{"id":72838,"date":"1995-09-15T00:00:00","date_gmt":"1995-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-k-m-munireddy-supra-on-15-september-1995"},"modified":"2015-10-04T22:32:48","modified_gmt":"2015-10-04T17:02:48","slug":"unknown-vs-k-m-munireddy-supra-on-15-september-1995","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-k-m-munireddy-supra-on-15-september-1995","title":{"rendered":"Unknown vs K.M. Munireddy (Supra) on 15 September, 1995"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Unknown vs K.M. Munireddy (Supra) on 15 September, 1995<\/div>\n
1\n                                                                 1251\n\ndated 15.9.1995 and remitted the matter to the appellate\nauthority to decide the appeal within 15 days. The High Court\nobserved that it was conceded that the Minister against whom\nthe allegation of mala fide are alleged is no more a Minister,\ntherefore, on the finding that there was an alternative remedy\navailable to the petitioner, it relegated the petitioner to avail the\nsaid remedy of appeal. The appellate authority, though, upheld\nthe allegations of illegality and irregularity in conducting\nbusiness by the licensee but took a lenient view and instead of\ncancellation of licence, treated the period from the date of\ncancellation of licence till filing of writ petition and grant of\nstay order by the High Court as the period of substantive\nsuspension as a measure of penalty. It is against this appellate\norder, the writ petition was again filed before the High Court,\nwhich was allowed and the matter was remitted to the appellate\nauthority to decide the matter on the ground of mala fide alleged\nagainst the Minister. In the second batch of the petitions, the\nMinister was not made a party. That being so, the High Court\nwas not in a position to go into the question of mala fide. The\nApex Court held that it could not have directed the appellate\nauthority to go into the question of mala fide. The Apex Court\nheld that the words \"might and ought\" used in Section 11 would\nstand in the way operating as res judicata. In our considered\nview, the above judgement also lends no support.\n1012.    In P. K. Vijayan (supra) the words \"might and ought\"\nagain came to be considered. One Kamalakshi Amma, landlord,\nfiled R.C.P. No. 19 of       1974 under Section 11 of Kerala\nBuildings (Lease and Rent Control) Act, 1965 for eviction of the\nP.K. Vijayan-tenant. Under the proviso thereto, if the the tenant\ndenies title of the landlord or claims right of permanent tenancy,\n                                                               1252\n\nthe Rent Controller was required to decide whether denial or\nclaim is bona fide and if a finding is recorded positively in\nfavour of the tenant on the aforesaid issue, it will require the\nlandlord to sue for eviction of the tenant in a Civil Court. The\nRent Controller accepted the plea of P. K. Vijayan in regard to\n'bona fide' and relegated the landlord to seek eviction by a civil\nSuit. Before the civil proceedings could be initiated, the tenant\nfiled D.A. No. 11730 of 1986 before the Land Tribunal under\nKerala Land Reforms Act claiming that the lease was of\nagriculture land and as a cultivating tenant, he is entitled to get\nassignment of title of the land under Section 72B of the Land\nReforms Act which postulates that the cultivating tenant of any\nholding or part of the holding, the right, title and interest in\nrespect of which has vested in the Government under Section 72\nshall be entitled to assignment of such right, title and interest.\nThe term \"cultivating tenant\" was defined to mean a tenant who\nis in actual possession of, and is entitled to cultivate the land\ncomprised in his holding. The Land Tribunal vide order dated\n26.11.1976 held that the lease was of commercial building and\nnot agricultural land and dismissed the petition of the tenant.\nThe tenant before the Civil Court, relied on Section 106 of the\nLand Reforms Act and claimed that the land was demised for a\ncommercial or industrial purpose and he had constructed a\nbuilding thereon for commercial purpose before 20.5.1967,\ntherefore, by operation of Section 106 of the Land Reforms Act,\nhe cannot be ejected. He also questioned the jurisdiction of the\nCivil Court to decide the question and contended that the matter\nhas to be referred to the Land Reforms Tribunal under Section\n125 (3) of the Land Reforms Act. The Trial Court decided the\nmatter vide order dated 3.8.1887 in favour of tenant upholding\n                                                               1253\n\nhis contention for reference under Section 125 (3) of the Land\nReforms Act to the Tribunal. The revision of the landlord was\nallowed by the High Court holding that the Land Reform\nTribunal cannot decide the dispute in view of its earlier order\nunder Section 72B and also on the ground of res judicata. The\nappeal taken to the Apex Court where it upheld the plea of res\njudicata of landlord observing hat the plea of entitlement under\nSection 106 of Land Reforms Act was available to the tenant in\nthe eviction proceedings and if he would have raised at that time\nbefore the Rent Controller, lacking jurisdiction, the Rent\nController would have referred the matter to the Land Tribunal\nfor decision under Section 125(3) of the Land Reforms Act.\nHaving said so, the Apex Court held that the rule of \"might and\nought\" envisaged in Explanation IV to Section 11 C.P.C.\nsquarely applies and in para 11 of the judgement said :\n     \"11. However, the appellant merely chose to deny the title\n     of the landlords and did not raise the plea of S. 106 of the\n     Land Reforms Act. The rule of \"might and ought\"\n     envisaged in Explanation IV to S.11, C.P.C. squarely\n     applies to the facts of the case and, therefore, it is no\n     longer open to the appellant to plead that, Civil Court has\n     no jurisdiction to decide the matter and it shall be required\n     to be referred to the Land Tribunal.\n           That apart, in the proceedings under S. 72B the\n     appellant pleaded that it is a land governed by the\n     provisions of the Land Reforms Act and that, therefore, he\n     is entitled to the assignment of the right, title and interest\n     therein. The Tribunal found that the lease being a\n     commercial lease, the appellant is not entitled to the\n     assignment of the right, title and interest in the demised\n                                                                 1254\n\n        land which was not vested in the State under S. 72 since the\n        lease was not of agricultural land demised to the appellant.\n        In that view of the matter and the appellant having decided\n        only to avail the remedy of S. 72B and omitted to plead the\n        remedy of S. 106, it is no longer open to him to contend\n        that he is entitled to the benefit of S. 106 of the Land\n        Reforms Act.\"\n1013.       The Apex Court further held in para 13 of the\nJudgement that \"The tenant is expected to raise all the pleas\navailable under the statute at the relevant time. It is a sheer\nabuse of the process of the Court to raise at each successive\nstages different pleas to protract the proceedings or to drive the\nparty to multiplicity of proceedings. It would be fair and just that\nthe parties to raise all available relevant pleas in the suits or the\nproceedings when the action is initiated and the omission thereof\ndoes constitute constructive res-judicata to prevent raising of the\nsame at a later point of time. Thereby it must be deemed that they\nare waived.\"\n1014.       The law declared above by the Apex Court in P.K.\nVijayan (supra) is binding upon us. However, we fail to\nunderstand as to how this would apply to the facts of the cases\nin hand in the light of the facts of the suits in question which we\nhave already discussed in detail.\n1015.       In Gorie Gouri Naidu (supra), the Apex Court held\nthat inter party judgement is binding upon the parties even if it\nis erroneous. The Court said :\n              \"In our view, such decision of the Division Bench is\n        justified since the said earlier decision in declaring the\n        deeds of gift as invalid, is binding between the parties.\n        There is no occasion to consider the principle of estoppel\n                                                                  1255\n\n        since considered by the learned single Judge in the facts\n        and circumstances of the case for holding the said transfers\n        as valid, in view of the earlier adjudication on the validity\n        of the said deeds in the previous suit between the parties.\n        The law is well settled that even if erroneous, an inter party\n        judgment binds the party if the Court of competent\n        jurisdiction has decided the lis.\"\n1016.       In Premier Cable Co. Ltd. (supra), an assessment\norder was challenged in appeal which was dismissed on the\nground of delay. Revision was also dismissed. The writ petition\nagainst the revisional order was also dismissed and the said\norder attained finality not being taken to the higher Court. In\nthese circumstances, the Apex Court held that the levy under the\naforesaid assessment order, which has attained finality, cannot\nbe challenged by means of a civil suit since it is barred by\nprinciple of res judicata.\n1017.      In Abdul Rahman (supra), the issue of principle of res\njudicata as such was not up for consideration but in the facts and\ncircumstances of the case, the Court refused the plaintiff to\nperuse the remedy in a Court of law. The peculiar facts of the\ncase are noticed in para 30 of the judgement, which reads as\nunder :\n              \"30. ...........The issue as regards the status of the 1st\n        respondent has never been raised before the revenue<\/pre>\n
        authorities. As the appellant herein claimed himself to be a
\n        tenant of Mangal Singh, there was no reason as to why he
\n        could not be said to be aware of the relationship between
\n        the 1st respondent and the said Mangal Singh. He allowed
\n        the proceedings of the Board of Revenue to be determined
\n        against him. The decision of the Board of Revenue attained
\n                                                              1256<\/span><\/p>\n
        finality. His writ petition was also dismissed. Be it also
\n        noted that the civil suit was filed three years after the
\n        adjudication of the rights of the parties in the mutation
\n        proceedings.”\n<\/p>\n
1018.      After noticing the aforesaid facts, the Apex Court in
\npara 31 said:\n<\/p>\n
             “31. In the aforementioned situation, in our opinion,
\n        the appellant must be held to have taken recourse to abuse
\n        of process of Court underlying the principle that the
\n        litigation should be allowed to attain finality in public
\n        interest. Although the concept of issues estoppel or
\n        estoppel by records are distinct and separate from the
\n        concept of abuse of process in public interest, the Court
\n        may refuse the plaintiff from pursuing his remedy in a
\n        Court of law. See Johnson v. Gore Wood and Co., ((2002)
\n        2 AC 1).”<\/p>\n
1019.      Thus, the above judgement also lends no support to
\nattract plea of res judicata in the present case.
\n1020.      In M.T.W. Tenzing Namgyal (supra) the facts were
\nthat Plots No. 1013, 1014 and 1040 (part) situated at Gangtok
\nbelonged to one Chogyal Sir Tashi Namgyal. It was his personal
\nproperty forming part of his private estate. One pucca building
\nwas constructed on Plot no. 1014 situated at New Market Road,
\nGangtok and it was let out to tenants. On the adjacent land to the
\nsaid building there existed a private passage of 12 feet width
\nmade of steps and further on the adjacent south thereto, there
\nwas another building known as Yuthok building situated on Plot
\nNo. 1012. Another passage existed behind the aforesaid two
\nbuildings said to be a private gully being Plot No. 1013. There
\nwere two wooden buildings used as kitchen, latrines and
\n                                                               1257<\/span><\/p>\n
godown for the use of tenants occupying the aforesaid two
\nbuildings at New Market Road and Yuthok. It is said that there
\nwas a retaining wall on the west of Plot No. 1040 (part) which
\nwas the boundary between the land of the Plaintiffs’ private
\nestate and the land of defendant No. 2. The plaintiffs filed a suit
\nalleging that the defendants had started construction of a big
\npucca building for running a hotel on the land situated on the
\nsouth of his land being Plot no.1040 and it was alleged that the
\ndefendants illegally had encroached upon about 6,600 sq. ft.
\ntherein. The defendants denied, and disputing the allegations in
\ntheir written statement, though admitted the existence of the
\npucca building and the flight of steps, contended that the latter
\nbelonged to Gangtok Municipality and meant to serve as the
\nexclusive passage to the plot on which defendant no. 2 started
\nconstructing a multi-storeyed building. It was claimed that
\nbeyond the structures of the plaintiffs a precipitated hill edge
\nexists on the eastern boundary of the defendants’ land and the
\nsame was all through in the possession of the defendants. The
\ndefendants also claimed settlement of their land by virtue of
\nthree documents of the years 1961, 1975 and 1977. The suit was
\ndismissed by the District Judge, Gangtok on 29.03.1985 but in
\nappeal the High Court allowed the same and remanded the
\nmatter to the trial court directing to appoint another
\nCommissioner to make local investigation with reference to the
\ncloth survey map and actual measurement on the spot so as to
\nascertain the actual area of Plot No. 1040 etc. An opportunity
\nwas also given to the parties to re-examine their witnesses etc.
