5(2) of the Wakf Act of 1936. It will also be
appreciated that if Nirmohi Akhar and others were to be
treated to be ‘person interested in a wakf’, it was incumbent
upon the Wakf Commissioner to issue notices at that very
time before deciding the issue. Even if it be treated to be
administrative, an opportunity of hearing ought to have
been given to Nirmohi Akhara and Hindu Community as
held, after considering several decisions of Supreme Court,
in the case of Muzaffar Hussain Vs. State of U.P, 1982
Allahabad Law Journal 909 (DB).(B) Wakf Commissioner submits his report of inquiry to
State Government u/s 4(5). The State Govt. has to ‘forward
a copy’ of the report to Shia as well as Sunni Boards of
Wakf u/s 5(1) and commands the Boards, as soon as
possible, to ‘notify in the Gazette the Wakfs relating to the
particular sect to which, according to such report, the
provisions of this Act apply’. This signfies that Shia and
Sunni Boards are required to publish notices, in the
Gazette, of only those Wakfs which relate respectively to
Shia and Sunni Wakfs; further, only the particulars of the
Wakf, without the report, are required to be published.1308
Mere publication of the particulars of Wakf without the
report cannot constitute notice of Wakf Commissioner’s
finding/report to Public, much less to any particular
individual.(C) Over and above the procedure contained in Ss 4 and
5 for the Wakf Commisioner in making survey and
preparing lists of Wakfs and their publication by concerned
Wakf Boards, S. 38 authorises the Wakf Board concerned
also to register a Wakf at its Office. This registration may
be made on an application by Mutwalli under sub-section
(2), or by wakif, his descendants, beneficiary or any
Muslim of the sect under sub-section (3) or by ‘any person
other than the person holding possession’ of wakf property
under sub-section (6). In an application under sub-section
(6), the Wakf Board is required to give notice of the
application to the person in possession and hear him. The
Board will make an inquiry and pass final orders. The
question is that since the Act specifically provides for issue
of notice by Wakf Board to a person in possession of wakf
property (whoever he may be – even a stranger), why no
provision is made for Wakf Commissioner to issue similar
notice to person in possession for the purpose of inquiry
u/ss 4 and 5? An essential distinction is that while Wakf
Commissioner is an officer of the State, the Wakf Board is
not; hence while Wakf Commissioner may be presumed to
act in a fair and just manner, the Wakf Board may not be
presumed so to act, hence specific procedural methodology
is prescribed for it in the matter of deciding a matter. As
mentioned above, the proceedings before the Wakf
Commissioner are quasi-judicial. ‘Natural justice’ would
1309require such notice to be given to person in possession;
failure to do so would render Wakf Commissioner’s
findings and list of Wakfs to be ineffective against
strangers. In this case, Wakf Commissioner did not issue
notice to Nirmohi Akhara who were admittedly in
possession of Eastern half of the platform of DS itself as
settled by the British Administration in 1885, in addition to
Ram Chabutra, Sita Rasoi Chabutra and other portions of
DA within the campus of DS. Admittedly, in 1934 during
Hindu-Muslim riots, Hindus had demolished certain
portions of DS, thereby exerting their rights over the
property to the knowledge of everyone concerned with DS.
The Govt. of U.P. even imposed punitive fine on Hindus for
demolishing portions of DS which was repaired by the
Govt. Thus the Hindu public in general (in addition to
Nirmohi Akhara) was interested in DS, and a general
public notice for Hindu worshippers too was called for.
None was given, hence the entire proceeding of the Wakf
Commissioner, declaring DS to be Sunni Wakf, was illegal.
(D) Then follows the provision which is most important
for the purposes of these cases: S. 5(2) and 5(3). According
to S. 5(2), the Mutawalli of a Wakf, or any person
interested in a Wakf may bring a suit in a Civil Court for a
declaration that any transaction held by the Commissioner
of Wakfs to be Wakf is not Wakf, but no such suit by a
person interested in the Wakf shall be instituted “after more
than one year of the notification referred to in subclause
(1)”. Sub-section (3) provides that subject to the final result
of such suit “the report of the Commissioner of Wakfs shall
be final and conclusive”. Subsection (4) commands that the
1310Commissioner shall not be made a Defendant to the suit
and no suit shall be instituted against him for anything
done by him in good faith under colour of this Act. This
bar cannot be made applicable to Plaintiffs of OOS 5 of
1989. Firstly, there is no valid Wakf of DS. Secondly, the
Plaintiffs were neither Parties to the proceedings before,
nor were given an opportunity by Wakf Commissioner to
contest the claim of declaration of DS to be Wakf. Thirdly,
neither Nirmohi Akhara, who were admittedly in
possession of almost half portion of Platform (Chabutra) of
DS lying towards East of a grilled partition wall erected by
British administration in 1855 in addition to considerable
portions of campus of DS, including Ram Chabutra, was
given notice of the proceedings, nor Hindu
devotees/community were given general notice although
since 1934 riots they were admittedly asserting rights over
it. If the requirements of Section 5 of the Wakf Act of 1936
applied to Nirmohi Akhara/Hindu devotees on the ground
that they were ‘persons interested in the wakf’, then that
was all the more reason for the Wakf Commissioner to
have given notice to these persons. The action and decision
of Wakf Commissioner, or by Sunni Central Board of Wakf
on its basis, therefore, could not be binding on Plaintiffs,
Nirmohi Akhara or Hindu devotes/community.
(E) When Wakf Act of 1960 came into force, the Sunni
Board made ‘Registration’ of some of the disputed
properties as Sunni Wakf u/s 29 of 1960-Act. Supreme
Court held that any Survey report made and Registration of
Wakf thereon was “futile and of no avail” because
Registration of Wakf under 1936-Act had been kept alive
1311by 1960-Act and the latter Act permitted Registration of
only those Wakfs which were ‘other than’ those already
Registered under 1936-Act. The claim of Shia community
was upheld and Sunni Community were restrained
permanently from interfering with exercise of rights by
Shias. Now, there is absolutely nothing in common between
Ghulam Abbas’ case and the present cases.1087. The creation of waqf was held valid and lawful by
the Prophet Mohammad. It is said that this rule was laid down
by Prophet himself and handed down in succession by Ibn Abu
Nafe and Ibn Omar. Omar got piece of land in Khaiber
whereupon he came to the Prophet and sought his counsel to
make the most pious use of it. The Prophet said “if you like you
may make a waqf of it, as it is, and bestow it in benification”.
Omar thereupon bestowed it in charity on his relatives, the poor
and slaves and in the path of God, and travellers in a way that
the land itself might not be sold, nor conveyed by gift, nor
inherited. It is said that waqf continued in existence for several
century until the land became waste. The prophet of Islam not
only declared such works to be valid and lawful but also
encourage their creation by dedicating his own property, the
little that he had, in favour of posterity. It would be useful to
refer as to what constitute a lawful waqf under Muslim Law. A
Division Bench decision of Calcutta High Court in Meer
Mahomed Israil Khan Vs. Sashti Churn Ghose and others, 19
ILR (Calcutta) (1892) 412 where Justice Ameer Ali answering
the question as to what constitute a lawful waqf under
Mussulman law observed that there must be a substantial
dedication for charitable or pious purpose. His Lordship further
observed:1312
“In the Mussulman system law and religion are
almost synonymous expressions, and are so intermixed with
each other that it is wholly impossible to dissociate the one
from the other: in other words, what is religious is lawful;
what is lawful is religious. The notions derived from other
systems of law or religion form no index to the
understanding or administration of the Mussalman law.
The words “piety” and “charity” have a much wider
signification in Mussalman law and religion than perhaps
in any other. Every “good purpose,” wujuh-ul-khair (to
use the language of the Kiafaya), which God approves, or
by which approach (kurbat) is attained to the Deity, is a
fitting purpose for a valid and lawful wakf. A provision for
one’s children, for one’s relations, and under the Hanafi
Sunni law for one’s self, is as good and pious an act as a
dedication for the support of the general body of the poor.
The principle is founded on the religion of Islam, and
derived from the teachings of Prophet.”1088. Thereafter Justice Ameer Ali proceeded to quote
from “Hedaya” a commentary by “Fath-ul-kadir” said to be
frequently quoted in “Fatawa-i- Alamgiri” in great detail and it
would be useful to reproduce the same as under:“I will give here a few passages from some of the
best known authorities to show how utterly opposed the
view taken in this case is to the Muhammadan law. The
Fath-ul-kadir says–” Literally, it (the word wakf) signifies
detention, . . . . in law . . . according to the Disciples, the
tying up of property in such a manner that the substance
(asl=corpus) does not belong to anybody else excepting
God, whilst the produce is devoted to human beings, or is
1313spent on whomsoever he [the wakif] likes; and the reason
of it is that, though a desire to approach the Deity (kurbat)
should form the ultimate motive of all wakfs, yet if, without
such an (immediate) desire, a person were to dedicate a
property in favour of the affluent (aghnia), the wakf would
be valid in the same way as a wakf in favour of the indigent
or for the purposes of a mosque: for, in giving to the
affluent there is as much kurbat as in giving to the poor or
to a mosque, and though the profit may not have been given
to the poor on the extinction of the affluent [still] it is wakf
and will be treated as wakf even before their extinction.This principle is founded on the reason that the motive in
all wakfs is to make one’s self beloved by doing good to the
living in this world and to approach the Almighty in the
next . . . . .“In wakf Islam is not a condition; consequently if a
Zimmi makes a wakf on his children and his posterity and
gives it at the end to the indigent, it is lawful [equally with
that made by a Moslem]. And it is lawful in such a case to
give the usufruct conditioned for the indigent to the poor of
both Moselms and Zimmis. The wakif may lawfully
condition to give the usufruct solely to the poor of the
Zimmis, and in that will be included Jews and Christians
and Magians; or he may condition that a special body of
them may get the produce . . . . whatever condition the
wakif makes if it is not contrary to the Sharaa, will be
lawful. And so long as the object is not sinful, the wakif
may give to whomsoever he likes . . . According to Abu
Yusuf the mention of perpetuity [or dedication to an object
of a permanent nature] is not necessary to constitute a
1314valid wakf, for the words wakf and sadakah conjunctively
or separately imply perpetuity . . . In the Baramika it is
stated that, according to Abu Yusuf, when a wakf is made
in favour of specific individuals, on their extinction the
profits of the wakf will be applied to the poor . . . Among
the wakfs created by the Sahaba [Companions of the
Prophet], . . the first is the wakf of Omar (may God be
pleased with him) of his land called Samagh [at Khaibar] .
. that created by Zobair bin Awwam of his house for the
support of his daughter who had been divorced (by her
husband); . . that of Arkam Mukhzumi, on his children of
his house called Dar-ul-Islam at Safar (near Mecca),
where the Prophet used to preach Islam, and where many
of the disciples, among them Omar, accepted the Faith . . .
Baihaki in his Khilafiat has stated upon the authority of
Abu Bakr Obaidulla bin Zubair that [the Caliph] Abu Bakr
(may God be pleased with him) had a house in Mecca
which he bestowed in charity upon his children, and that it
is still in existence . . . And Saad ibn Abi Wakkas
bestowed in charity his houses in Medina and Egypt upon
his children, and that wakf is still in existence, and [the
Caliph] Osman (may God be pleased with him) made a
wakf of Ruma, which exists until to-day, and Amr Ibn al-
Aas [the Amru of European history], of his lands called
Wahat in Tayef and of his houses in Mecca and Medina
upon his children, and that [wakf] also is still continuing . .
. According to Abu Yusuf the wakif may lawfully retain the
governance of the trust, or reserve the profits for himself
during his lifetime. This has been fully dealt with by Kuduri
in two parts . . The jurists, Ahmed ibn-i-Abi Laila, Ibn
1315Shabarma, Zahri, and others, agree with Abu Yusuf.
Mohammed alone holds a contrary opinion . . . Abu Yusuf
bases his rule upon the practice and sayings of the Prophet
himself who used to eat out of the produce of the lands
dedicated by him …. Another proof in support of Abu
Yusuf’s rule is that the meaning of wakf is to extinguish the
right of property in one’s self and consign it to the custody
of God. Therefore, when a person reserves the whole or a
portion of the profits for himself, it does not interfere with
the dedication, for that also implies the approval of the
Almighty and is lawful . . . For example, if a man were to
dedicate a caravanserai and make a condition that he may
rest in it, or a cistern and condition that he should take
water from it, or a cemetery, and say that he may be buried
there, all this would be lawful. [Further] our Prophet (may
the blessings of God be with him) has declared that a man’s
providing for his subsistence is a sadakah [an act of piety
or charity]. This Hadis has been substantially handed
down by a large number [of people] and is authentic, and
Ibn Maja states from Mikdam bin Maadi Karib that the
Prophet declared that no gain of a man is so meritorious as
that which he earns by the labour of his hands; and that
which he provides for the maintenance and support of
himself, the people of his household, his children, and his
servants, is a sadakah. And Imam Nisai from Balia and he
from Buhair has given the same tradition in these
words:-‘Whatever thou providest for thyself is a sadakah.’
Ibn Haban in his Sahih states that Abu Said reports from
the Prophet that any one who acquires property in a lawful
manner, and provides therewith for his maintenance and
1316for that of the other creatures of God, gives alms in the way
of the Lord. . . . And Dar Kutni reports from Jabir that the
Prophet (may God’s blessing be with him) . . . declared
that all good acts are sadakah and that a man providing
subsistence for himself and his children and his belongings,
and for the maintenance of his position, is giving charity in
the way of God. . Tibrani has reported from Abi Imama
that the Prophet of God declared that a man making a
provision for his own maintenance, or of his wife, or of his
kindred, or of his children, is giving sadakah. And in the
Sahih of Muslim it is stated from Jabir that the Prophet
told a man to make a beginning with himself and give the
remainder to his kinsfolk.”1089. Justice Ameer Ali further on page 434 of the report
observed that the words “charitable” and “religious” must be
understood from a Mussulman and not from an English point of
view. His view was concurred by Justice O’Kinealy and His
Lordship also observed on page 437 of the report that “it must
be an endowment for religious or charitable purposes; and if we
want to interpret a document of that kind, what we must naturally
look to is what is really meant by the words “religious” or
“charitable” among Muhammadans. As an example, we know
that the words “charitable purpose” in Scotland have quite a
different meaning from that in which they are used in England.
And so in India, in judging of what is really meant by the words
“religious” and “charitable” by a Muhammadan, we must take
the view which their law takes, and not what is to be found in the
English Dictionary.”1090. The term “waqf” literally means detention. The legal
meaning of waqf according to Abu Hanifa, is the detention of a
1317specific thing in the ownership of the wakif or appropriator, and
the devoting or appropriating of its profits or usufruct “in
charity on the poor or other good objects.” According to the two
disciples, Abu Yusuf and Muhammad, waqf signifies the
extinction of the appropriator’s ownership in the thing dedicated
and the detention of the thing in the implied ownership of God,
in such a manner that its profits may revert to or be applied “for
the benefit of mankind”. A waqf extinguishes the right of the
wakif or dedicator and transfers ownership to God. By
dedication and declaration the property in the wakif is divested
and vests in the Almighty.1091. For the present purpose an idea of what constitute
waqf in Islam is sufficient and we need not to go into further
details. With respect to ‘waqf’ as recognised in Islamic Law,
since hereat we are concerned with the relevant legislative
aspect of the matter as it operated in India, we shall deal with
Islamic Law in this respect in detail while dealing with the issue
of validity of creation of waqf with respect to the property in
dispute.Administration of Waqfs
1092. The concept of waqf in India got introduced with the
establishment of Muslim rule. It appear that earlier ‘Sultan’ was
the supreme authority over the administration of waqf properties
and ultimate power vested in him. There was some
decentralisation of the actual administration, control and
supervision of waqf institutions. At the Centre, the Sadar-us-
Sadar was entrusted with the overall control of waqfs
administration in the empire. His main work was to supervise
waqfs’ administration and its properties. At the provincial level,
it was Sadr-e-Subha and in District, Sadre-e-Sarkar used to look
1318into the administration of waqfs. At the local level, the waqfs
used to be looked after by Qazis who also looked after waqf
cases. The administration of individual waqf was the
responsibility of Mutawalli, which is still continuing. This kind
of arrangement finds mention in detail in Fatwai Alamgiri said
to be prepared under the command of Mughal Emperor
Aurangzeb.1093. During the reign of Indian sub-continent by East
India Company, in the territory under their command so far as it
had charitable and religious institutions of Hindus and
Mohammedans, they were regulated by British Government
exercising visitatorial powers. In exercise of this power, the
British Government enacted several laws to prevent fraud and
waste, and to secure honest administration of such institutions.
The British Government did not interfere with the personal laws
of Hindus and Muslim like inheritance, succession, marriage
and religious institutions.1094. In 1810, the general superintendence of religious
and charitable endowments vested in Board of Revenue and the
Board of Commissioners. Vide Bengal Regulations XIX of 1810
(The Bengal Charitable Endowment Public Building and
Escheats Regulations, 1810), the Board of Revenue was put in
possession of landed and other properties of charitable and
religious endowments, of both Muslims and Hindus. The
Regulations were obviously applicable to the area under the
authority of East India Company. The said Regulations,
however it appears, had no application to the area or to
properties situated in Oudh for the reason that under the
agreement of the East India Company with Nawab of Awadh
(Lucknow), the said area of Oudh continued to be ruled by the
1319“Nawabs” till its annexation in 1856.
1095. After the transfer of power from East India
Company to British Government in 1857, a series of legislation
came including those which were enacted with an object of
proper administration of religious and charitable endowment.
The Religious Endowments Act, 1863 (Act 20 of 1863) was
passed and the properties relating to religious, charitable and
public endowments were placed under the control of trustees,
managers or superintendents. Local Committees were appointed
which exercise the powers of the Board of Revenue or local
agents.1096. In respect to the Muslim in Oudh area, Oudh Laws Act
XVIII of 1876 was enacted. Vide Section 3 thereof, the laws to
be administered in the case of Mohammadans would be the
same as in East Panjub. The East Punjab was governed by
Punjab Laws Act IV of 1872 and Sections 5 and 6 thereof
provide as under:“5. In questions regarding succession, special property of
females, betrothal, marriage, divorce, dower, adoption,
guardianship, minority, bastardy, family relations, wills,
legacies, gifts, partitions or any religious usage or
institution, the rule of decision shall be–(1) any custom applicable to the parties concerned
which is not contrary to justice, equity or good
conscience and has not been, by this or any
other enactment, altered or abolished, and has
not been declared to be void by any competent
authority;(2) the Mahomedan law, in cases where the parties
are Mahomedans,…. except in so far as such
1320law has been altered or abolished by
legislative enactment, or is opposed to the
provisions of the Act, or has been modified by
any such custom as is above referred to.”“6. In cases not otherwise specially provided for, the
Judges shall decide according to justice, equity and good
conscience.”1097. In respect to certain specified waqfs in Husainabad
area in Lucknow (Oudh), Husainabad Endowment Act, 1878
(Act 15 of 1878) was enacted.1098. In 1908, by enacting new Code of Civil Procedure,
Sections 92 and 93 were incorporated for the proper
administration of trusts. Under these sections two or more
persons having any interest in a trust could file a suit with the
prior permission of the Advocate General in relation to a matter
regarding the appointment and removal of trustees, matters
relating to the sale, exchange or mortgage of trust property, etc.
1099. Upto 1913 a waqf was valid if the effect of the deed
of wqkf was to keep the property in substance to charitable uses.
In Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held
by Privy Council that if the primary object of the waqf was the
aggrandizement of the family and the gift to charity was illusory
whether from its small amount or from its uncertainty and
remoteness, the waqf, for the benefit of the family was invalid
and no effect could be given to it. This decision caused lot of
protest and dissatisfaction amongst the Muslim communities in
India since the said decision in particular paralyzed the power of
Muslims to make a settlement in favour of family, children and
descendants or what is known as waqf-alal-aulad. Consequently,
the matter was represented by the Indian Muslims before Lord
1321Curzon, the then Viceroy and Governor General of India
canvassing that for family settlement by way of waqf from the
time of Prophet Mohammad down to the present time an
unbroken chain of evidence existed to show that the law of
waqf-alal-aulad existed in all countries having Muslim
population like Arabia, Central Asia, Persia, Afghanistan and
India. It was represented that the precepts of the Prophet support
the family settlement amongst Muslim by way of waqf. It is said
that the following precepts of the Prophet were cited:“The apostle of God said:
“When a Mussalman bestows on his family and
kindered, for the intention of rewards, it becomes
alms, although he has not given to the poor, but to
his family and children.”The apostle of God said:
“There is one Dinar which you have bestowed
in the Road of God, and another in freeing a slave,
and another in alms to the poor, and another given to
your family and children; that is the greatest Dinar
in point of reward which you gave to your family.”The apostle of God said:
“The most excellent Dinar which a man
bestows is that which he bestows upon his own
family. Omme Salma says, “I said to the Prophet, is
there any good thing for me of rewards, for my
bestowing on the Sons of Abu Salmas. His sons are
no otherwise than mine.” The Prophet said: “Then
give to them, and for you are rewards of that you
bestow upon them”The apostle of God said:
1322
“Giving alms to the poor has the reward of
one alms, but that given to kindered has two
rewards; one the reward of alms, the other the
reward of relationship. “The Prophet of God
declared that a pious offering to ones family (to
provide against their getting into want) is more pious
than giving alms to beggars.”1100. Accepting the claims of Muslims in India, Mussalman
Waqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter
referred to as the “1913 Act”) was enacted to validate the waqf
created for the benefit of the members of family i.e. waqf-alal-aulad. This Act came into force on 07.03.1913. The preamble of
1913 Act shows that it was enacted to declare the rights of
Muslims to make settlements of property by way of waqf in
favour of their family, children and decedents. The term “waqf”
was defined in Section 2 (1) as under :“2. …………………..
(1) “Waqf” means the permanent dedication by a
person professing the Mussalman faith of any
property for any purpose, recognized by the
Mussalman law as religious, pious or charitable.”1101. Section 5 of 1913 Act states that nothing therein shall
affect any custom or usage whether local or prevalent among
Musalman or any particular class or sect. The definition of
‘Waqf’ under 1913 Act recognises the concept of waqf as known
in Shariyat Law.1102. As already stated, a waqf therefore is an unconditional
and permanent dedication of property with implied detention in
the ownership of God in such a manner that the property of the
owner may be extinguished and its profit may revert to or be
1323applied for the benefit of mankind except for purposes
prohibited by Islam.1103. It may, however, be clarified at this stage that a waqf is
distinct from Sadaqah, Hiba and trust. In Islamic Law- Personal
by B.R.Verma first published in 1940 (6th Edition published in
1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) identify
the above distinction on page 630-631 of the book as under :Sadaqah Wakf
(1)The corpus itself may be (1)The income only can be
consummed. sent.(2)It is only a donation. (2)It is an endowment.
(3)The legal estate and not (3)The legal estate is merely beneficial interest transferred to God. It does passes to charity to be held not vest in the trustee or by trustees appointed by the mutawalli who cannot deal donor. The trustee can with the corpus. dispose of the corpus itself.1104. The distinction between waqf and sadaqah is that in the
case of former the income only can be spent while in the case of
latter the corpus of the property may be consumed.Hiba Wakf
(1)It relates to absolute interest (1)It is only the usufruct which
in the subject of the gift, the can be spent and the corpus
donee having a right not cannot be disposed of except
only to spend the usufruct under very limited
but also the property itself. conditions.(2)The donee is a human being. (2)The ownership is
transferred to God.(3)There are no limitations as (3)It is made for the benefit of
to the object for which it mankind.can be made.
(4)A hiba to an unborn person (4)A wakf may be made in
is invalid. favour of a succession of
unborn persons.Trust Wakf
(1)No particular motive is (1)It is generally made with a
1324necessary. pious, charitable or
religious motive.(2)The founder may himself be (2)The wakf cannot reserve any
a beneficiary. benefit for himself (except to
some extent under Hanafi
law).(3)It may be for any lawful (3)The ultimate object must be
object. some benefit of mankind.(4)the property vests in the (4)The property vests in God.
trustee.(5)A trustee has got larger (5)A mutawalli is only a
power than a mutawalli. manager or superintendent.
(6)It is not necessary that a (6)A wakf is perpetual,
trust maybe perpetual, irrevocable and inalienable.
irrevocable or inalienable.(7)It results for the benefit of (7)The cypres doctrine is
the founder when it is applied and the property
incapable of execution and may be applied to some
the property has not been other object.exhausted.
1105. Apparently, Islam is not a necessary condition for
constitution of a waqf. It may be made by a Muslim or a non
Muslim but the necessary condition for creation of a waqf is the
object thereof. Ameer Ali in his book on Mohammedan Law
(Fourth Edition) Volume I at page 200 has said “Any person of
whatever creed may create wakf, but the law requires that the
object for which the dedication is made should be lawful
according to the creed of the dedicator as well as the Islamic
doctrines. Divine approbation being the essential in the
constitution of a wakf if the object for which a dedication is made
is sinful, either according to the laws of Islam or to the creed of
the dedicator it would not be valid.” Thus a non Muslim may
also create a waqf for any purpose which is religious under the
Mohammedan Law. But the object of the waqf must be lawful
according to the religious creed of the maker as well.1325
1106. Section 3 of 1913 Act empowers any person
professing muslim faith to create a waqf in all other respects in
accordance with the provisions of Muslim Law for the following
among other purposes, i.e., for the maintenance and support,
wholly or partially of his family, children and descendants etc. It
would be useful to reproduce Section 3 as under :“3. It shall be lawful for any person professing the
Mussalman faith to create a waqf which in all other
respects is in accordance with the provisions of Mussalman
law, for the following among other purposes :-
(1)for the maintenance and support wholly or partially
of his family, children or descendants, and
(2)where the person creating a waqf is a Hanafi
Mussalman, also for his own maintenance and
support during his lifetime or for the payment of his
debts out of the rents and profits of the property
dedicated :Provided that the ultimate benefit is in such cases
expressly or implicitly reserved for the poor or for
any other purpose recognised by the Mussalman law
as a religious, pious or charitable purpose of a
permanent character.”1107. 1913 Act, however, having not been given retrospective
effect did not remove the hardship in its entirety created by the
decision of Privy Council in Abul Fata Mohammad (supra)
and in some later cases it was held that 1913 Act could not be
construed as validating deeds executed before 07.03.1913.
1108. On 05.08.1923 the Mussalman Waqf Act, 1923 (Act
No. XLII of 1923 (hereinafter referred to as “1923 Act”) was
enacted with the object of better management of waqf property
1326and ensuring maintenance of proper accounts and its publication
in respect of such properties. The aforesaid Act was applicable
to the whole of British India at the relevant time and in 1948 the
said words were substituted by the words “all the Provinces of
India”. The term “benefit”, “mutwalli” and “waqf” were defined
in Section 2 (a) (c) and (e) of 1923 Act, as under :“2. In this Act, unless there is anything repugnant in the
subject or context,-(a)”benefit” does not include any benefit which a
mutwalli is entitled to claim solely by reason of his being
such mutwalli;(b) ……………………………………..
(c)”mutwalli” means any person appointed either
verbally or under any deed or instrument by which a
wakf has been created or by a Court of competent
jurisdiction to be the mutwalli of a wakf, and
includes a naib-mutwalli or other person appointed
by a mutwalli to perform the duties of the mutwalli,
and, save as otherwise provided in this Act, any
person who is for the time being administering any
wakf property;(d)………………………………………
(e)”wakf” means the permanent dedication by a
person professing the Mussalman faith of any
property for any purpose recognised by the
Mussalman law as religious, pious or charitable, but
does not include any wakf, such as is described in
section, 3 of the Mussalman Wakf Validating Act,
1913, under which any benefit is for the time being
claimable for himself by the person by whom the
1327wakf was created or by any of his family or
descendants.”1109. Section 3 of 1923 Act placed an obligation on a
Mutwalli to furnish certain particulars in respect to waqf
property, income and expenses etc. within a period of six
months from the date of commencement of the 1923 Act to the
Court within the local limits of whose jurisdiction the property
of the waqf, for which the said person is mutwalli, is situated.Non compliance of Section 3 was made penal vide Section 10 of
the said Act.1110. Section 10 of 1923 Act provides consequences on
failure to comply with the provisions of Sections, 3, 4 and 5 and
reads as under:“10. Penalties.–Any person who is required by or
under Sec. 3 or Sec. 4 to furnish statement of particulars or
any document relating to a wakf, or who is required by Sec.
5 to furnish a statement of accounts, shall, if he, without
reasonable cause the burden of proving which shall lie
upon him, fails to furnish such statement or document, as
the case may be, in due time, or furnishes a statement
which he knows or has reason to believe to be false,
misleading or untrue in any material particular, or, in the
case of a statement of accounts, furnishes a statement
which has not been audited in the manner required by Sec.
6, be punishable with fine which may extend to five
hundred rupees, or, in the case of a second or subsequent
offence, with fine which may extend to two thousand
rupees.”1111. A question arose as to whether the Court while
exercising power under Section 10 can proceed to look into the
1328question as to whether any property which is denied to be a
waqf property can be investigated and looked into so as to find
out whether it is a waqf property within the meaning of Section
2(e) of the Act or not. This question came to be considered
before a Hon’ble Single Judge of Patna High Court in (Syed) Ali
Mohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189.
The question was that of application of 1923 Act in respect to
property where there was a dispute whether it was a waqf
property or not. The petitioner before the High Court return a
notice issued by the Collector including petitioner’s property in
the list of waqf properties stating that he was not incharge of
any waqf property as defined in Section 2(e) of 1923 Act
whereupon the Collector referred the matter to the District Judge
who held the property as a waqf property and the question was
whether the order of District Judge was within jurisdiction or
not. It was held by the Hon’ble Patna High Court that there is no
provision in the Act authorizing the Court, as defined in the Act,
to determine as to whether any property which if denied to be a
waqf property, is waqf property, within the meaning of the Act.
The Act neither authorizes the Court to summon witnesses or to
take evidence nor any procedure is prescribed for determining
the question as to whether any property is a waqf property and
no provision of appeal or revision is made if any such decision
is made. It held that the Act applies to admitted waqfs and not to
the properties which are denied to be the waqf properties.
1112. However, this view did not find favour with a Full
Bench decision of Oudh Chief Court in Mohammad Baqar and
another Vs. S. Mohammad Casim and others, AIR 1932
Oudh 210 where it was held that mere denial of a property as
constituting a waqf property by a person would not deprive
1329jurisdiction to the Court to consider whether the property is a
waqf property under 1923 Act or not, otherwise, it would defeat
the very objective of the Act. In the majority decision, the Court
said that it is a recalcitrant Mutawalli to whom the Act intends
to reach and if the jurisdiction of the Court is ousted as soon as a
Mutawalli who has failed to observe the provisions of the Act
denies the alleged waqf that would defeat the very objective of
the legislature. It was held that the application of 1923 Act does
not depend upon the attitude which a Mutawalli may take with
regard to origin of an alleged waqf. The Court said:“From the definition of the word “wakf” in Cl. (e), S.
2 of the Act it is clear that a wakf of the nature described in
S. 3, Mussalman Wakf Validating Act, 1913, is excluded
from the operation of the Act of 1923. With a view to
determine whether an alleged waqf is inside or outside the
scope of the Act the Court must make some inquiry. The
inquiry may be limited merely to an interpretation of the
instrument creating the wakf if there is any or to the
scrutinizing of the terms of an oral wakf.” (page211)
1113. The Court further held:“It is true that the Act does not lay down any
obligation on the Court as to the limits to which it should
carry any inquiry which it may wish to make and no party
is entitled to compel the Court to carry inquiry up to any
particular stage. Indeed the Court may refuse to enter into
any inquiry on the ground that the allegations of the parties
disclose a controversy fit to be determined in a regular
suit, and this, in my judgment, explains the absence of any
special rule of procedure. The Court is invested with a
discretion but it cannot, in my opinion, refuse to look into
1330the merits of the case and stay its hands on the sole ground
that the alleged mutawalli does not admit the alleged
wakf.” (page 213)
1114. It is not the case of any of the parties that any such
statement was furnished in respect to the property in dispute in
the Court as defined under Section 2 (b) of the said Act and the
provisions of the said Act were complied with at all. It is not the
case of the parties, i.e., the plaintiff, Suit-4, or in general,
Muslim parties, that the aforesaid Act was applicable to the
property in dispute or that the compliance of the said Act was
made by the concerned Mutawalli. In the absence of any
pleadings in respect to 1923 Act, we have no hesitation in not
considering the matter in the light of 1923 Act inasmuch as if
that be so first of all it would be necessary to consider whether
the property in question was a waqf made in 1528 and continued
to be so thereafter and secondly whether any person as
Mutawalli was in possession of the property in question in 1923
and thereafter. We have not been shown any material to show
the existence of the above facts and even if so then why and in
what circumstances the provisions under 1923 Act were not
complied with is also not explained. We also find that it is case
of none that Section 12 or 13 of 1923 Act at the relevant time
were attracted to the property in dispute and/or that the said
property was exempted by the competent government from the
operation of 1923 Act.1115. The next legislation is Mussalman Waqf Validating
Act (XXIII) of 1930 which made 1913 Act applicable to waqfs
created before the commencement of 1913 Act with the rider
that the transactions already completed in respect to right, title,
obligations, liability etc. shall not be affected in any manner.1331
1116. Then came the 1936 Act (Act No. 13 of 1936)
published in U.P. Gazette dated 20.03.1937. The above
enactment was made for the better governance, administration
and supervision of certain classes of Muslim waqf in the United
Provinces of Agra and Oudh. Section 1 of 1936 Act provides for
the commencement, and extent; and reads as under:“(1) Short title, commencement and extent.–(1) This
Act shall be called “the United Provinces Muslim Waqfs
Act, 1936.”(2) This section and sections 2 to 4 shall come into
force at once. The rest of the Act shall not come into force
until such date as the local Government may, by
notification in the Gazette, appoint in this behalf.(3)It shall extend to the whole of the United
Provinces of Agra and Oudh.”1117. We may mention at this stage that Section 1(2)
enforces only Sections 2 to 4 at once and the rest of the Act was
to come into force on such date as the local Government by
notification in the gazette may appoint in this behalf. Sections 5
to 71 of the said Act came into force on 01.07.1941vide
notification dated 20.06.1941 published in Government Gazette
of the United Provinces Vol. LXIII, No. XXVI, Part-1, page 311
dated 20.06.1941 which reads as under:“In exercise of the powers conferred by sub-section
(2) of section 1 of the United Provinces Muslim Waqfs Act,
1936 (U.P. XIII of 1936), the Governor of the United
Provinces is pleased to declare that sections 5 to 71 of the
said Act shall come into force on the 1st day of July, 1941.”1118. The reason for delay in notification giving effect to
Sections 5 to 71 of 1936 Act came to be noticed in Badrul
1332Islam Vs. The Sunni Central Board of Waqf, U.P. Lucknow,
AIR 1954 Allahabad 459 in para 8 of the judgement as under:“It is true that the provisions of Ss. 5 to 71 of the Act did
not come in force till some time in 1941. This fact has no
bearing because it appears that the late enforcement of
these provisions was due to the fact that what was provided
by these provisions could not have been given effect to till
the Central Board had found on investigation through
proper agency the waqfs which were subject to the Act. It
was no use enforcing these provisions which could not
have been given effect to. It was for this reason that these
sections were later enforced.”1119. It is said that the Commissioner of Waqf made
survey under Section 4 and submitted his report. The Boards
proceeded further by issuing notifications in respect to Sunni
Waqfs on 26.02.1944 and in respect of Shia Waqfs on
15.01.1954 published in the gazette dated 23.01.1954, we are
proceeding further presuming as if the rest of the provisions of
the Act were made operative and will try to find out the answer
to the above issues accordingly.1120. Section 2 of 1936 Act provides for applicability of
the Act to certain category of waqfs and inapplicability to some
other category of waqfs and reads as under:“2. Applicability of the Act.-(1) Save as herein
otherwise specifically stated, this Act shall apply to all
waqfs, whether created before or after this Act comes into
force, any part of the property of which is situated in the
United Provinces.(2) This Act shall not apply to-
(i) a waqf created by a deed, if any, under the
1333terms of which not less than 75 per cent, of the total
income after deduction of land revenue and cesses
payable to Government of the property covered by
the deed of waqf, if any, is for the time being payable
for the benefit of the waqif or his descendants or any
member of his family.(ii) a waqf created solely for either of the
following purposes :(a) the maintenance and support of any person
other than the waqif or his descendants or any
member of his family,(b) the celebration of religious ceremonies
connected with the death anniversaries of the waqif
or of any member of his family or any of his
ancestors,(c) the maintenance of private immabaras,
tombs and grave yards, or(d) the maintenance and support of the waqif
or for payment of his debts, when the waqif is a
Hanafi Musalman; and(iii) the waqfs mentioned in the schedule :
Provided that if the Mutawalli of a waqf to which this
Act does not apply wrongfully sells or mortgages, or
suffers to be sold in execution of a decree against
himself, or otherwise destroys the whole or any part
of the waqf property, the Central Board may apply
all or any of the provisions of this Act to such waqf
for such time as it may think necessary.Explanation. A waqf which is originally exempt
from the operation of this act may, for any reason
1334subsequently, become subject to such operation, for
example, by reason of a higher percentage of its
income becoming available under the terms of the
deed for public charities.”1121. The Schedule referred to in Section 2(2)(iii) of 1936
Act is as under :1. Waqfs governed by Act XV of 1878.
2. Wazir Begam Trust, Lucknow.
3. Agha Abbu Sahib Trust, Lucknow.
4. Shah Najaf Trust, King’s side, Lucknow, and Queen’s
side, Lucknow.5. Kazmain Trust, Lucknow.
1122. Section 3 contains certain definitions as under:
“3. In this Act, unless there is anything repugnant in
the subject or context–(1) Interpretation clauses.–“Waqf” means the
permanent dedication or grant of any property for any
purpose recognized by the Musalman law or usage as
religious, pious or charitable and, where no deed of waqf is
traceable, includes waqf by user, and a waqif means any
person who makes such dedication or grant.”(2) “Beneficiary” means the person or object for
whose benefit a waqf is created and includes religious,
pious or charitable objects, and any other object of public
utility established for the benefit of the Muslim community
or any particular sect of the Muslim community.”(3) “Mutawalli” means a manager of a waqf or
endowment and includes an amin, a sajjadanashin, a
khadim, naib mutawalli and a committee of management,
and, save as otherwise provided in this Act, any person
1335who is for the time being in charge of or administering, any
endowment as such.(4) “Family” includes–
(a) Parents and grand-parents.
(b) Wife or husband.
(c) Persons related through any ancestor, male
or female.(d) Persons who reside with, and are
maintained by, the waqif, whether related to him or
not.(5) Property includes Government securities and
bonds, shares in firms and companies, stocks, debentures
and other securities and instruments.(6) “Prescribed” means prescribed by rules made
under this Act.(7) “Court” means, unless otherwise stated either
expressly or by implication, the court of the District Judge
or any other court empowered by the local Government to
exercise jurisdiction under this Act.(8) “Net income” means the total income minus the
land revenue and other cesses payable to Government and
to local bodies:Provided that in the case of land paying land revenue
the recorded income shall be deemed to be the total
income.”1123. Chapter I which has Sections 4 to 24 deals with
Survey of Waqfs and Central Board of Waqfs. Section 4 deals
with the Survey of Waqfs; Section 5 deals with the
Commissioner’s report and its publication in the Gazette; and,
read as under:1336
“4. (1) Survey of waqfs.–Within three-months of the
commencement of this Act the local Government shall by
notification in the Gazette appoint for each district a
gazetted officer, either by name or by official designation
for the purpose of making a survey of all waqfs in such
district, whether subject of this Act or not. Such officer
shall be called the Commissioner of waqfs.”(2) The Local Government may, from time to time
when necessary cancel any appointment under sub-section
(1) or make a new appointment.(3) The “Commissioner of waqfs” shall, after making
such inquiries as he may consider necessary, ascertain and
determine–(a) the number of all Shia and Sunni waqfs in
the district;(b) the nature of each waqf;
(c) the gross income of property comprised in
the waqf;(d) the amount of Government revenue, cesses
and taxes payable in respect of waqf property;(e) expenses incurred in the realization of the
income and the pay of the mutawalli of each waqf if
the waqf is not exempted under section 2; and(f) whether the waqf is one of those exempted
from the provisions of this Act under section 2:Provided that where there is a dispute whether a
particular waqf is Shia waqf or Sunni waqf and there are
clear indications as to the sect of which it pertains in the
recitals of the deed of waqf, such dispute shall be decided
on the basis of such recitals.1337
(4) In making such inquiries as aforesaid the
Commissioner of waqfs shall exercise all the powers of a
civil court for summoning and examining witnesses and
documents, making local inspections, appointing
commissioners for examination of witnesses, examining of
accounts and making local investigations.(5) The Commissioner of waqfs shall submit his
report of inquiry to the local Government.(6) The total cost of carrying out the provisions of
this section shall be borne by the mutawallis of all waqfs to
which the Mussalmans Waqfs Act, 1923, applies in
proportion to the income of the property of such waqfs
situated in the United Provinces.(7) Notwithstanding anything in the deed or
instrument creating any waqf, any mutawalli may pay from
the income of the waqf property any sum due from him
under sub-section (6).(8) Any sum due from a mutawalli under sub-section
(6) may, on a certificate issued by the local Government, be
recovered by the Collector in the manner provided by law
for recovery of an arrear of land revenue.5. Commissioner’s report.–
(1) The local Government shall forward a copy of the
Commissioner’s report to each of the Central Boards
constituted under this Act. Each Central Board shall as
soon as possible notify in the Gazette the waqfs relating to
the particular sect to which, according to such report, the
provisions of this Act apply.(2) The mutawalli of a waqf or any person interested
in a waqf or a Central Board may bring a suit in a civil
1338court of competent jurisdiction for a declaration that any
transaction held by the Commissioner of waqfs to be a
waqf is not a waqf, or any transaction held or assumed by
him not to be a waqf is a waqf, or that a waqf held by him
to pertain to a particular sect does not belong to that sect,
or that any waqf reported by such Commissioner as being
subject to the provisions of this Act is exempted under
section 2, or that any waqf held by him to be so exempted is
subject to this Act:Provided that no such suit shall be instituted by a
Central Board after more than two years of the receipt of
the report of Commissioner of waqfs, and by a mutawalli
or person interested in a waqf after more than one year of
the notification referred to in sub-clause (1):Provided also that no proceedings under this Act in
respect of any waqf shall be stayed or suspended merely by
reason of the pendency of any such suit or of any appeal
arising out of any such suit.(3) Subject to the final result of any suit instituted
under sub-section (2) the report of the Commissioner of
waqfs shall be final and conclusive.(4) The Commissioner of waqfs shall not be made a
defendant to any suit under sub-section (2) and no suit
shall be instituted against him for anything done by him in
good faith under colour of this Act.”1124. Sections 6, 7 and 8 of 1936 Act show that there shall
be two Waqf Board namely, Shia Central Board and Sunni
Central Board of Waqf. The constitution etc. thereof is provided
from Section 6 to 17. Section 18 deals with the functions of the
Central Board and reads as under:1339
“18. Function of the Central Board.- (1) The general
superintendence of all waqfs to which this Act applies shall
vest in the Central Board. The Central Board shall do all
things reasonable and necessary to ensure that waqfs or
endowments under its superintendence are properly
maintained, controlled and administered and duly
appropriated to the purposes for which they were founded
or for which they exist.(2) Without prejudice to the generality of the
provisions of sub-section (1) the powers and duties of the
Central Board shall be-(a) to complete and maintain and authentic
record of rights containing information
relating to the origin, income, object, and
beneficiaries of every waqf in each district;(b) to prepare and settle its own budget;
(c) to settle and pass budgets submitted by the
mutawallis direct to the Board and any budget
submitted to, but not approved by, a District
Waqf Committee, provided that it is in
accordance with the wishes of the waqif and
the terms of the deed of waqf;(d) to settle and pass the annual budgets of
the District Waqf Committees;(e) to institute and and defend suits and proceedings in a court of law relating to- (i) administration of waqfs, (ii) taking of accounts, (iii) appointment and removal of mutawallis in accordance with the deed 1340 of waqf if it is traceable,(iv) putting the mutawallis in possession
or removing them from possession,(v) settlement or modification of any
scheme of management;(f) to sanction the institution of suits under
section 92 of the Code of Civil Procedure,
1908, relating to waqfs to which this Act
applies;(g) to take measure for the recovery of lost
properties;(h) to settle scheme of management and
application of waqf funds in accordance with
the doctrine of cypres in case of those waqfs,
the objects of which are not evident from any
written instrument or in cases in which the
objects for which they were created have
ceased to exist;(i) to enter upon and inspect waqf properties;
(j) to investigate into the nature and extent of
waqfs and waqf properties and call from time
to time for accounts and other returns and
information from the mutawallis and give
directions for the proper administration of
waqfs;(k) to arrange for the auditing of accounts
submitted by the mutawallis;(l) to direct the deposit of surplus money in
the hands of the mutawalli in any approved
bank and to utilize it on the objects of waqf;1341
(m) to supervise and control the District Waqf
Committees;(n) to administer the waqf fund;
(o) to keep regular accounts of receipts and
disbursement and submit the same in the
matter prescribed;(p) to institute when necessary an inquiry
relating to the administration of a waqf:
Provided that in the appointment of mutawallis
or in making any other arrangement for the
management of waqf property the Central Board
shall be guided as far as possible by the directions of
the waqif, if any.”1125. A careful reading of 1936 Act as also all the earlier
enactments make it very clear that neither they create a waqf nor
diminish or terminate a waqf nor affect a waqf in any other
manner. On the contrary, the provisions have been made only to
provide a statutory body for the better governance,
administration and supervision of the waqfs to which the said
Act apply. Further vide Section 2(1) of 1936 Act though it
applies to all waqfs, whether created before the commencement
of the Act or thereafter, if any part of the property of which
waqf is situate in the United provinces but by virtue of Sub-
section (2) of Section 2 certain classes of waqfs have been
excluded. The exclusion under Sub-section (2) of Section 2 of
1936 Act is specific and has been categorized with precision. It
would mean that only to the extent the waqfs are excluded by
virtue of sub-section (2) of Section 2 all other waqfs, if a waqf
validly created, would be governed by 1936 Act.
1126. The term ‘Waqf’ under 1936 Act has also been
1342defined as a permanent dedication or grant of any property for
any purposes recognized by the Musalman law or usage as
religious, pious or charitable including waqf by user where no
deed of waqf is traceable.1127. However a cumulative reading of the entire 1936
Act shows that it does not govern the right of worship of Hindus
or Muslims. as the case may be. The object of enactment is to
provide better governance and administration in supervision of
certain classes of Muslim Waqfs. The Waqfs to which the
aforesaid Act applies are to be supervised and maintained by the
Central Boards, namely, Shia Central or Sunni Central Board, as
the case may be, constituted under Section 6 of the said Act.
1128. At this stage it may be pointed out that there was
some ambiguity between Section 8(1)(i) and Section 12.
Noticing the same, vide U.P. Muslim Waqfs (Amendment) Act
9 of 1953 which received the assent of the President on
26.02.1953, Section 12 was deleted and Section 8-A was
inserted which was held valid by this Court in All India Shia
Conference Vs. Taqi Hadi and others, AIR 1954 All. 124.
1129. In 1954, the Parliament enacted Waqf Act, 1954
(Act XXIX of 1954) (hereinafter referred to as ‘1954 Act’). The
aforesaid Act though extended to whole of India except the
State of Jammu and Kashmir but proviso to Section 1(3) thereof
provides for the State of U.P., Bihar and West Bengal as under :“Provided that in respect of any of the States of Bihar,
Uttar Pradesh and West Bengal, no such notification shall
be issued except on the recommendation of the State
Government concerned.”1130. Consequently, 1954 Act did not apply to the State of
U.P. since the State of U.P. had its own Act of 1936.1343
1131. Though not necessary for the category of the issues,
with which we are concerned at this stage, but just to complete
the legislative history, we find that the State legislature enacted
U.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960)
(hereinafter referred to ‘1960 Act’). This U.P. Act, 1960 received
assent of the President of India on 27th August, 1960 and was
published in U.P. Gazette Extraordinary on 3rd September, 1960.
Vide Section 1(3) of 1960 Act, it came into force at once.
Section 2 of 1960 Act provides for the application of the Act
and sub-section (1) thereof reads as under :“2. Application of the Act.-(1) Save as herein otherwise
specifically stated, this Act shall apply to all waqfs,
whether created before or after the commencement of this
Act, any part of the property comprised in which it situate
in Uttar Pradesh, and to all the waqfs which at the time of
the coming into force of this act were the superintendence
of the Sunni Central Board or the Shia Central Board
constituted under the U.P. Muslim Waqfs Act, 1936 (U.P.
Act XIII of 1936).1132. Vide Section 85 (2) of 1960 Act, 1936 Act as well
as Husainabad Endowment Act, 1878 were repealed. Some
more enactments were repealed by insertion of Section 11 of
U.P. Act No.28 of 1971 whereby the following was inserted in
Section 85(2) of 1960 Act :“The following enactments are also hereby repealed in
their application to any waqf to which this Act applies :
(1) the Bengal Charitable Endoments, Public Buildings and
Escheats Regulation, 1810 (Act XIX of 1810) ;
(2) the Religious Endoments Act, 1863 (Act XX of
1863) ;1344
(3)the Charitable Endowments Act, 1890 (Act XX of 1890) ;
(4) the Charitable and Religious Trusts Act, 190 (Act
XIV of 1920):”1133. There was saving provisions in Section 85 by way of
proviso which read as under :“Provided that this repeal shall not affect the operation of
those Acts in regard to any suit or proceeding pending in
any Court or to an appeal or an application in revision
against any order that may be passed in such suit or
proceeding and subject thereto, anything done or any
action taken in exercise of powers conferred by or under
those Acts shall unless otherwise expressly required by any
provision of this Act, be deemed to have been done or taken
in exercise of the powers conferred by or under this Act as
if this Act were in force on the day on which such thing was
done or action was taken.”1134. Besides, Section 28 of 1960 Act provides saving of
waqfs already registered and provides as under :“Savings U.P. Act XIII of 1986.- A waqf registered before
the commencement of this Act under the U.P. Muslim Waqf
Act 1936, shall be deemed to have been registered under
the provisions of this Act.”1135. 1960 Act now stands repealed by the Waqf Act,
1995 (Central Act) which has come into effect w.e.f. 1st January,
1996.1136. Now reverting to 1936 Act, the general power of
superintendence vested in the Central Board is to ensure that the
waqfs or endowments under its superintendence are maintained,
controlled, administered and duly appropriated to the purposes
for which they were founded or for which they exist. The very
1345functions of the Central Board, as such, do not relate directly to
the right of worship of either the Hindus or Muslims in any
manner. To some extent, however, it may be said that if a
religious Waqfs is not properly maintained and administered,
and, it causes hindrance or obstruction in observance of such
religious activities for which the Waqf was created, the right of
people in general who are entitled to use Waqf property for the
purposes it is created, to that extent may be obstructed, but
directly it cannot be said that 1936 Act in any manner deals with
the right of worship of any of the member of the community for
whose benefit the Waqf is created. It is moreso when the
question of a member(s) of a community other than Muslim
arises since neither his right of worship in any manner is sought
to be affected by 1936 Act nor otherwise it does appear to do so.
1137. In respect to 1936 Act this question came to be
considered by the Apex Court in Siraj-ul-Haq Khan and others
Vs. The Sunni Central Board of Waqf U.P. and others, AIR
1959 SC 198 in an appeal taken against the judgment of this
Court in Sunni Central Board of Waqf Vs. Siraj-ul-Haq Khan
and others, AIR 1954 All. 88. The matter pertains to Darga
Hazarat Syed Salar Mahsood Ghazi situated in the Village
Singha Parasi, District Bahraich. The appellants were members
of the Waqf Committee, Darga Sharif, Bahraich and filed a suit
seeking a declaration that the properties of suit were not covered
by the provisions of 1936 Act. The Court considered the words
“the Mutawalli of a waqf or any person interested in a waqf”
under Section 5(2) of 1936 Act, and, construing the same, it
held that it would mean “any person interested” in what is held
to be a waqf and in order to find out so it is open to the
Commissioner of the Waqf to find out whether a property is a
1346waqf or not and if he includes such a property in the list of waqf,
the person challenging such decision would be included by the
words “any person interested in a waqf” under Section 5(2). It
would be appropriate to reproduce the relevant observations in
para 16 of the judgment:“The word ‘waqf’ as used in this sub-section must be
given the meaning attached to it by the definition in S. 3
(1) of the Act and since the appellants totally deny the
existence of such a waqf they cannot be said to be
interested in the ‘waqf’. The argument thus presented
appears prima facie to be attractive and plausible; but on a
close examination of S. 5(2) it would appear clear that the
words “any person interested in a waqf” cannot be
construed in their strict literal meaning. If the said words
are given their strict literal meaning, suits for a
declaration that any transaction held by the Commissioner
to be a waqf is not a waqf can never be filed by a mutawalli
of a waqf or a person interested in a waqf. The scheme of
this sub-section is clear. When the Central Board assumes
jurisdiction over any waqf under the Act it proceeds to do
so on the decision of three points by the Commissioner of
Waqfs. It assumes that the property is a waqf, that it is
either a Sunni or a Shia waqf, and that it is not a waqf
which falls within the exceptions mentioned in S. 2. It is in
respect of each one of these decisions that a suit is
contemplated by S. 5, sub-s. (2). If the decision is that the
property is not a waqf or that it is a waqf falling within the
exceptions mentioned by S. 2, the Central Board may have
occasion to bring a suit. Similarly if the decision is that the
waqf is Shia and not Sunni, a Sunni Central Board may
1347have occasion to bring a suit and vice versa. Likewise the
decision that the property is a waqf may be challenged by a
person who disputes the correctness of the said decision.The decision that a property does not fall within the
exceptions mentioned by S. 2 may also be challenged by a
person who claims that the waqf attracts the provisions of
S. 2. If that be the nature of the scheme of suits
contemplated by S. 5(2) it would be difficult to imagine
how the mutawalli of a waqf or any person interested in a
waqf can ever sue for a declaration that the transaction
held by the Commissioner of the waqfs to be a waqf is not a
waqf. That is why we think that the literal construction of
the expression “any person interested in a waqf” would
render a part of the sub-section wholly meaningless and
ineffective. The legislature has definitely contemplated that
the decision of the Commissioner of the Waqfs that a
particular transaction is a waqf can be challenged by
persons who do not accept the correctness of the said
decision, and it is, this class of persons who are obviously
intended to be covered by the words “any person interested
in a waqf “. It is well-settled that in construing the
provisions of a statute courts should be slow to adopt a
construction which tends to make any part of the statute
meaningless or ineffective; an attempt must always be
made so to reconcile the relevant provisions as to advance
the remedy intended by the statute. In our opinion, on a
reading of the provisions of the relevant sub-section as a
whole there can be no doubt that the expression “any
person interested in a waqf” must mean “any person
interested in what is held to be a waqf “. It is only persons
1348who are interested in a transaction which is held to be a
waqf who would sue for a declaration that the decision of
the Commissioner of the Waqfs in that behalf is wrong, and
that the transaction in fact is not a waqf under the Act. We
must accordingly hold that the relevant clause on which
Mr. Dar has placed his argument in repelling the
application of S. 5(2) to the present suit must not be strictly
or literally construed, and that it should be taken to mean
any person interested in a transaction which is held to be a
waqf. On this construction the appellants are obviously
interested in the suit properties which are notified to be
waqf by the notification issued by respondent 1, and so the
suit instituted by them would be governed by S. 5, sub-s. (2)
and as such it would be barred by time unless it is saved
under S. 15 of the Limitation Act.”1138. The above decision, however related to a matter
where all the parties before the Court were Muslim and there
was no question about the rights of non Muslim being affected
by a decision of the Commissioner of Waqf or Central Board
constituted under Section 6 of 1936 Act. In other words the
decision noted above covered the persons following the same
religious namely, Mohammadan Law but where such a dispute
is raised by another party namely a person of different religion
like, Hindu, Christian etc. whether 1936 Act at all will apply in
that case or not, is not touched by the above judgment.
1139. In our view, since 1936 Act does not provide or
control the right of worship of Hindu or Muslims, the rival
dispute between the persons who are not Muslims, in the matter
of an immovable property, whether it is waqf or not would not
be governed by the provisions of 1936 Act but it would be open
1349to non-muslim party to stake his claim without being affected in
any manner by the provisions of 1936 Act.1140. Our view find support from a Division Bench
decision of Rajasthan High Court in Radhakishan and another
Vs. State of Rajasthan and others, AIR 1967 Rajasthan 1.
This case had arisen from the Waqfs Act, 1954 (in short “1954
Act”) and interpretation of the words “any person interested
therein” appearing in Section 6(1) came to be considered. The
Court held that it would not empower the Board of Waqfs to
decide the question whether a particular property is a waqf
property or not if such a dispute is raised by a person who is
stranger to waqf. The Division Bench therein referred to our
Full Bench decision in Mohammad Baqar (supra) and
observed that in reference to 1923 Act Patna, Lahore, Bombay
and Madras High Court took a view that the District Judge has
no jurisdiction to hold an inquiry into the nature of property
where the alleged Mutawalli deny existence of waqf though the
Allahabad Chief Court of Oudh took a different view.
1141. We may notice hereat that in the Full Bench
judgment of Chief Court of Oudh in Mohammad Baqar
(supra) there was no question with respect to jurisdiction of the
District Judge where the existence of alleged waqf is denied by
a stranger and not the Mutawalli, therefore, we do not find that
the decision in Radhakishan (supra) in any way can be
construed as a dissenting view to the decision of Oudh Chief
Court in Mohammad Baqar (supra). This is evident from what
has been held by the Rajasthan High Court in paras 24 and 25
reproduced as under:“24. The present Act No. 29 of 1954 is, no doubt, an
improvement on the Mussalman Wakf Act, 1923, but, in our
1350view, this also does not empower the Board of Wakfs to
decide the question whether a particular property is a wakf
property or not, if such a dispute is raised by a person who
is a stranger to wakf. This view is further confirmed by the
provisions of section 59 of the Act which lays down that in
any suit or proceeding in respect of a wakf or any wakf
property by or against a stranger to the wakf or any other
person, the Board may appear and plead as a party to the
suit or proceeding.25. To sum up the position, the Wakf
Commissioner, though he is invested with the powers of a
civil court in respect of certain matters, is not a civil court
empowered to decide a disputed question whether a
particular property is a wakf property or not. He has only
to make a survey of wakf property existing in the State at
the date of commencement of the Act and to make a report
of survey to the State Government. When the State
Government forwards the report to the Board of Wakfs, it
becomes the duty of the Board to examine it. Thereafter the
Board should publish, in the official gazette, a list of wakfs
existing in the State. The law does not require the
Commissioner to make a survey of wakf properties which
have already become extinct as such. If he mentions in his
report that certain properties were once wakf properties
and can still be recovered as such, then the proper course,
in our opinion for the Board is to file a suit, get them
declared as wakf properties and to recover their
possession. If a dispute about existence of a wakf is raised
by a person who is stranger to the wakf, then it is neither
fair nor proper for the Board to include such properties in
1351the list published in the official gazette. Section 6, in our
opinion, refers only to those triangular disputes which
exists between the Board of Wakf, the mutawalli and a
person interested in the wakf. If there is a dispute between
these three on a question whether a particular property is a
wakf property or whether a wakf is a Shia wakf or a Sunni
wakf, it is open to any one of them to institute a suit in a
civil court of competent jurisdiction. If a suit is instituted,
the decision of the Civil Court will be final. If no such suit
is filed by any one of them within a year from the date of
publication of the list of wakfs the Court would not
entertain the suit thereafter and the list of the wakf shall be
final and conclusive between them. The object of Section 6
is to narrow down the dispute between the Board of Wakf,
the Mutawalli and the person interested in the wakf as
defined in section 3. In our view, it does not concern a
dispute if it is raised by a person who is an utter stranger
to the wakf. The list cannot be final and conclusive as
against a non muslim who is not covered by Section 6(1) of
the Act. Again, if a dispute whether a particular property is
a wakf property or not, is raised by a non-muslim and a
stranger to the wakf, the Board of Wakfs has no
jurisdiction to decide the matter in its own favour under
Section 27 and enter it in the register. The Board’s decision
under section 27 would not be binding against such
persons. For the same reason, the Board would not be able
to recover possession of the property from such persons
under Section 36B of the Act.”1142. The judgment of Rajasthan High Court was taken in
appeal before the Apex Court in The Board of Muslim Wakfs,
1352Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289.
Two questions raised in appeal. Firstly, the meaning of the
words “any person interested therein” in Section 6(1) and (4) of
Waqf Act, 1954 and secondly, the power of Waqf
Commissioner to make survey of waqf properties whether it
includes an inquiry about certain property as a waqf property or
not. The Apex Court referring to the various judgments
considered by the Rajasthan High Court held that they would be
of no assistance in interpreting the provisions of Waqf Act,
1954. However, it was held in para 23 of the judgment that the
High Court was right in determining the scope of Section 6(1) of
1954 Act but fell in error in curtailing the ambit and scope of an
inquiry by the Commissioner of Waqf under Section 4(3) and by
the Board of Waqfs under Section 27 of the Act.
1143. For our purpose, the meaning assigned by the Apex
Court in Section 6(1) to the words “any person interested
therein” would be relevant to answer the issues noticed above
and in this regard it would be appropriate to notice hereunder
paras 31, 32, 33, 34, 35 and 36 of the judgment as under:“31. That leaves us with the question as to the scope of
sub-s. (1) of S. 6. All that we have to consider in this
appeal is, whether if the Commissioner of Wakfs had
jurisdiction to adjudicate and decide against the
respondents Nos. l and 2 that the property in dispute was
wakf property, the list of wakfs published by the Board of
Wakfs under sub-s. (2) of S. 5 would be final and
conclusive against them under S. 6(4) in case they had not
filed a suit within a year from the publication of the lists.The question as to whether the respondents Nos.1 and 2
can be dispossessed, or their possession can be threatened
1353by the Board of Wakfs by proceeding under S. 36B
without filing a suit in a civil court of competent
jurisdiction does not arise for our consideration.”
“32. In the present case, the respondents Nos. 1 and 2
who are non Muslims, contended that they are outside the
scope of sub-s. (1) of S. 6, and consequently, they have no
right to file the suit contemplated by that sub-section and,
therefore, the list of wakfs published by the Board of Wakfs
under sub-s. (2) of S.5 cannot be final and conclusive
against them under sub-s. (4) of S. 6, It was urged that
respondents Nos. 1 and 2 were wholly outside the purview
of sub-s. (1) of S. 6 and they must, therefore, necessarily
fall outside the scope of the enquiry envisaged by sub-s. (1)
of S. 4, as the provisions contained in Sections 4, 5 and 6
form part of an integrated scheme. The question that arises
for consideration, therefore, is as to who are the parties
that could be taken to be concerned in a proceeding under
sub-s. (1) of S. 6 of the Act, and whether the list published
under sub-s. (2) of S. 5 declaring certain property to be
wakf property, would bind a person who is neither a
mutawalli nor a person interested in the wakf.”
“33. The answer to these questions must turn on the true
meaning and construction of the word ‘therein’ in the,
expression ‘any person interested therein’ appearing in
sub-s. (1) of S. 6. In order to understand the meaning of
the word ‘therein’ in our view, it is necessary to refer to the
preceding words ‘the Board or the mutawalli of the wakf’.
The word ‘therein’ must necessarily refer to the ‘wakf’
which immediately precedes it. It cannot refer to the ‘wakf
property’. Sub-section (1) of S. 6 enumerates the persons
1354who can file suits and also the questions in respect of
which such suits can be filed. In enumerating the persons
who are empowered to file suits under this provision, only
the Board, the mutawalli of the wakf, and ‘any person
interested therein’, thereby necessarily meaning any
person interested in the wakf, are listed. It should be borne
in mind that the Act deals with wakfs, its institutions and its
properties. It would, therefore., be logical and reasonable
to infer that its provisions empower only those who are
interested in the wakfs to institute suits.”
“34. In dealing with the question, the High Court
observes:“In our opinion, the words “any person
interested therein” appearing in sub-section (1) of S.
6 mean no more than a person interested in a wakf as
defined in clause (h) of S. 3 of the Act……….It is urged by learned counsel for the
petitioners that the legislature has not used in
Section 6(1) the words “any person interested in a
wakf” and, therefore, this meaning should not be
given to the words “any person interested therein”.
This argument is not tenable because the words “any
person interested therein” appear soon after “the
mutawalli of the wakf” A and therefore the word
‘therein’ has been used to avoid re petition of the
words “in the wakf” and not to extend the scope of
the section to persons who fall outside the scope of
the words “person interested in the wakf”. The
purpose of section 6 is to confine the dispute between
the wakf Board, the mutawalli and a person
1355interested in the wakf.”
That, in our opinion, is the right construction.
35. We are fortified in that view by the decision of this
Court in Sirajul Haq Khan v. The Sunni Central Board of
Wakf, U.P. 1959 SCR 1287:(AIR 1959 SC 198). While
construing S. 5(2) of the United Provinces Muslins Wakf
Act, 1936, this Court interpreted the expression “any
person interested in a wakf” as meaning ‘any person
interested in what is held to be a wakf’, that is, in the
dedication of a property for a pious, religious or
charitable purpose. It will be noticed that sub-s. (1) of S.6
of the Act is based in sub-s. (2) of S. 5 of the United
Provinces Muslims Wakf Act, 1936, which runs thus:“The mutawalli of a wakf or any person interested in
a wakf or a Central Board may bring a suit in a civil court
of competent jurisdiction for a declaration that any
transaction held by the Commissioner of Wakfs to be a
wakf is not a wakf, or any transaction held or assumed by
him not to be a wakf, or that a wakf held by him to pertain
to a particular sect does not be- long to that sect, or that
any wakf reported by such Commissioner as being subject
to the provisions of this Act is exempted under section 2,
or that any wakf held by him to be so exempted is subject to
this Act.”The proviso to that section prescribed the period of one
year’s limitation, as here, to a suit by a mutawalli or a
person interested in the wakf.36. The two provisions are practically similar in content
except that the language of the main enacting part has
been altered in sub-s. (1) of S. 6 of the present Act and put
1356in a proper form. In redrafting the section, the sequence,
of the different clauses has been changed, therefore, for the
expression “any person interested in a wakf” the legislature
had to use the expression “any person interested therein”.
The word ‘therein’ appearing in sub-s. (1) of S. 6 must,
therefore, mean ‘any person interested in a waker’ as
defined in S. 3(h). The object of sub-s. (1) of S. 6 is to
narrow down the dispute between the Board of Wakfs, the
mutawalli and the person interested in the wakf, as defined
in S. 3 (h).”1144. The Apex Court having said so as noticed above
quoted the findings of the Rajasthan High Court with reference
to Section 6 in para 37 of the judgment and in para 38 it says
that it is in agreement with the reasoning of the High Court. The
answer has further been crystallized by the Apex Court in paras
39 and 43 of the judgment as under:“39. It follows that where a stranger who is a non-
Muslim and is in possession of a certain property his right,
title and interest therein cannot be put in jeopardy merely
because the property is included in the List. Such a person
is not required to file a suit for a declaration of his title
within a period of one year. The special rule of limitation
laid down in proviso to sub s. (1) of S. 6 is not applicable
to him. In other words, the list published by the Board of
Wakfs under sub-s. (2) of S. 5 scan be challenged by him by
filing a suit for declaration of title even after the expiry of
the period of one year, if the necessity of filing such suit
arises.”“43. In view of the foregoing, the right of the respondents
Nos. 1 and 2 in respect of the disputed property, if at all
1357they have any, will remain unaffected by the impugned
notification. They are at liberty to bring a suit for the
establishment of their right and title, if any, to the
property.”1145. As noticed above the Apex Court also referred to
Section 5(2) of 1936 Act and observed that it is pare materia to
Section 6(1) and (4) of Waqf Act, 1954.1146. The above decision of the Apex Court in
Radhakishan (supra) was followed in Board of Mulim Wakfs
Vs. Smt. Hadi Begum and others, AIR 1992 SC 1083 where in
para 10 of the judgment the Court briefly reproduced what was
held in Radhakishan (supra) regarding the right, title and
interest of a non-muslim with reference to the Waqf Act, 1954
which also contain the provisions, pari materia with 1936 Act,
and held:“The right, title and interest of a person who is non-muslim
and is in possession of certain property is not put in
jeopardy simply because that property is included in the
list published under sub-sec. (2) of S. 5 and he is not
required to file a suit in a Civil Court for declaration of his
title within the period of one year and the list would not be
final and conclusive against him. Sub-sec. (4) of S. 6 makes
the list final and conclusive only between the Board, the
mutawalli and the person interested in the wakf.” (para 10)
1147. To the same effect is a decision of an Hon’ble Single
Judge in Marawthwada Wakf Board Vs. Rajaram Ramjivan
Manthri and others, AIR 2002 Bom. 144. With reference to
Waqf Act 1954, in para 19 of the judgement, it observed:“Therefore, from the above, it is extremely clear that the
respondent No. 1, who is a non-Muslim, being a Hindu,
1358could not file a suit u/S. 6 of the Wakf Act, 1954, but he
cannot be barred from filing a suit especially in view of the
fact that his right, title and interest have been jeopardised
in view of the notification issued by the Government of
Maharashtra aforesaid.”1148. Another Hon’ble Single Judge of this Court in U.P.
Sunni Central Waqf Board, Lucknow Vs. State of U.P. and
others, 2006(6) ADJ 331 considering Act No.XVI of 1960
which contain similar provisions as that of 1936 Act, in para 9
of the judgment, observed:“There is no dispute that the respondent No. 3 by virtue of
sale deed became the owner of the property is dispute. The
respondent No. 3 being non Muslim, the provisions of U.P.
Muslim Waqf Act, 1960 was not applicable as held by this
Court in the case of Chedda Singh and others Vs.
Additional Civil Judge, Moradabad and others.”1149. A similar view was taken in an earlier decision of
this Court in Chedha Singh and others Vs. Additional Civil
Judge, Moradabad and others, 1996 Supp. AWC 189 which
has been followed in U.P. Sunni Central Waqf Board,
Lucknow (supra).1150. Now, therefore, it is well settled that Section 5 of
1936 Act would have no application qua the rights of Hindus in
general and plaintiff (Suit-1) in particular in respect to his right
of worship. He would not be bound mere by inclusion of the
property in a notification issued under Section 5(1) of 1936 Act.
Moreover, in this particular case since the notification itself has
been held invalid so far as the property in question is concerned,
meaning thereby, in the eyes of law, there was no notification
under Section 5(1) of 1936 Act and, therefore, also the
1359restriction or benefit if any under the Act would not be
applicable to either of the parties. No further provision has been
shown to us from 1936 Act to affect the rights of Hindus in
general and plaintiff (Suit-1) in particular affecting their/his
right of worship etc..1151. Therefore, both the issues are answered in favour of
plaintiff (Suit-1) and defendants (Suit-4) in particular and in
favour of Hindu parties in General. Issues No. 5(b) (Suit-4) and
9(a) (Suit-1) are answered accordingly.1152. Issue No. 5(e) (Suit-4) reads as under:
“Whether in view of the findings recorded by the learned
Civil Judge on 21.4.1966 on issue no.17 to the effect that
“No valid notification under section 5(1) of the Muslim
Waqf Act ( No. XIII of 1936) was ever made in respect of
the property in dispute”, the plaintiff Sunni Central Board
of Waqf has no right to maintain the present suit?”1153. Issue 5(e) (Suit-4) raises a very basic question about
the maintainability of Suit-4 pursuant to the finding recorded by
the leaned Civil Judge where no valid notification has been
issued under Section 5(1) of the Act in respect to the property in
dispute. The question is whether in such circumstances,
plaintiff, Sunni Central Board of Waqf (Suit 4) has any right to
maintain the present suit or not. This leads us to examine about
the Waqfs covered by 1936Act as also when the Sunni Central
Board of Waqf can file a suit.1154. Sri P.N. Mishra, learned counsel for the defendant
No.20 in suit 4 submitted that once it is held that there is no
valid notification issued under Section 5 of 1936 Act and in
view of the further fact that no attempt was made by any person
including the alleged Mutawalli to get the alleged waqf
1360registered under Section 38 with the plaintiff No.1 in Suit-4 and
the Sunni Central Waqf Board has failed to take any steps to get
the alleged waqf registered by issuing necessary directions, as
the case may be, under Section 39/40 of 1936 Act, it is evident
that the disputed building in suit is never treated to be waqf by
them and therefore, since it was not a waqf, the Act itself is not
applicable. Hence suit-4 by plaintiff No.1 is not maintainable.
He also submitted that even otherwise there was no waqf at all,
hence 1936 Act is inapplicable. Sunni Central Waqf Board has
no right to file the above suit.1155. We find that though under the various provisions of
1936 Act, the legislature has attempted and made various
provisions so that any waqf in the State of U.P., if existed, may
be known to the Sunni Central Waqf Board so that it may be
properly supervised and administered. However, the Act does
not contain any provision that even though a waqf has been
created in accordance with Islamic Law yet it would not be
governed by the Act and shall be beyond the power of
supervision, administration of Sunni Central Waqf Board or
Shia Central Waqf Board, as the case may be for the mere
reason that it was not notified under Section 5 of the 1936 Act,
not registered due to fault of the Mutawalli, if any or due to
inaction of the Board itself. It is, however, admitted by learned
counsel for the defendant No.20 that the Act neither creates a
waqf nor extinguish the same if the same is already in existence.