\nThe trial court appointed another Commissioner who, inter alia,
\nfound that Plot No. 1040 measures 0.69 acres out of which the
\nland allotted to the defendants was 13, 879 sq. ft. and the total
\n                                                                1258<\/span><\/p>\n
area of constructions made by defendants no. 1 and 2 being the
\nDenzong Cinema, two shop houses and hotel comes to 13,
\n616.46 sq. ft., which was accepted by the defendants but
\naccording to the plaintiffs the same was 13, 503.60 sq. ft. The
\ntrial court decreed the suit on 26.02.1988 but the judgment was
\nreversed by High Court in appeal on 30.06.1994. The Apex
\nCourt noticed that the plaintiffs’ predecessor in interest was late
\nChogyal Sir Tashi Namgyal of Sikkim. There is, therefore, no
\nquestion of plaintiffs’ having any document of title. The only
\ndocument of title which was produced by the plaintiffs in
\nsupport of their claim was a ‘Khasra’ showing entry in the name
\nof ‘Sarkar’ as also in the name of ‘Shri Panch Maharaja Sir Tashi
\nNamgyal of Sikkim’.       Some plots were recorded as Private
\nEstate. Plots No. 1013, 1014 and 1040 were recorded in the
\nname of Shri Panch Maharaj Sir Tashi Namgyal but the area of
\nthe plots was not mentioned. In the plaint, besides Plot No. 1013
\nand 1014, the plaintiffs claimed ownership in respect of Plot no.
\n1040 (part) and not the entire plot. The manner in which
\nownership for part of Plot No. 1040 claimed was not disclosed.
\nIt appears that a suggestion was made long back to pay a lump
\nsum amount in lieu of the bazar area including the income so
\nthat the private estate may vest in Sikkim Darbar. The said
\nproposal was accepted on 22.06.1959 after being approved and
\nsanctioned by the Chogyal and the payment aforesaid was made.
\nIt is in these circumstances the High Court recorded a finding
\nthat all land entered in ‘Khasra’ in the name of “Sir Tashi
\nNamgyal” did not belong to his private estate. The Apex Court,
\nhowever, considered the matter on the assumption that the said
\nfinding of the High Court was not correct in view of the fact that
\nthe plaintiffs’ land in suit were the subject matter of acquisition,
\n                                                            1259<\/span><\/p>\n
it was noticed that Sikkim Darbar granted settlement of a piece
\nof land in favour of one of the defendants for construction of
\nCinema Hall on 10.04.1961. The original plaintiff held shares in
\nDenzong Cinema Limited. The Cinema Hall started in the year
\n1969. The State of Sikkim merged with the Union of India in
\nterms of an agreement on 26.04.1975. In view of Article 371 F
\nof the Constitution the property and assets vested in the
\nGovernment of State of Sikkim. The High Court recorded a
\nfinding that before and after merger of Sikkim with the
\nGovernment of India, Plot No. 1040 was always treated as that
\nbelong to the Government and not private estate. The Apex
\nCourt found that the plaintiffs failed to prove their
\nownership\/title on the plot in question. Having accepted
\ncompensation, the successor in interest is estopped and
\nprecluded from contending that the property did not vest in
\nSikkim Darbar and ultimately with the Government of India. In
\nthe circumferences, the Court dismissed the appeal and upheld
\nthe judgment of High Court. With respect to the evidentiary
\nvalue of the ‘Khasra’ and ‘Khatian’ the Apex Court in paras 32
\nand 33 said:\n<\/p>\n
           “32. The khasra and khatian have not been prepared
\n     under a statute. The question as to whether the same would
\n     be historical material or instrument of title or otherwise,
\n     would depend upon either the statute governing the same
\n     or the practice prevailing in the State.     In the event,
\n     however, the records of right were not prepared under a
\n     statute, a presumption of correctness may be raised only in
\n     terms of Section 35 of the Indian Evidence Act.\n<\/p><\/blockquote>\n
           33. However, ordinarily records of right cannot be
\n     treated to have any evidentiary value on the question of
\n                                                                 1260<\/span><\/p>\n
        title inasmuch as such records are prepared mainly based
\n        on possession.”\n<\/p><\/blockquote>\n
1021.       The case was decided on the facts of its own and we
\nfail to find any support from the said judgment in respect to the
\nplea of res judicata in the present cases. This judgment was
\nrelied by Sri Siddiqui in support of his plea of estoppel and
\nabandonment based on the acquisition notification dated
\n07.10.1991. He submitted that the said notification was not
\nchallenged by the plaintiffs (Suit-5) and, therefore, it amounts to
\nacquiescence on their part in respect to their rights, if any, to the
\nland which was acquired by the State pursuant to the aforesaid
\nnotification and its quashing thereafter by the Court in various
\nwrit petitions would not change the situation.
\n1022.      We do not find any substance in the submission. It is
\nnot in dispute that the notification dated 07.10.1991 and
\n10.10.1991 whereby the land in question alongwith the others
\nwas sought to be acquired by the State of U.P., were challenged
\nin a number of writ petitions led by Writ Petition No. 3540 of
\n1991. The said notifications were quashed by this Court vide
\njudgment dated 11.12.1992 holding the same to be illegal and
\nunconstitutional. The effect of the judgment would be as if the
\naforesaid two notifications never existed. It cannot be pleaded
\nthat though the two documents quashed by the Court would be
\nnon-est for the persons who were party in those cases but would
\nhave some consequences for others. Once the very document as
\na result of its quashing become non-est, it would not result in
\nany consequence whatsoever in law and even otherwise.
\nTherefore, it cannot be said that Suit-5 cannot proceed further as
\nif the plaintiffs have squeezed their rights in land in question.
\n1023.       A similar argument has been made as a result of
\n                                                                  1261<\/span><\/p>\n
acquisition of certain land vide Act No. 33 of 1993. Sri Siddiqui
\nsubmitted that not only the plaintiffs (Suit-5) did not challenge
\nthe said enactment but also submitted to its provisions by filing
\nan Application No. 4(o) of 1993 on 04.02.1993 praying for
\nabatement of the suit in view of Section 4(3) of the Act No. 33
\nof 1993. Admittedly, sub-section of Section 4(3) of the aforesaid
\nAct has been declared ultra vires and unconstitutional. Any
\nprovision which is unconstitutional is non-est i.e. still born and
\nwould not result in any consequences. It means as if the said
\nprovision never existed or operated. Even if it was not
\nchallenged by the plaintiff (Suit-5) and they sought to surrender
\nto the legal consequences of the said Act but if subsequently in
\nany other proceeding the statutory provision is found to be
\nunconstitutional i.e. still born, the consequences would be as if
\nthe said provision has no adverse effect. Though reliance has
\nbeen placed by Sri Siddiqui on certain judgments of the Apex
\nCourt as well as of this Court but in our view the aforesaid
\njudgments do not lay down any such law and the reliance is
\nmisplaced.\n<\/p>\n
1024.       Jai Narain Parasrampuria (supra) was a case where
\nthe suit for specific performance was filed. The Court held that
\nthe relief being discretionary can be refused on the conduct of
\nthe parties. Representing the company, other parties were led to
\nbelieve that the company was owner of the property as a result
\nwhereof third parties alter their position. It was thus held by the
\nApex Court that the principle of estoppel would apply.
\nHowever, the Court did not forgot to add a caution as under:\n<\/p>\n
              “We may, however, hasten to add that where there
\n        exists a statutory embargo, vesting of title in a person shall
\n        be subject thereto.”\n<\/p><\/blockquote>\n
                                                                     1262<\/span><\/p>\n
1025.      Relying on various other authorities on the subject the
\nCourt also held:\n<\/p>\n
              “The doctrine of estoppel by acquiescence was not
\n        restricted to cases where the representor was aware both
\n        of what his strict rights were and that the representee was
\n        acting on the belief that those rights would not be enforced
\n        against him. Instead, the court was required to ascertain
\n        whether in    the particular circumstances, it would be
\n        unconscionable for a party to be permitted to deny that
\n        which, knowingly or unknowingly, he had allowed or
\n        encouraged    another   to   assume    to    his     detriment.
\n        Accordingly, the principle would apply if at the time the
\n        expectation was encouraged (sic).”\n<\/p><\/blockquote>\n
1026.      It was also held by the Apex Court that the principle of
\nres judicata may not have any application in the aforesaid facts.
\n1027.      In B.L. Sridhar Vs. K.M. Munireddy (supra), the
\nCourt considered the principle of estoppel and said that it is not
\na cause of action but a rule of evidence which precludes a
\nperson from denying the truth of some statement previously
\nmade by him but would be attracted when “one person has by
\nhis declaration, act or omission caused or permitted another
\nperson to believe in it to be true and to act upon that belief,
\nneither he nor his representative shall be allowed in any suit or
\nproceeding     between    himself    and   such     person     or    his
\nrepresentative to deny the truth of that thick.” Sri Siddiqui could
\nnot show as to how the party represented by him has acted
\nbelieving on the statement of the plaintiff (suit-5) so as to attract
\nthe principle of estoppel in the case in hand. The judgment, in
\nour view, has no application to the facts involved in the present
\ncase.\n<\/p>\n
                                                                 1263<\/span><\/p>\n
“Order XXIII Rule 1-Whether applicable and attracted to
\nApplication No. 4(o) of 1993 and its consequences, if any”
\n1028.      M\/s Hulas Rai Baij Nath (supra) was a case with
\nrespect to the application of Order XXIII Rule 1 CPC. It was
\nheld that Order XXIII Rule 1(1) gives an unqualified right to a
\nplaintiff to withdraw a suit. It also held that there is no provision
\nin CPC which required the Court to refuse permission to
\nwithdraw the suit and to compel the plaintiff to proceed with it.
\nHowever, if a set off has been claimed under Order 8, CPC or a
\ncounter claim has been filed the position may be different. We
\ndo not find any occasion to have application of the said
\nauthority to the facts of this case. Obviously no application
\nunder Order XXIII Rule 1 has been filed by the plaintiff (Suit-5)
\nfor withdrawal of the suit. The alleged application only drew
\nattention of the Court to Section 4(3) of Act No. 33 of 1993 and
\nits consequences and requested the Court to act accordingly. As
\nsoon as the said statute i.e. Section 4(3) seizes to have any legal
\nconsequences having been declared unconstitutional, the
\nposition as it stood before enactment of the said provision would
\nstand restored.\n<\/p>\n
1029.     We now come to the Division Bench decision of this
\nCourt in Smt. Raisa Sultana Begam (supra). This Court has
\nheld that there is no provision laying down procedure for
\nwithdrawing the suit, manner in which it can be withdrawn and
\nthe essential physical acts required to be done to constitute
\nwithdrawal, which can be in any form. The Court further held
\nthat withdrawing of suit needs no permission from the Court and
\nsince there is no provision allowing revocation of the
\nwithdrawal application, therefore, an application for withdrawal
\nof suit becomes effective as soon as it is done i.e. by giving
\n                                                                    1264<\/span><\/p>\n
information to the Court. The Court’s order thereon is no part of
\nthe act of withdrawal. On page 322, para 9 of the judgement, the
\nCourt observed:\n<\/p>\n
                “The right to withdraw has been expressly conferred
\n        by rule 1(1); there is no provision conferring the right to
\n        revoke the withdrawal and there is no justification for
\n        saying that the right to withdraw includes in itself a right to
\n        revoke the withdrawal. As we said earlier, certain
\n        consequences arise from the withdrawal which prevent his
\n        revoking the withdrawal, the withdrawal is complete or
\n        effective as soon as it takes place, and, in any case, as soon
\n        as information of it is conveyed to the Court, and no order
\n        of the Court is required to effectuate it or even to recognize
\n        it.”\n<\/p><\/blockquote>\n
1030.          In Smt. Raisa Sultana Begam (supra), Order 23, Rule
\n1, as was in the statute book prior to 1976, was under
\nconsideration, which read as under :\n<\/p>\n
                “1. (1) At any time after the institution of a suit the
\n        plaintiff may, as against all or any of the defendants,
\n        withdraw his suit or abandon part of his claim.\n<\/p><\/blockquote>\n
                (2) Where the Court is satisfied-\n<\/p><\/blockquote>\n
                (a) that a suit must fail by reason of some formal
\n                defect, or\n<\/p><\/blockquote>\n
                (b) that there are other sufficient grounds for
\n                allowing the plaintiff to institute a fresh suit for the
\n                subject-matter of a suit or part of a claim,
\n        it may, on such terms as it thinks fit, grant the plaintiff
\n        permission to withdraw from such suit or abandon such
\n        part of a claim with liberty to institute a fresh suit in
\n        respect of the subject-matter of suit or such part of a claim.\n<\/p><\/blockquote>\n
                                                                 1265<\/span><\/p>\n
              (3) Where the plaintiff withdraws from a suit, or
\n        abandons part of a claim, without the permission referred
\n        to sub-rule (2), he shall be liable for such costs as the
\n        Court may award and shall be precluded from instituting
\n        any fresh suit in respect of such subject-matter or such part
\n        of the claim.\n<\/p><\/blockquote>\n
              (4)Nothing in this rule shall be deemed to authorize
\n        the Court to permit one of several plaintiffs to withdraw
\n        without the consent of the others.”\n<\/p><\/blockquote>\n
1031.       The Division Bench, while taking the view as noted
\nabove, disagreed with otherwise view taken by the Hon’ble
\nMadras, Bombay and Calcutta High Court, and in an earlier
\nDivision Bench of this Court; in Mukkammal Vs. Kalimuthu
\nPillay 15 Ind Cas 852 (Mad); Lakshmana Pillai Vs. Appalwar
\nAlwar Ayyangar (supra); Yeshwant Govardhan Vs. Totaram
\nAvasu AIR 1958 Bom. 28; Raj Kumari Devi Vs. Nirtya Kali
\nDebi (1910) 7 Ind Cas 892 (Cal); and Ram Bharos Lall Vs.