In these circumstances, particularly in the absence of any
provision in the Act, we have to consider whether there is any
intrinsic indication in the Act to necessarily exclude such a waqf
from the purview of 1936 Act merely for its non notification or
registration etc. with the Board. If we find that there is no such
1361intrinsic hint in the Act also then to accept the submission, wide
enough, as advanced by Sri Mishra that even though there is a
valid waqf, if it is not notified or registered with the Board or if
no person has filed a suit for declaration that there is no waqf
within the prescribed limitation, such waqf even if validly
created would not be covered by 1936 Act, would mean that we
have read certain words in the statute which do not actually
exist. It travels in the realm of casus omissus which normally
this Court shall not presume unless there is a necessary
compulsion to do so. Considering the basic purpose for which
the 1936 Act was enacted we find it difficult to read any such
words in the statutes.1156. The Waqf Act, 1954 though not applicable to the
State of U.P. but therein the provisions are mostly pari materia
with 1936 Act. To start with there also was no provision which
restrain the Central Board or anyone to initiate proceedings for
enforcing rights on behalf of a waqf not registered with the
Board but later on Section 55-E was inserted therein by Act No.
69 of 1984 which bar enforcement of right on behalf of
unregistered waqf by anyone which included the Waqf Board
also. It reads as under:“55-E. Bar to the enforcement of right on behalf
of unregistered waqfs.-(1) Notwithstanding anything
contained in any other law for the time being in force, no
suit, appeal or other legal proceeding or the enforcement
of any right on behalf of any waqf which has not been
registered in accordance with the provisions of this Act,
shall be instituted or commenced or heard, tried or decided
by any Court after the commencement of the Waqf
(Amendment) Act, 1984, or where any such suit, appeal or
1362other legal proceeding had been instituted or commenced
before such commencement, no such suit, appeal or other
legal proceeding shall be continued, heard, tried or
decided by any Court after such commencement unless
such waqf has been registered, after such commencement
unless such waqf has been registered, after such
commencement, in accordance with the provisions of this
Act.(2) The provisions of sub-section (1) shall apply, as
far as may be, to the claim for set-off or any other claim
made on behalf of any waqf which has not been registered
in accordance with the provisions of this Act.”1157. We may notice that neither any similar provision
was made in 1936 Act nor in Act No. XVI of 1960, therefore, it
would not be appropriate to read something in U.P. Waqf Act,
1936 which actually did not find mention therein.
1158. We may clarify at this stage that a provision pari
materia with Section 55-E of 1954 Act has been included in
Waqf Act, 1995 in Section 87 but we are not concerned thereto
in this case.1159. A collective reading of various provisions of 1936
Act shows that any ‘waqf’ defined under Section 3(1), whether
existed at the time when 1936 Act came into force, or, came into
existence subsequently, unless excluded under Section 2(2),
would be covered by Section 2(1). In the present suits, there is
an issue no. 6 (Suit-3) questioning the very existence of a ‘Waqf’
and, therefore, unless that issue is answered in favour of the
plaintiffs (Suit-4), it can obviously be not said that the property
in dispute constituted ‘a Waqf’ under Section 3(1) of 1936 Act
and, therefore, will be covered by Section 2(1) of 1936Act since
1363it is not excluded by Section 2(2). Apparently the purpose of
survey and notification under Section 5(1) is to identify the
Waqfs as also the concerned Central Board which would
exercise the power of superintendence over the Waqf concerned
i.e. whether it is Sunni or Shia. Absence of a notification under
Section 5(1) in respect to a property which is a ‘Waqf’ otherwise
would not result in exclusion of other provisions of 1936 Act.
The function of Central Board and its power of superintendence
is not circumscribed to the ‘Waqfs’ as notified under Section
5(1) of the Act.1160. A perusal of Section 18 on the contrary shows that
general power of superintendence of all Waqfs to which “the
Act applies” is vested in the Central Board. Similarly, Section
38 of the Act also says that there is an obligation regarding
registration of ‘Waqf’ whether it is subject to 1936 Act or not
and whether created before or after the commencement of the
Act, at the office of Central Board of the sect to which the Waqf
belongs, namely, if the Waqf is a sunni Waqf, with Sunni
Central Board of Waqf, otherwise, with the Shia Central Board
of Waqf. The obligation for making application for registration
is upon the Mutwalli. Non compliance of Section 38 is an
offence punishable under Section 60. In case of failure of a
Mutwalli to get the Waqf registered, the power is also conferred
upon the Central Board itself to issue such a direction vide
Section 40 of 1936 Act. Section 39 provides for maintaining a
register of Waqfs by the Central Board containing particulars in
respect to each Waqf. The said provision is not confined to only
such Waqfs as are notified under Section 5(1) of 1936 Act.
Section 47 confers power upon the Central Board to apply the
Court seeking direction in cases of undisposed Waqf funds or
1364where the directions in the deed of waqf are no longer sufficient
to carry out the intention of the waqif or where is a case for the
application of doctrine of cypres. Here also the entitlement of
the Central Board to approach the Civil Court is not confined to
the waqfs notified under Section 5(1). Section 48 and 49 also
are applicable to “any waqf” to which 1936 Act applies and not
confined to the waqfs notified under Section 5(1) of the Act.
Similarly, Section 52 also provides for notice of suits to the
Central Board where any suit relating to title to any waqf
property or to the rights of a Mutwalli is instituted in any civil
Court. It is also not confined to the waqfs notified under Section
5(1) of the Act. Same is the position under Section 53 and 54 of
the Act. We are, therefore, of the view that subject to Issue No.
6 (Suit-3), if answered in positive, i.e. in favour of plaintiffs
(Suit-4) or against the plaintiffs (Suit-3),i.e. if it is held that
mosque was dedicated by emperor Babar for worship by
Muslims in general and results in creation of a public waqf
property, in that condition, Issue No. 5 (e) has to be answered in
favour of the plaintiffs (Suit-4) and it is to be held that the
plaintiff, Sunni Central Board of Waqf, has a right to maintain
the suit even though a valid notification under Section 5(1) of
1936 Act was never issued in respect to the property in question.
Otherwise, this suit at the instance of Sunni Central Board of
Waqf would not be maintainable.1161. It is true that in Tamil Nadu Wakf Board Vs.
Hathija Ammal, AIR 2002 SC 402 which was a case arising
out of the provisions of Waqf Act, 1954 and in particular
Sections 4, 5, 6 and 27 thereof, the Court held that since the
Board itself possess power to decide whether a particular
property is waqf property or not and its decision is final unless it
1365is revoked or modified by a civil court by virtue of Section 27 of
1954 Act and, therefore, the Board cannot file a suit for
declaration that any property is a waqf property and for its
possession. However, in our view, the above judgment does not
apply to a case governed by 1936 Act which contain no
provision pari materia to Section 27 of 1954 Act.
1162. At this stage we may also refer an earlier decision of
this Court in Afzal Hussain Vs. 1st Additional District Judge,
AIR 1985 All. 79 where it was held that before taking an action
under Section 57A, for recovery of possession of waqf property
from unauthorised occupants, the first inquiry which the Board
has to make is whether the immovable property in respect of
which action is to be taken is entered as property of waqf in the
register of waqfs maintained under S. 30 of 1960 Act being a
jurisdictional issue. The above judgment also is not applicable
for the reason that Section 57A provides for summery eviction
of unauthorised occupants and is applicable only in such cases
where the property is entered in the register of waqfs maintained
under Section 30. Therefore, the dictum laid down therein
cannot be extended to a case where a suit is to be filed by the
Waqf Board for declaration of possession of a waqf even though
it is neither notified under Section 5(1) nor registered with it
under 1936 Act.1163. Sri Siddiqui, however, tried to overcome the
difficulty as a result of invalidation of the notification by the
Civil Judge by contending that neither it afects the power of
Sunni Board to maintain the suit nor shall bring into the
question of limitation. Placing reliance on the Apex Court’s
decision in U.P. Shia Central Board of Waqf Vs. U.P. Sunnir
Central Board of Waqf, AIR 2001 SC 2086, he contended that
1366mere non-availability of the notification shall not deprive the
Board from registering a property as a waqf property on its own
inquiry. He further submits that the Hindu parties have also filed
certain documents after obtaining certified copies thereof from
the Sunni Board and that being so, it is not open to them to
challenge that the waqf in question is not registered.
1164. The submissions of Sri Siddiqui, however, are not
sustainable. It is though not disputed that U.P. Act 1936
contemplated enlistment of waqfs in the register of concerned
Waqf Board in three ways, i.e., based on the list prepared by the
Commissioner of Waqfs and consequential notification; on the
application of the Mutwalli of the concerned waqf and
registration by the concerned waqf after issuing notice by the
Waqf Board itself but we have to look all these aspects in the
light of the U.P. Act 1936 which continued to hold the field till
1960. Sections 1 to 4 came into force on 20.3.1937 but rest of
the provisions, i.e., Sections 5 to 71 were enforced with effect
from 1.7.1947. The only way in which the disputed waqf
claimed to have been registered by the Waqf Board was the
notification dated 26.2.1944 based on the report of the
Commissioner. That notification was found invalid by the Civil
Judge in its judgment dated 21.4.1966. It is nobody’s case and
even the counsel for the Waqf Board do not claim that till issue
no. 17 was decided by the Civil Judge except of the notification
dated 26.2.1944, there was any other procedure or method
followed by the Sunni Board to enlist or register the concerned
waqf in the register of the Waqf Board. Neither it is pleaded nor
there is any material on record to substantiate the same. U.P.
Act 1936 was substituted by U.P. Act 1960. This continued to
hold the field till the Waqf Act 1995 was enacted by the
1367Parliament. It is only in the pleadings which the Waqf Board
filed after 1989, wherein for the first time it has pleaded that the
waqf in question was registered by the Board under Section 30
of U.P. Act 1960. Till then there was no pleading, no material to
show that the waqf in question was registered with the Board in
any other manner except the notification dated 26.2.1944. That
was declared invalid on 21.04.1966 by the Civil Judge. In the
case of Shia Waqf Board (Supra) there was reference made
under section 8 of U.P. Act 1960 since there was a dispute
whether the concern waqf was a Sunni waqf or Shia waqf. The
Apex Court held that where a dispute arose about the nature of
the waqf whether it is a Shia waqf or a Sunni waqf, the only
requirement under section 8 is the existence of dispute and not
the existence of notification. Referring to section 6 (4) it further
observed that if a notification has already been issued, then the
restriction is that such dispute can be referred only within a
period of one year and not after expiry thereof but so long the
notification is not there, outer limit will not be attracted. We do
not find this judgment to lend any help to the plaintiff (Suit-4)
or Sunni Board in any manner.1165. Similarly the pleading with respect to section 29 (8)
also has no relevance in the case in hand since it is not the case
of the Sunni Waqf Board that except the notification dated
26.02.1944 there was any other order of the waqf board which
existed declaring the waqf in question as a waqf registered with
the Board and the same having not been challenged under
section 29(8) within time prescribed and thereafter could not
have been raised in this regard. This pleas wholly baseless and
is not attracted in these matters.1166. Even otherwise, Suit-4 has been filed not only by
1368the Sunni Central Waqf Board but there are nine more
individual muslim parties being plaintiffs no. 2 to 10. It is
obvious that they are muslims and, therefore, would be
interested in the property in dispute to which they claim to be a
waqf property. The right to file a suit by a muslim in respect to a
property claimed to be a “waqf property” came to be considered
before a Division Bench in Anjuman Islamia Vs. Najim Ali
and others, AIR 1982 MP 17 and in para 7 of the judgement it
held:“7. We shall first consider the question whether the
suit was not tenable at the instance of the plaintiff. In brief
S. 195 of the Principles of Mohammedan Law by Mulla
(18th Edition), is the complete answer to this question,
which contemplates that a suit for a declaration that
property belongs to a wakf can be brought by
Mohammedans interested in the wakf. Anjuman is a society
of Mohammedans registered under the Societies Act (Act
No. 21 of 1860), as per registration certificate No. 104 of
1960-61 (Exhibit P-5). Admittedly the members of plaintiff
Anjuman and its president Shri Mohd. Abdul Qadir (PW 1)
are residents of Chhatarpur and belong to Muslim
community. They are, therefore, persons very much
interested in the property in suit which they claim to be
wakf property. The suit, therefore, instituted at their
instance would be perfectly competent and tenable and the
learned District Judge was wrong in holding otherwise.”1167. In the absence of any other precedent persuading us
to take a different view, we find ourselves in respectful
agreement thereto. We therefore hold that Suit-4 cannot be said
to be not maintainable provided the issue regarding the very
1369nature of the disputed property whether it is a waqf or not is
decided in favour of the plaintiffs (Suit-4) i.e. subject to the
issue as to whether the disputed property is a waqf or not, i.e.,
issue no. 6 (Suit-3) if decided in favour of plaintiffs (Suit-4),
i.e., defendants (Suit-3).1168. Issue No. 18 (Suit-4) is as under:
“What is the effect of the judgment of their Lordships of the
Supreme Court in Gulam Abbas and others vs. State of
U.P. and others AIR 1981 Supreme Court 2198 on the
finding of the learned Civil Judge recorded on 21st April,
1966 on issue no. 17?”1169. Issue No. 18 (Suit-4) relates to the effect of the
judgement of the Apex Court in Gulam Abbas (supra) on the
Issue No. 17 (Suit-4) decided by the learned Civil Judge vide his
judgement dated 21.4.1966. Sri Jilani argued that the
notification dated 26.02.1944 under Section 5 (1) of 1936 Act
was relied by the Apex Court in the above judgment meaning
thereby the notification cannot be said to be void ab initio and it
would be deemed as if the decision of the leaned Civil Judge is
no more a good law in view of the fact that the law laid down by
the Apex court is the law of the land vide Article 145 of the
Constitution of India.1170. Sri M.M. Pandey, counsel for plaintiffs (Suit-5),
however, submitted that the decision in Ghulam Abbas’s case
may be considered. In respect of Doshipura Mosque and other
properties, the Wakf Commissoner, after survey and inquiry,
made a report dt 28/31.10.1938 u/s 4(5) of Wakf Act 1936 with
Appendix VIII of Sunni Wakfs, excluding the Mosque, and
Appendix X of Shia Wakfs including the Mosque; copies of the
report were sent to both Shia and Sunni Boards of Wakf. On
1370receipt of the report, Shia Board published Notification dt.
15.1.1954 of Appendix X in Gazette dt. 23.1.1954 u/s 5(1).
Neither Sunni Board nor any person interested in the Wakf filed
suit u/s 5(2), within the period prescribed, to challenge the
omission of disputed properties from Appendix VIII. However,
Sunni Board published Notification dt. 26.2.1944, u/s 5(1),
including disputed properties, obviously not based on Appendix
VIII (which had excluded the properties). Supreme Court held
Sunni Board’s Notification dt. 26.2.1944 to be invalid on the
ground that it was not based on Appendix VIII while S.5(1)
required the Notification to be ‘in accordance with’
Commissioner’s report and that Wakf Commisioner’s report with
Appendix X became ‘final and conclusive’ in favour of Shia
Wakf.1171. We have perused the above judgment very carefully.
The dispute before the Apex Court in Gulam Abbas (supra)
was between the members of Shia and Sunni communities of
muslims. In Mohalla Doshipura of Varanasi City, both sects of
muslims, namely, Shias and Sunnis reside. Both revere the
martyrdom of Hazrat Imam Hussain and Hazrat Imam Hasan,
grandsons of Prophet Mohammad during Moharram but in
different manner. The members of Shia sect in Mohalla
Doshipura numbering about 4000 constitute a religious
denomination having a common faith and observe Moharram
for two months and eight days in a year in memory of Hazrat
Imam Hussain who along with his 72 followers attained
martyrdom at Karbala. The said religious belief is practised by
the men-folk and the women-folk of the Shia community by
holding Majlises (religious discourses), Recitations, Nowhas,
Marsia, doing Matam (wailing) and taking out processions with
1371Tabut Tazia, Alams, Zuljinha etc. For performing these religious
rites, practices and observances, the Shia community has been
customarily using from time immemorial nine plots in Mohalla
Doshipura and the structures on some of them, particulars
whereof are as under :“Plot No. 246; on which stands a Mosque which, it is
common ground, belongs to both the sects as it was
constructed out of general subscription from members of
both the sects and every Mohammadan is entitled to go in
and perform his devotions according to the ritual of his
own sect or school.Plot No. 247/1130: on which stands the Baradari
(Mardana Imambara- A structure of white stone having 12
pillars) constructed by Shias in 1893 used for holding
Majlises, Recitations, Marsia and doing other
performance.Plot No. 245: on which there is a Zanana Imambara
used by Shia ladies for mourning purposes and holding
Majlises etc.
Plot No. 247: on which there is Imam Chowk used
for placing the Tazia thereon (said to have been
demolished by the Sunnis during the pendency of the
instant proceeding).Plot No. 248/23/72: a plot belonging to one
Asadullah, a Shia Muslim, with his house standing thereon.Plot No. 246/1134: on which stands a Sabil Chabutra
(platform for distributing drinking water) belong to one
Nazir Hussain, a Shia Muslim.Plots Nos. 602/1133, 602 and 603 : being vacant
plots appurtenant to the Baradari in plot No. 247/1130
1372used for accommodating the congregation assembled for
Majlises etc. when it over-lows the Baradari.”1172. The manner in which the religious rights, practices
and functions used to be performed by the members of Shia
community is mentioned in the judgment. The claim of Shia
community to perform their religious rights on the said nine
plots and structures thereon based on two foundations’ (1)
decisions of competent Civil Court adjudicating rights in their
favour in earlier litigations and (2) registration of Shia Waqfs
concerning the plots and structure for performance of theses
practices and functions under Section 5 and 38 of 1936 Act,
which had become final as no suit challenging the
Commissioner’s report and registration was filed within two
years by any member of Sunni community or the Sunni Central
Board of Waqf.1173. For the purpose of issue no. 18 (Suit-4), we need not
to go into the details of the first aspect of the matter, i.e., the
various suits and proceedings which became final between the
two sects and instead straight way come to that part of the
judgment which deals with the notification dated 26.02.1944
issued under 1936 Act. The Shia sect claim that the
Commissioner of Waqf submitted his report dated
28/31.10.1938 to the State government under Section 4(5)
showing the plots and structures referred to above as Shia
Waqfs. This was followed by notification dated 15.1.1954
issued under Section 5(1) of 1936 Act by the Shia Central Board
of Waqf and published in the U.P. Gazette dated 23.1.1954. No
suit challenging to the said notification was filed either by Sunni
Central Board of Waqf or any Sunni Muslim within the period
prescribed under Section 5(2) of 1936 Act. The Sunni sect,
1373however, relied on the notification dated 26.2.1944 issued by
the Sunni Central Baord of Waqf under Section 5(1) of 1936
Act following the report of Commissioner of Waqf in respect to
the waqfs which he identified a Sunni Waqf.1174. After analysing the provisions of 1936 Act as well
as Muslim Waqf Act 1960 (Act No.14 of 1960) (hereinafter
referred to as “1960 Act”), the Apex Court discusses the facts
pertaining to preparation of report by Commissioner and
notifications issued under 1936 Act, in para 16 of judgment as
under :“It appears that the Government of Uttar Pradesh
appointed Shri Munshi Azimuddin Khan, A deputy
Collector, as a Chief or Provincial Commissioner of Wakfs
under Section 4A of the 1936 Act for the purpose of making
a survey of all the Wakfs in all the districts of the State. …
After making the necessary inquiries Shri Munshi
Azimuddin Khan submitted to the State Government his
Report dated 28th/31st October, 1938 and annexed several
appendices to his Report; Appendix VIII referred to Waqfs
pertaining to Sunnis and declared as subject to the 1936
Act and Appendix IX mentioned Waqfs pertaining to Sunni
sect which were exempted from the Act; Appendices X and
XI contained corresponding information about the Shia
Waqfs which were respectively declared as subject to the
Act or exempt from the Act. The original Report bearing
the signature of Shri Munshi Azimuddin Khan, Chief Waqfs
Commissioner was produced before us marked Exh. A) for
our inspection by Mr. Rana, Counsel for the State of U.P.
and the same was made available for inspection to the
parties. There is a slip attached to the Report placed in
1374between Annexure VII and Annexure XIII containing an
endorsement to the effect : “Appendices VIII and IX sent to
the Sunni Board” and “Appendices X and XI sent to the
Shia Board” with the signature of the Chief Commissioner
of Waqfs below it……Presumably the aforesaid action of
sending the relevant appendices along with a copy of the
Commissioner’s report to the respective Sunni Central
Waqf Board and the Shia Central Waqf Board was taken as
required by Section 5(1) of the Act. ……. after receiving the
aforesaid documents (Report together with the appendices
X and XI), the Shia Central Waqf Board, as required by
Sec. 5(1) of the Act, took steps to notify in the Official
Gazette all the waqfs relating to their sect on the basis of
the Appendices annexed to the Report; the relevant
Notification under Section 5 (1) was issued on 15th
January, 1954 and published in the Government Gazette on
23rd January, 1954. ………Admittedly, no suit was filed
either by the Sunni Central Board or any other person
interested in those Wakfs challenging the decision recorded
in his Report by the Chief or Provincial Commissioner for
Wakfs within the time prescribed under Section 5 (2) of the
Act, and, therefore, the Chief Commissioner’s Report
together with the appendices X and XI thereto dated
28th/31st October 1938, on the basis of which the
Notification dated 15th January, 1954 was issued and
published in Official Gazette on 23rd January, 1954, must
be held to have become final and conclusive as between the
members of the two communities.”1175. Thereafter, in para 17 of the judgement, the Apex
Court dealt with the notification dated 26th February, 1944 relied
1375by the members of Sunni community and said:
“As against the aforesaid material respondents 5 and
6 and through them the Sunni community have relied upon
a Notification dated 26th February, 1944 issued by the
Sunni Central Wakfs Board under Section 5(1) of the U.P.Muslim Wakfs Act, 1936 following upon the receipt of the
Report of the Chief or Provincial Commissioner of Wakfs
in respect of mosque in Doshipura showing the same as
Sunni Wakf, copy whereof has been annexed as Annexure
S-2 to the affidavit dated 6th February, 1980 of Mohd. Basir
Khan filed on behalf of the Sunni Central Waqfs Board as
its “Pairokar’. This Notification on which reliance has
been placed by the Sunnis appears to us of doubtful validity
and probative value for the reasons which we shall
presently indicate. Though issued and published earlier in
point of time than the Notification of Shia Central Waqfs
Board, it is admittedly not based on Appendices VIII and
IX annexed to the Chief Commissioner’s Report dated
28th/31st October, 1938 but on the basis of some Registers
of Waqfs (meaning lists of Waqfs) said to have been
received by the Sunni Board from the Commissioner of
Wakfs. Curiously enough the Sunni Central Waqfs Board
had stated through two affidavits dated 6th January, 1980
and 9th January, 1980 of their Pairokar Shri Mohd. Basir
Khan that along with the copy of the Commissioner’s
report Registers of Waqfs were received but no appendices
like Appendices VIII and IX were received from the
Commissioner, that according to the Registers of Waqfs
there were 245 charitable Sunni Waqfs in the District of
Banaras which were covered by the 1936 Act and all such
1376Waqfs were accordingly notified by the Sunni Board in the
government Gazette by issuing the Notification dated 26th
February, 1944 under Section 5(1) of the Act. The original
Report of the Commissioner does not refer to anything like
Registers of Waqfs but, as stated earlier, it refers to
Appendices Nos. VIII, IX, X and XI and the endorsement on
the slip under the signature of the Chief Commissioner
shows that the former two appendices were sent to the
Sunni Board and the latter two to the Shia Board. In face of
this endorsement and having regard to the fact that the
Shia Board had received Appendices X and XI along with
the Commissioner’s Report which that Board offered to
produce, it is difficult to accept the Statement of the
Pairokar of the Sunni Board that no appendices were
received by the Board along with a copy of the
Commissioner’s Report. It seems that relevant appendices,
though received, are being withheld as their production
would be adverse to the Sunnis. Apart from that aspect it is
clear on their own admission that the Notification under
Sec. 5 (1) of the 1936 Act was issued by the Sunni Central
Waqfs Board not on the basis of Appendices VIII and IX
which formed part of the Commissioner’s Report but on the
basis of some Registers of Waqfs said to have been
received by it. The notification regarding the Sunni Waqfs
issued on the basis of material which did not form part of
the Chief Commissioner’s Report would be in violation of
Section 5(1) of the Act which required issuance of a
Notification thereunder ‘according to’ the Commissioner’s
Report and as such the Notification dated February 26,
1944 relied upon by respondents 5 and 6 and members of
1377the Sunni community would be of doubtful validity. … ….We
are, therefore, clearly of the view that the Notification
dated 26th February, 1944 issued under Section 5(1) of the
1936 Act by the Sunni Board is of no avail to the Sunnis for
the purpose of defeating the customary rights of the Shias
to perform their religious ceremonies and functions on the
other plots and structures thereon.”1176. From the above judgment, thus, it is evident that the
Apex Court, in fact, did not rely on the notification dated
26.2.1944 but instead held it to be of doubtful validity and
probative value having not been issued in accordance with the
procedure prescribed under Section 5 of 1936 Act. In our view,
instead of upsetting the judgment of the learned Civil Judge, it,
in fact, strengthened the said decision which has held that the
notification dated 26th February 1944 was not a valid
notification in respect to property in dispute. In view of the
above discussion, we have no manner of doubt that the Apex
Court’s decision in Gulam Abbas (supra) does not affect the
finding of the learned Civil Judge on Issue No. 17 (Suit-4) as
contained in his judgement dated 21.4.1966, but on the contrary,
support and strengthen his said finding. Issue No. 18 (Suit-4) is
answered accordingly.1177. Issue No. 9(b) (Suit-1) reads as under:
“Were the proceedings under the said Act referred to in
written statement para 15 collusive? If so its effect?”
1178. Issue No. 9(b) (Suit-1) is based on the pleadings of
the plaintiffs in para 15 of his replication which reads as under:^^15- ,sDV ua0 13 lu~ 1936 fcYdqy ultra vires gS v©j mlds
lEcU/k ;fn dksbZ dk;ZokbZ dh xbZ rks og lc void gS oknh fdlh
uksfVl ds cU/ku esa ugha gS vkSj u fdlh dk;Zokgh ftldk o.kZu /kkjk 15
1378esa fd;k x;k gS bl vfHk;ksx ij dksbZ izHkko gS oknh dk vuqeku gS fd
og vfHk;ksx eqlRek ijLij “kM;U=h Hkkouk ¼ lkft’kh ½ ls ;ksftr fd;k
FkkA^^
“15. Act no.13 of 1936 is ultra vires and the proceeding, if
any, in its pursuance is void. The plaintiff is not bound by
any notice nor does any proceeding, mentioned in para-15,
have any bearing on this case. According to the plaintiff,
this case has been filed collusively.” (E.T.C.)
1179. In this paragraph reply contain with respect to para
15 of the written statement filed on behalf of defendants 1 to 5
which reads as under:^^15- ;g fd ce©ftc eqLkfye oDQ ,sDV 13 lu 1936 phQ dfe’uj
vkSdkQ eqdjj gq, vkSj phQ dfe’uj et+dwj us ckn rgdhdkr o
eqvk;uk ekSdk elftn ckcjh ;g r; fd;k fd elftn ckcjh dk rkehj
dqfuUnk ‘kgU’kkg ckcj lqUuhmy etgc Fkk vkSj oDQ eqrkfYyd
elftn etdwj lqUUkh oDQ gS vkSj blh flyflys esa dkuwuh
uksVhfQds’ku Hkh tkjh dj fn;kA^^
“15. That a Chief Commissioner of ‘Aukaf’ (plural of
Waqf) was appointed under the Muslim Waqf Act 13 of
1936, and after investigation and inspection of the disputed
site Babri mosque the Chief Commissioner decided that
emperor Babar, the builder of Babri mosque, was of Sunni
sect and the Waqf in respect of the disputed mosque is a
Sunni Waqf, and (he) also issued a legal notification in this
behalf.” (E.T.C.)
1180. To the same effect the defendant No.10 has also
pleaded in paras 14 and 16 which reads as under:“14. That after the promulgation of U.P. Muslim Waqf
Act, 1936, the Chief Commissioner of Waqfs had got a
survey made in respect of the waqf properties and in that
connection survey of the mosque in question was also
1379conducted and the same was registered as a waqf and a
gazette notification had also been issued in respect thereto
under the provisions of the U.P. Muslim Waqf Act, 1936.”
“16. That the said mosque stands registered as a mosque
in the office of the U.P. Sunni Central Board of Waqf,
hereinafter referred to as the Board, as Waqf No. 26
Faizabad even in the Register of Waqfs maintained under
section 30 of the U.P. Muslim Waqf Act, 1960.”1181. In para 15 of the written statement of defendants no.
1 to 5 the statement of fact with respect to the inquiry made by
the Chief Commissioner of Waqf and the notification dated
26.02.1944 has been made. This notification has already held to
be invalid, so far as the disputed property is concerned. No
material has been placed before this Court to show that the
alleged proceedings under 1936 Act in any manner were the
result of any conspiracy, mala fide etc. of the muslim parties. In
fact the plaintiff (Suit-1) could not substantiate the plea of
conspiracy taken in para 15 of his replication and during the
course of arguments the learned counsel for the plaintiff (Suit-1), in fact, gave up the said plea and neither advanced any
submission nor could substantiate the same. In the
circumstances, issue no. 9(b) (Suit-1) is answered against the
plaintiff (Suit-1) and it is held that the proceedings referred to
in para 15 of the written statement (Suit-1) cannot be said to be
collusive in the absence of placing anything before this court to
substantiate the same. In these circumstances, the question of
considering its effect does not arise.1182. Issue No. 9(c) (Suit-1) is as under:
“Are the said provisions of the U.P. Act 13 of 1936 ultra
vires for reasons given in the statement of plaintiff’s
1380counsel dated 9.3.62 recorded on paper no. 454-A?”
1183. Sri P.D. Goswami, counsel for the plaintiff (Suit-1)
on 08/09.03.1962 made the following statement:“Sri P.D. Goswami advocate for the plffs state that
the report of the commissioner spoken of in para 15 of the
W.S. has no effect on the rights of the plff nor do the
provisions of Sec 5(3) of U.P. Act 13 of 1936 apply to the
present suits as they are based on a right of worship of plff
who is a Hindu. According to him the provisions of this Act
are applicable to the property and the rights of the Muslims
only.He does not give up the plea taken by him in the
replication in that connection.According to him the said Act has been repealed by
U.P. Act 16 of 1960. He further adds that in case the said
Act be considered applicable to the present suits it is ultra
vires the provisions of the Govt of India Act 1935 and is in
conflict with the Ancient Monuments Preservation Act (Act
No. VII of 1904).”1184. As we have already held that firstly, there was no valid
notification under Section 5(1) of 1936 Act regarding the
property in dispute, and secondly, that the said Act does not
apply to non muslims, we do not find any occasion to go into
this issue further since the statement of the learned counsel itself
was conditional, i.e., if 1936 Act is held applicable to Suit-1 and
2 then it is ultra vires of the provisions of the Government of
India Act, 1935 and is in conflict with the Ancient Monument
Preservation Act (Act No. 7 of 1904).1185. Even otherwise, we do not find as to how Act No. 7
of 1904 would come into picture in the case in hand. The
1381aforesaid Act of 1904 was promulgated on 18.03.1904 with the
preamble as under:“Whereas it is expedient to provide for the
preservation of ancient monuments, for the exercise of
control over traffic in antiquities and over excavation in
certain places, and for the protection and acquisition in
certain cases of ancient monuments and of objects of
archaeological, historical or artistic interest.”1186. The statement of objects and reasons of 1904 Act
reads as under:“The object of this measure is to preserve to India its
ancient monuments in antiquities and to prevent the
excavation by unauthorised persons of sites of historic
interest and value.2. In 1898 the question of antiquarian exploration
and research attracted attention and the necessity of taking
steps for the protection of monuments and relics of
antiquity was impressed upon the Government of India. It
was then apparent that legislation was required to enable
the Government to discharge their responsibilities in the
matter and a Bill was drafted on the lines of the existing
Acts of Parliament modified so as to embody certain
provisions which have found a place in recent legislation
regarding the antiquities of Greece and Italy. This draft
was circulated for the opinions of local Governments and
their replies submitted showed that the proposals
incorporated in it met with almost unanimous approval, the
criticism received being directed, for the most part, against
matters of detail. The draft has since been revised, the
provisions of the Draft Bill prepared by the Government of
1382Bengal have been embodied so far as they were found
suitable and the present Bill is the result.3.The first portion of the Bill deals with protection of
“Ancient monuments” an expression which has been
defined in clause 2 (now section 2). The measure will apply
only to such of these as are from time to time expressly
brought within its contents though being declared to be
“protected monuments”. A greater number of more famous
buildings in India are already in possession or under the
control of the Government; but there are others worthy of
preservation which are in the hands of private owners.
Some of these have already been insured or are fast falling
into decay. The preservation of these is the chief object of
the clause of the Bill now referred to and the provisions of
the Bill are in general accordance with the policy
enunciated in section 23 of the Religious Endowments Act,
1863 (20 of 1863), which recognises and saves the right of
the Government “to prevent injury to and preserve
buildings remarkable in their antiquity and for their-
historical or architectural value or required for the
convenience of the public”. The power to intervene is at
present limited to cases to which section 3 of the Bengal
Regulation 19 of 1810 or section 3 of the Madras
Regulation VII of 1817 applies. In framing the present Bill
the Government has aimed at having the necessity of good
will and securing the co-operation of the owners concerned
and it hopes that the action which it is proposed to take
may tend rather to the encouragement than to the
suppression of private effort. The Bill provides that the
owner or the manager of the building which merits greater
1383care than it has been receiving may be invited to enter into
an agreement for its protection and that in the event of his
refusing to come to terms the collector may proceed to
acquire it compulsorily or take proper course to secure its
application. It has been made clear that there is to be no
resort to compulsory acquisition in the case the monument
is used in connection with religious observances or in other
case until the owner has had an opportunity of entering
into an agreement of the kind indicated above; and it is
expressly provided that the monument maintained by the
Government under the proposed Act, shall not be used for
any purpose inconsistent with its character or with purpose
of its foundation, and that, so far as is compatible with the
object in view the public shall have access to it free of
charge. By the 4th proviso of clause 11 (now section 10) it
is laid down that in assessing the value of the monument
for the purpose of compulsory acquisition under the Land
Acquisition Act, 1894 (1 of 1894) its archaeological,
artistic or historical merits shall not be taken into account.
The object of the Government as purchaser being to
preserve at the public expense and for the public benefits
an ancient monument with all its associations, it is
considered that the value of those associations should not
be paid for.4. The second portion of the Bill deals with movable
objects of historical or artistic interest and these may be
divided into two classes; the first consists of ornaments,
enamels, silver and copper vessels, Persian and Arabian
Manuscripts, and curios general. These are for the most
part portable and consequently difficult to trade; they are
1384as a rule artistic; are of historic interest and it would be
impracticable even were it desirable to prevent a dealer
from selling and a traveller from buying them. The
sculptural carvings, images, bas-reliefs, inscriptions and
the like form a distinct class by themselves, in that their
value depends upon their local connection. Such antiquities
may, as in the case of those of Swat, be found outside India
or in Native States and this the Legislature cannot reach
directly; while as regards the British territory and under
the existing law, it is impossible to go beyond the
provisions of the Indian Treasure Trove Act, 1878 (6 of
1878). (In these circumstances, it is proposed, by clause 18
of the Bill to take power to prevent the removal from
British India of any antiquities which it may be deemed
desirable to retain in the country, and at the same time to
present importation. By thus putting a stop on draft in such
articles it is believed that it will be possible to protect
against spoilation a number of interesting places situated
without and beyond British territory. Clause 19 aims at
providing for antiquities such as sculptures and
inscriptions which belong to another place and ought
therefore to be kept in situ or deposited in local museums.