\nGopee Beebee (1874) 6 NWP 66 respectively. We find, with
\ngreat respect, difficult to subscribe the view taken in Smt. Raisa
\nSultana Begam (supra). In our view, if the Court was unable to
\nagree with the earlier Division Bench judgement in              Ram
\nBharos Lall (supra), the matter ought to have been referred to
\nthe Larger Bench. It is true that the right of the plaintiff to
\nwithdraw suit is absolute as observed by the Apex Court in M\/s
\nHulas Rai Baij Nath (supra) and once an application is made
\nby the plaintiff and pressed before the Court, the Court cannot
\nrefuse such withdrawal unless there is a case of counter claim,
\nset off etc. It would not mean that as soon as an application
\ninforming the Court is moved by the plaintiff that he intends to
\nwithdraw the suit or that an oral information is given, the effect
\n                                                                 1266<\/span><\/p>\n
would be that the suit would stand withdrawn.
\n1032.      So long as a suit is not instituted by presenting a plaint
\nto the Court, the plaint remains the property of the litigant and
\nwould not result in any legal consequence, if he does not present
\nit to the Court, but when the plaint is presented before a
\ncompetent Court of jurisdiction and a suit is ordered to be
\nregistered in accordance with rules, the plaint would become the
\nproperty of the Court and it would result in certain legal
\nconsequences, i.e., pendency of a suit or a case before a Court of
\nlaw. The said legal consequences cannot be nullified without
\nany order of the Court by the litigant simply by orally or in
\nwriting informing the Court that he intends to withdraw the suit.
\nIt is true that under Order 23 Rule 1, as it stood before 1976
\namendment, there was no provision requiring any specific order
\nto be passed by the Court allowing the plaintiff to withdraw his
\nsuit but considering the entire procedure of institution of a suit,
\nit cannot be doubted that a suit, duly instituted, and registered in
\na Court of law cannot stand withdrawn without any order of the
\nCourt. In this regard, it would be appropriate to have the
\nprocedure of filing of suit in C.P.C., as it was prior to its
\namendment in 1976.\n<\/p>\n
1033.      Order IV Rule 1 (Allahabad amendment) provides for
\ninstitution of suit and reads as under :\n<\/p>\n
              “1. (1) Every suit shall be instituted by presenting to
\n        the Court or such officer as it appoints in this behalf, a
\n        plaint, together with a true copy for service with the
\n        summons upon each defendant, unless the Court for goods
\n        cause shown allows time to filing such copies.\n<\/p><\/blockquote>\n
              (2) The court-fee chargeable for such service shall be
\n        paid in the case of suits when the plaint is filed and in the
\n                                                                 1267<\/span><\/p>\n
        case of all other proceeding when the processes applied
\n        for.”\n<\/p><\/blockquote>\n
1034.      The manner of registration of suit was provided in Rule
\n2 Order IV and reads as under :\n<\/p>\n
                “2. [S. 58] The Court shall cause the particulars of
\n        every suit to be entered in a book to be kept for the purpose
\n        and called the register of civil suits. Such entries shall be
\n        numbered in every year according to the order in which the
\n        plaints are admitted.”\n<\/p><\/blockquote>\n
1035.       Once a suit is duly instituted, the Court would pass
\norder issuing summons to the defendants to appear and answer
\nthe plaint. Such summons, vide Order V Rule 3, are required to
\nbe signed by the Judge or such officer as he appointed, and also
\nthe seal of the Court. A suit once duly instituted and registered
\nin the Court would not struck off from the record of the Court
\non the mere communication by the plaintiff orally or in writing
\nthat he intends to withdraw unless an order is passed by the
\nCourt to the said effect, which would have the legal
\nconsequence of bringing the proceedings set in motion by
\ninstituting the suit, to a halt. Mere absence of any provision
\npermitting withdrawal of the application filed by a plaintiff for
\nwithdrawing the suit does not mean that no such power is vested
\nin the plaintiff. So long as an order is not passed by the Court, if
\nthe plaintiff informs the Court by moving an application that he
\nintends to withdraw the application for withdrawal of suit, he
\ncan always request or inform the Court that he does not want to
\npress the application and the same may be dismissed as not
\npressed or withdrawn. It is only where the plaintiff press his
\napplication before the Court requiring it to pass the order for
\nwithdrawal of the Suit, the Court would pass the said order in
\n                                                             1268<\/span><\/p>\n
accordance with law since it cannot compel a plaintiff to pursue
\na suit though he want to withdraw the same. It would thus be
\nwholly unjust to hold that once an application to withdraw the
\nsuit is filed by a plaintiff, he cannot withdraw the same and the
\nsuit would stand dismissed as withdrawn. This would have
\nserious and drastic consequences in as much as he cannot file a
\nfresh suit on the same cause of action.\n<\/p>\n
1036.    Moreover, the existence of a provision i.e. Rule 1(3),
\nempowering the Court to consider as to whether the plaintiff
\nshould be saddled with the liability of payment of cost or not
\nalso contemplates that an application for withdrawal of suit by
\nitself would not result in any consequences whatsoever unless
\nthe Court has applied its mind regarding the cost. If what has
\nbeen held in Smt. Raisa Sultana Begam (supra) is taken to be
\ncorrect, it would mean that there would be no occasion for the
\nCourt to apply its mind on the question of cost under Rule 1(3)
\nsince the suit would stand dismissed as withdrawn as soon as the
\nplaintiff informs the Court about his decision for withdrawal of
\nthe suit either orally or in writing. This is nothing but making
\nRule 3 (1) redundant. The earlier judgement of this Court in
\nRaja Shumsher Bahadoor Vs. Mirja Mahomed Ali (1867)
\nAgra H.C.R. 158 wherein this view was taken that the
\nwithdrawal must be regarded as terminating automatically the
\nproceedings in the suit involving the suit’s immediate dismissal
\nwas not found to be correct subsequently by the Division Bench
\nin Ram Bharos Lall. We, therefore, find it appropriate in the
\nentire facts and circumstances to take a different view and have
\nno hesitation in holding though with great respect to the Bench,
\nthat the law laid down in Smt. Raisa Sultana Begam (supra) is
\nnot correct. In our view, the law laid down in Ram Bharos Lall
\n                                                                    1269<\/span><\/p>\n
(supra), Mukkammal Vs. Kalimuthu Pillay (supra),                    Raj
\nKumari Devi Vs. Nirtya Kali Debi (supra) and Yeshwant
\nGovardhan Vs. Totaram (supra) lay down the correct law. We
\nalso find that a Division Bench of Orissa High Court in Prema
\nChanda Barik Vs. Prafulla Kumar Mohanty AIR 1988 Orissa
\n33 has also taken the same view and did not find itself agreeable
\nwith the Division Bench decision in Smt. Raisa Sultana Begam
\n(supra). In fact, a Division Bench of Calcutta High Court in
\nRameswar Sarkar Vs. State of West Bengal and others AIR
\n1986 Cal. 19 has gone slightly further by observing that where
\nthere is no provision under the Code providing for withdrawal
\nof application for withdrawal of suit, Section 151 C.P.C. would
\napply.\n<\/p>\n
1037.      It would be useful to remind ourselves the observations
\nof the Apex Court in respect to the provisions of the Code in
\nManohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal
\nAIR 1962 SC 527 “It is well settled that the provisions of the
\nCode are not exhaustive, for the simple reason that the
\nLegislature is incapable of contemplating all the possible
\ncircumstances which may arise in future litigation and
\nconsequently for providing the procedure for them.” Referring to
\nSection 151, the Apex Court in the same judgement also held
\n“The section itself says that nothing in the Code shall be deemed
\nto limit or otherwise affect the inherent power of the Court to
\nmake orders necessary for the ends of justice.”
\n1038.     Order XXIII Rule 1 has now been substituted by C.P.C.
\n(Amendment) Act 104 of 1976 vide Section 74 with effect from
\n1.1.1977 and the newly substituted provision reads as under :\n<\/p>\n
        Order XXIII R. 1. Withdrawal of suit or abandonment of
\n        part of claim.–(1) At any time after the institution of a suit,
\n                                                            1270<\/span><\/p>\n
the plaintiff may, as against all or any of the defendants,
\nabandon his suit or abandon a part of his claim:\n<\/p>\n
      Provided that where the plaintiff is a minor or
\nsuch other person to whom the provisions contained in
\nrules 1 to 14 of Order XXXII extend, neither the suit nor
\nany part of the claim shall be abandoned without the
\nleave of the Court.\n<\/p>\n
(2) An application for leave under the proviso to sub-rule
\n(1) shall be accompanied by an affidavit of the next friend
\nand also, if the minor or such other person is represented
\nby a pleader, by a certificate of the pleader to the effect
\nthat the abandonment proposed is, in his opinion, for the
\nbenefit of the minor or such other person.\n<\/p>\n
(3) Where the Court is satisfied,–\n<\/p>\n
      (a) that a suit must fail by reason of some formal
\n      defect, or\n<\/p><\/blockquote>\n
      (b) that there are sufficient grounds for allowing the
\n      plaintiff to institute a fresh suit for the subject-matter
\n      of a suit or part of a claim,
\nit may, on such terms as it thinks fit, grant the plaintiff
\npermission to withdraw from such suit or such part of the
\nclaim with liberty to institute a fresh suit in respect of the
\nsubject-matter of such suit or such part of the claim.\n<\/p><\/blockquote>\n
(4) Where the plaintiff–\n<\/p>\n
      (a) abandons any suit or part of claim under sub-rule
\n(1), or\n<\/p>\n
      (b) withdraws from a suit or part of a claim without
\n      the permission referred to in sub-rule (3),
\nhe shall be liable for such costs as the Court may award
\nand shall be precluded from instituting any fresh suit in
\n                                                                  1271<\/span><\/p>\n
         respect of such subject-matter or such part of the claim.
\n         (5) Nothing in this rule shall be deemed to authorize the
\n         Court to permit one of several plaintiffs to abandon a suit
\n         or part of a claim under sub-rule (1), or to withdraw, under
\n         sub-rule (3), any suit or part of a claim, without the
\n         consent of the other plaintiffs.”\n<\/p>\n
1039.        Proviso inserted in Rule 1 (1) Order XXIII makes it
\nvery clear where the plaintiff is a minor or such other person to
\nwhom the provisions contained in rules 1 to 14 of order XXXII
\nextend, neither the suit nor any part of the claim shall be
\nabandoned without the leave of the Court. The proviso is
\nmandatory and does not permit withdrawal of a suit filed on
\nbehalf of a minor etc. unless the leave of the Court is obtained.
\nIn the case in hand, plaintiffs no. 1 and 2 are deities who have
\nbeen allowed to sue through their next friend.
\n1040.       Plaintiffs no. 1 and 2, being deity, are juristic persons
\nand plaintiff no. 3 is the person taking care of plaintiffs no. 1
\nand 2. At this stage, we are proceeding by assuming that
\nplaintiffs no. 1 and 2 are deities and, therefore, a juristic person
\nindividually though the question whether they are ‘juristic
\nperson’ has also been raised separately which we shall deal later
\non but for the purpose of objection raised hereat with reference
\nto Order XXIII Rule 1 we proceed to treat plaintiffs 1 and 2 as
\ndeity.\n<\/p>\n
1041.       A deity has been held to be a ‘minor’ and cannot sue on
\nits own but through a Shebait or Manager or any other person
\nwho can file suit on its behalf. In Shiromani Gurudwara
\nPrabandhak Committee, Amritsar v. Shri Som Nath Das and
\nothers, AIR 2000 SC 1421 the Apex Court held that the deity is
\na minor and its welfare can be looked into by the
\n                                                               1272<\/span><\/p>\n
Shebait\/Sarvakar\/Manager or the next friend. In such a case the
\nleave of the Court is necessary for withdrawal of suit as required
\nby proviso to Rule 1(1) and, therefore, also the question of
\nwithdrawal of the suit as soon as the application is made cannot
\narise at all.\n<\/p>\n
1042.      In State Bank of India Vs. Firm Jamuna Prasad
\nJaiswal (supra) the Hon’ble Single Judge followed the Division
\nBench judgment in Smt. Raisa Sultana Begam (supra) in order
\nto hold that withdrawal application cannot be allowed to be
\nwithdrawn except where it was a case of fraud. Since we have
\nheld the judgement in Smt. Raisa Sultana Begam (supra) as
\nnot laying down a correct law, the Single Judge judgement in
\nState Bank of India Vs. Firm Jamuna Prasad Jaiswal (supra)
\nalso cannot be said to be a good law. Same is the fate of other
\nSingle Judges judgements in Ram Chandra Mission (supra)
\nand Upendra Kumar (supra) which also rely on Smt. Raisa
\nSultana Begam (supra). Therefore, all the aforesaid judgements
\nwould not help Sri Siddiqui in any manner.\n<\/p>\n
1043.      We may also observe hereat that so far as the present
\ncase is concerned, no application under Order XXIII Rule 1 has
\nbeen filed by the plaintiff (Suit-5) seeking withdrawal of the suit
\nand instead the alleged application is with reference to Section 4
\n(3) of Act 33 of 1993. Therefore, Order XXIII Rule 1 even
\notherwise would not be attracted in the present case.
\n1044.     Since we have taken a view that the suit did not stand
\nabandoned or withdrawn as soon as the application was made,
\nthe question of estoppel as argued by Sri Siddiqui is not
\nattracted and, therefore, the Apex Court’s decision in Deewan
\nSingh (supra), Jai Narain (supra), Anuj Garg (supra) and
\nBarkat Ali (supra) would have no application and lend no
\n                                                                1273<\/span><\/p>\n
support to the plaintiffs (Suit-4) and defendants (Suit-5).
\n1045.    Now coming to the authority cited by Sri Verma, we
\nfind that in State of Maharashtra Vs. M\/s. National
\nConstruction Company (supra), the Apex Court laid down the
\nlaw that bar under Section 11 CPC applies in a matter directly
\nand substantially in issue in the former suit and has been heard
\nand finally decided by a Court competent to try such suit.
\nMeaning thereby that on the matter in issue, in question, there
\nhas been an application of judicial mind and a final adjudication
\nhas been made. If the former suit is dismissed without any
\nadjudication on the matter in issue i.e. merely on a technical
\ngrounds like non-joinder, that cannot operate as res judicata.
\nThe Apex Court relied on its earlier decision in Sheodhan Singh
\nVs. Daryo Kunwar, AIR 1966 SC 1332 where the suit
\ndismissed for want of jurisdiction was held not to operate as res
\njudicata. The Court also followed its decision in Inacio Martins
\nVs. Narayan Hari Naik, 1993(3) SCC 123. The legal
\nproposition thus is well settled.\n<\/p>\n
1046.    Munesh Kumar Agnihotri (supra) was a case where
\nthe parties in two suits were different hence the plea of res
\njudicata was negatived by the Hon’ble Single Judge. Where
\ncause of action is different, res judicata has no application in the
\nsubsequent suit as held in Ram Naresh (supra) and in our view
\nthere cannot be any dispute to the said proposition. The same
\nwas the position in Abdul Quadir (supra) where also the Court
\nfound that the cause of action involved in the subsequent suit
\nwas different and the parties were also found to be different.
\n1047.   There are some more authorities cited at the bar.
\n1048.    In Union of India Vs. Pramod Gupta (2005) 12 SCC
\n1, the application of res judicata in respect to determination of
\n                                                            1274<\/span><\/p>\n
market value and title of respondents was under consideration.
\nCertain exemplars in the form of judgment and awards in
\nrespect to the acquisition of land and award of compensation
\nwere relied on and it was argued that since Union of India was
\nparty to those proceedings in the matter of determination of
\nmarket value, the principle and decision already taken earlier
\ncannot be disputed by it and is estopped besides that the
\nchallenge is barred by res judicata. The Apex Court negatived it
\nby giving three exceptions, (1) If the Union of India had not
\npreferred any appeal against earlier judgments and award, it
\nwould not be estopped and precluded from raising the said
\nquestion in a different proceeding since in a given case it is
\npermissible in law to do the same keeping in view the larger
\npublic interest. (2) Referring to Government of West Bengal
\nVs. Tarun K.Roy 2004 (1) SCC 347 it observed that non filing
\nof an appeal in any event would not be a ground of refusing to
\nconsider the matter on its own merits. (3) Referring to State of
\nBihar and others Vs. Ramdeo Yadav and others, 1996(2 )
\nSCC 493 and State of West Bengal and others Vs. Debdas
\nKumar and others 1991 (1) Suppl. SCC 138, it observed that
\nwhen public interest is involved in interpretation of law, the
\nCourt is entitled to go into the question. It was held that
\nprinciple of res judicata would apply only when the lis was
\ninter-parties and had attained finality in respect to the issue
\ninvolved. The said principle will, however, have no application
\ninter alia in a case where the judgment and\/or order had been
\npassed by a Court having no jurisdiction therefor and\/or in a
\ncase involving a pure question of law. It will also have no
\napplication in a case where the judgment is not a speaking one.
\nThe Apex Court also referred to Ramnik Vallabhdas
\n                                                                  1275<\/span><\/p>\n
Madhvani and others Vs. Taraben Pravinlal Madhvani
\n(2004) 1 SCC 497 and reiterated that the principle of res
\njudicata is a procedural provision and has no application where
\nthere is inherent lack of jurisdiction. Thus this judgement
\ninroads an exception in the principle of res judicata where the
\nmatter carry for larger public interest.\n<\/p>\n
1049.     In Anathula Sudhakar Vs. P. Buchi Reddy and others
\n(2008) 4 SCC 594 no question of estoppel or res judicata as such
\nwas involved as is evident from para 12 of the judgment
\nwherein the issues considered by the Apex Court are quoted:\n<\/p>\n
                (I) What is the scope of a suit for prohibitory
\n        injunction relating to immovable property?\n<\/p><\/blockquote>\n
                (ii) Whether on the facts, the plaintiff ought to have
\n        filed a suit for declaration of title and injunction?\n<\/p><\/blockquote>\n
                (iii) Whether the High Court, in a second appeal
\n        under Section 100 CPC, could examine the factual question
\n        of title which was not the subject-matter of any issue based
\n        on a finding thereon, reverse the decision of the first
\n        appellate court?\n<\/p><\/blockquote>\n
                (iv) What is the appropriate decision?<\/p>\n
1050.          The Apex Court considered the first question as to
\nwhen a mere suit for permanent injunction would lie and when it
\nis necessary to file a suit for declaration and\/or possession with
\ninjunction as a consequential relief and briefly summarized the
\nprinciple as under :\n<\/p>\n
  (A) (a)Where a plaintiff is in lawful or peaceful possession of
\n        a property and such possession is interfered or threatened
\n        by the defendant, a suit for an injunction simplicitor will
\n        lie.\n<\/p>\n
        (b) A person has a right to protect his possession against
\n                                                              1276<\/span><\/p>\n
   any person who does not prove a better title by seeking a
\n   prohibitory injunction. But a person in wrongful
\n   possession is not entitled to an injunction against the
\n   rightful owner.\n<\/p>\n
   (c) Where the title of plaintiff is not disputed but he is not
\n   in possession, his remedy is to file a suit for possession
\n   and seek in addition, if necessary, an injunction. A person
\n   out of possession cannot seek the relief of injunction
\n   simplicitor, without claiming the relief of possession.\n<\/p>\n
   (d) Where the plaintiff is in possession but his title to the
\n   property is in dispute or under a cloud or where the
\n   defendants assert title thereto and there is also a threat of
\n   dispossession from the defendant, the plaintiff has to sue
\n   for declaration of title and the consequential relief of
\n   injunction.\n<\/p>\n
   (e) Where the title of plaintiff is under a cloud or in
\n   dispute and he is not in possession or not able to establish
\n   possession, necessarily the plaintiff will have to file a suit
\n   for declaration, possession and injunction.\n<\/p>\n
   (f) A prayer for declaration will be necessary only if the
\n   denial of right and challenge to the plaintiff’s title raises a
\n   cloud on the title of the plaintiff to the property.
\n(B) A cloud is said to have raised over a person’s title when
\n   some apparent defect in his title to the property or when
\n   some prima facie right of a third party over it is made out
\n   or shown. An action for declaration is remedy to remove
\n   the cloud on the title to the property. On the other hand
\n   where the plaintiff has clear title supported by documents,
\n   if a trespasser without any claim to title or an interloper
\n   without any apparent title, merely deny plaintiff’s title, it
\n                                                               1277<\/span><\/p>\n
   does not amount to raining a cloud over the title of the
\n   plaintiff and it will not be necessary for the plaintiff to sue
\n   for declaration and a suit for injunction may be sufficient.
\n(C) Where the plaintiff, believing that the defendant is only
\n   trespasser or a wrongful claimant without title, files a
\n   mere suit for injunction, and in such a suit, the defendant
\n   discloses in his defence the details of the right or title
\n   claimed by him, which raises a serious dispute or cloud
\n   over the plaintiff”s title then there is a need for the
\n   plaintiff to amend the plaint and convert the suit into one
\n   for declaration. Alternatively, he may withdraw the suit
\n   for bare injunction with permission of the Court to file a
\n   comprehensive suit for declaration and injunction. He
\n   may file the suit for declaration with consequential
\n   relief, even after the suit for inunction is dismissed,
\n   where the suit raised only the issue of possession and
\n   not any issue of title. (emphasis supplied)
\n(D)If the property is a vacant site, which is not physically
\n   possessed, used or enjoyed, in such cases the principle is
\n   that possession follows title. If two persons claim to be in
\n   possession of a vacant site, one who is able to establish
\n   title thereto will be considered to be in possession as
\n   against the person who is not able to establish title.
\n(E) In a suit relating to a vacant site filed for a mere injunction
\n   and the issue is one of the possession, it will be necessary
\n   to examine and determine the title as a prelude for
\n   deciding the de jure possession. In such a situation, where
\n   the title is clear and simple, the court may venture a
\n   decision on the issue of title, so as to decide the question
\n   of de jure possession even though the suit is for a mere
\n                                                                  1278<\/span><\/p>\n
        injunction. But where the issue of title involves
\n        complicated or complex questions of fact and law, or
\n        where court feels that parties had not proceeded on the
\n        basis that title was at issue, the Court should not decide
\n        the issue of title in a suit for injunction. The proper course
\n        is to relegate the plaintiff to the remedy of a full-fledged
\n        suit for declaration and consequential reliefs. Referring to
\n        the Madras High Courts’ decision in Vanagiri (supra), the
\n        Apex Court in Pramod Gupta (supra) observed that the
\n        second suit would be barred only when the facts relating
\n        to title are pleaded, when an issue is raised in regard to
\n        title and parties lead evidence on the issue of title and the
\n        Court instead of relegating the parties to an action for
\n        declaration of title decides upon the issue of title and that
\n        decision attains finality. However, the Apex Court made it
\n        clear in para 20 of the judgment that the question relating
\n        to res judicata was not before it but the question whether a
\n        finding regarding title could be recorded in a suit for
\n        injunction simpliciter, in the absence of pleadings and
\n        issue relating to title is up for consideration. The said
\n        judgment, in our view as such lends no credence to the
\n        plaintiff’s (Suit-4).\n<\/p>\n
1051.      To the same effect is the judgment in Williams Vs.
\nLourdusamy & another (2008) 5 SCC 647 wherein the Apex
\nCourt relied its decision in Sajjadanashin Sayed (supra).
\n1052.      In State of Uttar Pradesh and another Vs. Jagdish
\nSharan Agrawal and others (2009) 1 SCC 689 where a suit
\nwas dismissed for non prosecution and there was no decision on
\nmerits and also where the Court found that order IX Rule 9 was
\nnot applicable, it was held that the principle of res judicata will
\n                                                                 1279<\/span><\/p>\n
not bar a subsequent suit being inapplicable.
\n1053.    In Mahila Bajrangi Vs. Badribai (2003) 2 SCC 464 in
\norder to attract doctrine of res judicata, it was held that a
\ndecision on an issue that has been and substantially in issue in
\nthe former suit between the same parties which has been heard
\nand finally decided would be considered as res judicata and not
\nmerely finding on every incident or collateral question to
\narrive at such a decision that would constitute res judicata.
\n1054.     In Bishwanath Prasad Singh Vs. Rajendra Prasad
\nand another (2006) 4 SCC 432 a deposit made under Section 83
\nof the Transfer of Property Act, 1882 was held to be procedural
\nin nature and not to constitute a decision on an issue directly and
\nsubstantially arises in an earlier suit so as to operate res judicata
\neven if before allowing the deposit to be made under Section 83,
\nthe Court has passed a detailed order dealing the rival
\nsubmissions.\n<\/p>\n
1055.    In Srikant Vs. District Magistrate, Bijapur and others
\n(2007) 1 SCC 486 referring to its earlier judgments, the Court
\nheld that the doctrine of constructive res judicata is confined to
\ncivil action and civil proceedings and inapplicable to illegal
\ndetention and the action brought for a writ of habeas corpus.