The removal of these, it is proposed to enable the local
Government to prohibit by notification and the clause also
provides that, if the object is movable, the owner may
require the Government to purchase it outright and that, if
it is immovable the Government shall compensate the
owner for any loss caused to him by the prohibition. Clause
20 (now section 19) deals with the compulsory purchase of
such antiquities if that is found to be necessary for their
1385preservation and the owner is not willing on personal or
religious grounds to part with them. In such cases it is
proposed that the price to be paid should be assessed by
the Collector, subject to a right of appeal to the local
government but it is for consideration whether the Land
Acquisition Act of 1894 should be followed and reference
to the Courts allowed.5. The third portion of the Bill deals with excavations
and gives power to make rules to prohibit or regulate such
operations.”1187. The term “ancient monument” and “antiquities” are
defined in Section 2(1) and (2) of 1904 Act which read as under:“2(1) “Ancient monument” means any structure,
erection or monument or any tumulus or place of
interment, or any cave, rock-sculpture, inscription or
monolith, which is of historical, archaeological or artistic
interest, or any remains thereof, and includes–(a) the site of an ancient monument;
(b) such portion of land adjoining the site of an
ancient monument as my be required for fencing or
covering in or otherwise preserving such monument;
and(c) the means of access to and convenient inspection
of an ancient monument;(2) “antiquities” include any movable objects which
the Central Government, by reason of their historical or
archaeological associations, may think it necessary to
protect against injury, removal or dispersion;”1188. The term “owner” is also defined in Section 2(6) as
under:1386
“2(6) “owner” includes a joint owner, invested with
power of management on behalf of himself and other joint
owners, and any manager or trustee exercising powers of
management over an ancient monument, and the successor
in title of any such owner and the successor in office of any
such manager or trustee:Provided that nothing in this Act shall be deemed to
extend the powers which may lawfully be exercised by such
manager or trustee.”1189. Section 3 provides for “protected monuments”. It is
not the case of any of the parties that the disputed building was
ever notified by the Government as a “protected monument”
under Section 3 of 1903 Act.1190. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 are
applicable to a “protected monument”, i.e., an “ancient
monument” which is declared to be “protected monument” by
notification in the official gazette under Section 3 and, therefore,
ex facie would have no application to the property in dispute.
1191. Section 10A which was inserted in 1932 is only in
respect to control of the Central Government where it finds that
mining, quarrying, excavation, blasting and other operations of a
like nature needs to be restricted and regulated for the purpose
of protecting or preserving any “ancient monument”. This also
has nothing to do with the disputed property as there is no such
case of either party. We, therefore, find nothing in 1904 Act in
any manner to affect the provisions of 1936 Act.
1192. So far as the Government of India Act, 1935 is
concerned, learned counsel for the plaintiff (Suit-1) could not
show anything therein to substantiate his plea of ultra vires of
1936 Act. It is no doubt true that 1936 Act was repealed by U.P.1387
Act No. XVI of 1960 but that by itself would not make anything
already done under 1936 Act redundant or illegal or non est. In
fact the transactions already taken place are duly protected
therein i.e. in 1960 Act. The counsel for the plaintiffs in fact
could not substantiate the plea so as to persuade this Court to
answer issue no. 9(c) (Suit-1) in his favour and it is accordingly
decided in negative.1193. Now comes Issue No. 16 (Suit-3) which reads as
under:“Is the suit bad for want of notice u/s 83 of U.P. Act 13 of
1936?”1194. We find that there is no pleading to this effect i.e.
requirement of such notice, in the written statements of
defendants in Suit-3. In fact in para 27 of written statement of
defendant no. 10 (Suit-1) a plea of want of notice under Section
56 of 1936 Act has been taken which reads as under:“27. That the suit is not maintainable even on account of
the reason that no notice was served upon the Board as
required by section 56 of the U.P. Muslim Waqf Act, 1936
and the suit is liable to be dismissed even on this account.”1195. Learned counsel for the defendant (Suit-3) neither
could substantiate their case to support the above issue nor in
fact could place anything before this Court to assist us to
consider the above issue in an effective manner.
1196. In fact there is no Section 83 in 1936 Act. In the
written statement filed in Suit-3 by the defendants No.6 to 8
there is no such pleading with reference to any provision of
1936 Act alleging that the same bars the suit. The defendant
No.9, however, has stated before the Court that the plaint of
Suit-4 be treated as his written statement and there also we do
1388not find any such pleading referring to any provision of 1936
Act on the basis whereof it is said that the suit is barred for want
of any notice. The only objection with reference to 1936 Act
taken is in para 9 and 10 of the plaint (Suit-4) which states that
the Commissioner of Waqfs made an enquiry with reference to
the disputed building as a public waqf and based thereon the
State Government issued a notification on 26th February, 1944
which having not been challenged by the Hindus or any person
interested denying the report of the Commissioner of the Waqfs
on the ground that it was a Muslim waqf or it was a Hindu
temple hence now it cannot be challenged. It is only in Suit-1,
the defendant No.10 in para 27 of its written statement has said
that due to absence of notice, as required by Section 56 of 1936
Act, the suit is not maintainable and is liable to be dismissed.
Even if we read issue 16 (Suit-3) that instead of Section 83 of
1936 Act, it ought to be Section 56 of 1936 Act, we do not find
that it requires any notice before filing a suit and in fact
reference to Section 56 is not correct, as is evident from a bare
perusal thereof, which is reproduced as under:“56. Appointment of mutawalli.- When there is vacancy in
the office of mutawalli of a waqf and there is no one
competent to be appointed under the terms of the deed of
waqf, or where the right of any person to act as mutawalli
is disputed, the Central Board may appoint any person to
act as a mutawalli for such period and on such conditions
as it may think fit.”1197. However, there is another Section 53 in 1936 Act
which contain some provision with reference to notice and reads
as under :“53. No suit shall be instituted against a Central Board in
1389respect of any act purporting to be done by such Central
Board under colour of this Act or for any relief in respect
of any waqf, until the expiration of two months next after
notice in writing has been delivered to the Secretary, or left
at the office of such Central Board, stating the cause of
action, the name, description and place of residence of the
plaintiff and the relief which he claims ; and the plaint
shall contain a statement that such notice has been so
delivered or left.”1198. From a bare perusal of Section 53 of 1936 Act, it is
evident that its scope and purpose is wholly different. Even
otherwise, the requirement of notice under Section 53 in 1936
Act is akin to Section 80 CPC. The Apex Court in para 25 of the
judgment in Siraj-ul-Haq Khan (supra) has considered Section
53 and its effect and has observed that this Section is similar to
Section 80 of the Civil Procedure Code and thereafter having
said so further says that it was incumbent upon the appellants to
have given the requisite notice under Section 53 before
instituting the suit and failure to do so would bar the suit being
not maintainable. The parties before us were required to show as
to how Section 53 in the case in hand would be attracted to
which none has assisted the Court. However, as observed by the
Apex Court in Siraj-ul-Haq Khan (supra), the compliance is
mandatory where Section 53 is applicable. Without considering
the question as to whether the relief sought in Suit-3 would
attract Section 53 or not; and, proceeding by assuming that
Section 53 would apply, we are of the view that this provision
has been made for the benefit of Central Board concerned in
particular and Muslim communities in general. It is always open
to a party for whose benefit the provisions has been made to
1390waive such benefit. This aspect we have already considered in
respect to the issues relating to Section 80 CPC above and
following the reasons as are applicable to Section 80 CPC, we
are of the view that the benefit under Section 53 can also be
waived. If non-issuance of notice and defect under Section 53 is
not pressed by the concerned Board before the Court, non-
compliance of Section 53 would not vitiate the suit. The issue is
answered accordingly.1199. Issue 5(f) (Suit-4) relates to U.P. Act XVI of 1960
and reads as under:“Whether in view of the aforesaid finding, the suit is
barred on account of lack of jurisdiction and limitation as
it was filed after the commencement of the U.P. Muslim
Waqf Act, 1960?”1200. In the written statement dated 20th July, 1968, filed
by defendants No.13 and 14 (Suit-4), it has been pleaded that
after the enforcement of U.P. Act XVI of 1960, the suit in
question having been filed in 1961, is not saved under Section
85(2) thereof. They further say that Section 9(2) of 1960 Act
also would not save the finality of the decision of the
Commissioner of Waqfs since 1936 Act itself having vanished
after repeal and therefore, the suit on behalf of Sunni Central
Waqf Board is wholly without jurisdiction.
1201. During the course of arguments, however, learned
counsel for the defendants could not substantiate the above
objection and could not show as to how Section 85(2) and
Section 9(2) of 1960 Act would be attracted in the case in hand
to make the suit without jurisdiction and beyond limitation. It is
true that notification issued under Section 5(1) of 1936 Act has
been held to be invalid so far as the property in dispute is
1391concerned but in case the property in dispute is found to be
waqf, no provision in U.P. Act XVI of 1960 has been shown
which may deprive the Sunni Central Waqf Board or other
plaintiffs of Suit-4 to maintain the suit in respect to a property
which they claim to be a ‘waqf property’ and to claim its
possession in case it is not otherwise impermissible in law. At
least we are not able to find any provision under U.P. Act XVI
of 1960 which may prohibit either plaintiff No.1 (Suit-4) or
other plaintiffs from maintaining Suit-4 in question provided the
property in dispute is a “waqf” within the meaning of Shariyat
Law.1202. In view of above, we do not find any substance and
decide issue 5 (f) (Suit-4) against the defendants and in favour
of the plaintiffs (Suit-4) holding that the suit in question is not
barred having been filed after the commencement of U.P. Act
No.XVI of 1960.1203. Now we come to Issues 23 and 24 (Suit-4) which
can be considered together, and read as under:“Whether the Waqf board is an instrumentality of State? If
so, whether the said Board can file a suit against the State
itself?”“If the Waqf Board is State under Article 12 of the
Constitution? If so, the said Board being the State can file
any suit in representative capacity sponsoring the case of
particular community and against the interest of another
community?”1204. The learned counsels for the defendants could not
point out any pleadings raising such objection therein. However,
they contended that since the Sunni Central Waqf Board has
been constituted under 1936 Act and therefore, being a statutory
1392body, its constitution, function etc. can be looked into from the
various provisions of the statutory enactment and that itself
would be sufficient to give necessary information. Though
prima facie we find it difficult to accept the above proposition,
but, however, we proceed to consider the above issues analyzing
the relevant provisions of 1936 Act as well as 1960 Act to find
out whether there is any substance in these issues.
1205. It is not in dispute that Sunni Central Waqf Board
has been established under Section 6(1) of 1936 Act. Its
constitution is provided in Section 7 thereof. The two provisions
read as under:“6. Establishment of Central Boards.-(1) there shall be
established in the United Provinces two separate Boards to
be called the “Shia Central Board” and the “Sunni
Central Board” of waqfs. Each such Board shall be a body
corporate and shall have perpetual succession and a
common seal and shall by its said name sue or be sued.”
“7. Constitution of Sunni Central Board.- The Sunni
Central Board shall consist of-(i) five members to be elected in the manner prescribed
by Sunni members of the local legislature,(ii) four members to be elected in the manner prescribed
by the District Waqf Committees.(iii) three members to be co-opted by the above nine
members from persons whom they regard as ulamas, and
two members from among mutawallis, and(iv) the President, if he is not one of the above fourteen
members :Provided that the first Sunni Central Board shall be
established by the local Government within three months of
1393the date on which this section comes into force and shall
consist of-(i) five members to be elected, in such manner as the
local Government may direct, by the Sunni members of the
local legislature;(ii) two members to be elected, in such manner as the
local Government may direct, by the Sunni members of
Executive Committee of the Provincial Muslim Educational
Conference ;(iii) three members to be co-opted by the above seven
members from persons whom they regard as ulamas ; and(iv) three members to be co-opted by the above ten
members.”1206. Section 10 of 1936 Act provides that the members of
Central Board shall hold office for five years. Section 13 of
1936 Act provides for the place where the office of the Central
Board shall be located and Sections 14 to 17 of 1936 Act are in
respect to manner of function and requisite staff of such Board.
Section 18 of 1936 Act provides for the functions of the Central
Board which we have already referred to.1207. Chapters 3, 4, 5, 6 and 7 of 1936 Act contain
provisions with regard to registration of waqfs, audit of
accounts, enquiry and supervision, legal proceedings and
administration charges. Chapter 8 of 1936 Act provides for
Mutawalli and Section 58 of 1936 Act confers powers upon the
Board to remove Mutawalli from his office in certain
circumstances. Section 68 of 1936 Act provides that the
Government shall not be liable for any expenditure incurred in
the administration of 1936 Act.1208. From a perusal of 1936 Act, it is evident that the
1394Central Sunni Waqf Board is a statutory body constituted in
accordance with the provisions of the said Act. By no stretch of
imagination it can be said to be either a Department of the State
Government or an instrumentality of the State Government.
1209. A similar question came up for consideration in
respect to the employees of certain statutory bodies like Jal
Nigam, Banks, Local Bodies etc. where the employees claim
themselves to be the Government employees as the bodies are
controlled by the Government but negativing the said contention
it was held by the Apex Court that the statutory bodies are
neither a Department or part and parcel of the State Government
nor the employees of the statutory bodies can be said to be the
Government employees.1210. Being a statutory body constituted under statute
having powers, functions and duties, which the Waqf Board is
liable to perform, it may be covered by the term ‘Other
Authority’ under Article 12 of the Constitution of India but that
by itself would neither make it an instrumentality of the State
Government of U.P. nor would deprive it to file a suit where it is
aggrieved against some action of the State Government or its
authorities. The Waqf Board having been constituted with a
particular objective i.e. for the better governance, administration
and supervision of certain classes of Muslim Waqfs, from its
very nature, its duty is confined for the welfare of certain special
kind of properties of the persons of a particular community and
in particular religion i.e. Muslims. It will wholly be
misconceived to suggest that by representing or sponsoring the
cause of members of a particular community against another
community i.e. Muslims against Hindus, the Waqf Board is
causing discrimination though it is a “State” under Article 12 of
1395the Constitution. No authority could be placed before this Court
binding upon us to take a view different than what we have
discussed above.1211. On the contrary, we find support from a decision of
the Apex Court in Syed Yousuf Yar Khan and others Vs. Syed
Mohammed Yar Khan and others, AIR 1967 SC 1318 where a
somewhat similar contention was raised that the “Waqf Board”
is an agent of Central Government but rejecting the same the
Apex Court in para 4 of the judgment held as under:“(4) Counsel submitted that the present suit was a
suit by or on behalf of the State Government and was
therefore governed by art. 149 of the Indian Limitation Act
1908. He submitted that the Board of Muslim Endowments,
Hyderabad, which according to him was the Board of
Wakfs constituted under the Muslim Wakfs Act 1954, was
an agent of the Central Government. By s. 9(2) of the
Muslim Wakfs Act, 1954, the Board of Wakfs is a body
corporate and by s. 15 of this Act, the Board is vested with
the right of general superintendence of wakfs and is
empowered to take measures for the recovery of the lost
properties of any wakf and to initiate and defend suits and
proceedings relating to wakfs. Counsel submitted that a
corporation may be an agent of the State Government, and
in support of this contention relied upon Halsbury’s Laws
of England, 3rd Ed., Vol. 9, p. 10-Tamlin v. Hannaford
(1949) 2 All E. R. 327, and the observations of Shah, J. in
State Trading Corporation of India Limited v. The
Commercial Tax Officer, A.I.R. 1963 S.C. 811, 849, 850,
paras. 115-117. He submitted that the State Government
has delegated its functions of superintendence over wakfs
1396to the Board of Wakfs and the Board should therefore be
regarded as an agent of the State Government. We are
unable to accept this contention. By the Religious
Endowments Act 1863, the Government divested itself of
the management and superintendence of religious
endowments which was vested in it under Regn. 19 of 1810
and Regulation 7 of 1817. The Board of Wakfs though
subject to the control of the State Government, is a
statutory corporation and is vested with statutory powers,
functions and duties. The Board has power to hold property
and is in control of the wakf fund (ss. 9 and 48). The State
Government has no concern with the property vested in the
Board save during the period of supersession of the Board
under s. 64. Nor is the State Government liable for any
expenditure incurred by the Board in connection with the
administration under the Act (S. 54). The Board of Wakfs is
not discharging a governmental function. The Act nowhere
says that the Board would act as the agent of the State
Government. It rather indicates that the Board is not the
agent of the Government and the Government is not
responsible for its acts. We must, therefore, hold that the
Board of Wakfs is not an agent of the State Government
and a suit instituted by it for the recovery of a wakf
property is not a suit by or on behalf of the State
Government.”1212. In Syed Yousuf Yar Khan (supra) the issue of
identifying mutawalli with the State Government was also
raised by contending that the mutawalli is an agent of the
“Government” in order to take the benefit of Article 149 of the
Limitation Act but that was also rejected by the Apex Court by
1397observing:
“5. Counsel next submitted that the mutawalli is the
agent of the State Government and that in any event the
limitation for a suit by the mutawalli starts on the date of
his appointment. In support of this contention counsel
relied upon the decision in Jewun Doss Sahoo v. Shah
Kubeer-ood-Deen, (1837-41) 2 Moo Ind. App. 390 at p.
422 (PC) where the Privy Council held that under the law
then in force it was the duty of the Government to protect
endowments and the mutawalli in that case was the
procurator of the Government and his right to sue arose on
his being appointed mutawalli. This ruling of the Privy
Council was given under Regulation 19 of 1810. Since the
passing of the Religious Endowments Act 1863, the
mutawalli cannot be regarded as a procurator of the
Government. He is not appointed by the Government, nor
does he manage the endowment on its behalf and a suit by
him for the recovery of the wakf property cannot now be
regarded as a suit on its behalf, see Shaikh Laul Mahomed
v. Lalla Brij Kishore, (1872) 17 Suth WR 430 and Behari
Lal and Ors. v. Muhammad Muttaki, (1898) ILR 20 All.
482 at p. 488 (FB).”1213. In view of the above, we find it difficult to hold that
the Waqf Board is an instrumentality of the State. However,
even if it is an instrumentality of State, we do not find any
disability for the Board to file a suit against the State if there is
any wrong done by the State or its authorities. In our view, the
issue which has been raised to suggest as if the Sunni Central
Waqf Board if held as an instrumentality of the State, would be
incompetent to maintain a suit against the State is thoroughly
1398misconceived.
1214. The concept of instrumentality of the “State” came
to be noticed in the light of considering the applicability of Part
III of the Constitution of India dealing with fundamental rights
vis a vis the meaning of the words “other authority” under
Article 12 of the Constitution. To find out the bodies to whom
Part III of the Constitution would apply, and if there is any
infringement etc., the complaint may be raised before the High
Court or the Supreme Court directly under writ jurisdiction also
this concept was developed. To understand the concept, it would
be prudent to have a perusal of Article 12 of the Constitution :“Article 12. In this Part, unless the context otherwise
requires, “the State” includes the Government and
Parliament of India and the Government and the
Legislature of each of the States and all local or other
authorities within the territory of India or under the control
of the Government of India.”1215. The Central and State Governments, the legislatures,
Central and Provincial, and, Local authorities are obviously
covered by the term “the State” under Article 12. The question
arose as to what are the bodies which would answer the
description of “other authorities” so as to qualify to be within
the ambit of the word ‘the State’ to attract Part-III of the
Constitution. In Ramana Dayaram Shetty Vs. International
Airport Authority of India and others, 1979 (3) SCC 489 the
question arose as to whether “International Airport Authority of
India” is “the State” within the meaning of Article 12 so as to
attract the provisions under Part-III of the Constitution.
Admittedly, “International Airport Authority of India” was
neither the Government, Central or State, nor Legislature nor a
1399Local authority. The question arose as to whether the words
“other authorities” within the territory of India or under the
control of the Government of India would include “International
Airport Authority of India” so as to attract the provisions under
Part-III of the Constitution. In this context the matter was
examined. The Apex Court held that “International Airport
Authority of India” is ‘the State’ within the meaning of Article
12 of the Constitution of India and, therefore, the provisions of
Article 14 are attracted. If the act or omission on the part of
International Authority of India is found to be arbitrary or
discriminatory.1216. There are catena of decision on this aspect but it
may not be necessary for us to consider in detail all such
authorities laying down various tests to determine when a body
or authority can be said to be an “instrumentality” of the State
so as to be within the ambit of the words “other authorities” for
the purposes of Article 12 of the Constitution of India for the
reason that in case a body qualify such tests and becomes an
“instrumentality of the State” and, therefore, becomes “an
authority” within the words “other authorities” under Article 12
of the Constitution, the result would be that provisions of Part-
III of the Constitution would be applicable to it and any
infringement thereof would be subject to judicial review directly
before the superior courts in writ jurisdiction, i.e., under Article
226 of the Constitution of India as also under Article 32 of the
Constitution. For our purposes suffice it to mention that an
“instrumentality of the State” does not mean a “department of
the State Government”.1217. The learned counsels for the defendants, despite of
repeated query, could not tell us as to how an instrumentality of
1400the State cannot invoke the jurisdiction of a Civil Court for
enforcing its common law rights by filing a civil suit. It appears
that misconception on the part of the defendants in Suit-4 is that
an instrumentality of the State, if comes within the words ‘the
State’ under Article 12 of the Constitution, the distinction of
personality between the State Government as well as such
instrumentality disappear and, therefore, one may not file suit
against another. This is apparently fallacious and lacks
substance. A body incorporated in accordance with the
procedure prescribed by statute or a statutory body, i.e.,
constituted under a statute or by a statute, on its own is a juristic
personality, i.e., legal person, who can possess property, enter
into transactions by executing contract with the other persons
(including natural, legal or juristic persons) and also to sue or be
sued. An authority or statutory body which can be said to be an
instrumentality of the State does not become necessarily a part
and parcel of the Government.1218. The term ‘Government’ in its wider sense includes
all the wings of Government, viz., executive, legislative or
judicial but in narrower sense, it is normally the executive wing
of the State.1219. Bombay High Court in Emperor Vs. Bhaskar
Balwant Bhopatkar, (1906) ILR 30 Bom 421 observed:“What is contemplated under this section is the
collective body of the Government . . . . . It means that the
person or persons collectively, in succession, who are
authorized to administer the Government for the time
being. One particular set of persons may be open to
objection and to assail them, and to attack them and excite
hatred against them, is not necessarily exciting hatred
1401against the Government, because they are only individuals
and not representatives of that abstract conception which is
called Government . . . . . The individual is transitory and
may be separately criticized but that which is essentially
and inseparably connected with the idea of Government
established by law cannot be attacked without coming
within this section.”1220. In Annie Besant Vs. Government of Madras, AIR
1918 Mad 1210, Madras High Court said:“Government denotes an established authority entitled and
able to administer the public affairs of the country. On the
other hand, ‘Government’ is not identical with any
particular individuals who may be administering the
Government.”1221. Dixon J. in Burns Vs. Ransley, (1944) 79 CLR 101
explaining the word “Government” as under:“I take the word “Government” to signify the
established system of political rules, the governing
powers of the country consisting of the executive and
the Legislature considered as an organized entity and
independently of the persons of whom it consists from
time to time. Any interpretation which would make
the word cover the persons who happen to fill
political or public offices for the time being, whether
considered collectively or individually, would give
the provision an application inconsistent with the
parliamentary and democratic institutions and with
the principles of the common law as understood in
times, Governing the freedom of criticism and of
expression.”1402
1222. A Full Bench of this court in Ram Nandan Vs.
State, AIR 1959 All 101 observed that the term “Government”
has not been defined anywhere. Considering various provisions
of the Constitution this Court observed that the “Government”
means the executive machinery of the Union and of the States. It
means the President acting with the advice of the Council of
Ministers and the Governors acting with the advice of their
Councils of Ministers. It is the system of Government or
institution consisting of the President and the Governors acting
with the advice of their Councils of Ministers and not the actual
persons holding the offices of Presidents or Governors and the
Ministers advising them. This Court quoted the approval and
followed the observations of Bombay and Madras as noted
above in Bhaskar Balwant Bhopatkar (supra) and Annie
Besant (supra) respectively.1223. In State of U.P. Vs. Nemchandra Jain, 1984 (2)
SCC 405 the term “Government” was analyzed by the Apex
Court observing that from the legal point of view, Government
may be described as the exercise of certain powers and the
performance of certain duties by public authorities or officers,
together with certain private persons or corporations exercising
public functions. The structure of the machinery of Government,
and the regulation of the powers and duties which belong to
different parts of this structure, are defined by the law, which
also prescribes, to some extent, the mode in which these powers
are to be exercised or those duties are to be performed.
Government generally connotes three estates, namely, the
Legislature, the Executive and the Judiciary. In a narrow sense it
connotes executive only.1224. The word “Government” has been defined in
1403Section 3(23) of the General Clauses Act, 1897 as under:
“3(23). “Government”.–This sub-section says that
the terms “Government” or “the Government”, shall
include both the Central Government and any State
Government.”1225. The term “State Government” has also been defined
in the General Clauses Act, 1897 in Section 3(60). The above
definition of General Clauses Act in fact does not give any exact
meaning except of referring the words, in general and in broader
sense.1226. The Constitution declares the “Government” being
entitled to file a suit or to be sued by virtue of Article 300 of the
Constitution which reads as under :“Article 300. (1) The Government of India may sue
or be sued by the name of the Union of India and the
Government of a State may sue or be sued by the name of
the State and may, subject to any provisions which may be
made by Act of Parliament or of the Legislature of such
State enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to their respective
affairs in the like cases as the Dominion of India and the
corresponding Provinces or the corresponding Indian
States might have sued or been sued if this Constitution had
not been enacted.(2) If at the commencement of this Constitution–
(a) any legal proceedings are pending to which the
Dominion of India is a party, the Union of India
shall be deemed to be substituted for the
Dominion in those proceedings; and(b) any legal proceedings are pending to which a
1404Province or an Indian State is a party, the
corresponding State shall be deemed to be
substituted for the Province or the Indian State in
those proceedings.”1227. Similarly, Section 79 C.P.C. provides for suits to be
filed by or against the Government, as under :“Section 79. Suits by or against the Government–
In a suit by or against the Government, the authority to be
named as plaintiff or defendant, as the case may be, shall
be–(a) in the case of a suit by or against the Central
Government, the Union of India, and(b) in the case of a suit by or against a State
Government, the State.”1228. Interpreting Article 300 of the Constitution of India
the Apex Court in State of Punjab Vs. Okara Grain Buyers
Syndicate Ltd. and others, AIR 1964 SC 669 observed that this
Article does not give rise to any cause of action but merely says
that the State can sue or be sued as a juristic personality. The
juristic personality of the State is conferred as a whole which
consists of the executive government headed by the Governor
and it is not divided into various branches or department of the
Government so as to result constituting such number of juristic
personality as are the departments in a State Government.1229. Nothing has been brought to us and neither any
authority has been cited nor anything else has been placed
before us to persuade us to take a view that the Sunni Central
Waqf Board can be held to be a department of the State
Government so as to bar a suit against the State Government.
Had it been a department of the “Government” obviously a civil
1405suit under Section 9 CPC would not be maintainable for the
reason that the State Government is a juristic personality as a
whole which consists of all its limbs, i.e., various departments
etc. Each and every department of the State Government cannot
be said to be an “independent juristic personality” which can
sue or be sued.1230. The term “department of a State Government” also
came to be considered before this Court in Ram Chandra Vs.
District Magistrate, AIR 1952 All. 520 and this Court held that
a department is a unit or branch of the Government, either
Union or State, under the political control of a Minister or
Secretary of State or President of the Board. Individual officers
serving under a department do not constitute a department. The
department has an entity distinct and separate from the officers
serving under it.1231. Drawing distinction between the “Government” and
“Instrumentality of the State” within meaning of Article 12 of
the Constitution in reference to Section 80 C.P.C. the question
arose as to whether notice before filing a suit is a condition
precedent to Electricity Board or not. The High Court of Kerala
in V.Padmanabhan Nair Vs. Kerala State Electricity Board
AIR 1989 Kerala 86 held that the statutory bodies like
Electricity Board, Food Corporation, Urban Development
Corporation etc. may be an “Instrumentality of the State” within
the meaning of “Article 12” of the Constitution, nevertheless
would not answer the description of “Government” as
understood in law and has understood in the context of Section
80 C.P.C.1232. We have referred to the term “Government” in detail
only to demonstrate that the personality of the Government for
1406the purpose of being sued or to sue is not to be looked into as
further divided in various departments but it is the entire
executive government including all its departments which
constitute the “Government”, a legal personality, having status
to sue or be sued in that capacity.1233. Where there is a dispute between two “States” of the
Union of India or between one or more States and the Union of
India, Article 131 of the Constitution confers original
jurisdiction upon the Apex Court in regard to resolution of such
dispute. In this context, the Apex Court in Chief Conservator of
Forests, Government of Andhra Pradesh Vs. Collector and
others, AIR 2003 SC 1805 observed that neither the
Constitution of India nor CPC contemplates that two
departments of a State or the Union of India will fight a
litigation in a Court of law. It is neither appropriate nor
permissible for two departments of the “State” to fight litigation
in a Court of law. Various departments of the Government are
its limbs and, therefore, they must act in coordination and not in
confrontation. Although that was a case with respect to the
justification of filing a writ petition yet the Apex Court
deprecated the attempt of filing writ petition by one department
against another and invoking extraordinary jurisdiction of the
High Court. The Court observed that it smacks of indiscipline. It
also held to be contrary to the basic concept of law that requires
for suing or be sued there must be either a natural or juristic
person.1234. In para 13 of the judgment, the Court held:
” Every post in the hierarchy of the posts in the
Government set-up, from the lowest to the highest, is not
recognised as a juristic person nor can the State be treated
1407as represented when a suit/proceeding is in the name of
such offices/posts or the officers holding such posts,
therefore, in the absence of the State in the array of parties,
the cause will be defeated for non-joinder of a necessary
party to the lis…”1235. It was made clear that the above principle does not
apply to a case where an official of the Government acts as a
statutory authority and sues or pursues further proceeding in its
name because in that event, it will not be a suit or proceeding
for or on behalf of a State /Union of India but by the statutory
authority as such.1236. With respect to the two departments fighting with
each other, in para 14 of the judgment, the Court observed:“It was not contemplated by the framers of the Constitution
or the C. P. C. that two departments of a State or the Union
of India will fight a litigation in a court of law. It is neither
appropriate nor permissible for two departments of a State
or the Union of India to fight litigation in a court of law.
Indeed, such a course cannot but be detrimental to the
public interest as it also entails avoidable wastage of
public money and time. Various departments of the
Government are its limbs and, therefore, they must act in
co-ordination and not in confrontation. Filing of a writ
petition by one department against the other by invoking
the extraordinary jurisdiction of the High Court is not only
against the propriety and polity as it smacks of undiscipline
but is also contrary to the basic concept of law which
requires that for suing or being sued, there must be either a
natural or a juristic person.”1237. Best C.J. in Neale Vs. Turton (1827) 4 Bing. 149 at
1408page 151 observed that there is no principle by which a man can
be at the the same time plaintiff and defendant. Sometimes it
may happen that a person may be having different capacities in
which he may act but as opined by Salmond in Salmond On
Jurisprudence (supra) a man having two or more capacities
would not derive a power to enter into a legal transaction with
himself. Double capacity does not connote double personality.
In certain circumstances, now by statute this concept has been
diluted but so far as the two departments of the Government are
concerned, the law of the land as already noticed above, is
holding the field and we need not deal into this aspect any
further.1238. Thus, it is now settled that a department of the
Government by itself has no legal personality and, therefore, it
lacks capacity to sue or be sued ignoring the personality of the
State. A department of the Government can always sue or be
sued under the cover of the personality of the State and not of its
own.1239. This concept, however, would not apply to the cases
where a statutory body or an incorporated body on its own enjoy
the capacity of legal persona and, therefore, is well within its
right to sue or be sued under its own name.1240. Nobody could suggest in these cases that the Sunni
Central Waqfs Board can be said to be a department of the
Government. It cannot thus be identified with the Government.
Once it is clear that the Waqfs Board has a different and
independent juristic personality than the “Government”, in the
absence of any prohibition or bar either specifically or by or
necessary implication in the statute, filing of a suit by one
individual juristic personality against another cannot be
1409objected. Exclusion of remedy by way of filing a civil suit
cannot be assumed easily and unless there is an express or by
necessary implication a bar provided by the statute, a suit under
Section 9 cannot be held “not maintainable”. Though we have
expressly held that Sunni Central Waqfs Board is not an
instrumentality of the State, yet even if it is so, we are clearly of
the view that there is no impediment in its way in filing a suit in
its own name against the State or its authorities for redressal of
its grievance, if there is anything wrong by such authority.
1241. So far as the second issue that if it is a “State” within
Article 12 of the Constitution, it may not act in a manner which
may amount to discrimination against one set of community, we
have already said and at the pain of repetition hold that the
statutory functions of the Waqfs Board is to supervise the
management of the Waqfs registered in various manners as
provided in the statute and in such discharge of duty, it can take
all such steps as permissible in law irrespective of fact whether
such step is against an individual of a different religion or the
entire community of different faith.1242. Looking the matter in a wider concept, the act of the
Sunni Central Central Waqfs Board in filing Suit-4 even
otherwise cannot be said to be an act discriminatory to a
community inasmuch treating the disputed property as a Waqf
created in accordance with the Islamic laws, the Board is trying
to protect the same from being usurped by anybody else, be that
it is an individual or a group of individuals or the entire
community and in this respect if in a particular manner all such
persons constitute members of a particular community, that will
not make the act of the Sunni Central Waqfs Board
discriminatory or/and against a particular community.1410
1243. We answer both the above issues accordingly. We
hold that neither the Waqf Board is “an Instrumentality of the
State” nor it suffers any disability of filing a suit against State
Government or its authorities nor there is anything wrong in the
Waqf Board to file a suit representing the cause of Muslim
community particularly for protection of a property which it
claims to be a “waqf property”. This is the principal function
under the Act 1936, substituted by various subsequent Acts, as
discussed above. Even if the Waqf Board is treated to be an
“other authority” under Article 12 of the Constitution and
covered by the term ‘State’ as defined under Article 12 of the
Constitution, there is no impediment in the way of Sunni Central
Waqfs Board in maintaining its suit.1244. Issue 28 (Suit-5) reads as under:
“Whether the suit is bad for want of notice under Section
65 of the U.P. Muslim Waqfs Act, 1960 as alleged by
defendants 4 and 5? If so, its effect.”1245. Defendant No.4-Sunni Central Waqf Board (Suit-5)
in para 45 of the written statement dated 26/29 August, 1989 has
pleaded about the non-maintainability of suit for want of notice
and it reads as under:“That as the subject matter of the instant suit is a waqf
property and stands registered as a waqf in the Register of
Waqf maintained by the Sunni Waqf Board under section
30 of the Waqf Act and a Gazette notification in respect
thereto has also been issued by the State Government in
1944 and the same stands recorded as a mosque even in
the revenue record and other government records and the
same is even accepted as a mosque by the State
Government and its officers in the written statements filed
1411in Regular Suit No. 2 of 1950 as well as in Regular Suit No.
25 of 1950, (the instant suit could not be instituted against
the answering defendants until the expiration of two
months next after notice, in writing, had been delivered or
left at the office of the Board as per requirement of Section
65 of the U.P. Muslim Waqf Act, 1960 and no such notice
having been given to the answering defendants by the
plaintiffs, the suit is not maintainable and is liable to be
dismissed).”1246. To examine the correctness of the above objection,
let us consider Section 65 of U.P. Act No.XVI of 1960 which
reads as under :“Notice of suits by parties against the Board.- No suit
shall be instituted against the Board in respect of any act
purporting to be done by it in pursuance of this Act or of
any rules made thereunder until the expiration of two
months, next after notice in writing has been delivered to
or left at the office of the Board, stating the cause of action
the name, description and place of residence of the plaintiff
and the relief which he claims; and the plaint shall contain
a statement that such notice has been so delivered or left.”1247. From a bare reading of Section 65 of 1960 Act it is
evident that the same would apply where a suit is filed
questioning the validity of any action of the Waqf Board. It
clearly says that in respect of any act purporting to be done by
the Board in pursuance of 1960 Act or of any rules made
thereunder, if a suit is filed, the same would not be maintainable
unless a two months’ notice has been given in writing to the
Board giving the details, as mentioned in the aforesaid
provision. Suit-5 does not challenge any action of the Waqf
1412Board taken under 1960 Act or the rules framed thereunder. Ex
facie, the above provision is inapplicable considering the relief
sought by the plaintiffs (Suit-5) which is confined to a
declaration that the property in dispute therein belong to
plaintiffs themselves and have sought a permanent injunction
against the defendants prohibiting them from interfering with or
raising any objection or placing any obstruction in construction
of a new temple at the disputed site.1248. Learned counsel for the defendants 4 and 5 (Suit-5)
could not show as to how Section 65 would be attracted in
respect of Suit-5. In fact they could not show that any action of
the Waqf Board taken under 1960 Act or rules framed
thereunder has been the cause of action for filing Suit-5. We
therefore, have no hesitation in holding Section 65 of U.P. Act
No.XVI of 1960 has no application in respect to the reliefs
sought in Suit-5 and therefore, the suit cannot be held “not
maintainable” for want of notice.1249. Since the provisions itself is not applicable, as we
have said, the question of considering its effect does not arise.