\nHowever, where an earlier application for habeas corpus has
\nbeen rejected, a second application on the same ground may not
\nbe permissible but if there are some fresh grounds even such a
\nbar would not apply. This judgment, therefore, has nothing to do
\nwith the issue of res judicata engaging attention in the present
\nsuits.\n<\/p>\n
1056.     In Saroja Vs. Chinnusamy (2007) 8 SCC 329, the
\nCourt summarized conditions to attract the doctrine of res
\njudicata under Section 11 C.P.C. as under :\n<\/p>\n
                                                                1280<\/span><\/p>\n
        (i) There must be two suits-one former suit and the other
\n        subsequent suit;\n<\/p><\/blockquote>\n
        (ii) The Court which decided the former suit must be
\n        competent to try the subsequent suit;\n<\/p><\/blockquote>\n
        (iii) The matter directly and substantially in issue must be
\n        in the same either actually or constructively in both the
\n        suits.\n<\/p><\/blockquote>\n
        (iv) The matter directly and substantially in issue in the
\n        subsequent suit must have been heard and finally decided
\n        by the Court in the former suit;\n<\/p><\/blockquote>\n
        (v) The parties to the suits or the parties under whom they
\n        or any of them claim must be the same in both the suits;\n<\/p><\/blockquote>\n
        (vi) The parties in both the suits must have litigated under
\n        the same title.\n<\/p><\/blockquote>\n
1057.      In Saroja’s case (supra) the interesting thing is that a
\nsuit no. 233 of 1989 was filed on 19.4.1989 by one Saroja, her
\nminor children Suganthamani and Ramesh against her husband
\nKuppusamy and his tenant for declaration of title and permanent
\ninjunction in respect of a property “A”. During the pendency of
\nthe suit, Kuppusamy, husband of Saroja, sold the suit property
\nby a registered sale deed dated 13.6.1990 for a consideration of
\nrupees one lac to the appellant Saroja. She (appellant) filed
\nanother suit being O.S. No. 493 of 1990 for declaration of title
\nand permanent injunction claiming absolute ownership and
\npossession of the suit property purchased by her from
\nKuppusamy claiming that she had been in continuous
\npossession of the suit property from the date of purchase and the
\nPatta, Chittha and adangal also stood in her name. The suit was
\ncontested. When the later suit was pending, the earlier suit was
\ndecreed ex-parte in favour of respondent no. 3 and her minor
\n                                                                1281<\/span><\/p>\n
children. The subsequent suit was also decreed but in appeal the
\ndecree was reversed and the judgment of the first Appellate
\nCourt was confirmed by the High Court in second appeal. The
\nApex Court also confirmed the above judgment holding that a
\ndecree which is passed ex parte is as good as a decree passed
\nafter contest.\n<\/p>\n
1058.     In Bharat Sanchar Nigam Ltd. and another Vs. Union
\nof India & others JT 2006 (3) SC 114, the application of
\nprinciple of res judicata in tax matters was considered and it was
\nheld that every assessment year gives a new cause of action
\nsince different assessment orders are to be passed and, therefore,
\nthe order in respect to one assessment proceedings shall not
\noperate as res judicata for the subsequent assessment years. The
\nCourt further held as under :\n<\/p>\n
        “20. The decisions cited have uniformly held that res
\n        judicata does not apply in matters pertaining to tax for
\n        different assessment years because res judicata applies to
\n        debar courts from entertaining issues on the same cause of
\n        action whereas the cause of action for each assessment
\n        year is distinct. The courts will generally adopt an earlier
\n        pronouncement of the law or a conclusion of fact unless
\n        there is a new ground urged or a material change in the
\n        factual position. The reason why courts have held parties
\n        to the opinion expressed in a decision in one assessment
\n        year to the same opinion in a subsequent year is not
\n        because of any principle of res judicata but because of the
\n        theory of precedent of the precedential value of the earlier
\n        pronouncement. Where facts and law in a subsequent
\n        assessment year are the same, no authority whether quasi
\n        judicial or judicial can generally be permitted to take a
\n                                                                 1282<\/span><\/p>\n
        different view. This mandate is subject only to the usual
\n        gateway of distinguishing the earlier decision or where the
\n        earlier decision is per incuriam. However, these are fetters
\n        only on a coordinate bench which, failing the possibility of
\n        availing of either of these gateways, may yet differ with the
\n        view expressed and refer the matter to a bench of superior
\n        strength or in some cases to a bench of superior
\n        jurisdiction.\n<\/p><\/blockquote>\n
1059.       The discussion made above as also in the light of the
\nprinciples of law laid down in the various precedents, some of
\nwhich are discussed above, the conclusion is inevitable that in
\nno manner, it can be said that anything in Suit-1885 may be
\nconstrued or taken as to operate as res judicata in the suits up for
\nconsideration before us. In fact, neither the principles of res
\njudicata nor estoppel is attracted in any manner as the conditions
\nprecedent for attracting the said principles are completely
\nlacking. It cannot be said that either the suits are barred by
\nprinciple of res judicata or that Suit-1885 was filed on behalf of
\nthe whole body of persons interested in Janam Asthan and,
\ntherefore, all the Hindus are barred by the same. It also cannot
\nbe said that the defendants are estopped from denying the title of
\nMuslim community including the plaintiff of Suit-4 to the
\nproperty in dispute in view of the judgments of Suit-1885.
\n1060.      In Smt. Dhana Kuer Vs. Kashi Nath Chaubey, 1967
\nAWR 290 a Single Judge upheld the decision of the courts
\nbelow holding that the suit was barred by Section 11
\nExplanation VI. An earlier suit was filed by Kashi Nath,
\nVindhayachal and Bindeshwari seeking a declaration that Lt.
\nJadunandan, husband of Smt. Asharfa has no interest of the
\nproperty in suit except a right of maintenance. The trial court
\n                                                               1283<\/span><\/p>\n
dismissed the suit but in appeal the suit was decreed and the
\njudgment was confirmed in second appeal also. Thereafter Smt.
\nDhana Kuer, daughter of Jadunandan and Smt. Asharfa filed
\nanother suit seeking a declaration that Jadunandan died as
\nseparate member of the family. The Court held that the earlier
\nsuit was contested in respect of a private right claimed in
\ncommon for oneself and others and, therefore, the judgment was
\nbinding upon the successors who can be validly said to be
\nrepresented in the earlier case through the superior member. In
\nour view, this judgment has no application in the case in hand as
\nis evident from the facts noted above.\n<\/p>\n
1061.     Mst. Sudehaiya Kumar and another Vs. Ram Dass
\nPandey and others, AIR 1957 All. 270 sought to be relied by
\nreferring para 6 to contend that Explanation VI Section 11
\nC.P.C. is not confined only to the representative suits governed
\nby Order 1 Rule 2 but is applicable to other suits as well. This
\nprinciple has been explained by the Apex Court in Narayana
\nPrabhu Venkateswara Prabhu Vs. Narayana Prabhu Krishna
\nPrabhu, AIR 1977 SC 1268 giving an illustration where each
\nparty in a partition suit claiming that the property, the subject
\nmatter of the suit, is joint, asserts a right or title common to
\nothers to make identical claims. If that very issue is litigated in
\nanother suit and decided, the others making the same claim
\ncannot be held to be claiming a right in common for themselves
\nand others. Each of them in such a case must be deemed to
\nrepresent all those, the nature of whose claims and interests are
\ncommon and identical. The crux of the matter to attract
\nExplanation VI is that interest of a person concerned has really
\nbeen represented by the other; in other words his interest has
\nbeen protected after in a bonafide capacity. If there be any clash
\n                                                                1284<\/span><\/p>\n
of interest between the persons concerned and is assumed
\nrepresentative, or if the later deem to collusion, or, for any other
\nreason mala fide involves to defend the claims, it cannot be
\nconsidered to be a representative interest as held in Surayya
\nBegum (Mst) Vs. Mohd. Usman and others, 1991(3) SCC 114.
\nSri Siddiqui is also relied upon Bidhumukhi Dasi Vs. Jitendra
\nNath Roy and others, 1909 Indian Cases (Calcutta) 442;
\nSinghai Lal Chand Jain Vs. Rashtriya Swayam Sewak Sangh,
\nPanna and others, AIR 1996 SC 1211 (para 13); and
\nShiromani Gurdwara Parbandhak Committee Vs. Mahant
\nHarnam Singh C. (Dead), M.N. Singh and others, AIR 2003
\nSC 3349 (paras 17 and 19) but we find nothing therein to help
\nhim on this aspect of the matter.\n<\/p>\n
1062.    What we notice from the contentions of Sri Siddiqui is
\nthat his plea of res judicata is not limited to the suit or issue in
\nsuit having been raised, heard and decided but it is in respect to
\ncertain facts which are contained in the record of Suit-1885 with
\nrespect to the nomenclature of site or building or object and its
\nlocation etc. He claims that mention of the above amounts to an
\nadmission by the plaintiff of Suit-1885 about the title, nature
\netc. of the said building or site or locality even if it was not in
\nissue or nothing was decided on this aspect. Ignoring the issues
\nraised in Suit-1885 and the decision of the Court, certain
\nobservations of the learned District Judge made during his
\npersonal visit of the site are also being claimed as a finding of
\nfact binding on the parties not only to Suit-1885 but also to all
\nthose who go and intend to visit the aforesaid entire site either
\nas worshipper or otherwise. The submissions is extremely far
\nfetched and too remote to be accepted and applied in the case in
\nhand.\n<\/p>\n
                                                               1285<\/span><\/p>\n
1063.      We answer the Issues No. 5 (d) (Suit-1), 7(c) and 8
\n(Suit-4), and 23 (Suit-5) in negative.\n<\/p>\n
1064.      The Issue No. 29 (Suit-5) is:\n<\/p>\n
              “Whether the plaintiffs are precluded from bringing
\n        the present suit on account of dismissal of suit no. 57 of
\n        1978 (Bhagwan Sri Ram Lala Vs. State) of the Court of
\n        Munsif Sadar, Faizabad?”\n<\/p><\/blockquote>\n
1065.         It is not disputed that Suit No. 57 of 1978 was
\ndismissed for non compliance of Court’s order with respect to
\npayment of Court fees. Neither any issue was raised nor argued
\nnor decided by the said Court. Therefore, bar of res judicata is
\nnot at all attracted by the order dismissing Suit 57 of 1978
\ninasmuch as the said order dismissing the suit on technical
\nground does not come within the purview of judgment or a
\ndecision or issue as defined in Section 2 (9) CPC. The issue no.
\n29 (Suit-5) is therefore answered in negative and in favour of
\nplaintiffs.\n<\/p>\n
1066.      Issue no. 7(b) (Suit-4) only pertains to the capacity of
\nMohammad Asghar in which he contested Suit-1885. It is not
\ndisputed by the parties that initially when the suit was filed by
\nMahant Raghubar Das there was only one defendant, i.e., the
\nSecretary, Council of India. Mohammad Asghar later on filed an
\nimpleadment application claiming himself to be the Mutwalli of
\nBabari Masjid and the said application was allowed whereupon
\nhe was impleaded as defendant no. 2. He pursued the case
\naccordingly before the trial court and the appellate court. It is
\nthus matter of record that in Suit-1885 Mohammad Asghar was
\nallowed to pursue the matter as Mutawalli of Babari Masjid. No
\nparty has disputed this factum which is purely a matter of
\nrecord. What has been in fact suggested by the counsel for
\n                                                                1286<\/span><\/p>\n
Hindu parties is that mere factum that Mohammad Asghar’s
\napplication was allowed in Suit-1885 permitting him to pursue
\nthe matter as defendant no. 2 in his alleged capacity of
\nMutawalli as Babari Masjid, whether it would bind the Hindu
\nparties in the present cases. This, however, is not the issue. The
\nonly issue before us whether he was impleaded and pursued
\nSuit-1885 as Mutawalli of Babari Masjid which is a fact derived
\nfrom the record of Suit-1885 and, therefore, has to be decided in
\naffirmance particularly in view of the fact that nothing has been
\nsaid by the defendants (Suit-4) to disprove or contradict it.
\nIssue No. 7(b) (Suit-4) is decided accordingly in affirmance
\nand in favour of plaintiffs (Suit-4).\n<\/p>\n
(D)     Relating to Waqfs Act No. 13 of 1936, 16 of 1960 and
\ncertain incidental issues:\n<\/p>\n
1067.        Under this category fall Issues No. 5(a), 5(b), 5(c),
\n5(d), 5(e), 5(f), 17, 18, 23, 24 (Suit-4); 9, 9(a), 9(b) and 9(c)
\n(Suit-1); 7(a), 7(b) and 16 (Suit-3) and 28 (Suit-5).
\n1068.         Issues No. 17, 5(a), 5(c) and 5(d) (Suit-4) stood
\ndecided on 21.04.1966. The said issues read as under:\n<\/p>\n
        “Whether a valid notification under Section 5(1) of the
\n        U.P. Muslim Waqf Act No. XIII of 1936 relating to the
\n        property in suit was ever done? If so, its effect?”
\n        “Are the defendants estopped from challenging the
\n        character of property in suit as a waqf under the
\n        administration of plaintiff no.1 in view of the provision of
\n        5(3) of U.P. Act 13 of 1936?”\n<\/p><\/blockquote>\n
        “Were the proceedings under the said Act conclusive?”
\n        “Are the said provision of Act XIII of 1936 ultra-vires as
\n        alleged in written statement?”\n<\/p><\/blockquote>\n
1069.      Learned Civil Judge considered issues no. 17, 5(a) and
\n                                                                 1287<\/span><\/p>\n
5(c) (Suit-4) in detail vide his order dated 21.04.1966 and in
\nview of his findings recorded thereon, issue no. 5(d) (Suit-4)
\nwas not pressed by the defendants.\n<\/p>\n
1070.         The order dated 21.4.1966 is as under :\n<\/p>\n
              “All the above four suits were consolidated together
\n        on 6.1.1964 on the basis of the joint statement of the
\n        parties to all the above suits, which is available at paper
\n        No. 184A, of the leading case Original Suit No.12 of 1961.
\n        Issues covering the subject matter of all the above
\n        mentioned four suits were commonly framed in the leading
\n        case, Original Suit No. 12 of 1961 on 5.3.64, which are 16
\n        in number. An additional issue No. 17 was framed on
\n        17.4.65, which is available in the English Notes of the said
\n        date in the leading case.<\/p><\/blockquote>\n
              Issue No. 5 (d) was initially taken-up for disposal as
\n        a preliminary issue for determination whether the question
\n        involved in issue No. 5 (d) should be referred to the
\n        Hon’ble the High Court, under Section 113 (Proviso)
\n        C.P.C.; or not. Before an answer to issue No. 5 (d) could
\n        be given by this court, the defendants of the leading case
\n        presented an application paper No. 239\/C; whereby they
\n        prayed that the plaintiff be called upon to produce the
\n        notification contemplated in Section 5 of the U.P. Moslim
\n        Waqf Act. In response to the said application, the plaintiffs
\n        through their application 242\/G filed two papers 243\/C
\n        and   243\/1A    as   the    alleged   Government     Gazette
\n        Identification made under Section 5 of the U.P. Moslims
\n        Waqf Act. Paper No. 243\/C is the attested copy of the
\n        supplement to the Government Gazette of the United
\n        Provinces, dated February 26, 1944-Part VIII; and paper
\n                                                              1288<\/span><\/p>\n
No. 243\/1A is the annexure to the said gazette notification
\nprinted in Urdu title: “Fehrist Sunni avaqaf wakai suo me
\nMuthadda Agra wa Oudh, jinpar bamoojib report
\nCommissioner Avaqaf, U.P. Moslims Waqf Act No.XIII of
\n1936 ki Dafat Aayad hoti hai”.\n<\/p>\n
      Its title page further contains the following words :-
\n      “Fehrist hasl Dafa 5 Act XIII\/1936…………………”
\n      In the said list of waqf property paper No.243\/1A, the
\nproperty in dispute in the above four suits as alleged by the
\nplaintiffs of the leading case is mentioned at serial No. 26,
\nof page 11. The entire list of Sunni Waqf property of
\nFaizabad is mentioned at pages 10 and 11 of paper No.
\n243\/1A. The proforma of the list as well as the entries
\nagainst item No. 26 of the said list are reproduced below :-\n<\/p>\n
No.         Name waquif Name Mutwalli Nauip (sic.\nSumar       ya Waqf.          Maujooda           Nawyyet)\n                                                 Jaidad\n                                                 Mauqoofa\n26          Badshah           Syed               This column\n            Babar             Mohammad           stands blank\n                              Zaki Mutwalli      against entry\n                              Masjid Babari No. 26 of the\n                              Qasba              list paper No.\n                              Shahnawa,          243\/1A\n                              Dak-Khana\n                         Darshan Nagar\n<\/pre>\n
      Subsequently, the defendants 1, 3 and 4 of the
\nleading case filed their objections 247\/C and 248\/C against
\nthe plaintiffs’ aforesaid papers 243\/C, 243\/1A and 244\/C.\n<\/p>\n
      In reply to the said objections of the defendants, the
\nplaintiffs filed their reply 250\/C and 251\/C against the
\n                                                         1289<\/span><\/p>\n
defendants’     aforesaid objections 248\/C and 247\/C
\nrespectively.\n<\/p>\n
      In connection with the subject matter of applications
\n239\/C, 240\/C, 251\/C and the alleged Gazette Notification
\n243\/C and the list of waqf property 243\/1A, leaned counsel
\nfor the parties jointly stated that the following additional
\nissue may be framed and issue No. 17 which should be
\ndecided first, because issue No. 5, with all its part recedes
\nto a secondary position in face of the following additional
\nissue No. 17. Their aforesaid joint request appears to be
\nsound, and, therefore, the following additional issue No. 17
\nwas framed :-\n<\/p>\n
ADDITIONAL ISSIUE NO. 17 :\n<\/p>\n
      “Whether a valid notification under Section 5 (1) of
\nU.P. Moslims Waqf act No. XIII of 1936, relating to the
\nproperty in suits was ever done? Its effect?”\n<\/p>\n
      Naturally issue No. 17, thus, become primarily the
\npreliminary issue.\n<\/p>\n
      Learned counsel for the parties were heard at length
\nin respect of issue No. 17. My findings under issue No. 17,
\nare given here-under :-\n<\/p>\n
FINDINGS ON ISSUE NO.17
\n      The words “Waqf” and “Waqif” have been defined
\nin Section 3(1) of Act XIII of 1936 Muslims Waqfs Act, U.P.
\nas below :-\n<\/p>\n
      “Waqf” means the permanent dedication or grant of
\nany property for any purposes recognized by the Mosalman
\nlaw or usage as religious, pious or charitable and where
\nno deed of waqf is traceable includes waqf by user; and a
\nwaqif means any person, who makes such dedication or
\n                                                         1290<\/span><\/p>\n
grant”.\n<\/p>\n
      It will be evident from the above definition that the
\nword “waqf is inseparably connected with the word “any
\nproperty”, because the ‘Waqf’ can come into existence only
\nin relation to any property. In this way, whenever the word
\n‘Waqf” is conveyed to any person, it must necessarily
\nconvey simultaneously the idea or description or a tangible
\nconnotation about the existence of “any property” covered
\nor included in the ‘Waqf’. What I mean to say, is that if
\nsome one wants another to know that a particular property
\nis waqf, it will be necessary for him to mention
\nsimultaneously the description of at least tangible
\nconnotation about the identity of the property of the waqf.\n<\/p>\n
      In the instant case, at hand, item No.26 (page 2 of the
\nlist paper No.243\/1A) is totally blank in its last column,
\nwhich was prescribed for mentioning the particulars of the
\nproperty to be known as ‘waqf” created by Badshah Babar.
\nThe absence of any mention of the tangible identity of the
\nalleged waqf property of item No. 26, is a fatal-flaw in the
\nalleged Government Notification paper No.243\/C read with
\npaper No. 243\/1A; because no body living in the extensive
\ndistrict of Faizabad or for that matter living in any part of
\nIndia, could or can reasonably make-out as to what is that
\nspecific property, which was proposed to be enlisted as
\nSunni Waqf” property in item No. 26, page 11, of paper No.
\n243\/1A. Consequently, a person interested in the property
\nin suits-living in a distant tract of Faizabad District or in
\nany other State of India could never understand that the
\nexisting entries of item No. 26 of paper No. 243\/1A,
\nunequivocally relate to the present property in suits. That
\n                                                          1291<\/span><\/p>\n
being so, proviso No. 1, to clause 2 of Section 5 of U.P.
\nMoslims Waqf Act, 1936 and clause 3 of Section 5 of the
\nsaid Enactment cannot come into play, in respect of the
\npresent property in suits; because the alleged Government
\nGazette Notification paper No. 243\/C read with paper No.
\n243\/1A, at item No. 26, page 11, of paper No. 243\/1A, was
\nmeaningless; and because of the blankness of its last
\ncolumn, the same did not and could not convey to the
\npublic at-large or to for that matter to any one that the said
\nitem No. 26 of 243\/1A, related to the present property in
\nsuits. The principle laid down in the ruling ‘Harla. Vs. The
\nState of Rajasthan, A.I.R. 1951, Supreme Court, p. 467
\nclearly goes to show that such a notification is no effective
\nnotification in the eyes of law or equity.\n<\/p>\n
      Learned counsel for the plaintiffs of the leading case
\ncited before me the ruling AIR 1959, Supreme Court, P.
\n198, ‘Sirajul Haq Khan and Others Vs. The Sunni Central
\nBoard of Waqf, U.P. and Others” to show that it was
\nincumbent upon any Hindu also interested in the property
\nof item No. 26 or 243\/1A, to bring a regular suit for
\ndeclaration within one year from 26.2.1944 when 243\/1A
\nwas published in the U.P. Government Gazette, according
\nto the provisions of clause 2, of Section 5 of Act XIII of
\n1936, and since none of the Hindus of India or Faizabad
\nDistrict or the defendants of the leading case or the
\nplaintiffs of the connected three cases had brought any suit
\nfor declaration within one year of 25.2.1944, challenging
\nthe validity of item No. 26, page 11, of notification No.