The issue is answered accordingly.1250. Though no such issue specifically has been framed,
but during the course of argument Sri P.N.Mishra, learned
counsel appearing for defendant No.20 (Suit 4) pointed out that
U.P. Act No.XVI of 1960 has been repealed by Central Act No.
43 of 1995 i.e. Waqf Act, 1995 (hereinafter referred to as ‘1995
Act’)which has came into force on 01.01.1996. He drew our
attention to Section 112 of 1995 Act which read as under :“Repeal and savings.-(1) The Waqf Act, 1954 (29 of 1954)
and the Waqf (Amendment) Act, 1984 (69 of 1984) are
hereby repealed.1413
(2) Notwithstanding such repeal, anything done or any
action taken under the said Acts shall be deemed to have
been done or taken under the corresponding provisions of
this Act.(3) If, immediately before the commencement of this Act,
in any State, there is in force in that State, any law which
corresponds to this Act that corresponding law shall shall
stand repealed;Provided that such repeal shall not affect the
previous operation of that corresponding law, and subject
thereto, anything done or any action taken in the exercise
of any power conferred by or under the corresponding law
shall be deemed to have been done or taken in the exercise
of the powers conferred by or under this Act as if this Act
was in force on the day on which such things were action
was taken.”1251. He submits that since all State Laws have also been
repealed by sub-section (3) of Section 112, U.P. Act No.XVI of
1960 is no more operative since 1st January, 1996. He also drew
our attention to Section 87 of 1995 Act which reads as under :“87. Bar to the enforcement of right on behalf of
unregistered waqfs.-(1) Notwithstanding anything
contained in any other law for the time being in force, no
suit, appeal or other legal proceeding for the enforcement
of any right on behalf of any waqf which has not been
registered in accordance with the provisions of this Act,
shall be instituted or commenced or heard, tried or decided
by any Court after the commencement of this Act, or where
any such suit, appeal or other legal proceeding had been
instituted or commenced before such commencement, no
1414such suit, appeal or other legal proceeding shall be
continued, heard, tried or decided by any Court after such
commencement unless such waqf has been registered, in
accordance with the provisions of this Act.
(2) The provisions of sub-section (1) shall apply as far as
may be, to the claim for set-off or any other claim made on
behalf of any waqf which has not been registered in
accordance with the provisions of this Act.”1252. It is contended by him that the notification dated 26 th
February, 1944 in respect to the property having been held
invalid, no suit in respect to an unregistered waqf is
maintainable and Section 87 encompass even the pending suits.
He submits that even hearing or trial of the pending suit in
respect to an unregistered waqf is not permissible.
1253. Sri Jilani, learned counsel for the plaintiffs (Suit-4)
raised serious objection to the above argument pointing out that
since no such issue has been framed, it would not be permissible
for this Court to look into this aspect of the matter and the above
argument has to be rejected outright as not entertainable.
1254. We gave our serious thought to the matter. Since
Section 87 of 1995 Act prohibits even pending suits from being
heard and tried in respect to an unregistered waqf and this being
a mandate of law, this Court cannot ignore the same merely
because there is no formal issue framed in this respect
particularly considering the fact that enactment of 1995 Act is a
subsequent event and the said Act has come into force during
the pendency of this matter i.e. at the stage when this Court
started recording evidence. However, we find that the question
whether Suit-4 cannot proceed by virtue of the mandate contain
in Section 87 of 1995 Act is not a pure question of law since
1415condition precedent for attracting the said provision is that the
waqf has not been registered with the Board at all.
1255. Despite our enquiry from the learned counsel for the
defendant No.20, Sri Mishra could not show any such pleading
in the written statement or additional written statement. In fact
no such averment has been made in any of the written statement
or additional written statement of any of the defendants that the
property in dispute is not a registered waqf.
1256. On the contrary, Sri Jilani drew our attention to his
written statement dated 26/29 August, 1989, para 45 (quoted
above) (Suit-5) and para 16 of the written statement dated
24.2.1989 of defendant no. 10 (Suit-1) wherein it is averred that
the property in question is a waqf property registered as a waqf
in the register of waqf maintained by the Sunni Waqf Board
under Section 30 of Act XVI of 1960. Sri Jilani pointed out that
Section 30 of U.P. Act No.XVI of 1960 provides for register of
waqfs, which is to be maintained by the Board containing details
of each such waqfs.1257. It is not the case of any of the defendants (Suit-4)
that there is no registration or that registration was not done
validly in accordance with the procedure prescribed under the
Act or the averments contained in para 45 of the written
statement of defendants No.4 (Suit-5) or para 16 of the written
statement of defendant no. 10 (Suit-1) is factually incorrect.
Since the question as to whether a particular waqf property is a
registered one or unregistered one is a question of fact and there
being an averment stating that the disputed property is a
registered waqf, which has not been pleaded to be incorrect by
the other side, we are of the view that Suit -4 filed by the Waqf
Board and others cannot be held not maintainable by virtue of
1416Section 87 of 1995 Act.
1258. It would also be important to notice that the
Notification under Section 5 of Act of 1936 was held invalid by
the learned Civil Judge in 1966, to be more precise on 21st April,
1966. The defendant No.4 had filed its written statement in Suit
5 on 26/29 August, 1989 stating that the property in question is
registered as waqf in the register of waqfs maintained by the
Board under Section 30 of Act 16 of 1960. There are three ways
in which details of Muslim waqfs can be collected and thereafter
they are to be entered in the register maintained by the Board;(i) pursuant to the notification issued by the Board after enquiry
made by the Waqf Commissioner; (ii) On an application made
by the Mutwalli of the concerned waqf; and (iii) Suo moto by
issuing notice by the Board to the Mutawalli of the Waqf..
1259. The averments that the disputed building is
registered as ‘waqf’ in the Board under Section 30 of Act 16 of
1960 having not been seriously challenged by the plaintiffs
(Suit-5), no issue on this aspect has been framed. Lots of
amendments were made in the pleadings after the decision of
the Apex Court in Dr. Mohammad Ismail (supra) but no
amendment or addition of any issue in this regard has been
found necessary by any of the parties opposing the authority of
the Sunni Board in pursuing Suit-4 as plaintiff or other suits as
defendant. Mere declaration of the Notification issued under
Section 5 of Act 1936 as invalid would not deprive the Sunni
Board to take steps for registration of the building in dispute as
waqf in the register maintained by it under Act 16 of 1960. In
the absence of any factual foundation, it would not be justified
for this Court to take recourse of Section 87 of 1995 Act and
non suit Sunni Board or other muslim parties.1417
1260. Sri Mishra, however, made some detailed legal
arguments on this aspects hence we propose to consider such
submissions to find out substance, if any, therein.
1261. It is said that Section 87 has a non obstante clause
and therefore its mandate shall prevail not only over any
contract but to any other law for the time being in force.
Reliance is placed on Union of India and Others Vs. SICOM
Ltd. and Anr. 2009 AIR SCW 635 (at page 638) where para 3
reads as under:“3. Mr. Shekhar Naphade, Learned senior counsel
appearing on behalf of the respondent, on the other hand,
submitted that principle that a crown debt prevails over
other debt is confined only to the unsecured ones as
secured debts will always prevail over a crown debt. Our
attention in this behalf has been drawn to the non obstante
clause contained in Section 56 of the 1951 Act. It was
furthermore contendd that for the self-same reason Section
529A in the Companies Act was inserted in terms by way of
special provisions creating charge over the property and
some of the State Government also amended their Sales
Tax Laws incorporating such a provision. The Central
Government also with that view, amended the Employee’s
Provident Funds and (Miscellaneous) Provisions Act, 1952
and Employee’s State Insurance Act, 1948.The learned counsel appears to be right.”
1262. Reliance is also placed on State Bank of India Vs.
Official Liquidator of Commercial Ahmedabad Mills Co. and
Others 2009 CLC 73 where Gujrat High Court in para 13 of the
judgement observed:“Section 529-A of the Act opens with a non obstante
1418clause… Therefore, the said provision has an over writing
effect not only qua the provisions of the act but also any
other law for the time being in force…”.1263. The proposition with respect to a provision having
non obstante clause being a well established legal principal
admits no doubt. However this by itself may not result in any
consequence to the suits in question.1264. Sri Mishra further submitted that the prohibition
contained against unregistered waqf is quite reasonable and in
accord with the judgement of the Apex Court in Bhandara
District Central Cooperative Bank Ltd. and Others Vs. State
of Maharashtra and Anr. 1993 Supp (3) SCC 259 wherein
Section 145 of Maharashtra Cooperative Societies Act, 1996,
which barred an unregistered society from using the word
‘cooperative’ in its name or title, was held reasonable and in the
interest of general public. There is no challenge to the
correctness of Section 87 of 1995 Act and therefore, in our
view, the aforesaid submission and the authority cited would
have no application in this case.1265. Relying on a decision of Andhra Pradesh High
Court in Pamulapati Buchi Naidu College Committee
Nidubroly and Ors. Vs. Government of Andhra Pradesh and
Ors. AIR 1958 A.P. 773, it was submitted that registration of
waqf confers right upon the Sunni Central Board of Waqf to sue
or be sued in respect of the affairs and properties of the
registered waqf while in case of unregistered waqf of alleged
Babari Masjid, the Sunni Central Board of Waqf has no right to
maintain Suit-4. In the above decision it was held that if a
society is not registered under the Act, it would have the
character of an association which cannot sue or be sued except
1419in the name of all the members of the association. Registration
of the society confers on it certain advantages. Once the society
is registered, it enjoins the status of a legal entity apart from the
members constituting the same and is capable of suing or being
sued. To the same effect is another authority relied by Sri
Mishra i.e. Radhasoami Satsang Sabha Dayalbag Vs.
Hanskumar Kishanchand AIR 1959 MP 172 wherein the
Court said that the registration under the Societies Registration
Act confers on a society a legal personality and make it
corporation or quasi corporation capable of entering into
contracts.1266. In our view, the submission as well as the reliance
on the aforesaid judgments in the case in hand is thoroughly
misconceived though the ratio of the said authorities is
unexceptionable. It is not the case of defendant No.20 that the
Sunni Central Waqf Board, a statutory body, was not constituted
in accordance with the provisions contained in U.P. Act, 1936.
The U.P. Muslims Waqf Act whether of 1936 or 1960 or the
Central Waqf Acts of 1954 or 1995 neither create a waqf nor
extinguish one, if it already exists. They recognize the waqfs
created and existing in accordance with the law of Islam and
make provisions for proper administration and maintenance
thereof primarily so as to avoid any maladministration,
misfeasance of waqf property. Registration of waqf in effect,
considering in the light of the provisions of the aforesaid
enactments, only means that the waqf is known to the concerned
Waqf Board as to whether it is a Shia waqf or Sunni waqf and
having entered their name in the register, the concerned Board
should be in a capacity to supervise management and
administration etc. of such waqfs. The purpose of enactment is
1420public interest so that the waqf property may not be
misappropriated or misused. With this objective the legislature
intend to compel so as to have a complete picture of all existing
valid waqfs created in accordance with Islamic law, has made
such provision. By itself, it neither affects the existence of a
waqf which though created in accordance with the Islamic law
but for one or the other reason could not have been entered in
the register of the concerned Waqf Board nor extinguish it.
Besides, Section 87 it does not say that a pending suit in respect
of a waqf which has not been registered shall stand abated or be
dismissed but provides that it shall not be tried, or heard or
decided by the Court, after the commencement of the Act,
unless such waqf has been registered in accordance with the
provisions of 1995 Act. Meaning thereby even during pendency
of a matter, such a waqf can be registered by the Waqf Board
and thereafter the suit, if pending but deferred, would continue
and can be heard and decided.1267. It is also contended that under U.P. Act, 1936, a
waqf can be registered by the Sunni Board pursuant to its name
find mention in the gazette issued by the Central Board under
Section 5(1) or if it is registered on an application of Mutawalli
under Section 38(2) or where the Central Waqf Board has issued
direction to concerned Mutawalli to apply for registration of a
waqf or supply any information regarding waqf. It is said that
the notification dated 26th February 1944 qua the alleged waqf in
question having been declared invalid, registration based
thereon also becomes null and void. Further that there is no
registration as per the procedure prescribed in Section 38 or 40
of 1936 Act, it cannot be said that the Sunni Board can maintain
a suit on behalf of such a waqf since Section 18(1) and (2)
1421enable the concerned Board to maintain suit in respect of
administration and recovery of lost properties only of those
waqfs to which the provision of the Act applies. It is contended
that the Act being inapplicable to waqf in question due to its non
registration, the plaintiffs have no right to maintain Suit-4 and it
is liable to be dismissed.1268. In our view, there is no occasion to consider this
aspect of the matter for reasons more than one. The notification
under Section 5(1) of 1936 Act has been held invalid so far as
the alleged waqf in question is concerned. This is not disputed
by the learned counsels appearing for the plaintiffs (Suit-4).
However, there is a presumption on the part of the defendant
No.20 that the alleged registration claimed by the plaintiffs
(Suit-4) in para 45 of written statement in Suit-5 is based on the
notification dated 26th February, 1944 and none else though
defendant 4 (Suit-5) (Central Sunni Waqf Board) has taken this
stand in para 45 of their written statement by referring to
Section 30 of Act 16 of 1960 and not that of U.P. Act, 1936.
There is no averment in pleadings of any of the Hindu parties
including defendant No.20 that this averment of defendant No.4
in Suit No.5 is incorrect or that there is no registration of the
waqf in question at all. In the absence of any such facts pleaded
by the concerned parties and in particular defendant no. 20, we
find no reason to consider this aspect of the matter merely on
the presumption of defendant No.2 particularly when the
question is a mixed question of fact and law and in the absence
of specific factual pleading, it would not be appropriate to
presume certain facts and thereafter decide the applicability of
Section 87 of 1995 Act in this case.1269. In the written submissions Volume 2 at page 254
1422para 11 it has been contended by Sri Mishra:
“As after invalidation of notification under Section 5(1) of
the United Provinces Act, 1936 neither fresh survey of the
waqf in question was caused under Section 6 of the
Uttar Pradesh Muslim Wakfs Act, 1960 nor application
for registration was made under Section 29(2) of the
said Act of 1960 within a period of three months nor the
Board did take any steps for registration of the said wakf
under Section 31 of the said Act of 1960. The alleged
wakf remained unregistered wakf to which neither 1936 Act
nor 1960 Act or 1995 Act are applicable as such the
Plaintiff Wakf Board has no locus standi and instant Suit is
hit by the provision of Section 87(1) of the Wakf Act, 1995.
As such, the instant suit is not fit for being continued,
heard, tried or decided and is liable to be dismissed on this
score alone.”1270. In respect to the procedure to be followed under
1960 Act without there being any pleading, the learned counsel
has presumed that neither any registration was made under
Section 29(2) nor any steps were taken under Section 31 of Act
16 of 1960 nor any fresh survey of the waqf in question was
made under Section 6 of the aforesaid Act, hence the waqf in
question remain unregistered. In the absence of any pleading,
we find it difficult to entertain the above submission involving
pure factual aspects which ought to have been pleaded.
Reference is also made to Section 66E of Waqf Act, 1954 but
Sri Mishra, learned counsel could not dispute that Waqf Act,
1954, which was a Central Act, was not made applicable to the
State of Uttar Pradesh and therefore, reliance on the said
provision is wholly misplaced.1423
1271. Sri Mishra referred to Section 6 of the Societies
Registration Act, 1860 and Section 69(2) of Partnership Act,
1932 which are concerned to registered Society or Firm but in
our view, the same would have no application to the case in
hand for the reason we have already discussed above with
reference to the decisions in Pamulapati Buchi Naidu College
Committee Nidubroly (supra) and Radhasoami Satsang
Sabha Dayalbag (supra).1272. Referring to Section 2 of Shariyat Act, 1937 as
amended by Madras Act 18 of 1949 as also the Apex Court’s
decision in C.Mohammad Yunus Vs. Syed Unnissa and Ors.
AIR 1961 SC 808, it is contended that the Act was applied to all
cities and provinces but in our view, neither the aforesaid
provisions nor the decision of the Apex Court in C. Mohammad
Yunus (supra) has any relevance with the point in question.
1273. Referring to certain documents, which are on record,
and the translation provided thereof, Sri Mishra has submitted in
his written arguments as under:A. In the application for registration of waqf made
under section 38 of the United Provinces Muslim Waqfs
Act, XIII of 1936 being exhibit 38 on pages 199 to 205 of
the Volume No.11 of the documents filed in the instant
suit by the Plaintiffs in its column no.3 it has been stated
that there is no waqf but the waqifs are Emperor Babar
and Nawab Sa’-a-Dat Ali Khan. Below column no.16
there is a note which says that the claim of the alleged
Mutwalli’s family is that the within mentioned property
said to be granted for maintenance of the alleged Babari
Mosque at somewhere else is not a waqf but a Service
Grant in their favour. The aforesaid application tells the
1424Emperor Babar and Nawab Sa’-a-Dat Ali Khan as joint
waqifs which is quite impossible because the Emperor
Babar died in 1530 AD while Nawab Sa’a-Dat Ali Khan
ascended on throne in 1732 AD as such the persons who
were not contemporary and there was a gap of 202 years
between the former and later they cannot be joint waqifs
of same of one waqf alleged to be Babri Masjid Waqf.This fact alone totally falsify the claim of the plaintiffs
that the alleged waqf was created by the Emperor Babar.
The grant in question was also a service grant not a waqf.
The person who made application namely, Syed Kalbe
Hussain had also his vested interest as it appears from the
note of the application that his intention was to file a case
against the persons who were enjoying their property
claiming the same to be a service grant; from being
motivated with such spirit and he made the aforesaid
application for registration making fraudulent dishonest
false and frivolous statements.B. Be it mentioned herein that the plaintiffs have used
fraud upon this Hon’ble Court by producing wrong
transliteration of the note contained in said application for
registration. Though in its original Urdu text it has been
recorded that the persons recorded in revenue records do
not consider it waqf but in Hindi transliteration thereof the
plaintiffs by deleting the word ‘nahi’ of vital importance
which finds place in between the words ‘waqf’ and
‘tasleem’ have made it meant that those persons says that it
is waqf and nankar mafi. This fact came into light when
the original text was read over in open Court by the
Hon’ble Justice S.U.Khan, J. during my argument.1425
C. In the list of Sunni Waqfs published in supplement
to the Government Gazette of United Provinces dated 26 th
February, 1944 under Section 5 of U.P. Muslim Waqfs
Act, XIII of 1936 to which, according to the report of the
Commissioner of waqfs, the provisions of the said Act
apply; on page 11 at serial no.26 (being the volume No.12
of the documents filed in the instant suit) it has been
notified that Babri Mosque is located at Qasba Shahnawa
not at Ramkot in Ayodhya. Hindi transliteration of
relevant page of the said gazette notification containing
the name of Badshah Babar on serial No.26 is on page
no.341 to 345 of volume 12 of the documents filed in the
instant suit. Hindi Transliteration of the proforma of the
list as well as the entries against item no.26 of the said
reads as follows:ukes okfdQ ;k uke&,&eroyh ekStwnk ukS b;rs tk;nkn
oDQ edwQk
26 ckn’kkg ckcj lS;n eksgEen tdh ercyh
efLtn ckcjh dLck
‘kkguck Mkd[kkuk n’kZuxj
From the above Gazette notification dated 26th
February, 1944 it appears that Badshah Babar had erected
a Mosque in Shahnawa town within the postal jurisdiction
of Darshan Nagar of which Syed Mohammed Zaki was
Mutawalli. The said gazette notification did not say that
there was a mosque in Ramkot Pargana Havelli, Ayodhya
in the district of Faizabad. As such said Babri Mosque
Waqf cannot be construed to be waqf of any other Babri
Mosque located anywhere else.D. In the said gazette notification dated 26th February,
1944 (on page 479 of the volume 12 of the documents
filed in the instant suit) another Babri Mosque along with
1426the Mausoleum of the Emperor Babur has been mentioned
in some other district perhaps in the district of Kanpur. It
is well known recognized and admitted fact that the
Mausoleum of the Emperor Babur is in Kabul, Afganistan
not in India. This is glaring example of the facts of fraud,
forgery and fabrication.E. From the above mentioned relevant entries of the list
of the gazette notification dated 26th February, 1944 it
becomes clear that the waqf commissioners had not
discharged their duties as it was cost upon them under the
provisions of the United Provinces Muslim Waqfs Act,
1936 and in very casual manner either on hearsay they
have listed several properties as of waqfs or the concern
Waqf Commissioner were active participant in the fraud,
forgery and fabrication.F. The Waqf Commissioner Faizabad’s report dated 8th
February, 1941 says that it appears that in 935 A.H.
Emperor Babar built Babari or Janam Asthan Mosque at
Ajudhya and appointed one Syed Abdul Baqi as the
Mutwalli and khatib of the Mosque and for its
maintenance an annual grant of Rs.60 was allowed by the
said Emperor which continued till the fall of the Mughal
kingdom. Later on said grant was increased by Nawab Sa-
a-Dat Ali Khan to Rs.302/3/6 but no original papers about
this grant by the king of Oudh are available. Relevant
extract of said report reads as follows:“It appears that in 935 A.H. Emperor Babar built
this mosque and appointed Syed Abdul Baqi as the
mutwalli and khatib of the Mosque (vide clause 2
statement filed by Syed Mohammad Zaqi to whom a
1427notice was issued under the Wakf Act.) An annual
grant of Rs.60/- was allowed by the Emperor for
maintenance of the mosque and the family of the
first mutwalli Abdul Baqi. This grant was continued
till of the fall of the Moghal Kingdom at Delhi and
the ascendancy of the Nawabs of Oudh.According to Cl. 3 of the written statement of
Mohammad Zaki Nawab Sa’adat Ali Khan, King of
Oudh increased the annual grant to Rs.302/3/6. No
original papers about this grant by the king of Oudh
are available.”From the aforesaid extract it is crystal clear that the
Commissioner on the basis of mere statement of Syed
Mohammed Zaki found that the Disputed Janam Asthan
Structure was a mosque built by Emperor Babar which is
in total discard to his duty cast upon him under said Act
XIII of 1936.G. Commissioner’s said report dated 8th Feb. 1941 says
that after the mutiny the British Govt. continued the above
grant in cash upto 1864 and in the later year in lieu of cash
some revenue free land in village Bhuraipur and
Sholeypur was granted. The said report further records
that Syed Mohammed Zaki produced a copy of the grant
order of the British Govt. which was made on condition
that Rajab Ali and Mohammad Asghar would render
Police, Military or Political service etc. Thereafter the
commissioner records that the above-mentioned object is
elucidated in Urdu translation as follows:“After the Mutiny, the British Government, also
continued the above grant in cash upto 1864, and in
1428the latter year in lieu of the cash grant, the British
Government ordered the grant of some revenue free
land in villages Bhuraipur and Sholeypur. A copy of
this order of the British Government has been filed
by the objector Syed Mohammad Zaki (vide Flag
A). This order says that ‘the Chief Commissioner
under the authority of the Governor General in
Council is pleased to maintain the Grant for so long
as the object for which the grant has been made is
kept up on the following conditions’. These
conditions require Rajab Ali and Mohammad
Asghar to whom the sannad was given, to perform
duties of land holder in the matter of Police Military
or political service etc. Thus the original object of
the state grant of Emperor Babar and nawab Sa’adat
Ali Khan is continued in this Sunnad by the British
Government also i.e. maintenance of the mosque.
The Nankar is to be enjoyed by the grantees for so
long as the object of the grant i.e. the mosque is in
existence.”H. In fact, this Urdu elucidation is creation of the said
Waqf Commissioner as it is not in the alleged Sunned
being page 33 of the volume 6 of the documents filed in
the instant suit. Hindi transliteration and meaning of the
said elucidative Urdu text as incorporated in the Waqf
Commissioner’s said report reads as follows:**ml ukudkj dks tcrd fd efLtn ftlds okLrs ;s ukudkj nh
x;h Fkh cjdjkj gSA glcs ‘kjk;r]ntZ tSy dk;e Qjekrs gSa ¼tks
‘krsZa fy[kh x;h gSa mls dgrs gSa½**
1429A handwritten copy of the said sunnad with some
error has been reproduced at page 27 of volume 10 of the
documents filed in the instant suit. In the said alleged
original version of the grant Urdu elucidation did not find
place. From the said alleged original version of the alleged
grant, it becomes crystal clear that the grant, if any, it was
a service grant for rendering police, military and political
services to the British Govt. against the enemies of the
British Govt. Be it mentioned herein that in those days in
the eyes of the Britishers the persons who were fighting
against them for liberation of their motherland i.e. India
they were considered to be mutineers and enemies of the
Britishers. As such it can be inferred that the said service
grant was given for helping the Britishers to defeat and
rout the freedom fighters, not for a good cause of
maintaining any Mosque. Full text of the alleged
SUNNAD from page 33 of Vol. 6 (hand written copy on
page 27 of Vol. 10 that is not accurate) is reproduced as
follows:“Chief commissioner’s
It having been established after due enquiry, that
Rajub ally and Mohamad Usgar received a Cash
Nankar of (Rs.302.3.6) Rupees three hundred to and
three annas and six pie from Mouzah Shanwah Zila
Faizabad from former Government. The Chief
Commissioner, under the authority of the Governor
General in Council is pleased to maintain the grant
for long as the object for which the grant has been
made is kept the following conditions. That they shall
have surrendered all sunnads, title deeds, and other
1430documents relative to the grant. That they and their
successor shall strictly (illegible) all the duties of
land-holder in matter of police, and an (torn) or
political service that they may be required of them by
the authorities and that they shall never fall under
the just suspicion of favouring in any way designs of
enemies of the British Government. If any one of
these conditions is broken by Rajub ally and
Mohamad Usgar or their successor the grant will be
immediately resumed.”I. From the aforesaid alleged to be original text of the
grant as produced by the plaintiffs it becomes crystal clear
that Urdu interpolation has been done by the said
Commissioner with sole motive to deprive the Hindus
from their sacred shrine of Sri Ramjanamsthan which has
been described as Babri Mosque in the plaint as well as
Janam Asthan Mosque in the said Commissioner’s report.From the words ‘Janam Asthan Mosque’ itself it becomes
clear that the alleged Mosque was erected over the birth
place of someone, and since time immemorial said place is
being worshipped by the Hindus asserting that it is the
birth place of the Lord of Universe Sri Ram it is needless
to say that according to the said Commissioner, the
alleged Mosque was erected over the janamasthan of Sri
Ramlala.J. The said Waqf Commissioner after recording the
facts that Syed Mohammed Zaki had submitted before him
that the said British grant was a service grant in favour of
his predecessors for rendering police, military and
political services to the Britishers subject to resumption on
1431non-fulfillment of the aforesaid conditions thus it was not
a waqf property granted for maintenance of the alleged
mosque; the commissioner without any cogent evidence
rejected his said contention simply stating that he did not
agree to that view because the grant was not originally
granted by the Britishers but it was continuation of
original grant granted by the Muslim rulers as also for the
reasons that after the Ajodhya riot of 1934 Syed
Mohammad Zaki had presented an application to Deputy
Commissioner in which he had described himself as
Mutawalli or trustee of the mosque and of the trust
attached thereto. In fact, prior to coming on this reference,
in the preceding paragraphs of his said report the said
commissioner himself has recorded that no paper of old
grant even of the Nawabs of Oudh was available and
placed before him. It is contrary to the law of evidence to
draw inference on the basis of the statement of a person
whose credibility was found suspicious, doubtful and non-
reliable. As in his report the commissioner records that
said Syed Mohammed Zaki was an opium addict and most
unsuited for the proper performance of the duties expect
of a Mutwalli of an ancient and historical mosque, which
was not kept even in proper repairs for which reason he
recommended to discharge the said Mutwalli. Relevant
extract from said report is reproduced as follows:“Syed Mohammad Zaki, the objector, who is known
as the Mutwalli of the Babari mosque, and also
called himself as such raises an objection to the land
in Sholeypur and Bhuranpur being regarded as a
waqf, because he says the grant has been made for
1432his substenance only (in Urdu). In do not agree with
this view of his. The written statement filed by
Mohammad Zaki himself is sufficient to show that
the grant has been continued ever since 935 A.H.only because he and his ancestors were required to
look after the mosque and keep it in proper
condition out of the income allowed to them and
also to provide for the maintenance of himself and
his ancestors out of a part of the same grant.
Clearly then the grant of land to Mohammad Zaki
must be regarded as a Waqf, the purpose of which is
the maintenance of the religious building known as
the Babari Mosque.The learned counsel for Mohammad Zaki has also
argued.1) That the particular grant of land in Sholeypur and
Bhureypur has been made by the British
Government. A Non-Muslim body and hence the
grant cannot be regarded as Muslim Waqf.2) That the grant is a conditional one, being subject
to resumption on non fulfillment by the grantee of
any of the police Military or duties enjoined in the
Sunnad, and that on account of these conditions the
grant cannot be classed as a Muslim Waqf.I do not agree with either view. firstly the British
Government only continued a grant which had been
made by the Muslim Government originally and in
these circumstances, I cannot but regard the grant as
a waqf.3) As for the second point the conditions have been
1433imposed upon the grantee, and not upon the way in
which the grant to be utilized, which latter purpose
is recognised as maintenance of the mosque. It is
clear that if the conditions are broken the enjoyment
of the grant by the Mutwalli himself for his sustence
is to be withdrawn apparently implying that any
other mutwalli will then be appointed to administer
the grant for the original purpose of maintaining the
mosque. I am strengthened in this view because I
find the mention of the object of the grant i.e.
maintenance of the mosque at the very outset of the
Sunnad and the desirability thereof seems to be clear
from the whole Sunnad.I also find that after the Ajodhya riot of 1934,
Syed Mohammad Zaki presented an application
(Flag Ex. A) to Deputy Commissioner, in which he
clearly described himself as Mutwalli or trustee of
the mosque and of the trust attached thereto.I also find that this same Mohammad Zaki
submitted accounts in 1925 in Tahsildar’s court in
which he stated that the income from the grant
managed by him was utilized for maintenance of the
mosque, pay of Imam Muezzin and the provisions of
Iftari etc., during Ramzan after deduction of Rs.20/-
per month for sustence of the Mutwalli himself. The
pay of the Mutwalli spends a much greater portions
of the income on his own personal needs.K. The Wakf Commissioner Faizabad in his said report
dated 8th Feb. 1941 says that he examined Abdul Ghaffar,
the then pes Niwaz who deposed that the imam was not
1434being paid for last 11 years and thereafter the said
commissioner says that the then Syed Mohammud Zaki
was an opium addict and most unsuited to the proper
performance of the duties expected from an Mutwalli of
an ancient and historical mosque, thus he was liable to be
discharged from his duties. Relevant extract from the said
report which is on page nos. 45 to 48 of the volume No. 6
of the documents filed in the instant suit read as follows:“The present Mutwalli is of course a Shia. There is
no information as to the sect to which Abdul Baqi
himself belonged, but the founder Emperor Babar-
was admittedly a Sunni, the Imam and Muezzin at
the mosque are Sunni and only Sunnis say their
prayer in it. Abdul Ghaffar the present Pesh Niwaj
was examined by me. He swear that the ancestors of
Mohammad Zaki were Sunnis who latter on was
converted to Shia. He further said that he did not
receive his pay during the last 11 years. In 1936 the
Mutwalli executed a pronote promising to pay the
arrear of pay by installment but upto this time
nothing actually was done. I think therefore that this
should be regarded as a Sunni Trust.I must say in the end that from the reports that
I have heard about the present Mutwalli, he is an
opium addict (vide his statement flag Ez) and most
unsuited to the proper performance of the duties
expected of a Mutwalli of an ancient and historical
mosque, which is not kept even in proper repairs. It
is desirable that, if possible, a committee of
management should be appointed to supervise the
1435proper maintenance and repairs of the mosque and
discharge of his duties by the Mutwalli.”L. From the second report of the Commissioner of
Waqf Faizabad being report dated 8th February, 1941 it
becomes clear that the Imam was not being paid since
1930 and the alleged Mutwalli was an opium addict and
most unsuitable person and in 1934 riots on 27th March,
the alleged Mosque was demolished it can be safely
inferred that Sri Ramjanamsthan temple structure was
being used as a mosque because it cannot be imagined that
a person will discharge duty of imam without getting
salary for such a long period as according to Islamic law,
only salary is the prescribed means of livelihood no imam
can survive for want of salary as such in fact neither there
was any mosque nor there was any mutwalli or imam.
M. From exhibit-62 being page nos.367 to 405 of
volume 12 of the documents filed in the instant suit which
is a report of the four historians it becomes crystal clear
that how said report has been prepared having some
design in mind or inadvertently and negligently which
reflects from page 397 of the said volume where the
dimension of the vedi described by Tieffenthaler has been
wrongly reproduced as “a square platform 5 inches above
ground, 5 inches long and 4 inches wide, constructed of
mud and covered with lime. The Hindus call it Bedi, that
to say, the birth place. The reason is that here there was a
house in which Beschan (Bishan = Vishnu) took the form
of Ram”. Though correct dimension given by Tiffenthaler
reads “a square chest, raised five inches from the ground,
covered with lime, about five ells in length by not more
1436than four in breadth. The Hindoos call it bedi, the cradle;
and the reason is, that there formerly stood here the house
in which Beshan (Vishnoo) was born in the form of Ram.”
This correct translation is given in the book ‘Modern
Traveller’ volume 3, published by James Duncan in 1828.
It is crystal clear that in the report of said historians the
word ‘ells’ has been translated as ‘inches’ in fact, ells
means yards which has been correctly translated in the
translation made available by the Govt. of India to this
Hon’ble Court. Tieffenthelar has not stated that the Bedi
was of mud, it is creation of the mind of the aforesaid
historians, as such said report of the historians is not
reliable for the reasons of being prepared by incompetent
persons or for being biased, motivated.N. The page No. 155 of volume 6 of the documents
filed in the instant suit purported to be copy of a folio of a
register contains a pedigree wherein it has been written
that the mafi was created for the muezzin and khattib of
masjid Babari of Oudh date and year of the waqf is
unknown to Syed Baqi therefore his son Syed (illegible)
Ali, his son Syed Hussain Ali who was in possession for
about 60 years now his son-in-law Rajab Ali and his
daughter’s son Muhammad Asgar are in existence and
were in receipt of cash from village Shahnawa vide receipt
(illegible) till fasali year 1263. In the year 1264 fasali
enquiry about mafi was started but riot took place
(illegible) crop (illegible) year 63 fasali was found
(illegible) original (illegible) of and is document
(illegible) in respect of mafi (illegible) settlement of
village versus (illegible). A copy of the said contents has
1437also been compiled in the said volume no.6 of the
documents filed in the instant suit on its page nos. 157 to161.
O. From the said enquiry report it appears that during
the period of 332 years people of five generations
including Syed Baqi held the office of muezzin and
khattib of alleged Babri mosque during the period of 1528
to 1860 which means 66½ years was average of each
generations which is quite impossible as according to Life
Insurance Corporation’s assessment average span of a
change of generation is 26 years. And this pedigree is
completely false, forged and fabricated one. During this
period 16 generations of the Mughal rulers elapsed
average whereof comes about 20 ¾ years. In the matter of
Radha Krishan v. State of Bihar the Hon’ble Supreme
Court has laid down the principle of law to evaluate and
judge authenticity of a pedigree which has been
reproduced in this argument at relevant place.