\n243\/1A; hence the defense of the defendants of the leading
\ncase and the suits of the plaintiffs of the connected three
\n                                                         1292<\/span><\/p>\n
cases are barred by clause 3, of Section 5 of Act XIII\/1936;
\nwhereby the aforesaid declaration of waqf by the waqf
\nCommissioner, U.P. at item No. 26 of paper No. 243\/1A,
\nhad become final and conclusive.\n<\/p>\n
      Bowing down to the principle laid down in the
\naforesaid ruling of Hon’ble the Supreme Court, I
\nrespectfully wish to point-out that the said ruling is
\ndistinguishable from the facts of the present cases at-hand;
\nbecause in the aforesaid ruling, it was taken for granted
\nthat a valid notification of the proposed waqf property was
\nduly made in the U.P. Government Gazette under Section
\n5(1) of Act XIII of 1936; whereas in the present cases, at-
\nhand, the alleged notification as contemplated in Section 5,
\nclause (1) of Act XIII of 1936, i.e. item No. 26 of the list
\npaper No. 243\/1A, does not amount to a valid notification;
\nbecause the same does not convey the idea or the identity
\nor necessary particulars about the property proposed by
\nthe waqf Commissioner to be listed as Sunni Waqf Property
\ndedicated by Badshah Babar. I have already pointed out
\nabove that the definition of the word “Waqf” in Section
\n3(1) of Act XIII of 1936, necessarily relates to some
\nspecific property. This means that a clear mention of the
\nproperty included in a waqf must necessarily be made
\nwhen making a mention of a particular waqf. This has not
\nbeen done in item No. 26 of paper No. 243\/1A, inspite of
\nthe fact that column No. 4, of the above noted proforma
\nwas specifically prescribed for that end. In this connection,
\nI may profitably refer to the aforesaid ruling itself, which
\nhas been cited on behalf of the plaintiffs of the leading
\ncase, in which their Lordships of Hon’ble The Supreme
\n                                                         1293<\/span><\/p>\n
Court have themselves held as under :-\n<\/p>\n
      “That expression ‘any person interested in a waqf”,
\n      must mean ‘any person interested in what is held to
\n      be a waqf’. It is only persons, who are interested in a
\n      transaction, which is held to be a waqf, who could
\n      sue for declaration that the decision of the
\n      Commissioner of Waqfs in that behalf is wrong and
\n      that the transaction in fact is not a waqf under the
\n      Act.”<\/p><\/blockquote>\n
      The above under-lined words, as used by their
\nLordships of Hon’ble The Supreme Court, clearly point-out
\nthat persons interested in a property held as waqf by the
\nWaqf Commissioner, will be duty bound to bring a suit for
\ndeclaration within one year from the date of notification
\nagainst the decision of the Waqf Commissioner if the
\nnotification had conveyed to them, the identity or the
\nparticulars of the proposed waqf property; and not
\notherwise. As pointed out above, item No. 26, of the
\nnotification list paper No.243\/1A is utterly blank in its
\ncolumn No. 4 due to which no body could understand as to
\nwhat property was intended to be included in the said item
\nNo. 26. That being so, the said notification is meaningless;
\nand does not carry the sanctions provided in clause 3 of
\nSection 5 of Act XIII of 1936 with it.\n<\/p>\n
      The entry of the name of Badshah Babar as Waqif, of
\na property in Faizabad District, as given in column No. 2,
\nof item No. 26 of paper No. 243\/1A, is not enough to
\nconvey the idea of the identify of the present property in
\nsuits, because Badshah Babar was the Emperor of the
\nMoghal empire in India, who never resided in Faizabad
\n                                                         1294<\/span><\/p>\n
District according to the pages of history of which a
\njudicial notice can be taken by this Court, Secondly, there
\nis no knowing as to how many waqfs were created by
\nBadshah Babar in various parts of Faizabad District.\n<\/p>\n
      In column No. 3 of item No. 26 of paper No. 243\/1A
\nis given the name of the Mutwalli as Syed Mohammed Zaki
\nMutwalli Masjid Babari, Qasba Shah Nawa, Dak-Khana
\nDarshan Nagar. A judicial notice of this fact can be taken
\nby this Court, that qasba Shah Nawa lying within the
\njurisdiction of Post Office Darshan Nagar is at a distance
\nof about 8 to 10 miles from Ayodhya. As the said entry of
\nthe particulars of the Mutwali stands in column 3 of item
\nNo. 26 of paper No. 243\/1A, it shows on the face of it that
\nSyed Mohammed Zaki might have been a Mutawalli of a
\nmosque built by emperor Babar in Qasba Shah Nawa, Post
\nOffice Darshan Nagar. In this way, the entries of columns 2
\nand 3 also of item No. 26 of paper No. 243\/1A are so vague
\nand mis-leading that a number of the public at-large,
\nresiding in any part of our vast country India, who might
\nbe interested in the present property in suits, could never
\nunderstands from the same that by the notification of item
\nNo. 26, of paper No. 243\/1A, which was the present
\nproperty in suits, which was proposed to be listed and
\ndeclared as Sunni Waqf property by the Commissioner of
\nWaqf U.P.\n<\/p>\n
      No explanation, whatsoever, has been offered on
\nbehalf of the plaintiffs of the leading case at the time of
\narguments on issue No. 17 or in the plaintiffs’ reply, paper
\nNo. 250\/C as to why column No. 4, of item No. 26 of paper
\nNo. 243\/1A was left blank. In para 5 of the plaintiffs’ reply
\n                                                        1295<\/span><\/p>\n
paper No. 250\/C, all that has been contended in that
\nconnection is that there is no vagueness in the entry
\nrelating to the mosque in suit at item No. 26, of paper No.
\n243\/1A; because in its column No. 2, the name of Badshah
\nBabar is clearly mentioned and in its column No. 3, the
\nname of present Mutwalli Syed Mohammed Zaki Mutwalli
\nMasjid Babari, is mentioned with his residential address as
\nQasba Shah Nawa, Post Office Darshan Nagar. It is
\nnoteworthy that in column No.3, of entry No. 26, of paper
\nNo. 243\/1A, it is nowhere mentioned that Qasba Shah
\nNawa, Post Office Darshan Nagar was the residential
\naddress of Syed Mohammed Zaki. Consequently, it has
\nbeen simply twisted at the end of para 1 of paragraph 5, of
\nthe plaintiffs’ reply paper No. 250\/2C, contains the
\n‘Sakoonat’ of residence of Syed Mohammed Zaki. As a
\nmatter of fact, a perusal of column No. 3 of item No. 26 of
\nthe notification list paper No. 243\/1A, will clearly convey
\nto the reader that Syed Mohammed Zaki was a Mutwalli of
\nsome mosque built by Babar in Qasba Shah Nawa Post
\nOffice Darshan Nagar. As such, the aforesaid explanation
\nof the plaintiffs has no force.\n<\/p>\n
      At the end of para 5, in paper No. 250\/3C, another
\nexplanation of the above was offered on behalf of the
\nplaintiffs of the leading case as under :\n<\/p>\n
      “The plaintiffs’ allegation being that the building in
\nsuit is mosque built by King Babar whose dynasty and
\naccounts of his conquest are matters of history well known
\nto all educated persons in India.”\n<\/p>\n
      The aforesaid explanation in the first place, conveys
\nthe impression that the plaintiffs of the leading case are
\n                                                           1296<\/span><\/p>\n
themselves conscious of the fact that it was a fatal lacuna
\nin the aforesaid notification paper No. 243\/C read with
\npaper No. 243\/1A whereby the description or particulars
\nor identity of the waqf property mentioned in item No. 26,
\nof paper No. 243\/1A was omitted in column No. 4 or for
\nthat matter in any of the columns of item No. 26, of paper
\nNo. 243\/1A. Secondly, the aforesaid explanation is
\nconfined to the alleged presumed knowledge of the
\neducated    persons    only-totally    ignoring    that   even
\nuneducated persons whose number surpasses the number
\nof education persons in this country, had also a right
\nvested in them to assail the entries of item No. 26 of paper
\nNo. 243\/1A.\n<\/p>\n
      Thirdly, it will be too remote to presume that the
\nfactum of the conquest of Emperor Babar over certain
\nparts of India, which one can derive from the pages of
\npopular books of history taught in schools and colleges
\nmust necessarily convey the details of those properties or
\nbuildings also, which were built by Emperor Babar in
\nvarious parts of this vast country at different times.\n<\/p>\n
      Lastly, it is to be remembers that it is not the case of
\nthe plaintiffs of the leading case that property in suit was
\noriginally a temple, which was ever conquered by Emperor
\nBabar, who got it remodeled in the shape of a mosque. The
\ncase of the aforesaid plaintiffs is contained in their plaint
\nin leading case, as well as in the statement of the plaintiffs’
\nlearned counsel made under order X, rule 2 C.P.C. on
\n20.1.64, at paper No. 187A, is that the property in suits is
\nthe originally mosque, which was built for the first time at
\nits place, by Emperor Babar in 1528 AD in the shape of a
\n                                                        1297<\/span><\/p>\n
mosque which he had dedicated to the followers of Islam
\nthereafter. That being so, the knowledge of the educated
\npersons regarding the conquest of Emperor Babar derived
\nfrom the pages of popular history books cannot profitably
\nutilized by the plaintiffs of the leading case because
\naccording to the plaintiffs’ own case, the property in suits
\nwas not conquered property but a property which was
\noriginally and for the first time built at its place by
\nEmperor Babar for use of the Moslim public.\n<\/p>\n
      In view of the facts and reasons discussed above, I
\nhold under issue No.17 that no valid notification under
\nSection 5(1) of U.P. Moslim Waqf Act No. XIII of 1936 was
\never made so far relating to the specific disputed property
\nof the present suits at-hand. The alleged Government
\nGazette Notification paper No. 243\/C read with the list
\npaper No. 243\/1A do not comply with the requirements of a
\nvalid notification in the eyes of law and equity as I have
\nalready discussed above. The aforesaid two papers,
\ntherefore, serve no useful purpose to the plaintiffs of the
\nleading cases.\n<\/p>\n
      In view of my above findings I hold that the bar
\nprovided in Section 5(3) of U.P. Act No. XIII of 1936 does
\nnot hit the defence of the defendants of the leading case
\nand their suits which are connected with the aforesaid
\nleading case. Issue No. 17 is answered accordingly.\n<\/p>\n
      In view of my findings given above, the subject
\nmatter of issue No. 5 (a) also stands automatically decided
\nagainst the plaintiffs of the leading case; and in favour of
\nthe defendants of the leading case and the plaintiffs of the
\nconnected cases. Issue No. 5(a) also, therefore, stands
\n                                                                 1298<\/span><\/p>\n
        answered accordingly.\n<\/p>\n
              My findings under issue No. 17, given above,
\n        automatically answer issue No. 5(c) also, accordingly.
\n        Consequently, issue No. 5(c) is answered in the negative.\n<\/p>\n
              In this way, only two parts (b and D) of issue No. 5
\n        stand for decision now. Issue No. 5 (b) will be taken up for
\n        disposal along with the remaining issues.\n<\/p>\n
              As regard issue No. 5 (d) counsel for the defendants
\n        of the leading case to report today whether issue No. 5 (d)
\n        is still prepared in face of my above findings under issues
\n        Nos. 17, 5 (a) and 5(c)?”\n<\/p>\n
1071.       After delivery of the aforesaid order, the learned
\ncounsels for defendants in Suit-4 made the following noting :\n<\/p>\n
              “In view of the finding of Court it is not necessary to
\n        press Issue no. 5 (d) at present. As such Issue No. 5 (d) is
\n        not pressed.”\n<\/p><\/blockquote>\n
1072.      After referring to the above statement of the learned
\ncounsels for defendants (Suit-4), learned Civil Judge passed
\nfollowing order in respect to Issue No. 5(d) (Suit-4).\n<\/p>\n
              “Learned counsel for the defendants of the leading
\n        case has endorsed above that he does not press issue no. 5\n<\/p><\/blockquote>\n
        (d) in view of the findings on issue nos : 17, 5(a) and 5(c),
\n        hence issue no. : 5(d) need not be answered by this Court.\n<\/p><\/blockquote>\n
              Consequently put up on 25.5.66 for final heading of
\n        the above mentioned cases.”\n<\/p><\/blockquote>\n
1073.     Issue No. 9 (Suit-1) is similar to Issue No. 5(a) (Suit-4).
\nIt reads as under:\n<\/p>\n
        “Is the suit barred by provision of Section 5(3) of the
\n        Muslim Waqfs Act (U.P. Act 13 of 1936)?”\n<\/p>\n
1074.     With respect to Issue No. 5(a) (Suit-4) the learned Civil
\n                                                                   1299<\/span><\/p>\n
Judge in his order dated 21.04.1966 has recorded the following
\nfindings:\n<\/p>\n
              “In view of my findings given above, the subject
\n        matter of issue No. 5 (a) also stands automatically decided
\n        against the plaintiffs of the leading case; and in favour of
\n        the defendants of the leading case and the plaintiffs of the
\n        connected cases. Issue No. 5(a) also, therefore, stands
\n        answered accordingly.”\n<\/p><\/blockquote>\n
1075.      Issue No. 9 (Suit-1) being similar, also stands decided
\naccordingly in terms of the judgement dated 21.04.1966 of the
\nlearned Civil Judge, i.e., in favour of the plaintiff (Suit-1).