P. The alleged documents and/or transliteration thereof
being page nos. 53 to 61 of the volume no.6 of the
documents filed in the instant suit tells that the alleged
Babri Mosque was demolished by the rioters and Bairagis
on 27th March, 1934. The damaged domes were beyond
repair. The allege list of damages says that apart from
damaging the building, the Hindus either burnt or took
away with them three pieces of mats, six pieces of
matress, one piece of box, two pieces sandal, six pieces of
curtains, five pieces of pitchers, hundred places badhana
mitti, four pieces of small earthen pot, one piece chahar,
water pot (illegible) three pieces Kasauti Patthar Tarikhi, 3
1438x 1½ sq. ft. one piece, ladder two pieces, large iron jar two
pieces. From the said list it is crystal clear that no
engraved stone i.e. inscription was either carried away by
the rioters or destroyed by the rioters. As such the story of
the destruction of inscription is wholly concocted and the
inscription which was prepared by the contractor was done
at the instance of the Britishers to deprive the Hindus from
their religious place and make the said place as bone of
contention between Hindus and Muslims to facilitate their
policy of divide and rule. As it has been written in the East
India Gazetteer 1828 p. 352, 2nd column last para as well
as the preface of the Neil B.E. Baillie’s Digest of
Moohummudan Law Vol.2 Edn. 1875 Introduction p. xi
and xii.Q. In Waqf Commissioner’s report dated Feb. 8 1941, it
has been recorded that the alleged Babri Mosque was built
by one Abdul Baqi on being ordered to do so by the
Emperor Babur. He records that there is no document to
show that grant was sanctioned to the said Mosque either
by the Mughal Emperors or Nawabs of Oudh, but as in
1864 a sunnud was issued stating that the grant was given
to the grantee for rendering military, police and political
services. It may be presumed that it was granted in
continuance of the grants of Mughal Emperors to Nawabs
of Oudh right from the Emperor Babur. The said
Commissioner in his waqf report has committed forgery
and fabrication by inserting certain words in Urdu
transcript to show that the grant was given for
maintenance of the alleged Babri Mosque. In fact, said
sunnud is on record and entire sunnud is in English
1439language and nothing is written in the said sunnud in Urdu
transcript as such question of grant for maintenance of
Babri Mosque cannot and does not arise at all. He says
that some return submitted in the office of Tahsildar in
1995 shows that though major expenses was done by the
grantee for his own maintenance, but a portion thereof was
spent on maintaining alleged Babri Mosque. Be it
mentioned herein that if grant would have been spent on
maintaining alleged Babri Mosque its account would have
been submitted to the District Civil court which was made
mandatory under the provisions of The Mussalman Wakf
Act, 1923 under Section 3 of the said Act. Report also
says that the Imam was not paid for last 11 years i.e. since
1930 as also that the Mutwalli is a drug addict and the
alleged Mosque is in not good condition as such Mutwalli
should be removed.1274. Suffice it to say that Section 87 would be attracted
where a waqf is not registered under the Act. If there was some
irregularity or discrepancy in the procedure observed, whether
that would make a waqf otherwise registered by the Central
Sunni Waqf Board as unregistered, is neither an issue framed
nor there is requisite pleadings by the concerned parties giving
an opportunity to plaintiffs (Suit-4) to place on record the
relevant evidence. So far as the appreciation of the documents,
referred to above in sub paras A to Q, we are clearly of the view
that the same would not negate an otherwise positive assertion
by defendant 4 (Suit-5) which is not disputed at all by the other
side by challenging the said pleading. Moreover no issue on this
aspect has been framed. In our view, the suits in question cannot
be held to be barred by Section 87 of the Act.1440
1275. There is another aspect. There are specific issues
concerning the very existence of the waqf and creation of a valid
waqf in accordance with Shariyat Law. Where such a basic issue
is involved about the very existence of a waqf, whether in such a
case also Section 87 would have any application or not, we have
our serious doubts but on this aspect in the absence of any
pleadings or arguments on the part of the respective parties
we find no occasion to express a final opinion. We are not
inclined to widen the scope of the suits in question, the canvass
whereof is already enlarged extraordinarily and we have enough
complicated issues to consider and decide having wider
ramifications. In the totality of the circumstances, as also the
discussion as above, we are clearly of the view that the suits in
question cannot be held untriable at this stage by virtue of
Section 87 of 1995 Act. The submission of Sri P.N.Mishra,
learned counsel for defendant 20 in Suit-4 with reference to
Section 87 of 1995 Act is hereby rejected. We, however, make
it clear that the submissions with respect to various documents
in the above mentioned paragraphs F to Q are in fact not
relevant to the above aspect of the matter. We intend to consider
it later on while deliberating on the concerned issues involving
those documents and their effect.(E) Miscellaneous issues like representative nature of suit,
Trust, Section 91 C.P.C., non joinder of parties, valuation/
insufficient Court fee/under valuation and special costs.
1276. Issue no. 6 (Suit-4) reads as under:“Whether the present suit is a representative suit,
plaintiffs representing the interest of the Muslims and
defendants representing the interest of the Hindus?”1277. Issue no. 6 (Suit-4) pertains to the nature of the suit
1441in a representative capacity in respect to both the parties, i.e.,
plaintiffs and defendants. It is not disputed by learned counsel
for the parties that the Civil Judge passed order dated
08.08.1962 under Order 1 Rule 8 CPC permitting plaintiffs to
represent the interest of Muslims and the defendants to represent
the interest of Hindus. The relevant part of the order says:“I therefore allow appln 4-C and reject the objections 77-C
& 97-C. The pltffs are permitted to sue representing the
entire Muslim community and the pltffs are also permitted
to sue the defdts no. 1 to 4 on behalf of and for the benefit
of the entire Hindu community.”None has made any submission otherwise. The issue is
answered accordingly in affirmance.1278. Issue No.22 (Suit-4) relates to special costs in case
suit is dismissed. It reads as under:“Whether the suit is liable to be dismissed with
special costs?”Learned counsel for the defendants have fairly stated that
they do not press for any special costs and for they it would be
sufficient if the suits are decided on merits expeditiously.In the circumstances and in view of the above statement
made on behalf of the learned counsel appearing for the
defendants in Suit-4, we answer Issue no.22 in negative i.e. no
special costs need be awarded.1279. Issues no. 11(a) and 11(b) (Suit-1) reads as under:
“(a) Are the provisions of section 91 C.P.C.
applicable to present suit? If so, is the suit bad for want of
consent in writing by the Advocate General?(b) Are the rights set up by the plaintiff in this suit
independent of the provisions of section 91 CPC? If not, its
1442effect.”
1280. These issues are in respect to Section 91 CPC which
reads as under:“91. Public nuisances and other wrongful acts affecting
the public.–(1) In the case of a public nuisance or other
wrongful act affecting, or likely to affect, the public, a suit
for a declaration and injunction or for such other relief as
may be appropriate in the circumstances of the case, may
be instituted,-(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons,
even though no special damage has been caused to
such persons by reason of such public nuisance or
other wrongful act.]
(2) Nothing in this section shall be deemed to limit or
otherwise affect any right of suit which may exist
independently of its provisions.”1281. The onus to prove the above issue initially lie upon
the defendants but no arguments have been advanced in respect
to the above issue. Besides, we find from the record that Sri
Chaudhary Kedarnath, Advocate, counsel of the plaintiff, Gopal
Singh Visharad, who initially filed Suit-1, made a statement on
15.09.1951 under Order 10 Rule 2 stating that he is filing the
above suit for enforcement of his individual right of worship
and, therefore, has a right to maintain the above suit in his
individual capacity. The relevant part of his statement is as
under:“Q. In what capacity does the plaintiff seek to exercise the
relief which he seeks in the plaint.Ans. In my individual capacity.
1443
Q. What is your individual capacity.
Ans. My individual capacity is distinct from public capacity
and in this matter an idol worshipper.”1282. It also appears that an application was filed on
behalf of defendants no. 1 to 5 under Order 1 Rule 8 CPC before
the Civil Judge, Faizabad praying that the suit be treated to be in
a representative capacity but the said application was rejected on
27.10.1951. The order has attained finality as nothing has been
placed before us to show that the matter was taken up before the
higher Court assailing the order dated 27.10.1951. Section 91
CPC does not take away the independent right of a person where
such right partly relates to a public right of others also. It lays
down merely the procedure to be adopted in a representative suit
where a right of suit already exist. It did not confer or extinguish
a new right on its own. In Kadarbhai Mahomedbhai and
another Vs. Haribhari Ranchhodbhai Desai and another, AIR
1974 Gujarat 120 a suit was filed by a person affected by public
nuisance praying for removal of the public nuisance alleging
special damage to him and it was held that such a suit is not
barred either by Section 91 CPC or Order 1 Rule 8 CPC. To the
same effect is the view taken by this Court in Mst. Bhagwanti
Vs. Mst. Jiuti and another, AIR 1975 Allahabad 341. In view
of the above we answer issue no. 11(a) (Suit-1) in negative and
hold that neither Section 91 CPC is applicable to Suit-1 nor it is
bad for want of consent in writing by Advocate General. Issue
No. 11(b) (Suit-1) is answered in affirmance, i.e., the right of
the plaintiff is independent as set up by him in the plaint as also
in view of the statement under Order 10 Rule 2 CPC and has
nothing to do with Section 91 CPC. The question of the
subsequent part of the issue 11(b) need not be decided in view
1444or our answer in favour of the plaintiff, i.e., in affirmance.
1283. Issue no. 12 (Suit-1) reads as under:
“Is the suit bad for want of steps and notice under
Order 1, Rule 8 CPC? If so, its effect?”1284. This issue is with reference to Order 1 Rule 8 CPC
which reads as under:“8. One person may sue or defend on behalf of all
in same interest.–(1) Where there are numerous persons
having the same interest in one suit,-(a) one or more of such persons may, with the
permission of the Court, sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons
so interested;(b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so
interested.(2) The Court shall, in every case where a permission or
direction is given under sub-rule (1), at the plaintiffs
expense, give notice of the institution of the suit to all
persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such
service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit
is instituted or defended, under sub-rule (1), may apply to
the Court to be made a party to such suit.(4) No part of the claim in any such suit shall be abandoned
under sub-rule (1), and no such suit shall be withdrawn
under sub-rule (3), of rule 1 of Order XXIII, and no
1445agreement, compromise or satisfaction shall be recorded in
any such suit under rule 3 of that Order, unless the Court
has given, at the plaintiffs expense, notice to all persons so
interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit
does not proceed with due diligence in the suit or defence,
the Court may substitute in his place any other person
having the same interest in the suit.(6) A decree passed in a suit under this rule shall be binding
on all persons on whose behalf, or for whose benefit, the suit
is instituted, or defended, as the case may be.Explanation.-For the purpose of determining whether
the persons who sue or are sued, or defend, have the same
interest in one suit, it is not necessary to establish that such
persons have the same cause of action as the person on
whose behalf, or for whose benefit, they sue or are sued, or
defend the suit, as the case may be.”1285. As we have already discussed above the application
filed on behalf of defendants no. 1 to 5 under Order 1 Rule 8
CPC was rejected by Civil Judge, Faizabad by order dated
27.10.1951. The plaintiff had also made statement under Order
10 Rule 2 CPC that the right of worship, he is claiming by
means of Suit-1, is his individual and personal right hence Order
1 Rule 8 CPC has no application. That being so, the question of
taking steps and notice under Order 1 Rule 8 CPC does not
arise. Issue no. 12 (Suit-1) is accordingly answered in
negative, i.e., in favour of the plaintiff (Suit-1).
1286. Issue no. 15 (Suit-1) pertains to non-joinder of
defendants and says:“Is the suit bad for non-joinder of defendants?”
1446
1287. It is not pointed out by any of the defendants as to
who has not been impleaded as defendant though a necessary or
proper party in the suit. No arguments have been advanced on
this aspect and in the absence thereof we answer issue no. 15
(Suit-1) in negative, i.e., in favour of the plaintiffs (Suit-1).
1288. Issue no. 16 (Suit-1) reads as under:“Are the defendants or any of them entitled to special
costs under Section 35-A C.P.C.”1289. It relates to special costs. Section 35A CPC says:
“35A. Compensatory costs in respect of false or
vexatious claims or defenses.–(1) If any suit or other
proceedings including an execution proceedings but
excluding an appeal or a revision any party objects to the
claim of defence on the ground that the claim or defence or
any part of it is, as against the objector, false or vexatious
to the knowledge of the party by whom it has been put
forward, and if thereafter, as against the objector, such
claim or defence is disallowed, abandoned or withdrawn in
whole or in part, the Court, if it so thinks fit] may, after
recording its reasons for holding such claim or defence to
be false or vexatious, make an order for the payment the
object or by the party by whom such claim or defence has
been put forward, of cost by way of compensation.
(2) No Court shall make any such order for the
payment of an amount exceeding three thousand rupees or
exceeding the limits of it pecuniary jurisdiction, whichever
amount is less:Provided that where the pecuniary limits of the
jurisdiction of any Court exercising the jurisdiction of a
Court of Small Causes under the Provincial Small Cause
1447Courts Act, 1887 (9 of 1887) or under a corresponding law
in force in any part of India to which the said Act does not
extend and not being a Court constituted under such Act or
law, are less than two hundred and fifty rupees, the High
Court may empower such Court to award as costs under this
section any amount not exceeding two hundred and fifty
rupees and not exceeding those limits by more than one
hundred rupees:Provided, further, that the High Court may limit the
amount or class of Courts is empowered to award as costs
under this Section.(3) No person against whom an order has been made
under this section shall, by reason thereof, be exempted
from any criminal liability in respect of any claim or defence
made by him.(4) The amount of any compensation awarded under
this section in respect of a false or vexatious claim or
defence shall be taken into account in any subsequent suit
for damages or compensation in respect of such claim or
defence.”1290. Learned counsels for the defendants have at the
outset stated that they do not press any cost whatsoever and for
them the biggest compensation would be the decision of the
matter at the earliest and, therefore, none has pressed the above
issue. In the result issue 16 (Suit-1) is answered in negative,
i.e., in favour of the plaintiff (Suit-1).1291. Issues no. 11, 12 and 15 (Suit-3) read as under:
“Is the suit bad for non-joinder of necessary
defendants?”“Are defendants entitled to special costs u/s 35
1448CPC?”
“Is the suit property valued and court fee paid
sufficient?”1292. None has pressed the above issues inasmuch as
neither any submissions have been advanced as to who is the
necessary party not impleaded in the suit rendering it bad for
non-joinder nor the learned counsels for the defendants have
pressed for special cost and on the contrary very fairly have said
that the decision of the suit at the earliest is itself the biggest
cost to them. No arguments have been advanced with respect to
the valuation and the Court fees in the matter. We, therefore,
answer issues no. 11 and 12 (Suit-3) in negative, i.e., in favour
of the plaintiffs (Suit-3). Issue no. 15 (Suit-3) is answered in
affirmance, i.e., in favour of the plaintiff (Suit-3).
1293. Issue no. 20 (Suit-5) reads as under:“Whether the alleged Trust creating the Nyas ,
defendant no.21, is void on the facts and grounds stated in
paragraph 47 of the written statement of defendant no.3?”1294. Defendant no. 3 represented by Sri R.L. Verma,
Advocate has not placed anything before this Court to show as
to how the alleged trust defendant no. 21 is void. Besides,
defendant no. 21 is not seeking any relief as such before us. The
question as to whether the alleged trust is void or not would
have no material bearing on the matter to the relief sought in
Suit-5 which has been filed on behalf of two deities through
next friend. We, therefore, find no reason to answer the
aforesaid issue in the present case. Issue no. 20 (Suit-5),
therefore, remain unanswered since it is unnecessary for the
dispute in the present case to adjudicate on the said issue. The
learned counsel for defendant no. 3 (Suit-5) also could not make
1449any submission persuading us to take a different view.
(F) Issues relating to the Person and period- who and when
constructed the disputed building:1295. Mainly there are three issues under this category
which requires adjudication on the question whether the
building in dispute was constructed in 1528 AD and whether the
construction was made by Babar or under his orders by any of
his agent including Mir Baki.1296. To be more precise, issues no. 6 (Suit-1), 5 (Suit-3)
and 1(a) (Suit-4) fall in this category.1297. Issue No.6 (Suit-1) reads as under:
“Is the property in suit a mosque constructed by
Shahanshah Babar commonly known as Babri Mosque, in
1528 A.D.?”1298. Defendants no.1 to 5 (Suit-1) in para 9 of their
written statement said:**nQk 9- ;g fd ftl tk;nkn dk eqn~nbZ us nkok fd;k gS og
‘kgU’kkg fgUn ckcj ‘kkg dh rkehj djnk efLtn ekSlwek ckcjh efLtn
gSA ftldks ‘kga’kkg etdwj us ckn Qrsgvkch fgUnqLrku nkSjku d;ke
v;ks/;k vius othj o eqnk:y eksgke ehj ckdh ds ,greke ls lu~
1528 bZ0 esa rkehj djk;k vkSj rkehj djds reke eqlyeku ds fy,
o+DQ vke dj fn;kA ftlesa reke eqlyeku dk gd bcknr gSA**
“Para 9. That the property regarding which the plaintiff
has filed the suit, is the mosque built by Babar, emperor of
India, which is called Babri Masjid. It was built by the
aforesaid emperor, after his conquest of India, in the year
1528 through his Governor and confederate (eqnk:y eksgke )
Mir Baqi during his stay at Ayodhya and after building the
same, he created a universal Waqf in favour of Muslims in
general, and all the Muslims have the right of worship over
1450there.” (E.T.C.)
1299. In the replication filed by the plaintiff, he denied the
existence of Babri Masjid in para 9 and said:^^ckcjh efLtn gksus ls bUdkj gSA**
“Its existence as Babri Mosque is denied” (E.T.C.)
1300. The defendant no.10 (Suit-1) in para 2 and 10 of the
written statement have said:“2. …. and the same was constructed during the regime
of Emperor Babar…..”“10. That the property in suit is an old mosque
constructed around the year 1528 A.D. during the regime
of Emperor Babar under the supervision of Mir Baqi and
the same has always been used as a mosque and it was
never used as a temple or as a place of worship for any
other community except muslims.”1301. Issue No.5 (Suit-3) reads as under:
“Is the property in suit a mosque made by Emperor Babar
known as Babari Masjid?”1302. In Suit-3, defendants no. 6 to 8 in written statement
dated 28th March, 1960 in para 15 have said:**/kkjk 15-. ;g fd ftl tk;nkn dk eqn~nS;ku us nkok fd;k gS og
‘kgu’kkg fgUn ckcj ckn’kkg ds rkehj djnk eLkthn ekSles ckcjh
elftn gS ftldks ‘kgu’kkg etdwj us vius othj o enk:y eksgke
ehjckdh ds ,greke ls 1528 bZ0 esa rkehj djk;k vkSj eqlyekuku ds
fy;s od~Q vke dj fn;k ftlesa reke eqlyeku dk gd bcknr gSA**
“Para 15. That the property regarding which the plaintiff
has filed a claim, is a mosque built by Babur, Emperor of
India, and is known as Babri Masjid. The mosque was built
by the afore-named Emperor through his Secretary and
Commander, Mir Baqi in 1528 and was given in public
waqf to Muslims in which Muslims in general have a right
1451of worship.” (E.T.C.)
1303. The plaintiffs (Suit-3), in replication, have denied
para 15 of the written statement and said:“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 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.”1304. Issue No.1(a) (Suit-4) reads as under:
“When was it built and by whom-whether by Babar as
alleged by the plaintiffs or by Meer Baqi as alleged by
defendant no.13?”1305. Plaintiffs (Suit-4) in para 1 and 2 of the plaint have
said:“1. That in the town of Ajodhiya, Pergana Haveli Oudh
there exits an ancient historic mosque, commonly known
as Babri Masjid, built by Emperor Babar more than 433
years ago, after his conquest of India and his occupation
of the territories including the town of Ajodhiya, for the
use of the Muslims in general, as a place of worship and
performance of religious ceremonies.”
“2. That in the sketch map attached herewith, the main
construction of the said mosque is shown by letters A B C
D, and the land adjoining the mosque on the east, west,
north and south, shown in the sketch map attached
herewith, is the ancient graveyard of the Muslims, covered
by the graves of the Muslims, who lost the lives in the
battle between emperor Babar and the previous ruler of
1452Ajodhiya, which are shown in the sketch map attached
herewith. …..The mosque and the graveyard are in
Mohalla Kot Rama Chander also known as Rama Kot
Town, Ayodhya. The Khasra number of mosque and the
graveyard in suit are shown in the Schedule attached
which is part of the plaint.”1306. Defendants no.1 and 2 (Suit-4) while denying paras
1 and 2 of the plaint, in written statement dated 12 th March,
1962 have in para 2 pleaded:“2. That para 2 of the plaint is absolutely wrong and is
denied. There was never any battle between Babar and the
ruler of Ajodhya on any graveyard or mosque built as
dictated by the said Babar.”1307. Defendant no.2 (Suit-4) in his written statement
dated 25th January, 1963 while denying paras 1 and 2 (Suit-4),
has further pleaded in para 2 of his written statement:“2. That para 2 of the plaint is absolutely wrong and is
denied, there was never any battle between Babar and the
ruler of Ajodhya on any grave yard or Mosque alleged to
the built (as dictated) by the said Babar.”1308. Defendants no. 3 and 4 (Suit-4), in their written
statement dated 22/24 August, 1962 have pleaded in paras 1 and
2 as under:“1. The allegations contained in para one of the plaint
are totally incorrect and are denied. There does not exist
any mosque known as ‘Babri Masjid’ in Ajodhya – Nor
was any mosque built by Emperor Baber in Ajodhya more
than 460 years ago as alleged- Nor did Babar made any
conquest or occupation of any territory in India at the time
alleged in the plaint- The story of the mosque as narrated
1453in plaint para 1 is a pure fiction.”
“2. The allegations contained in Para 2 of the plaint are
totally incorrect and are denied. The alleged sketch map is
entirely false and imaginary and is the outcome of the
plaintiffs fancy. On the Khasra no mentioned in the sketch
map there stands neither any mosque nor any grave. The
story of the alleged battle between Emperor Babar and any
previous ruler of Ajodhya, whose name the plaintiffs are
unable to mention in the plaint is pure canard. Neither did
any Muslim lose his life in any battle on the land of the said
Khasra Nos nor is there any grave or grave yard of any
Muslim at the said place. . . . The real facts are that the
said Khasra numbers pertain to the ‘Temple of Janam
Bhumi’ and other land appurtenant thereto.”1309. In the additional written statement dated 28/29
November, 1963, the defendants no.3 and 4 (Suit-4) in para 38
said:“Emperor Babar never built a mosque as alleged by
the plaintiffs and….”1310. Defendant No.13/1 (Suit-4) Dharam Das in his
written statement dated 24th December, 1989 in para 1 said:“1. That the contents of paragraph 1 of the plaint are
denied. It is submitted that Babar was not a fanatic but a
devout Muslim who did not believe in destroying Hindu
temples, it was Mir Baqi, who was a Shia and commanded
Babar’s hords, who demolished the ancient Hindu temple
of the time of Maharaja Vikramaditya of Sri Rama Janma
Bhumi, and tried to raise a mosque-like structure in its
place with its materials.”1311. Doubting the very factum whether the disputed
1454building was constructed by Babar during his regime the
defendant no.20 (Suit-4) in his written statement dated 5th
November, 1989 in paras 32, 33, 34, 35 and 36 has said:“32. …There appears to be no description of any so called
Baburi Masjid allged to have been constructed by Emperor
Babur.“33. That the Faizabad Gazetteer, Volume 43 (XLIII) of
the District Gazetteers of the United Provinces of Agra and
Avadh compiled by Sri H.R. Nevill, I.C.S., published by
Government Press in 1905 under the topic ‘Directory’
while dealing with Ayodhya (at page 12-F) affirmed that
“The Janmsthan was in Ramkot and marked the birthplace
of Ram”. Later on, it is said, “The Mosque has two
inscriptions, one on the outside and the other on the pulpit;both are in Persian and bear the date 935 Hizri, of the
authensity of the inscriptions there can be no doubt, but no
record of the visit to Ayodhya is to be found in the
Musalman historians. It must have occurred about the time
of his expedition to Bihar.” It is to be noted that nothing
has been found so far to establish the visit of Babur to
Ayodhya. Only on the basis of these two inscriptions, the
conclusion is being drawn all round that the mosque was
built by Babur. It is very doubtful that it was so built. It
appears to be a creation of Britishers sometimes in the
Nineteenth century in order to create hatred between the
two communities of India viz. Hindus and Muslims and
thereby implement an effective policy of communal
disharmony, and thereby create problems of law and order
so that their annexation of Avadh may be justified on moral
grounds. The script on the outer inscription of the mosque
1455is pretty bold and more artistic, a style which was
developed sometimes in the middle half of the Nineteenth
century while the inner inscription is very fine and thin, a
style developed in the latter half of the Nineteenth century.
It is therefore absolutely certain that on the basis of these
two inscriptions it cannot be concluded that either the
mosque was build in 1528 AD or in 935 Hizri, or it was
built by Emperor Babur or his Governor Mir Baqui, as
stated therein.”“34. That in the U.P. District Gazetteers Faizabad
published by U.P. Government in 1960 and edited by Smt.
Esha Basanti Joshi at page 47 quotes the inscription inside
the mosque and relies on it for the date of construction of
the mosque. The translation of the inscription in Persian
given by her is as follows-“By the command of Emperor Babur whose justice is an
edifice reaching upto the very height of the heavens. The
good hearted Mir Baqui built this alighting- place of
angels; Buvad Khair Baqi: (May this goodness last for
ever). The year of building it was made clear when I said
Buvad Khair Baqi (=935).”This also shows that for both the things i.e. for year of
construction and for naming Emperor Babur as the builder
of the mosque, authorities have relied upon only on two
inscriptions found in the mosque.”“35. That in the Babur Nama translated by Annette
Susannah Beveridge, Vol. II published by Sayeed
International, New Delhi, in appendix ‘U’ the heading is
‘The Inscriptions of Babur’s mosque in Ayodhya (Awadh)’.
While reproducing the inscription inside the mosque, and
1456translating it at page IXXVIII after quoting the cuplets and
giving its translation and working out the number 935 to
identify the year, the author at the bottom appended the
following notes, which is very important-‘Presumably the order for building the mosque was given
during Babur’s stay in Aud (Ayodhya) in 934 A.H. at
which time he would be impressed by the dignity and
sanctity of the ancient Hindu shrine- it (at least in part)
displaced and like the obedient follower of Muhammad he
was in intolerance of another Faith, would regard the
substitution of a temple by a mosque as dutiful and worthy.
The mosque was finished in 935 A.H. but no mention of its
completion is in the Babur Nama. The diary for 935 A.H.
has lost much matter, breaking off before where the
account of Aud might be looked for. On the next page the
author says, ‘The inscription is incomplete and the above
is the plain interpretation which can be given to the cuplets
(aforesaid) that are to hand.”“36. That the Britishers in achieving their object got a
book published in 1813 by Laiden and known as Memoirs
of Badruddin Mohd. Babur, Emperor of Hindustan and for
the first time in this book it was stated that Babur in March
1528 passed through Ayodhya and even though Laiden has
not mentioned that Babur in Ayodhya demolished the
Hindu temples and built the mosque in their place, yet the
British rulers gave currency to this false news that Babur
demolished the Ram Janma Bhumi Mandir and
constructed the Baburi Masjid thereon. The translated
Babur Nama, Memoirs of Babur, published in 1921 and
translated by M.A.S. Beveridge has mentioned that Babur
1457never interfered with the religion of others and even
though he visited various Hindu temples he appreciated
their archaeological beauties. It appears there are no
evidences that Babur ever visited Ayodhya or demolished
any Hindu temple in Ayodhya. To claim the disputed
mosque as one built by Babur 400 years ago by the
plaintiffs is therefore wholly wrong. In fact, in Faizabad
Gazetteers 1960 at page 352, it is said ‘It is said that at the
time of Muslim conquest there were three important Hindu
shrines (Ayodhya) and little else, the Janmasthan temple,
the Swargadwar and the Treta-ke-Thakur. The Janmasthan
was in Ramkot and marked the birth place of
Ram………….”1312. In para 41, 46, 49 and 50, defendant no.20 though
has given some other reasons to show that the building in
dispute was not constructed in 1528 AD by Babar but they are
more in the nature of characteristics of mosque etc. and
therefore, we propose to refer while considering those issues.
1313. Sri Zafaryyab Jilani submitted that it has never been
doubted by any authoritative Historian and others that the
building in dispute was constructed in 1528 AD under the
command of Babar by one of his commander Mir Baki. He
admits that the said findings are based on the inscriptions fixed
on the disputed building, which came to be noticed for the first
time by Dr. Buchanan in the earlier part of 19 th century and has
consistently been acknowledged and affirmed thereafter by
several authorities like Robort Montgomry Martin, P. Karnegi,
Alexander Cunningham, W.C.Benett, A.S.Beveridge as well as
the ASI. He contends that for the first time this novel argument
has been advanced by defendant no. 20 raising doubt over
1458whether the building in dispute was constructed by Babar or not
though nothing has been placed on record to prove the same.
1314. Per contra, challenging the very basic submission of
the plaintiffs (Suit-4) about construction of the disputed building
by Babar in 1528 AD based on the inscriptions installed thereat,
Sri Misra very ably argued that the basic premise itself is
unsubstantiated, baseless and false. He said that it is an admitted
position that Babar was a Sunni Muslim governed by Hanafi
school of law as mentioned by A.S. Beveridge in her work titled
as “Babur-Nama” (hereinafter referred to as the “Babur-Nama
by Beveridge”) translated in English from original Turki text,
first published in 1921 (reprinted in 2006 by Low Price
Publications, Delhi). On page 15, faith of Babur is described in
the following manner:“He was a true believer (Hanafi mazhablik) and pure
in the Faith, not neglecting the Five Prayers and, his life
through, making up his omissions. He read the Qur’an very
frequently and was a disciple of his Highness Khwaja
‘Ubaidu’l-lah (Ahrari) who honoured him by visits and
even called him son.”1315. Sri Misra points out that in “Babur-Nama by
Beveridge” the daily description of Babar by two days in Hijra
934 has not been given though for the entire earlier part a de
die-diem description is given. However, in Hijra 935, narration
of events for about 5 months and more is missing. Babar when
invaded India entered from the northern front and defeated
Sultan Ibrahim Lodi, Emperor of Delhi in the battle of Panipat
in April, 1526 AD. He became king/Emperor of the entire area
of which Sultan Ibrahim Lodi was exercising his authority as
Emperor of Delhi. There was no change of reign in the matter of
1459religion inasmuch as Ibrahim Lodi was also a Muslim and Babar
defeated him, therefore, the Muslim rule continued. There was
only a change of the Ruler. So far as Oudh is concerned, it was
ruled directly by Delhi Emperor, i.e., Ibrahim Lodi and with his
defeat the said area immediately fell within the authority of
Babar. In “Babur-Nama by Beveridge” the arrangement of
Oudh area, has been narrated at page 527 under the head
“Action against the rebels of the East” as under:“Sl. Ibrahim had appointed several amirs under
Mustafa Farmuli and Firuz Khan Sarang-khani, to act
against the rebel amirs of the East (Purab). Mustafa had
fought them and thoroughly drubbed them, giving them
more than one good beating. He dying before Ibrahim’s
defeat, his younger brother Shaikh Bayazid-Ibrahim being
occupied with a momentous matter-had led and watched
over his elder brother’s men. He now came to serve me,
together with Firuz Khan, Mahmud Khan Nuhani and Qazi
Jia. I shewed them greater kindness and favour than was
their claim; giving to Firuz Khan I krur, 46 laks and 5000
tankas from Junpur, to Shaikh Bayazid I krur, 48 laks and
50,000 tankas from Aud (Oude), to Mahmud Khan 90 laks
and 35,000 tankas from Ghazipur, and to Qazi Jia 20
laks.”1316. Sri Mishra says that Shaikh Bayazid, was an
appointee of Babar but soon after appointment he (Bayazid)
revolted and declared himself independent. About the
appointment of Bayazid, on page 544, “Babur-Nama by
Beveridge”, it says:“Humayun, in accordance with my arrangements,
left Shah Mir Husain and Sl. Junaid with a body of effective
1460braves in Juna-pur, posted Qazi Jia with them, and placed
Shaikh Bayazid (Farmuli) in Aude (Oude).”1317. When Bayazid revolted, to defeat him and some
other rebel commanders, the Babar while proceeded towards
Bihar moved via Ayodhya, Jaunpur etc. On 28th March, 1528 he
reached near Ayodhya. However there is nothing in Babur-
Nama to show that he ever entered the city. When Babar came
near Ayodhya, the name of his commander was “Chin Timur”.
There is no mention of any person as “Mir Baqi” in the entire
Babur-Nama by Beveridge, who ever entered Ayodhya as a
commander of Baber’s army or otherwise. Bayazid fled away
from Ayodhya hearing arrival of Babar and his army. Baber’s
commanders chased him from one place to another. Bayazid
was ultimately killed by Humayun. There is no mention of a
battle between Babar or his army and the then ruler of Ayodhya
in 1528 AD. There was no occasion of burying muslims who
were killed in the alleged battle in the graves, claimed to exist
near the disputed site.1318. “Babur-Nama by Beveridge” shows that Babar was
not fond of destroying temples and instead he visited temples
having idols at Gwalior and appreciated the Artistry thereof. It is
only at one place where he found naked idols being extremely
indecent which he ordered to destroy but not otherwise. Sri
Mishra says that the very basis of the pleadings of Muslim
parties that there was a battle between Babar and the then ruler
of Ayodhya in 1528 AD is false and unsubstantiated.
1319. Referring to the inscriptions which are the basis of
identifying the period of construction of disputed building by
Babar i.e. 1528 AD, he said that the alleged inscriptions are
1461nothing but a subsequent forgery. They were not installed in
1528 AD as claimed. He submits that the first reference of the
inscription is found in “Gazetteer of Territories under the
Government of East India Company and of the Native States
on the Continent of India” by Edward Thornton, first
published in 1858 AD (reproduced in 1993 by Low Price
Publications, Delhi) and at page 739 it says that according to
native tradition the temples were demolished by Aurangzabe,
who build a mosque on the part of the site. The falsehood of the
tradition is however, proved by an “inscription on the wall of
the mosque”, attributing the work to the conqueror Babar, from
whom Aurangzabe was fifth in descent. He says that the said
inscription has not been quoted in the said gazetteer. However,
the Archaeological Survey of India in its book titled as “The
Sharqi Architecture of Jaunpur” by A. Fuhrer, first published
in 1889, reprinted in 1994 has reproduced the “inscriptions” said
to be found on the disputed building at Ayodhya and whatever is
mentioned therein has much difference to the text of the
inscriptions quoted by Beveridge in her book i.e. “Babur-
Nama”. This difference fortify the fact that they were
subsequently implanted. Some words are different which show
that the said building was not constructed at the instance of
Babar in 1528 AD.1320. Fuhrer in Chapter X of the book “The Sharqi
Architecture of Jaunpur” has given details of inscriptions
found at the disputed building at Ayodhya. He points out that
Beveridge claimed that texts of the inscriptions on Babar’s
Mosque in Ayodhya were received by her through her husband’s
inquiry made from the Deputy Commissioner of Faizabad. She
has given details of the said inscriptions in Appendices ‘U’ at
1462page lxxvii in ‘Babur-Nama by Beveridge’ (supra). The footnote,
item two, says that a few changes in the turm of expressions
have been made for clearness sake. Again with respect to the
date of building she has tried to read it as 935 and in the
footnote she says that presumably the order for building the
mosque was given during Babur’s stay in Aud (Ajodhya) in 934
A.H. though Babur-Nama itself shows that Babar reached near
Ayodhya at the end of 934 A.H. and only two days of Hizra
934’s description is missing.1321. Sri Misra then referred to the third version of
inscriptions published by ASI in “Epigraphia Indica Arabic
and Persian Supplement (in continuation of Epigraphia Indo-
Moslemica) 1964-1965” (reprinted in 1987). The chapter under
the heading “Inscriptions of Emperor Babar” is said to have
been written by Late Maulavi M. Ashraf Husain. The
inscriptions dated A.H. 935 from Ayodhya are at page 58, 59,
60, 61 and 62. The opening part of the Chapter make certain
comments about writer in the following words:“A rough draft of this article by the author, who was
my predecessor, was found among sundry papers in my
office. At the time of his retirement in 1953, he had left a
note saying that it might be published after revision by his
successor. Consequently, the same is published here after
incorporation of fresh material and references and also,
extensive revision and editing. The readings have been
also checked, corrected and supplemented with the help of
my colleague, Mr. S.A. Rahim, Epigraphical Assistant,-
Editor.”1322. On page 58 the author refers to the reading of
inscriptions by A. Fuhrer and says that he (Fuhrer) has
1463incorrectly read it. In the last paragraph it says that the mosque
contains a number of “inscriptions”. On the eastern facade is a
chhajja below which appears a Quranic text and above an
inscription in Persian verse. On the central mihrab are carved
religious texts such as the Kalima (first Creed), etc. There was
another inscription in Persian verse built up into right hand side
wall of the pulpit. Of these, the last two mentioned epigraphs
have disappeared. They were reportedly destroyed in the
communal vandalism in 1934 AD but the writer of the chapter
Sri Ashraf Husain managed to secure an inked rubbing of one of
the them from “Sayyid Badru’l-Hasan of Faizabad”. He further
says that the present inscription restored by the muslim
community is not only in “inlaid Nasta’liq” characters, but is
also slightly different from the original, owning perhaps to the
incompetence of the restorers in deciphering it properly. The
author further declare the translation and reading of inscription
by “Fuhrer” and Beveridge both incomplete, inaccurate and
different from the text. Sri Hussain has based his entire
conclusions from the estampage claimed to have been received
from Saiyyid Badru’s Hasan of Faizabad whose credentials have
not been given. In the bottom note it has said that the tablet was
found in 1906-07 AD by Maulavi M. Shuhaib of the office of
the Archaeological Surveyor, Northern Circle, Agra (Annual
Progress Report of the Office of the Archaeological Surveyor,
Northern Circle, Agra, for 1906-07, Appendix-D. The author
had deciphered the three inscriptions on pages 59, 60, 61 and62.
1323. Sri Mishra submits that the differences in
inscriptions appear for the reason that the same were not
installed in 1528 AD for the simple reason that no such
1464construction at all took place at that time. He refers to the record
of Tieffenthaler and submits that Tieffenthaler himself was a
fine scholar with an unusual talent for languages. Besides his
native tongue (Austrian) he understood Latin, Italian, Spanish,
French, Hindustani, Arabic, Persian and Sanskrit. He argued
with vehemence that had such inscriptions been available when
Tieffenthaler visited Ayodhya after arriving in India in 1740
AD, he himself could have read it and would not have said in
his work that an existing temple was demolished by Aurangzabe
to construct three domed structure thereat (also mention that
some says that the demolition and construction was made by
Babar). Had the inscriptions been there, he would have clearly
written that the said work was of Babar and not by Aurangzabe.
1324. Sri Mishra says that the actual demolition and
construction, as the case may be, took place later on and was not
done by Babar. He says that Mir Baqi is not a name but ‘Baqi’
means ‘Bakshi’, i.e., commander of an army of 100 men and
‘Mir’ is a title used to be given to civilian muslims at that time.
Besides, there is no mention of any one named “Mir Baqi” who
stayed at Ayodhya and undertook the above job. He submits that
forgery of inscriptions by replacing and travelling from one
place to another is not unknown. In this regard he referred to the
inscriptions of “Rajputon Ki Masjid”. He also points out that
“Fuhrer” mentions of only two inscriptions while in
“Epigraphia Indica 1964-65” there is mention of three/four
inscriptions. According to him the inscription might have been
installed between 1776 to 1807 though the building in dispute
might have been raised earlier but neither by Babar nor during
his time nor by anyone at his instance.1325. The other learned counsels appearing on behalf of
1465Hindu parties adhered to their stand that a Hindu temple was
demolished in 1528 AD under the command of Babar and
thereafter building in dispute was constructed. However, the
learned counsels submitted that their stand is not taken to be in
refuting or challenging the stand taken by Sri P.N.Mishra,
learned counsel appearing on behalf of defendant no.20 (Suit-4)
and the same be examined by this Court on the basis of its own
merits, in the light of the arguments advanced by him as also
contradicted by the learned counsels appearing on behalf of
Muslim parties and they (Hindu parties) be not treated to have
joined this issue with the Muslim parties. They however submit
that their basic premise continue that is demolition of temple at
the birthplace of Lord Rama and construction of disputed
building.1326. The question as to whether the building in dispute
was constructed in 1528 AD at the command of Babar or by
Babar himself is a very important and pivotal issue, which may
have its reflection on several other issues in all these connected
suits. We proceed to examine this aspect of the matter very
carefully.1327. The root of the entire controversy is the disputed
building which is said to have been constructed by Emperor
Babar through his Commander/ Governor/Confederator, Mir
Baqi. In the pleadings of muslim parties, though there is some
difference in the language, but in an undisputed manner it has
been pleaded that the building in dispute got constructed in 1528
AD by Emperor Babar after his conquest of India through his
Commander/Governor/Confederator, Mir Baqi. This is what is
the stand also taken by plaintiffs (Suit-5) and some other Hindu
Parties.1466
1328. Though already referred, but in a concised
recapitulation, we may tell hereat that in para 1 of the plaint
(Suit-4) it is averred that in Ayodhya there exist an ancient
historic mosque commonly known as “Babri Masjid”, built by
Emperor Babar more than 433 years ago after his conquest of
India and his occupation of the territories including the town of
Ajodhya. It is also said in para 2 that on the land adjoining the
said mosque, on all the four sides, there existed graveyard of
Muslims who lost lives in battle between Emperor Babar and
the previous ruler of Ajodhya. Suit having been filed in 1961,
433 years took it back to 1528 AD.1329. In Suit-1, defendants No.1 to 5 in para 2 of their
written statement dated 21st February, 1950, have said that the
disputed building is a mosque constructed by Emperor Babar. In
para 9, (additional pleas), it is averred that the disputed building
is Babri mosque constructed by Emperor Babar of India, after
conquest of India, during his stay at Ayodhya through his
Minister/Commander Mir Baqi. The building in dispute was
constructed in 1528 AD. Similar averments are made by
defendant no.10 i.e. Sunni Central Waqf Board (Suit-1) in paras
2 and 10 of their written statement.1330. In Suit-3, defendants No.6 to 8 in para 15 of their
written statement, have said that the disputed building is a Babri
Mosque constructed by Emperor of India through his
Minister/Commander Mir Baqi in 1528 A.D.
1331. In Suit-5, defendant No.4 Sunni Central Waqf Board
in para 13 of written statement dated 26/29 August, 1989, has
said that the property in dispute is an old mosque known as
Babri Mosque constructed during the regime of Emperor Babar.
This has been reiterated in para 24. However, in para 24-B
1467defendant No.4 states that the land in question undoubtedly
belong to the State when the mosque in question was
constructed on behalf of the State. He further says that Emperor
Babar built the Babri Mosque on a vacant land lay in his State
territory and did not belong to any one . It could very well be
used by his officers for the purpose of mosque especially when
the Emperor himself consented and gave approval for
construction of the said mosque.1332. The defendant No.5 (Suit-5) in para 40 of written
statement dated 14/21st August, 1989, has averred that according
to the inscription in the mosque, the same was constructed by
Mir Baqi, one of the Commander of Babar in 1528. The
existence of mosque in 1528 AD has been reiterated in para 67.
The written statement of defendant No.5 has been adopted by
defendant No.6 vide his application dated 21/22 August, 1989.
1333. Defendant No.24 (Suit-5)in para 12 has referred to
the period of construction of the disputed building as 1528 AD.
However, in para 15 there is slight change in the stand to the
effect that Emperor Babar never came to Ayodhya and the Babri
Mosque was built by Mir Baqi and not Babar. The period of
construction as 1528 has been reiterated in para 22.
1334. Defendant No.25 (Suit-5) though in general
supported the claim of other Muslim parties but in the written
statement dated 16/18 September, 1989 it has not disclosed any
particular date of construction of the building in dispute. The
pleading therefore is that the building in dispute was constructed
in 1528 AD by Babar or with his consent by Mir Baqi, a senior
officer of Emperor Babar, but the basis on which the said date is
mentioned is not given in the pleadings.1335. Except the defendant No.5 (Suit-5) who in written
1468statement has given the basis of such averment i.e. the
inscription installed on the building in dispute, no further details
of such inscription has been given either by him or anyone else.
We however find that the only foundation is the inscription on
the disputed building to claim the period of construction as
would appear hereinafter.1336. On behalf of the plaintiffs (Suit-4), 32 witnesses
have been examined in all which include Expert Historians (as
they claimed) namely Suresh Chandra Mishra, PW 13; Sushil
Srivastava, PW 15; Prof. Suvira Jaiswal, PW 18; and Prof.
Shirin Musvi, PW-20. Besides, a large number of witnesses
examined on facts have deposed mainly about continuous
offering of Namaz in the disputed building till December, 1949,
possession of Muslims on the disputed building but some of
them have also said about date of construction of the disputed
building being 1528 AD based on their knowledge derived from
various sources but basically derived from the inscriptions said
to be existed in the disputed building, inside and outside, and
some on the basis of History books without referring any name.
Some others who claimed Expert Archaeologists have also said
same thing on this aspect.1337. It would thus be appropriate to see what has been
said by these witnesses about the date/period of construction of
the disputed building as also the basis of such
information/opinion.1338. P.W.13 Sri Suresh Chandra Mishra in his cross
examination has said:^^ckcj esjk pqfuank fo”k; FkkA*^ ¼ist 54½
“Babur was my favourite subject.” (E.T.C.)
^^esjs v/;;u ds vuqlkj ckcj vo/k ls gksdj xqtjs FksA ;g ?kVuk
lu~ 1528 ds vklikl dh gSA – – – fookfnr <kWaps dk fuekZ.k lu 1528
1469esa gqvk FkkA bl ckr dk ftdz Hkh vkrk gS fd lu~ 1528 esa ;g fdl
le; fuekZ.k gqvk Fkk] ysfdu eq>s vc ;kn ugha vk jgkA vfHkys[ k ds
ifjf’k”B es a bldk ftdz vkrk gS A ** ¼ist 69½
“As per my study, Babur had passed through Oudh.This incident occurred in and around 1528 . . . The
disputed structure was constructed in 1528. There is also a
mention as to which time in 1528 this construction was
raised but I do not remember that at present. It is
mentioned in the appendix to the document.” (E.T.C.)
^^ftl le; eSa ekSds ij x;k Fkk] rks eS au s bl vfHky s[ k ;kuh
bUlfdz I lut dk s Hkh egRoiw. kZ le>k FkkA y sf du ;g vjch
es a Fk sA D;ksafd ;g vfrfjDr lwpuk gS vkSj fo’oluh; lwpuk gS blfy,
bls eSa vc crk jgk gwWaA igys egRoiw.kZ crk;s x;s fpUgksa vkSj phtksa esa
budk ftdz eSaus ugha fd;k FkkA** ¼ist 71½
“At the time when I visited the site, I considered
only these records, viz., inscriptions to be important. But
they were in Arabic language. As that is an additional
and credible information, I am telling it now. I did not
make mention of these things in the symbols and objects
earlier stated to be important.” (E.T.C.)
^^;g vfHkys[k vjch esa Fks vkSj eSa vjch Hkk”kk ugha tkurkA ,sl k
ugh a gS fd eS a vknru >wB ck sy rk gwW aA 14-07-98 dks bl vnkyr
esa esjk c;ku gqvk FkkA mlesa eSaus ;g okD; fy[kok;k Fkk fd ^^ogkWa ij
tks f’kykys[k Fkk] og Qkjlh esa fy[kk gqvk Fkk ysfdu mlds ckjs esa eq>s
igys ls irk FkkA esjk vkt okyk c;ku Bhd gS fd og vfHkys[k vjch
esa fy[kk gqvk FkkA okLro esa og f’kykys[k ugha] vfHkys[k FkkA esjk
ifgyk okyk c;ku fd og Qkjlh esa fy[kk gqvk Fkk] xyr FkkA ;g esjs
le>us esa xYrh ds dkj.k ls gks ldrh gSA D;k saf d eS a u gh rk s
Qkjlh tkurk g wW a vkS j u vjchA eSa ySfVu Hkh ugha tkurkA**
¼ist 72½
“These records were in Arabic and I do not know
1470Arabic language. It is not that I am a habitual liar. I on
14.07.98 gave my statement in this court. In the statement I
had caused it to be recorded that ‘the inscription which was
there, was written in Persian language but I had been in
the know of that from earlier’. My today’s statement is
correct that the record was written in the Arabic language.
Actually it was a record, not an inscription. My earlier
statement to the effect that it was written in Persian
language, was incorrect. It may be due to mistake in
understanding it, because I know neither the Persian
language nor the Arabic language. I do not know Latin
either.” (E.T.C.)
^^eSaus vius vUos”k.k ds le; tc igyh&igyh ckj ogkWa ij
bUlfdzIlu ns[ksa rks eSaus fdlh dks cqyokdj mUgsa ugha is dy fn[kkbZ
xbZ iqLrd ds jkseu i`”B &77 ls 79 ij n’kkZ;h x;h gSaA eSaus ekSds ij
mu bUlfdzIlUl dk feyku bl iqLrd esa fn;s x;s bUlfdzIlUl ds lkFk
fd;k vkSj fQj bl fu”d”kZ ij igqWap x;k fd ;g ogh efLtn gSA ;g
ckrsa 1989 ;k 1990 dh gSa] ysfdu ,DtsDV frfFk eSa ugha crk
ikÅWaxkA**¼ist 79½
“In course of my investigation, when I for the first
time saw inscriptions there, I did not call anybody to read
them out to me. I copied the inscription on paper. I did not
take any photograph either. I had gone there with a book. I
had gone there only with the book written by Mrs.
Beveridge. . . . . These are those inscriptions that are
shown on Roman pages from 77 to 79 of the book shown to
me yesterday. On the site I tallied those inscriptions with
the inscriptions given in this book, and then I came to an
1471inference that it was that very mosque. This incident
pertains to 1989 or 1990 but I am not in a position to tell
the exact dates.” (E.T.C.)
^^vUos”k.k ds fy, eSa viuk lkjk lkeku bl ifjlj ds ckgj
j[kdj [kkyh gkFk vUnj ifjlj esa x;k Fkk vkSj ckgj vkdj eSaus viuk
lkeku okil ys fy;kA eSa viuk lkjk lkeku ftlesa esjh iqLrd Hkh
‘kkfey Fkh] vius ,d lkFkh ds ikl ifjlj ls ckgj ml LFkku ij NksM+
x;k Fkk] tgkWa iqfyl psd dj jgha FkhA** ¼ist 79&80½
“In order to carry out investigation, I had gone
inside the premises empty-handed and after keeping all my
belongings out of the premises, and after coming out I took
all the belongings. I had left all my belongings, including
my book also, with a friend at a place outside the premises
where the police was checking.” (E.T.C.)
^^iz’u% D;k vkius ifjlj ls ckgj j[kh gqbZ viuh iqLrd esa nh
xbZ vfHkys[kksa dh ‘kSyh vkSj fyfi dk eqdkcyk ifjlj esa okdk Hkou ij
yxs vfHkys[kksa ds lkFk ckgj vkdj dj fy;k Fkk\
mRrj% eSaus ckgj vkdj esy&feyku fd;k FkkA vkSj vUnj tkus ls
igys mls le>dj x;k FkkA
;g nksuksa izfdz;k;sa mlesa ‘kkfey Fkh fd vUnj tkus ds igys ml
iqLrd esa fn;s x;s vfHkys[kksa dks mudh ‘kSyh vkSj fyfi ds lkFk vius
ekul iVy ij vafdr fd;k vkSj vUnj tkdj Hkou ij yxs vfHkys[kksa
ds lkFk mldk feyku fd;k vkSj blh rjg ls vUnj yxs vfHkys[kksa dks
ns[kdj mudh ‘kSyh vkSj fyfi dks vius ekul iVy ij vafdr dj
fy;k vkSj ckgj iqLrd esa fn;s x;s vfHkys[kksa ls mudk feyku dj
fy;kA** ¼ist 80½
“Question:- After coming outside, did you tally the
style and script of the records given in your book kept
outside the premises with the inscriptions at Waqua
Bhawan in the premises?Answer:- After coming outside I tallied the records
1472and before going inside I had understood them.
This exercise included two processes, which were
that before going inside I had recorded the style and script
of the records in my mind and on going inside I tallied
them with the inscriptions in the building and that I
registered the style and script of the inside inscriptions in
my mind and on coming out I tallied them with records
given in the book.” (E.T.C.)
^^iz0 & ;fn vkidks ,ihxzkQh dk ,DliVZ dgk tk;s rks lgh
gksxk ;k xyr\
m0& ‘kkyhurk ls eSa ,ihxzkQh dk tkudkj gksuk Lohdkj djrk
gwWA
iz0& vki ls iz’u fd;k x;k Fkk vkSj ;g tkuuk pkgrk gwWa fd
vki vius dks ,ihxzkQh dk fo’ks”kK ekurs gSa ;k ugha\
m0& ;g ;fn vkRe’yk?kk ;k viuh rkjhQ u le>h tk;s rks eSa
fouezrkiwoZd dg ldrk gwWa fd vki eq>s bl oxZ esa j[k ldrs gSaA**
¼ist 111½
“Question:- If you are called an expert in epigraphy,
will it be correct or incorrect to say such?Answer:- With humility I accept my being conversant
with epigraphy.Question:- You were queried and I want to know
whether you consider yourself to be a specialist in
epigraphy or not ?Answer:- If it is not taken to be self-praise, I can
humbly say that I can be placed under this
category.”(E.T.C.)
^^v;ks/;k ds ckjs esa eSaus tks v/;;u fd;k gS] og xgu v/;;u
Hkh gS vkSj ‘kks/k Hkh gSA** ¼ist 170½
“The study which I have made with regard to
Ayodhya, is no only a deep study but a research
1473also.”(E.T.C.)
^^eq>s ;kn ugha vk jgk fd ckcjukesa esa mlds }kjk ;k mlds
jkT;dky eas v;ks/;k esa fdlh efLtn ds fuekZ.k dk ftdz vk;k gS ;k
ughaaA ckcjukek esa ftdz ehjckdh dk gS u fd ^^ckdh**
dkA * * ¼ist 196&197½
“I fail to remember whether or not the Baburnama
makes mention of the construction of any mosque in
Ayodhya by him or during his reign. The Baburnama
makes mention of Mir Baqi, not of ‘Baqi’.” (E.T.C.)
^^eq>s bl le; Lej.k ugha vk jgk fd ckcjukek esa
^^ckdhrk’kdUnh** vkSj ^^ckdh’kxkoy** dk Hkh ftdz vk;k gS ;k ughaA
vxj ,slk dksbZ ftdz vk;k gS rks og mlds lsukifr ehjckdh ds fy,
ugha gks ldrkA** ¼ist 197½
“At present I fail to remember whether
‘Baqitashkandi’ and ‘Baqisadwal’ find mention or not in
Baburnama. If there is any such reference, it cannot be for
his army-chief Mir Baqi.” (E.T.C.)
^^;g dguk xyr gS fd ijf’k;u Hkk”kk dk vfHkys[k 1934 esa dgs
x;s naxksa ds ckn yxk;k x;k gksA** ¼ist 198½
“It is wrong to say that an inscription in Persian
language was engraved after the riots which allegedly
erupted in 1934.” (E.T.C.)
^^ckcj us ckdhrk’kdan h dk s vo/k dk iz ‘ kkld cuk
fn;k FkkA eq>s ;g ckr Li”V ugha gS fd ;g ckdhrk’kdanh ogh O;fDr
Fkk ;k ugha ftls ehjckdh ds uke ls tkuk tkrk gSA lEHkkouk rks ;gh gS
fd ckdhrk’kdanh vkSj ehjckdh ,d gh O;fDr ds 2 uke gksaA eSa bl ckr
dks fuf’pr :i ls ugha dg ldrk flQZ lEHkkouk gh gS fd ;g nksuksa
uke ,d gh O;fDr ds FksA
bUlfdz I ‘ku ds ckj s esa ,d tuZ y bihxz k fQdk baf Mdk
iz d kf’kr gq b Z gS a mldk s eS au s i<+k gS A okLro esa ;g ,d tjuy
gS tks gj lky izdkf'kr gksrk gSA blds ,d vad esa ,d baldzsi'ku
1474vk;k gS] ,d ys[k vk;k gS ftlesa ckcjh efLtn ds vanj 14 ykbZuksa ds
vfHkys[kksa dk ftdz gSA blesa 3 f’kykys[kksa dk ftdz gSA eSaus dy blh
vnkyr esa c;ku fn;k Fkk fd ogka ij dsoy ,d f’kykys[k FkkA okLro
es a esj k og c;ku tcku ds fLyi djus ds dkj.k gq v kA
vkS j bl bEiz s’ ku es a gq v k fd ogk a fdlh u;s tkyh
bUldz i ‘ku dk ftdz rk s ugh a gk s jgkA**
¼ist 213½
“Babur appointed Baquitashkandi administrator
of Oadh. I am not clear whether or not this Baquitashkandi
was the same person that has come to be known as Mir
Baqi. The possibility is that Baquitashkandi and Mir Baqi
are two different names of one and the same person. I
cannot say this definitely. It is just a possibility that these
two names were of the same person.I have read a journal ‘Epigraphica Indica’ in
regard to inscription. Actually, it is a journal published
every year. One of its editions makes mention of an
inscription and contains an article which makes mention of
inscriptions with 14 lines inside the Babri mosque. It makes
mention of three pillar inscription. Yesterday I gave a
statement in this very court that there was just one pillar
inscription there. Actually, that statement of mine was
due to slip of tongue and under the impression that there
should not be any mention of any new fake
inscription.”(E.T.C.)
^^eSaus tc fookfnr Hkou dk fujh{k.k fd;k rks ekS d s ij 2
f’kykys[ k ns[ k s Fk sA ,d f’kyky s[ k rk s ckgjh }kj ij yxk
Fkk vkS j nwl jk lEHkor% isy fiV feEcj ij yxk FkkA mlds
Åij yxk gqvk FkkA fujh{k.k ls igys eq>s ;g tkudkjh ugha Fkh fd ogka
ij 3 f’kykys[k gSaA eq>s dsoy 2 dk gh irk FkkA eq>s 1990&91 ds ikl
;g yxk Fkk fd ogka ij 3 f’kykys[k gSaA ;g tkuus ds ckn fd ogka ij
14753 f’kykys[k gS eq>s fujh{k.k djus dk ekSdk ugha feyk vkSj oSls Hkh is ;g tkudkjh gks pqdh Fkh fd mu ij D;k dqN fy[kk gqvk gSA**
¼ist 214½
“When I observed the disputed building, I saw two
pillar inscriptions on the site. One pillar inscription was
at the exterior door and the other one was perhaps at fall
fiat member. It was above it. Prior to my observation, I did
not have the knowledge that three pillar inscriptions were
there. I had knowledge only of two ones. In and around
1990-1991 I came to know that three inscriptions are there.
After knowing that three pillar inscriptions are there I did
not have the opportunity for observation. As a matter of
fact, after reading I got satisfied that three inscriptions are
there and that alone satisfied my curiosity. Even before
observation of the pillar inscription, I had got the
information what was written on them.” (E.T.C.)
^^tgka rd eSa le>rk gwWa] eq>s bl vnkyr esa xokgh ds fy, bl
fo”k; ij cqyk;k x;k gS fd ftl Hkwfe ij fookn gS vk;k fd ogkWa fdlh
efUnj dks rksM+dj efLtn cukbZ xbZ Fkh ;k ughaa eSaus ;g c;ku fn;k
gS**¼ist 224½
“As far as I understand, I have been summoned in
this court to depose whether or not a mosque was
constructed by demolishing a temple on the disputed site. I
have given this statement,” (E.T.C.)
^^eSaus dqN dne mBk;s Fks fookfnr Hkou dh ,sfrgkfldrk dks
tkuus ds fy,A —-ml LFky ij ,d vfHkys[ k Fkk] tks ckcjh
efLtn esa Fkk] mldks ns[kkA —- vfHky s[ k ls esj k eryc ckcjh
efLtn ea s yxs gq , bUlfdz I lu ls gS A ^^ ¼isst 276½
“I had made some attempts to know the history of the
1476disputed structure. …. I had seen a record at that place,
which was within the Babri mosque. …. By record, I mean
the inscription at the Babri mosque.” (E.T.C.)
^^eq>s ijf’k;u ugha vkrhA** ¼ist 287½
“I do not know Persian.” (E.T.C.)
1339. The witness has claimed himself to be an Expert
Historian and on page 111 has also claimed that he may be
placed in the category of Expert in “Epigraphy”. His statement
on page 54 shows that Babar was his favourite subject. He is
M.A. in Ancient History (Culture and Archeology) and Ph.D.
He claims that having undergone a deeper inquiry and study on
the dispute he concluded that the mosque was constructed by
Mir Baqi and for this purpose there was no destruction of any
kind at the disputed site. He referred to Skand Puran,
Baburnama, his visit to Ayodhya before 1992 and the report
(Exhibit D25, Suit-5) (Paper No. 110C1/96) submitted to the
Government of India by Prof. R.S. Sharma, Prof. D.N. Jha and
Prof. Suraj Bhan alongwith Prof. Athar Ali being his study
material. However, he admits that he did not find any reference
of construction of the disputed building/Babari mosque in
Baburnama and it also contains no reference of Mir Baqi. On
the one hand he accepts of being expert in Epigraphy (page 111)
but simultaneously he admits that neither he knows Arabic nor
Persian nor Latin, therefore, he had no occasion to understand
the language in which the alleged inscription was written. In his
statement dated 14.07.1998 he claims that the inscriptions were
written in Persian but later on page 72 he retracted and said that
the inscriptions were written in Arabic and his earlier statement
was wrong for the reason that neither he understand Persian nor
Arabic. He attempted this Court to believe in his knowledge of
1477History being an Expert Historian in Ancient History and that he
has made a deep study on the subject which is like a research
and therefrom he has come to know that the building in dispute
was constructed in 1528 AD by Mir Baqi but his cross
examination shows that for arriving at the said conclusion,
without any further inquiry into the matter, what was written
about the inscriptions in Epigraphica Indica (1964-65) as well as
Baburnama by Beveridge and on that basis he believed and
concluded as above. The slipshod and casual manner in which
he made inquiry about inscriptions is further interesting. On
page 79 he says that he carried inside the disputed building, the
book “Baburnama by Beveridge” and therefrom compared the
script of the inscriptions with the text quoted in the said book
and since the matter relate to 1989/1990 he is not able to tell the
correct date but thereafter on page 79/80 he admits that for
security reasons his entire belongings were made to be left
outside the premises and he went inside the disputed building
empty handed. The book was also left outside where police
checking was going. On page 80 when his statement about
comparison of the text of the inscription with the book was
further examined he says that he kept the text after reading the
book in his mind and compared it with the inscription. This
wonderful memory of the witness has to be seen in the light of
the fact that the witness admits that he knows neither Persian
nor Arabic. On page 79 he also admits that he also do not know
Urdu language.1340. The correctness of his statement can further be
scrutinised in the light of what has been written by Maulvi F.
Ashraf Hussain in his paper published in Epigraphica Indica
(1965) where he admits that the original two inscriptions were
1478damaged in 1934 and replaced by new one. Therefore, in
1989/90 what PW 13 saw, were the inscriptions replaced in
1934 and not that text which was available to Mrs. Beveridge,
she has quoted in her book published in 1921. The difference
between the text of the inscriptions quoted by Beveridge and
that which was available to Maulvi Ashraf Hussain which he
published in Epigraphica Indica, we would be demonstrating a
bit later. Suffice it to mention at this stage that the inscriptions
which were available in 1989/1990, having been replaced in
1934 contains lot of difference. The alleged deep study/research
of PW 13 thus become seriously suspicious and make this
witness wholly unreliable.1341. Further, he claims to have read “Baburnama by
Beveridge” but on page 197 could not tell whether the names
Baqi Shaghawal and Baqi Tashkandi are mentioned therein or
not. His lack of knowledge in this matter is writ large from the
fact that Mrs. Beveridge has suggested that it is probably Baqi
Tashkandi whose name was mentioned in the inscription as Mir
Baqi but PW 13 on page 197 says that even if the names of Baqi
Tashkandi and Baqi Shaghawal have been mentioned in
Baburnama that cannot be connected with the army chief Mir
Baqi. He also says that there is reference of Mir Baqi in
Baburnama but during the course of arguments the learned
counsel for the plaintiff (Suit-4) admits that the words “Mir
Baqi” as such are not mentioned in the entire Baburnama
translated by Mrs. Beveridge or others but what he submits that
most of the Historians are of the view that “Baqi Tashkandi”
was “Mir Baqi” since he was given the command and made
incharge of Awadh by Babar.1342. In fact PW 15 another expert historian witness on
1479page 85 has clearly said that “Mir Baqi’s” name does not find
mention in Baburnama. He also says that there is nothing in
Baburnama which may co-relate “Baqi Tashkandi” with “Mir
Baqi”.1343. From the entire statement of PW 13 this much is
evident that in his opinion for the period of construction of the
building, i.e., 1528 AD, and the person who got it constructed,
i.e., Mir Baqi, the ultimate reliance is on the inscriptions
(whether two or three, that would be discussed later on) and no
other authentic material. The opinion of PW 13 in this regard,
however, is based on the information which he received from
the book “Baburnama” by Mrs. A.S. Beveridge and Epigraphica
Indica (1965) from which he was satisfied and concluded his
opinion. Beside that, he had no other reliable information to
form the said opinion.1344. At this stage we may also mention that Dr. S.C.
Misra (PW 13) did his Ph.D. under Prof. D.N. Jha (page 49) and
claims to be closely acquainted with him. On page 44 he has
also admitted that except Baburnama by A.S. Beveridge he has
read no other translation at all. On page 31 he says that he has
intellectually analysed and contemplated whether God is a
reality or not and has come to the conclusion that there is no
existence of God, since, he had no occasion to come face to face
with God. On page 53, he says that he has also studied the
“History of India” written by “Romila Thaper” and has also
consulted her in the course of so called deep study on the
dispute in question and believed whatever she has written is
correct. On the one hand he claims to be a man of scientific
temperament and in order to believe anything he looks into the
matter and several things, analyse them and only then come to a
1480concrete finding (page 49) but on page 56 he says that on the
basis of general conception among majority of people and also
because of acceptance on the part of scholars he accepted that
Islam emerged through revelation. From reading of the books
enumerated he came to a conclusion that scholars opined that
Islam appeared through revelation. On page 57 he admits that
neither he know what “revelation” means nor has read the
process of such revelation and, therefore, he is wholly ignorance
of the term “revelation” and its meaning. At several places he
sought to correct his statement made earlier which throw light
on his knowledge of the matter, his confidence as also his
memory. One of such aspect is about the constitution of ASI
which he stated to be in 1934 on 14.07.1998 but later, on page
73/74, he admits the incorrectness in the earlier statement and
rectify the same by stating that it was constituted in 18th century.
In his research he admits of having not read any gazetteer or
Government gazette (page 74-75). On page 88 he further
contradicted to some extent his statement about his scientific
temperament and says that in respect to “Allahoupanishad” he
has made statement only on secondary basis. He also admits the
falsity of statement that in 1968 he went to the disputed site
alongwith his parents but did not go inside although the parents
went (page 33) and on page 93 in this regard he has said:^^;g dguk Hkh xyr gS fd eSaus mlesa ;g xyr c;kuh dh gks
fd tc esjs ekrk&firk bl Hkou ds vUnj pys x;s rks eSa ckgj [kM+k jg
x;k FkkA oSls ;g Bhd gS fd lu~ 66 vkSj lu~ 68 esa Hkh bl fookfnr
ifjlj ds ckgjh eq[; }kj ij rkyk cUn Fkk vkSj dksbZ Hkh O;fDr vUnj
ugha tk ldrk FkkA** ¼ist 93½
“It is wrong to say that in the said testimony I have
wrongly stated that when my parents went inside this
building, I was left standing outside the building. However,
1481it is true that even in 1966 and 1969 the main outdoor of
this disputed premises was locked and none could go
inside.” (E.T.C.)
1345. On page 167 PW 13 said that there is nothing like
Sanatan Dharm and on the same page he said that the word
“Hindu” is a mixed term which comprises several type of people
including those who had their origin somewhere outside and
who have assimilated in it. Nobody was original Hindu. It is
subsequent concept. It commenced from circa 4th or 3rd BC.1346. Learned counsel for the defendants (Suit-4) pointed
out to us that PW 13 was not an expert of Medieval History
and this is evident from his admission on page 152/153 where
he says that he is teaching students Ancient History and his
Ph.D. was limited to the study of Kautilya’s Arthshastra. The
relevant part of his statement on page 152/153 is:^^ftl dkyst esa eSa v/;;u djrk gwa] ogkWa Hkkjrh; izkphu
bfrgkl esa dsoy eSa gh ,d ,slk O;fDr gwa tks jhMj ds in ij dk;Zjr
gSA gekjs dkyst esa bl foHkkx esa izksQslj ij ij dksbZ O;fDr ugha gSA
gekjs dkyst esa izkphu Hkkjrh; bfrgkl dk dksbZ vyx foHkkx ugha
gS] ;g bfrgkl ds fo”k; esa gh lfEefyr gS vkSj bl rjg ls bfrgkl dk
,d lkewfgd foHkkx gS] ftlds gsM vkQ n fMikVZes.V Jh ds0 HkkX;k
jko gSaA** ¼ist 152½
“In the college where I am a teacher, I am the only
person who is working as a reader of Ancient history. No
person is posted on the psot of professor in this department
in our college. There is no separate department of ancient
Indian history in our college. It is comprised in the history
subject itself and in this way there is a combined
department of history, which is headed by Sri K.Bhagya
Rao.” (E.T.C.)
^^esjh ‘kks/k ;kuh MkDV~sV dkSfVY; ds vFkZ’kkL= rd lhfer gS]
1482ftlesa vfHkys[kh; v/;;u Hkh lekfgr gSA ;g Bhd gS fd ;g
vfHkys[kh; v/;;u Hkh dkSfVY; ds vFkZ’kkL= rd lhfer gSA
eSa ch0,0 ds fo|kfFkZ;ksa dks i<+krk gwWa vkSj ,e0,0 Qkbuy ds
fo|kfFkZ;ksa dks Hkh i<+krk gwWaA eS a dso y iz k phu bfrgkl i<+k rk gwW aA
izkphu bfrgkl esa ge yksx Hkkjrh; lUnHkZ esa] bl Hkwfe ij loZizFke
vorfjr euq"; ds lk{; feyus ds le; ls 750&800 ,-Mh- rd dk
bfrgkl i<+krs gSaA** ¼ist 153½
"My research i.e. doctorate is limited to the study of
Kautilya's 'Arthashastra and it also comprises
documentary study. It is true that this documentary study is
limited to the study of Kautilya's Arthashastra.I teach the students of B.A. and also those of M.A.
final. I teach ancient history only. In ancient history, we
teach history, in Indian context, from the time we get the
earliest traces of human beings on this earth up to 750-800
AD.” (E.T.C.)
1347. The defendants sought to highlight the fact that PW
13 was a paid witness and made certain questions about the
manner in which he comes from Delhi. On page 185 he said:^^eSa fnYyh ls y[kuÅ bl eqdnesa esa xokgh nsus ds fy, dbZ ckj
vk;k gwa vkrh nQk dHkh gokbZ tgkt ls ugha vk;k ysfdu okilh ij
y[kum ls fnYyh 2 nQk gokbZ tgkt ls x;k gwaA vkt Hkh eSa gokbZ
tgkt ls okil tkuk pkgrk gwaA ;g Bhd gS fd bl le; vnkyr esa
esjk gS.M cSx j[kk gqvk gS vkSj ml ij bafM;u ,;j vkSj lgkjk ,;j
ykbZal ds dbZ ¼fQj dgk½ ,d&,d Vsx dqy 2 Vsx gSaA** ¼ist 185½
“I have been to Lucknow from Delhi several times in
order to depose in this litigation. I never came by air but
on my way back from Lucknow to Delhi I went by air two
times. Even today I want to go back by aeroplane. It is true
that at present my hand bag is kept with the court and it
has many tags (then stated) one tag each of Indian Airlines
1483and Sahara Airlines totalling two tags.” (E.T.C.)
1348. However, later on he retracted and made a different
statement on page 201 as under:^^eSa dHkh Hkh xokgh nsus ds fy, gokbZ tgkt ls ugha vk;k eSa tc
dHkh xokgh ds fy, vkrk gwa rks ;k rks vius ikl ls [kpZ djrk gwa ;k
vnkyr ls feyh gqbZ /kujkf’k dk iz;ksx djrk gawA eSa jsy ;k=k djrk gwa
vkSj vkus tkus dh fjtosZ’ku djk dj pyrk gwaA eSa lsds.M ,0lh0]
ftlds fy, eSa gdnkj gwa }kjk gh ;k=k djrk gwaA ;g Bhd gS fd eSaus
fiNyh ckj vnkyr dks cryk;k Fkk fd eSa 2 ckj gokbZ tgkt ls Hkh
okil fnYyh x;k gwaA** ¼ist 201½
“I never came by air to give my testimony. Whenever
I come for deposition I bear expenses either on my own or
from the amount received from the court. I travel by rail
and get my seat reserved while making to and fro journey. I
travel in second class A.C., to which I am entitled. It is true
that I told the court last time that I had gone back to Delhi
by aeroplane two times.” (E.T.C.)
1349. His statement fails to inspire confidence and lack
independent, fair and impartial opinion. He admits to have done
Ph.D. under Prof. D.N. Jha who according to him was one of the
signatory to the document “A Historians Report to the Nation”
alongwith three others and on page 142 he admits that all these
four persons he considered to be the top historians of the
country and, therefore, place them above the published research
of Hans Baker of Ayodhya. Prof. D.N.Jha in fact did not sign
the letter. The other three took a partisan stand as we shall
demonstrate later. He do not agree with Baker’s conclusions
though reason for such disagreement could not be given by him.
1350. PW 15, Sushil Srivastava is a Historian working on
the post of Professor in Maharaja Saya Ji Rao University
Baroda. During the course of examination, he rejoined
1484
Allahabad University. He deposed to have seen inscriptions and
has further said that the same appears to have been written in
Persian. The script is in Arbo-Persian. He is also author of a
book on the subject titled as “The Disputed Mosque – A
Historical Enquiry” which was published in 1991.
1351. With regard to the date of construction of the
disputed building, inscriptions and his book, PW 15 in his cross
examination has said:
^^eSaus fookfnr LFky ds lEcU/k esa tks iqLrd fy[kh gS] mldks fy[kus ds
le; eq[; xtsfV;j vkSj tks vU; fons’kh ;k=hx.k ds ys[k gSa] mudks
vk/kkj cuk;k gSA** ¼ist 9½
“While writing the book, which I have written about
disputed site, I made main gazetteers and articles of other
foreign travellers, the basis of my book.” (E.T.C.)
^^ogk a ij eS a Hkhrj o ckgj iz k phu o jktdh;
vfHky s[ k ns[ k s Fk s nk s ckgj Fk sA ,d vanj FkkA ;g y s[ k nhokj
ij fy[k s FksA ;g ys[k fookfnr <kaps ij cgqr Åaps ij fy[ks FksA ;g
ys[k iRFkj ij [kqnk FkkA eSa ;g ugha dg ldrk fd iRFkj ij ckgj dh
rjQ ;g 'kCn fudys gq, Fks ;k Hkhrj [kqns gq, FksA eSaus fookfnr LFky ds
lEcU/k esa iqjkus eqdneksa esa nkf[ky fjdkMZ bl lEcU/k esa ugha ns[ksA eSaus
dysDV~sV esa bl lEcU/k esa j[ks fjdkMZ dk v/;;u fd;k FkkA eSaus
ih0dkusZxh fMIVh dfe'uj QStkckn }kjk fyf[kr fjiksVZ ogka i<+h FkhA
dysDV~sV dpgjh ds fjdkMZ :e esa eSaus ;g vfHkys[k ns[kk FkkA ih0
dkusZxh }kjk v;ks/;k Ldsp eSus ,d ikVZ esa ns[kk FkkA bl fjiksVZ esa
v;ks/;k ds eafnj efLtn dq.M vkfn dk ftdz vk;k gSA fookfnr LFky
dk ftdz eSaus ml fjiksVZ esa i<+k gSA fookfnr LFky ds ckjs esa ml fjiksVZ
esa ih0 dkusZxh us fy[kk gS fd efLtn ckcj us cuok;h Fkh ;g efLtn
1528&29 es a cuok;h FkhA ;g Hkh fy[kk gS fd ;g efLtn tgka
cuok;h x;h gS ogka ij igys jke tUe dk eafnj jgk gksxkA ;g ih0
dusZxh dk uksV 1867 esa izdkf'kr gqvk FkkA blds vykok ogka eSus vkSj
dksbZ fjdkMZ ugha ns[kkA eSaus ts0MCyw0 gkst fMIVh dfe'uj QStkckn dk
1485
dksbZ uksV 1905 okyk ugha ns[kkA^^ ¼ist 13&14½
“There I had seen inside and outside ancient and
official inscriptions, two were outside, one was inside.
These inscriptions were written on the wall. These
inscriptions were written on much height of the disputed
structure. I cannot say whether these words were engraved
projecting outside or engraved inside the stone. In this
connection, I have not seen the records filed in old cases
regarding disputed site. I had studied the records kept in
Collectorate in this connection. There I had read the report
of P.Karnegi, Dy. Commissioner, Faizabad. I had seen this
record in the Record Room of Collectorate. I have seen the
sketch of Ayodhya in one of the Parts. In this report there is
reference of temple, mosque, Kund etc. I have read in that
report reference of the disputed site. In that report,
regarding the disputed site, P. Karnegi has written that the
mosque was got constructed by Babar in 1528-29. It is
also written that at the place, where this mosque has been
got constructed, there might have been Ram Janam temple
earlier. This note of P. Karnegi was published in 1867.
Except this I have not seen any other record there. I have
not seen any note of 1905 by J.W. Hose, Deputy
Commissioner, Faizabad.” (E.T.C.)
^^ckcj v;ks/;k uxjh dHkh ugha vk;k FkkA** (ist 14½
“Babar never came to Ayodhya city.” (E.T.C.)
^^fookfnr LFky esa tks f’kyk ys[k eSaus tks crk;s gSa og fdl lu~ ds
Fks ;k fdl dky ds Fks eSa ugha tkurk A eq>s ;g ugha ekywe fd mu
f’kykys[kksa ij dkSu lk lu~ ;k lEcr~ fy[kk gqvk FkkA eSaus viuh fdrkc
esa ;g ftdz fd;k gS fd fookfnr LFky dks f’kykys[k ij dkSu lk
lu ;k lEcr fy[kk gSA fookfnr <kaps ds Åij tks ys[k fy[kk Fkk ml
ij tks lu ;k lEor fy[kk Fkk og cso j st lkgc us viuh iq L rd
1486
es a n’kkZ ; k gS eS au s mlh dk s viuh fdrkc esa fy[k fn;k gS A
mles a 935&,0,p0 vFkkZ r 1528&29 ,0Mh0 fy[kk gq v k FkkA
ckgj ;k Hkhrj okys f’kykys[k ,d ls ugha FksA ckgj okyk f’kykys[k
dkQh yEck Fkk mldk iRFkj Lysc dkQh yEck Fkk Hkhrj okyk iRFkj ;k
iRFkj Lysc NksVk FkkA ;g ckgj okyk iRFkj dk Lysc ftl ij f’kykys[k
Fkk og 10&12 fQV yEck gksxk fQj dgk fd 8&10 gksxkA bl iRFkj ds
Lysc dh pkSM+kbZ djhc Ms< fQV jgh gksxhA vanj okyk f'kykys[k ckgj
okys iRFkj ds Lysc ls vk/ks ls Hkh NksVk FkkA** ¼ist 14&15½
"I do not know as to which year or period the stone
inscriptions of the disputed site, which I have referred,
pertained. I do not know as to which year or Samvat is
written on those inscriptions. I have referred in my book as
to what year or Samvat is written on the stone inscriptions
of the disputed site. The year or Samvat written in
inscriptions over disputed structure was mentioned by
Bevrez Saheb in his book. I have written that matter in
my book. Therein 935 A.H., i.e., 1528-29 A.D. was
written. Stone inscriptions of outside and inside were not
similar. The outer stone inscription was too much lengthy
and its stone slab was very lengthy and inside stone or
stone slab was small. This outer stone slab containing the
inscription was 10-12 ft in length (Then said) might be 8-10
ft. The inside stone inscription was smaller than half of the
outer stone slab." (E.T.C.)
^^ckcjukek esa fookfnr <kaps ds lEcU/k esa dksbZ ftdz ugha gSA efLtn ds
lEcU/k esa Hkh dksbZ ftdz ugha gSA ckcjukek esa 2 efLtnksa dk ;kuh lEHky
okyh efLtn vkSj 'kk;n ikuhir okyh efLtn dk ftdz fd;k x;k
gSA**¼ist 17½
"There is no reference of disputed structure in Babarnama.
Nor any reference is there with regard to mosque. In
Babarnama, there is reference of two mosques, i.e., of
1487
Sambhal Mosque and perhaps, Panipat Mosque.” (E.T.C.)
^^eS a ijf’k;u Hkk”kk u i<+ ldrk ga w vkS j u fy[k
ldrk gw aA eS a vjch Hkh u is dksbZ vPNk Kku ugha gSA^^ ¼ist 32½
“Neither I can read nor write Persian. I can also
not read Arabic Language nor can write it. I have no
sound knowledge of Sanskrit also.” (E.T.C.)
^^;g Bhd gS fd ftl ijf’k;u Hkk”kk dks eSa u i<+ ldrk gwWa vkSj u fy[k
ldrk gwa mldks is Qkjlh Hkk”kk vkSj
fyfi ds ckjs esa eq>s esjs llqj lkgc ls Kku izkIr gqvkA fQj dgk
fd ;g dguk lgh gS fd ;g Kku eq>s fookfnr LFky ij ik;s x;s ys[kksa
vkSj f’kykys[kksa ds lEcU/k esa llqj th ls izkIr gqvk FkkA** ¼ist 37½
“The script or inscriptions which I had seen at the
disputed site, were in Persian language and script. It is
correct that I acquired knowledge about Persian language
and script from my father in law. Further said, it is correct
to say that I acquired knowledge from my father in law,
about script and inscriptions found at the disputed
site.”(E.T.C.)
^^;g gks ldrk gS fd eSaus fdrkc esa bfrgkldkj gksrs gq, Hkh
yksxksa dh Ldkyjyh Qhfyax dks /;ku esa j[krs gq, mu ij fo’okl fd;k
vkSj mudks fo’okl djds fdrkc esa fy[kkA eSaus viuh fdrkc dks fy[krs
1488
le; bldk uke fgLVkfjdy bUDok;jh j[kkA ;g gks ldrk gS fd eSaus
bls ,d eksM bfrgkfld tkap dk ekudj fdrkc fy[kh gksA** ¼ist 38½
“It might be that despite being a historian, keeping in
view the scholarly feeling of the people, I relied on them
and noted down in my book. At the time of authoring my
book , I titled it as Historical Inquiry. It may be that
treating it as a turning point of historical investigation, I
have written the book.” (E.T.C.)
^^;g lgh gS fd esj s llq j th us ;g eglwl fd;k Fkk
fd cso j st ds }kjk fookfnr LFky ds y s[ kk s a dk tk s vuq o kn
fd;k x;k gS og fcYdq y iwj h rjg ls lgh ugh a gS A **¼ist 38½
“It is true that my father in law felt that the
translation of articles on disputed site made by Bevarage
is not wholly correct.” (E.T.C.)
^^lu~ 1988 esa esjk ‘kks/k dk;Z iwjk ugha Fkk vkSj py jgk FkkA** ¼ist 39½
“In 1988 my research was not complete and was under
process.” (E.T.C.)
^^esj s 1988 ds iz d k’ku ds ckn ls gh esj s mlh ds
dkj.k HkkX; tx x;s vkSj eq>s MkDVj dh fMxzh fey x;h vkSj eq>s
jhMj Hkh cuk fn;k x;kA ftl le; eSa jhMj gqvk Fkk vkSj ih0,p0Mh0
dh fMxzh feyh Fkh ml le; bykgkckn fo’ofon;ky; ds
dq y ifr Jh oghnmnhu efyd Fk sA ;g Hkh lgh gS fd ml le;
m0iz0 ds eq[;ea=h eqyk;e flag ;kno FksA^^ ¼ist 39½
“It was only after 1988 publication that my luck
brightened up, I acquired degree of Doctorate and I was
appointed Reader also. When I became Reader and was
conferred Ph.D. Degree, Sri Wahiuddin Malick was the
Vice Chancellor of Allahabad University. It is also
correct that, at that time the Chief Minister of U.P. was
Mulayam Singh Yadav.” (E.T.C.)
^^eS a ;g ugh a dg ldrk fd rhu f’kyky s[ kk s a es a
1489
ls ,d f’kyky s[ k Qkjlh es a Fkk vkS j nk s vjch esa Fk s]
D;k s af d eq > s bu nk su k s a Hkk”kkvk s a dk Kku ugh a FkkA** ¼ist 51½
“I can not say whether out of three inscriptions
one was in Persian and two were in Arabic, as I had no
knowledge of these two language.” (E.T.C.)
^^eSus viuh iqLrd esa bu rhuksa f’kykys[kksa dk vaWaxzsth vuqokn
djokdj fy[kk gSA vaxzsth vuqokn ds fy, eSaus vius llqj th ls
fuosnu fd;k Fkk vkSj mUgh ls djok;k FkkA** ¼ist 51½
“In my book I have written about the three
inscriptions after getting the same translated in English.
For English transcription I have requested my father-in-
law and got it done from him.” (E.T.C.)
^^ijUrq og vjch rFkk ijfl;u tkurs gSaA** ¼ist 51½
“But he know Arabic and Persian.” (E.T.C.)
^^eSaus viuh iqLrd esa ;g fy[kk gS fd LVkby vkQ dSyhxzkQh
tks f’kykys[kksa ij gS] mlls ;g lUnsg iSnk gksrk gS fd ;g efLtn ckcj
}kjk cuokbZ xbZ Fkh ;k ughaA ;g lgh gS fd bl mijksDr ckr dk
vk/kkj ;g gS fd esjs llqj ‘ke’kqy jgeku Qk:dh lkgc ;g eglwl
djrs FksA ;gh ckr eSaus viuh fdrkc esa fy[kh gSA** ¼ist 51½
“I have written in my book that the style of
Calligraphy on inscriptions creates doubt whether this
mosque was constructed by Babar or not. It is correct that
the basis of the aforesaid fact is that my father-in-law
realized so. I have written this fact in my book.” (E.T.C.)
^^eS au s lkbUl vkQ dS y hxz k Qh ugh a i<+h gS A ,ihxz k Qh
dk fo"k; Hkh eS au s ugh a i<+k gS A ** ¼ist 51½
"I have not studied Science of Calligraphy. I have
also not studied the subject of Epigraphy." (E.T.C.)
^^;g dguk lgh gk s ldrk gS fd fookfnr efLtn
1501 ,-Mh- es a cukbZ xbZ gk sA ** ¼ist 52½
"It may be right to say that disputed mosque was
1490
built in 1501 AD.” (E.T.C.)
^^;g gk s ldrk gS fd fookfnr efLtn dk s ckcj ls
igys fdlh vkS j us cuok;k gk sA ckcj us 1526 ls 1530
,-Mh- rd Hkkjr ds dq N va’ k ij gh fot; iz k Ir dh FkhA**
¼ist 52½
“It is possible that the disputed mosque might have
been built by someone else prior to Babar. Between 1526
to 1530 AD, Babar conquered over only certain parts of
India.” (E.T.C.)
^^fookfnr LFky ij ftu rhu f’kykys[kksa dk ftdz eSaus fd;k gS]
muesa ls nks cgqr Åij Fks] tks djhc 20&22 fQV Åaps FksA rhljk
f’kykys[k uhps Fkk] mldks eSaus 4&5 fQV dh nwjh ls ns[kk FkkA ijfl;u
Hkh fLdzIV gksrh gSA vjsfcd o Qkjlh fLdzIV esa fy[kh tkrh gSA ;g
dguk xyr gksxk fd Qkjlh dksbZ Hkh fyfi ugha gSA ;g lgh gks ldrk
gS fd Qkjlh Hkk”kk vjsfcd fyfi esa fy[kh tkrh gSA vjch vkSj ijfl;u
fyfi esa dqN vYQkcsV dk vUrj gS] ckdh ,d gh gS bl lEcU/k esa tks
Hkh eSaus viuh iqLrd esa fy[kk gS] eSa lsd.M~h lkslZ ds vk/kkj ij fy[kk
gSA lsds.M~h lkslZ nks izdkj ds gksrs gSaA igys okys esa fyf[kr :i esa
v[kckj vkfn vkrs gSa] vkSj nwljs esa] fy[kh gqbZ iqLrdsa vkrh gSaA**¼ist 52½
“Out of the three disputed inscriptions on disputed
site which I have mentioned, two were at great height,
approximately at the height of 20-22 ft. Third inscription
was downward side which I viewed from a distance of 4-5
ft. Persian is also a script. Arabic and Persian is written in
script. It will be wrong to say that Persian is not any script.
It may be that Persian language is written in Arabic script.
There is difference of few alphabets in Arabic and Persian
script, remaining are the same. Whatever I have written in
this regard in my book is based on secondary source. There
are two sorts of secondary source. In the first category
comes written newspapers etc. and in the second category
1491
comes written books.” (E.T.C.)
^^mDr fookfnr <kapk 16oha 'krkCnh ds vykok 15oh0 'krkCnh dk
cuk;k gks ldrk gSA fo'k s" kK ds :i es a esj h jk; es a ;g lEHko
gS fd fookfnr <k ap k ckcj dk cuok;k gq v k u gk sA ,d
fo'ks"kK ds :i esa eSa ;g dg ldrk gaw fd ;g fookfnr <kapk tkSuiqj ds
lqYrku dk Hkh cuok;k gks ldrk gSA** ¼ist 57½
"The aforesaid disputed structure might be a
construction of fifteenth century besides sixteenth century.
As an expert, in my opinion, it is probable that the
disputed structure was not constructed by Babar. As an
expert I can say that, it may be that the disputed structure
was constructed by the Sultan of Juanpur." (E.T.C.)
^^eSaus viuh fdrkc lR; ds [kkst ds fy, fy[kkA bl iqLrd
esa ,d v/;k; ^^fMM ckcj fCYV fn efLtn** gSA bl iqLrd dks fy[kus
ds igys eSaus dkQh Nkuchu fd;k FkkA Nkuchu ds i'pkr eS a bl
urhts ij igq W ap k fd fookfnr <k ap k ;k rk s rq x yd 'kkldk s a
}kjk cuk;k x;k Fkk ;k 'kdhZ 'kkldk s a }kjk cuk;k x;k
FkkA eSa bl urhts ij ugha igWaqpk fd ;g vo/k ds uokcksa }kjk Hkh dqN
Hkkx cuk;k x;kA vo/k ds uokck s a dk ,Ecye ¼ljdkjh fu'kku½
nk s eNfy;kW a Fkh aA orZeku le; esa izns'k jkT; dk ,Ecye Hkh nks
eNfy;kWa gSaA** ¼ist 62½
"I have written my book for discovery of truth. This
book contains a chapter entitled "Did Babar Build the
Masjid". Before authoring this book, I had made a
thorough probe. After the investigation, I came to the
conclusion that the disputed structure had been built
either by Tughlaq rulers or Shirky rulers. I did not reach
the conclusion that some part of it was constructed by
Nawabs of Avadh. The emblem of Nawabs of Avadh was
"two fish". Presently also, the emblem of the State
Government is two fish." (E.T.C.)
1492
^^eSaus viuh iqLrd ds i`”B 74 ,oa 75 ij vjsfcd vkSj ijfl;u
ds ysVlZ ds fLdzIV~l ds ckjs esa jk; fn;k gSA eSaus viuk jk; ;g fn[kkus
ds fy, fn;k gS fd ckcj v;ks/;k ugha x;k FkkA** ¼ist 63½
“At pages 74 and75 of my book I have recorded my
opinion with respect to scripts of Arabic and Persian
letters. I have given this opinion in order to demonstrate
that Babar never visited Ayodhya.” (E.T.C.)
^^eSaus viuh iqLrd ds i`”B la[;k&89 esa ckcjh efLtn ds
dSyhxzkQh ds LVkby ij viuh jk; O;Dr fd;k gS vkSj mlds vk/kkj ij
;g fu”d”kZ fudkyk fd bl ckr ij xzhfo;l lUnsg mRiUu gksrk gS
fd ;g efLtn ckcj us cuokbZA eq > s vkVZ ;k lkbUl vkQ
dS y hxz k Qh dk Kku tjk Hkh ugh a gS A ** ¼ist 65½
“At page 89 of my book I have recorded my opinion
regarding the style of calligraphy of Babari Mosque, and
on that basis came to this conclusion that on this point, a
grievous doubt emerges if Babar had built this mosque. I
have not the least knowledge of art or science of
calligraphy.” (E.T.C.)
^^eSus viuh iqLrd ds dkye&6 i`”B &92] 93 ,oa 94 esa mu
iqLrdksa dk fooj.k fn;k gS ftuds ckjs esa eq>s tkudkjh gSA eSaus mDr
lHkh iqLrdksa dks iwjh rjg ls ugha i<+k gSA buesa ls eSaus ysuiwy] ysMsu]
csofjt ,oa j'kcqd fofy;e dh iqLrdsa eSaus i<+h gSaA ckdh iqLrdsa dsoy
FkksMh&FkksM+h i<+h gSaA muesa dqN iqLrdsa ,slh gSa tks eSaus ugha i<+h gSaA**
¼ist 68½
"In column 6 of pages 92,93 and 94 of my book, I
have given description of those books about which I know.
I have not read wholly all the aforesaid books. Out of
these, I have read the books of Lenpool, Laden, Baverige
and Rushbook William. I have studied a little the remaining
books. There are certain books therein, which I have not
studied." (E.T.C.)
1493
^^;g lgh gS fd eS au s ftu fdrkck s a dk s ugh a i<+k
mudk Hkh ftdz eS au s viuh fdrkc es a Qq V uk sV es a fd;k gS A **
¼ist 68½
"It is true that, in the foot note of my book, I have
mentioned those books too which I have not
read."(E.T.C.)
^^eSaus ftu rhu xkaoksa dk ftdz ,sisfMDl esa fd;k gS mls eSaus
jsosU;w ds vfHkys[kksa esa ugha ns[kk gS dsoy xtsfV;j ds vk/kkj ij fy[kk
gSA eSaus ;g Kkr ugha fd;k fd fookfnr LFky fdl ekSts esa fLFkr gSA
eS au s xtsf V;j es a ns[ kk fd fookfnr LFky utwy esa gS A **
¼ist 71½
"I had not seen in revenue records, the three
villages, which I have mentioned in the appendix and have
written only on the basis of Gazetteer. I did not find out as
to in which village the disputed site lay. I saw in Gazetteer
that the disputed site is in Nuzul." (E.T.C.)
^^;g dguk xyr gS fd xtsfV;j ekSfyd 'kks/k dk;Z ds Js.kh esa
ugha vkrk gSA ;g izkbejh lkslZ ekuk tkrk gSa ;g dguk lgh gS fd
xtsfV;j dk ewy L=ksr ftys esa j[ks gq, jsosU;w fjdkMZ gksrs gSaA** ¼ist 73½
"It is wrong to say that the gazetteer does not come
within the category of original research work. It is
considered a primary source. It is true to say that the basic
source of gazetteer is revenue records maintained in the
District." (E.T.C.)
^^eS au s bl ckr ij xkS j ugh a fd;k fd f'kykys[ k 'kq :
ls yxs gS a ;k ckn es a yxk fn, x, gS aA ** ¼ist 77½
"I did not pay attention on this fact, as to whether
the inscriptions were installed from the beginning or
installed subsequently." (E.T.C.)
^^eSaus ckcjh efLtn ds fgLVksfjlVh ds ckjs esa dksbZ izekf.kr
iqLrd ugha i<+k dsoy iz'kklfud vaxzst vf/kdkfj;ksa ds fgLVkfjdy
1494
,dkmaV ,oa xtsfV;j gh i<+k gSA eSaus fdlh Hkkjrh; ;k rqdhZ ;k fons'kh
eqlyeku ys[kd dh izekf.kd iqLrd dsoy ckcjh efLtn ij ugha is lkbal vkQ ,ihxzkQh dh tkudkjh ugha gSA if’kZ;u vkSj
vjsfcd Hkh ugha vkrh gSA** ¼ist 78½
“I have no knowledge of Science of Epigraphy. I do
not know even Persian and Arabic.” (E.T.C.)
^^fookfnr LFky ij tks f’kykys[k eSaus ns[ks ml ij fxurh vafdr
ugha Fkha ns[kus ij eq>s ;g Kkr ugha gqvk fd f’kykys[k fdl o”kZ esa
fy[ks x,A ckn esa eq>s fdlh us crk;k fd ;g 935 ,0,p0ds fy[ks gq,
gSa fQj dgk fd izks0 jk/ks’;ke us eq>s ;g ckr crk;h fd ;g f’kykys[k
935 ,0,p0ds fy[ks gq, gSa vkSj eSaus mUgsa lgh eku fy;k ;g ckr eSaus
csofjt lkfgck dh fdrkc ls Hkh i<+hA mijk sD r nk su k s a ys[ kdk s a us
f'kykys[ k ds ,ihxz k Qh dk s i<+d j mijk sD r urhtk fudkyk
FkkA vkS j eS au s mlh dk s lgh eku fy;kA** ¼ist 78&79½
"There was no figure indicated on the inscriptions
which I saw on the dispute site. On seeing, it could not be
known as to in which year the inscriptions were written.
Later on, someone told me that these are written in 935
AH, further said, Prof. Radhey Shyam had told me this fact
that these inscription were written in 935 A.H. and I took
the same to be true. I also read this fact in the book of
Beverige. The aforesaid two writers had drawn the said
conclusion on deciphering the epigraphy of the
inscriptions and I considered the same to be
true."(E.T.C.)
1495
^^f’kykys[k ij ehjckdh dk uke fy[kk Fkk ij mu ehj ckdh
dk ftdz ckcjukes a es a ugh a vkrk gS A ** ¼ist 85½
“On the inscription, the name of Mir Baqi was
written but reference of the said Mir Baqi does not find
place in Babarnama.” (E.T.C.)
^^,slk ckcjukesa esa dqN Hkh ugha feyrk fd f’kykys[k esa ftl
ckadh dk ftdz vk;k gS og ckadh rk’kdanh jgk gksA** ¼ist 85½
“In Babarnama nothing of the sort is found to
indicate that Baqi mentioned in the inscriptions would have
been Banki Tashkandi.” (E.T.C.)
^^eSa fuf’pr :i ls bl fu”d”kZ ij ugha igqap ldk fd ;g
fookfnr s ugha gSA U;wfelesfVd dk Kku eq>s ugha
gSA vkdksZykth esa eSaus dksbZ fo’ks”k Kku izkIr ugha fd;kA losZ vkQ yS.M
dk dksbZ Kku eSaus izkIr ugha fd;kA lkbZal vkQ vkdhZVsDpj dk eSaus dksbZ
fo’ks”k Kku izkIr ugha fd;kA rqdhZ vjch Qkjlh dk Hkh dksbZ Kku eSaus
izkIr ugha fd;kA** ¼ist 106½
“I have no knowledge of Epigraphy. I have no
knowledge of Numismatic. I did not acquire any
specialization in archaeology. I did not acquire knowledge
about survey of land. I did not acquire any specialized
knowledge in Science of Architecture. I did not acquire any
knowledge of Turkish, Arabic and Persian too.” (E.T.C.)
^^fookfnr <kaps dk fuekZ.k vk/kqfud dky esa ugha gqvk gS cfYd
e/; dky esa gqvk gSA** ¼ist 109½
"This disputed structure has not been constructed in
modern period, instead, it has been constructed in
1496
Medieval period.” (E.T.C.)
^^esjh jk; dfu?kae dh fjiksVZ rFkk Q~;wjj dh fjiksVZ tks 1891 dh
gS ij gh vk/kkfjr gSA** ¼ist 113½
“My opinion is based only on Cunningham’s Report
and Fuhrer’s report of 1891.” (E.T.C.)
^^fookfnr <k ap s ds fuekZ . k ds le; ds ckjs esa dk sb Z
iq L rd miyC/k ugh a gS A ** ¼ist 114½
"There is no book available with respect to
construction of disputed structure." (E.T.C.)
^^esjh iqLrd dk uke ^^fMLi;wVsM ekLd , fgLVksfjd bUdok;jh**
gSA esjh iqLrd esjs 'kks/k dk urhtk gSA bl iqLrd ds vykok e/;
dkyhu bfrgkl ds ckjs esa esjk dksbZ vU; 'kks/k ugha gS vkSj u izdkf'kr
gqvk gSA** ¼ist 131½
"The title of my book is 'Disputed Mosque, a Historic
Enquiry'. My book is the outcome of my research. Except
this book, there is no any other research of mine nor
published, about Medieval history." (E.T.C.)
^^viuh iqLrd fy[kus ds fy, eSaus rhuksa iqLrdksa ;kuh ckcj ukek
vkbZus vdcjh vkSj vdcjukek ds vykok vU; iqLrdsa Hkh i<+hA ftuds
fooj.k fuEufyf[kr gS%& xtsfV;j ¼1868½] usfoy dk xtsfV;j ¼1901½ ls
1905 g.Vj }kjk bEihfj;y xtsfV;j] bjfou dh iqLrd] fiyfxzest ls
lEcfU/kr rFkk dqN vU; iqLrdsa ns[kh gSaA blds vykok rhFkZ foospu
dk.M ns[kk gS] rkjh[k Qjk cD'k ns[kk gS] dfy?ke dh fjikVZ] Q;wjj dh
fjiksVZ lekpkj i= Hkh ns[ksa gSaA** ¼ist 134½
"For the purpose of writing my book, Except these
three books, i.e. Babarnama, Aine Akbari and Akbarnama,
I read other books also, particulars whereof are:
Gazetteer(1868), Gazetteer of Nevil (1901 to 1905),
Imperial Gazetteer by Hunter, Irvin's book and some other
books related to pilgrimage. Except this, I have also seen
Tirth Vivechan Khand, Tarikh Fara Bux, I have seen the
1497
Report of Cunningham, Report of Furher as also the
Newspapers.” (E.T.C.)
^^1526 igys ds v;ks/;k dk bfrgkl eSaus mruk gh i<+k gS tks
xtsfV;j esa fn;k x;k gSA xtsfV;j 1905 esa Nik Fkk oks v;ks/;k ds ckjs
esa igyk L=ksr FkkA** ¼ist 137½
"I have read History of Ayodhya of the period prior
to 1526 only to the extent which has been given in the
gazetteer. What was published in Gazetteer 1905, was the
first source about Ayodhya." (E.T.C.)
^^ftu ckrksa dks eSaus xyr ik;k oks fuEufyf[kr gSa%& 1- ckcj us
efLtn ugh a cuok;k D;k s af d ckcj v;k s/ ;k dHkh ugh a vk;kA
ckcj ds v;ks/;k u vkus ds izek.k fuEufyf[kr gSA ckcjukek esa
ckcj ds v;ks/;k ds vkus dk ftdz ugha gSA ckcjukek esa ;g ftdz ugha gS
fd ckcj us v;ks/;kesa efLtn cukus dk gqDe fn;kA** ¼ist 137&138½
"The facts which I found wrong are: 1. Babar did
not get the mosque constructed since he never visited
Ayodhya.
The following is the evidence showing that Babar did
not visit Ayodhya. In Babarnama there is no reference of
Babar’s visit to Ayodhya. There is no mention in
Babarnama that Babar commanded for construction of a
mosque in Ayodhya.” (E.T.C.)
^^v;ks/;k ds ckjs esa iqjkrRo ls laca/kh lcls igyh lkexzh dfua?ke
dh fjiksVZ esa gh gSA mlds ckn nwljh fjikVZ Q;qjj dh fjiksVZ gSA tks
1891 dh laHkor% gSA ;s vkD;kZykftdy losZ vkQ bf.M;k ds MkbjsDVj
vkSj vaxzst vQlj FksA** ¼ist 150½
“Regarding Ayodhya, the foremost material
pertaining to archaeology is in Cunningham’s report only.
Thereafter, the second report is of Fuhrer, which is
probably of 1891. They were British Officers and Director
of Archaeological Survey of India.” (E.T.C.)
1498
^^esjk fu”d”kZ gS fd ckcj v;ks/;k dHkh ugha vk;k FkkA** ¼ist 156½
“My conclusion is that Babar never came to
Ayodhya” (E.T.C.)
^^esjs bl fu”d”kZ fd ckcj v;ks/;k dHkh ugha vk;k dk vk/kkj ;g
gS fd ftl :V ls ckcj 1528 esa py jgk Fkk og :V v;ks/;k gksdj
ugha FkkA ckcj ds :V dk vk/kkj ckcjukek gSA ;g vk/kkj ckcjukek ds
ml vuqokn dk gS tks cscfjt us fd;k FkkA eSaus cscfjt dk iwjk vuqokn
tks mlus ckcjukek dk fd;k gS eSaus i<+k gSA czscfjt ds vuqokn dks
ns[kdj dgk fd cscfjt us ^^, ;w Mh** vo/k ekuk gSA czscfjt ds vuqokn
ds i`"B 401 ,oa 402 dk QksVks izfr esjs lkeus gSaA** ¼ist 156½
"The basis of my inference that Babar never came to
Ayodhya, is that the route by which Babar was proceeding
in 1528 was not via Ayodhya. The basis of Babar's route if
Babarnama. This basis is the translation of Babarnama by
Beverige. I have read the entire transcription of
Babarnama, which was made by Beverige. Seeing the
transcription of Beverige, he (witness) said that Beverige
has considered "AUD' as Awadh. Photocopy of pages 401
and 402 of Beverige's translation is before me." (E.T.C.)
^^eSaus viuh iqLrd ds i`"B 71 ij ;g fy[kk gS fd ckcj dks ,d
eq[; [kyuk;d ds :i esa n'kkZ;k tkrk gS fdUrq ;g vkjksi mlds
O;fDrrRo ls esy ugha [kkrk gSA** ¼ist 206½
"I have written at page 71 of my book that Babar is
described as a main villain but this charge does not match
with his personality." (E.T.C.)
^^j'kcqzd fofy;e rFkk jk/ks';ke nksuksa us ckcj ds O;fDrRo ds ckjs
essa rkjhQ dh gSA blds vfrfjDr vkj0ih0f=ikBh vkSj cukjlh izlkn
lDlsuk us Hkh ckcj dh rkjhQ fd;k gSA** ¼ist 206½
"Rushbrook Willian and Radhey Shyam both have
commended about Babar's personality. Besides, R.P.
Tripathi and Banarsi Prasad Saxena also have praised
1499
Babar.” (E.T.C.)
^^jk/k s’ ;ke esj s xq : 1968 ls 1996 rd jgsA eSa mudh
fopkj/kkjk ls izHkkfor vkSj lger gwWA esjh iqLrd ds fy[kus esa Hkh esjs
xq: jk/ks’;ke lkgc dk lg;ksx feyk vkSj le; le; ij eSa iqLrd
fy[krs le; muls fMldl djrk FkkA** ¼ist 207½
“Radhey Shyam had been my teacher from 1968 to
1996. I agree and am influenced with his thought. While
writing my book, I got cooperation from my teacher
Radhey Shyam and while writing the book, I used to
discuss with him from time to time.” (E.T.C.)
^^eSaus viuh iqLrd ds ist la0 88 ij tks fy[kk gS fd ckcj
us ;fn efLtn cukus ds fy, gqDe fn;k gksrk rks ,slk fy[kk gksrk fd
^^ckgqDe tghjmn~nhu eks0 ckcj xkth**A tks eSaus Åij dgk gS ;g eSaus
dgha i<+k ugha gS cfYd eSaus ;g vius vki dgk gS fd ;fn ckcj us dgk
gksrk rks ,slk gksrkA** ¼ist 216½
"I have written at page no. 88 of my book, had Babar
commanded to construct the mosque, it would have been
written "Under the Command of Zahiruddin Mohd. Babar
Ghazi". The fact which I stated above, I have not read it
anywhere, instead, I have said of my own that if Babar had
commanded, it would have been so." (E.T.C.)
^^eSaus viuh iqLrd ds i`"B la0 89 ij ;g fy[kk gS fd bldh
cgq r lEHkkouk gS fd f'kykys[ k ckn es a yxk;k x;k gk s
ftles a fy[kk gS fd ;g efLtn ckcj us cuk;h gk sA **
¼ist 217½
"I have written at page no. 89 of my book that there
is great probability that the inscription, wherein it is
written that this mosque had been built by Babar, might
have been installed subsequently." (E.T.C.)
^^eSaus bl ckr ij 'kks/k fd;k fd ;g f'kykys[k fdrus iqjkus gSa
vkSj dc ds gSaA tks f'kykys[k ckcjh efLtn ds ckgjh nhokj ij yxk Fkk
1500
og f’kykys[k iqjkuk yxrk Fkk ij vUnj okyk f’kykys[k dh fy[kkoV
19oha lnh dh yxrh FkhA esjh jk; esa og 19oha lnh dk f’kykys[k gks
ldrk FkkA ckcjh efLtn esa dqy rhu f’kykys[k Fks ftuesa nks ckgj
Fks ,d vUnjA** ¼ist 218½
“I conducted research on the point as to how much
old and of which period these inscriptions are. The
inscription engraved on the outer wall of the mosque
appeared to be old. But the calligraphy of the inner
inscription appeared to be of 19th Century. In my opinion, it
could be an inscription of 19th Century. The Babri mosque
had three inscriptions in all of which two were outside and
one was inside.” (E.T.C.)
^^;g ckr fd Hkhrj okyk f’kykys[k u;k izrhr gksrk Fkk eSaus bl
vk/kkj ij fy[kk D;ksafd eq>s dSfyxzkQh dh LVkby ls ,slk izrhr gqvk
FkkA dSyhxzkQh LVkby ij eSaus dksbZ v/;;u ugha fd;k gSA eSaus dqN
,DliVZl ls ckr djus ds i’pkr~ bl dSfyxzkfQd LVkby dh ckr
fy[kh FkhA** ¼ist 219½
“I have written the fact that the inner inscription
appeared to be new, because it so appeared from the style
of caligraphy. I have not undertaken any study on
Caligraphy. After having discussion with few experts, I
wrote about this caligraphic style.” (E.T.C.)
^^;g lgh gS fd eq > s bfrgkl dk Kku cgq r de gS A **
¼ist 222½
“It is true that I have a very little knowledge of
history.” (E.T.C.)
^^;g lgh gS fd mijksDr rhuksa iqLrdksa esa fofy;e fQUp ds
o`rkUr ,d gh gSa ;kuh muds Hkkjr ;k=k ds o`rkUr rhuksa iqLrdksa esa ,d
gh gSaA** ¼ist 228½
“It is correct that in the aforesaid three books,
description of William Finch is the same, i. e., their