\n1076.       Issues No. 7(a) and 7(b) (Suit-3) pertain to the
\nnotification under 1936 Act and read as under:\n<\/p>\n
        “Has there been a notification under Muslim Waqf Act Act
\n        No. 13 of 1936) declaring this property in suit as a Sunni
\n        Waqf?”\n<\/p><\/blockquote>\n
        “Is the said notification final and binding? Its effect?”\n<\/p><\/blockquote>\n
1077.      Issue No. 17 (Suit-4) which has been decided by the
\ndetailed order dated 21.04.1966 of the learned Civil Judge is
\nsimilar to both the above issues. Since it has already been held
\nthat no valid notification under Section 5(1) of 1936 Act in
\nrespect to the property in dispute has been issued, both the
\nissues no. 7(a) and 7(b) (Suit-3) are answered in negative, i.e., in
\nfavour of the plaintiffs (Suit-3) and against the defendants
\ntherein.\n<\/p>\n
1078.      Issues No. 5(b) (Suit-4) and 9(a) (Suit-1) are similar
\nwhich read as under:\n<\/p>\n
        “Has the said Act no application to the right of Hindus in
\n        general and defendants in particular, to the right of their
\n        worship?”\n<\/p><\/blockquote>\n
                                                                    1300<\/span><\/p>\n
        “Has the said Act no application to the right of Hindus in
\n        general and plaintiff of the present suit , in particular to his
\n        right of worship?”\n<\/p><\/blockquote>\n
1079. In the plaint (Suit-4) referring to 1936 Act, the plaintiffs
\nhave averred in paras 9 and 10 as under:\n<\/p>\n
        “9.     That in 1936 the U.P. Muslim Wakfs Act XIII of 1936
\n        was passed and under the provisions of the said Act, the
\n        Commissioner of Wakfs made a complete enquiry and held
\n        that Babari Masjid was built by Emperor Babar who was a
\n        Sunni Mohammedan and that the Babari Mosque was a
\n        public wakf. A copy of the Commissioner’s report was
\n        forwarded by the State Government to the Sunni Central
\n        Board of Wakfs and the Sunni Central Board of Wakfs
\n        published the said report of the Commissioner of Wakfs in
\n        the Official Gazette dated 26.2.1944.\n<\/p><\/blockquote>\n
        10.     That, no suit, challenging the report of the
\n        Commissioner of Wakfs was filed by the Hindus or by any
\n        person interested in denying the correctness of the report
\n        of the Commissioner of Wakfs, on the ground that it was
\n        not a Muslim Wakf or that it was Hindu temple.”\n<\/p><\/blockquote>\n
1080.         In the Additional Written Statement of defendants No.1
\nand 2 (Suit-4) para (g), (h) and (i) read as under.\n<\/p>\n
        “(g) That the Commissioner of Wakf only has to make an
\n        enquiry about number of Shia and Sunni Waqfs in the
\n        district the nature of each waqf, the gross income of
\n        property transferred in the Waqf, the Govt. revenue, the
\n        expenses and whether it is one expected u\/s 2. The
\n        Commissioner of Wakf has only to see whether any
\n        transaction is Waqf or not and that to which sect the Waqf
\n        belongs and further whether such Waqf is or is not
\n                                                                   1301<\/span><\/p>\n
        exempted by sec.2 of the Act. All these things he has to do
\n        in accordance with the definition of Waqf in Section 3(1) of
\n        the Act XIII of 1936, an Act which is exclusively meant for
\n        certain clauses of Muslim Waqfs. The finality and
\n        conclusiveness in intended to give effect to the scheme of
\n        administration under the Muslim Waqfs Act and does not
\n        and cannot confer jurisdiction to decide question of title as
\n        against non-Muslims. The legislature u\/s 5(3) does not say
\n        that the court shall take judicial notice of the reports of the
\n        Commissioner of Waqfs and shall regard them as
\n        conclusive evidence that the Waqf mentioned in such
\n        reports are Muslim Waqfs, as was done in Section 10 of the
\n        O.E. Act.\n<\/p><\/blockquote>\n
        (h)    That there has been no legal publication of alleged
\n        report and hence no question of any finality arises.\n<\/p><\/blockquote>\n
        (i)    That the purpose of publication is only to show to
\n        which sect. the waqf belongs. It does not call upon
\n        objections or suit by persons not interested in what is held
\n        to be a Waqf or not viz. by non muslims.”\n<\/p><\/blockquote>\n
1081.         The written statement dated 25th January, 1963 of
\ndefendant no.2, para 32 (g), (h) and (i) read as under :\n<\/p>\n
        “(g) That the Commissioner of Wakf only has to make an
\n        enquiry about number of Shia and Sunni Waqfs in the
\n        District the nature of each waqf, the gross income of
\n        property comprosed in the Waqf, the Government Revenue,
\n        the expenses and whether it is one expected U\/s 2. The
\n        Commissioner of Waqf has only to see whether any
\n        transaction is Waqf or not, and that, to which sect the Waqf
\n        belongs and further whether such Waqf is or is not
\n        exempted by sec.2 of the Act. All these things he has to do
\n                                                                   1302<\/span><\/p>\n
        in accordance with definition of Waqf in Section 3(1) of the
\n        Act XIII of 1936, an Act which is exclusively meant for
\n        certain clauses of Muslim Waqfs. The finality and
\n        conclusiveness is intended to give effect to the scheme of
\n        administration under the Muslim Waqfs Act and does not
\n        and cannot confer jurisdiction to decide question of title
\n        as against non-Muslims. The legislature U\/s 5(3) does not
\n        say that the court shall take judicial notice of the reports of
\n        the Commissioner of Waqfs and shall regard them as
\n        conclusive evidence that the Waqf mentioned in such
\n        reports are Muslim Waqfs as was done in Section 10 of the
\n        O.E. Act.\n<\/p><\/blockquote>\n
        (h)    That there has been no legal publication of alleged
\n        report and hence no question of any finality arises.\n<\/p><\/blockquote>\n
        (i)    That the purpose of publication is only to show to
\n        which sect. the Waqf belongs. It does not call upon
\n        objections or suit by persons not interested in what is held
\n        to be a Waqf or not viz. by non muslims.”\n<\/p><\/blockquote>\n
1082.         Defendant No.13 and 14 Baba Abhiram Dass and
\nPundarik Misra also in para 32(g) have said :\n<\/p>\n
        “(g) That the Commissioner of Wakf only has to make an
\n        enquiry about number of Shia and Sunni Waqfs in the
\n        District, the nature of each waqf, the Government Revenue,
\n        the expenses and whether it is one excepted U\/s 2. The
\n        Commissioner of Waqf has only to see whether any
\n        transaction is Waqf or not, and that, to which sect the Waqf
\n        belongs and further whether such Waqf is or is not
\n        exempted by Section 2 of the Act. All these things he has to
\n        do in accordance with definition of Waqf in Sec. 3(1) of the
\n        Act XIII of 1936, an Act which exclusively meant for
\n                                                                 1303<\/span><\/p>\n
        certain     clauses   of   Muslim    Waqfs.     The   finality
\n        conclusiveness is intended to give effect to the scheme of
\n        administration under the Muslim Waqfs Act and does not
\n        and cannot confer jurisdiction to decide question of title as
\n        against non-Muslims. The legislature under Section 5(3)
\n        does not say that the court shall take judicial notice of the
\n        reports of the Commissioner of Waqfs and shall regard
\n        them as conclusive evidence that the Waqf mentioned in
\n        such reports are Muslim Waqfs as was done in Section 10
\n        of the Taluqdari Act.\n<\/p><\/blockquote>\n
        (h)     There has been no legal publication of alleged report
\n        and hence no question of any finality arises.\n<\/p><\/blockquote>\n
        (i)     That the purpose of publication is only to show to
\n        which section the Waqf belongs. It does not call upon
\n        objections or suit by persons not interested in what is held
\n        to be waqf or not viz. by non Muslims.”\n<\/p><\/blockquote>\n
1083.         Defendant No.13 again in his written statement in paras
\n33 and 36 has pleaded as under :\n<\/p>\n
        33.     THAT in 1936 the U.P. Muslim Waqfs Act, was
\n        passed. It established two Central Boards of Waqfs in U.P.,
\n        namely the Sunni Central Board of Waqfs and the Shia
\n        Central Board of Waqfs, to supervise and control the
\n        Muslim Waqfs of the two sects respectively. All the existing
\n        Waqfs were required to be surveyed and classified into
\n        Sunni and Shia Waqfs by a Commissioner of Waqfs, who
\n        was required to submit his report to the local Government,
\n        and the Government in its turn was required to send that
\n        report to the Central Board concerned, according to the
\n        sect to which the waqf belonged, whereafter the Central
\n        Board concerned was required to notify in the Gazette the
\n                                                                 1304<\/span><\/p>\n
        Waqfs of its respective sect. There was no such notification
\n        in respect of the ‘waqf’ of the ‘mosque’ in dispute.
\n        Allegation to he contrary is wrong. The Plaintiff Waqf
\n        Board, has had no jurisdiction in respect of the premises
\n        even if it were a ‘mosque’. Further, it took no action or
\n        positive steps for the custody or the care of the building or
\n        its establishment as a ‘mosque’. No one acted as its
\n        Mutwalli, or Mauzin, or Imam, or Khatib, or Khadim. The
\n        descendant of Mir Baqi who was sought to be planted as
\n        the Mutwalli by the British was an opium addict. He denied
\n        that the grant of revenue free land was waqf for the
\n        purposes of the ‘mosque’, and instead claimed that it was
\n        his Nankar for services rendered to the British, and did not
\n        look after or manage the ‘mosque’ at all.\n<\/p><\/blockquote>\n
        36.   THAT the Sunni Central Board of Waqfs, U.P. has
\n        no jurisdiction or competence to meddle with the alleged
\n        ‘waqf ; or the alleged ‘mosque’, or to sue in respect thereof
\n        for want of a proper and valid notification in its favour, in
\n        respect thereof, under Section 5 of the U.P. Muslim Waqfs
\n        Act, 1936, the notification published in the Official Gazette
\n        dated 26.2.1944, having already been held to be invalid by
\n        the Court’s finding dated 21.4.1966 on issue No.17, in this
\n        Suit, which has become final and irreversible between the
\n        parties. Further, the suit when filed in 1961, was barred by
\n        the provisions of the U.P. Muslim Waqfs Act, 1960 ; only
\n        the Tribunal constituted under that Act had the jurisdiction
\n        to entertain a suit of this nature, if filed within the
\n        limitation prescribed by it, and the Civil Court had no
\n        jurisdiction to entertain it.\n<\/p><\/blockquote>\n
1084.         Defendant No.17 in his (Additional) written
\n                                                                    1305<\/span><\/p>\n
statement dated 14th September, 1995 in para 11 has pleaded as
\nunder :\n<\/p>\n
        “11. That Sunni Central Board of Waqfs has no legal
\n        authority to file the suit and as such the suit is liable to be
\n        dismissed.”\n<\/p><\/blockquote>\n
1085.          With respect to Issue No. 9(a) (Suit-1) we find
\npleadings in paras 25 and 26 of the written statement of
\ndefendant no. 10 which read as under:\n<\/p>\n
        “25. That the ownership of the mosque in question vests in
\n        the God Almighty and the said mosque is a waqf property
\n        and the waqf character of the said mosque cannot be
\n        challenged by the plaintiff in this suit specially so when the
\n        plaintiff had never challenged the entry of the said waqf
\n        which was made in pursuance of the gazette notification
\n        issued by the State Government of Uttar Pradesh under
\n        provisions of the U.P. Muslim Waqf Act, 1936.\n<\/p><\/blockquote>\n
        26.    That the plaintiff’s suit is barred even by the
\n        provisions of the U.P. Muslim Waqf Act, 1936.”\n<\/p><\/blockquote>\n
1086.          With respect to applicability of Wakfs Act, Sri M.M.
\nPandey, counsel for plaintiffs (Suit-5) has submitted:\n<\/p>\n
        (A)    The Act needs a close examination. The Preamble
\n        aims at providing better governance and administration of
\n        certain classes of Wakfs and supervision of Mutawalli’s
\n        management. S. 3(1) does not create any ‘new’ class of
\n        Wakf    and    recognises    only   those    known    to    the
\n        Mahommedan Law; the Statement of Objects and Reasons
\n        also says so and adds that the Act “is not intended to
\n        deprive the Mutawallis of any authority lawfully vested in
\n        them, nor it aims at defining all the powers, duties and
\n        liabilities of the Mutawallis…” S. 4(1) provides for
\n                                                         1306<\/span><\/p>\n
appointment of a District Commissioner of Wakf “for the
\npurpose of making survey of all wakfs”.          Procedural
\npowers of Civil Court are conferred on the Commissiioner
\nfor summoning witnesses, production of documents, local
\ninspection\/ investigation u\/s 4(4) while making inquiries,
\nbut there are no guidelines how to ‘initiate’ an inquiry,
\nwhat notices are required to be issued and to whom. S. 4(3)
\nconfers power on him to make ‘such inquiries as he
\nconsider necessary’; there is no guideline for the manner in
\nwhich he should proceed. This seems to be ‘arbitrary’ and
\nviolates the Constitutional requirement of fairness. The
\nword    ‘necessary’   will   make   Wakf    Commissioner’s
\ndiscretion to be objective and open to judicial review.The
\nAct does not provide for framing Rules of procedure for the
\nWakf Commisioner to observe before initiating an inquiry.\n<\/p><\/blockquote>\n
If on particular facts or situation, Notice to a particular
\nperson is essential in the interests of justice and fairness,
\nthe Wakf Commissioner cannot plead that he had
\nunrestricted discretion whether or not to issue Notice; in
\nlaw, every fair procedure is permissible unless specifically
\nprobited. The Act does not prohibit the Wakf Commissioner
\nto issue notices for giving opportunity to persons interested
\nwhile conducting the inquiry. The proceeding before the
\nWakf Commissioner is quasi judicial as held in the case of
\nBoard of Muslim Wakfs, Rajasthan Vs. Radha Kishen
\n(1979)2 SCC 468 (para 25). Further the SC has held in
\nparas 37 to 39 that where a stranger who is a non-muslim
\nis in possession of a certain property, his right, title and
\ninterest therein cannot be put to jeopardy merely because
\nthe property is included in the list prepared by the Wakf
\n                                                         1307<\/span><\/p>\n
Commissioner under the U.P. Wakf Act. Although this
\ndecision concerns Section 6(1) of the Wakf Act of 1960, the
\nSC has observed in para 35 that that Section “is based on
\nSub-section (2) of Section 5 of U.P. Muslim Wakf Act of
\n1936”. This distinguishes the decision from that in 1959 SC
\n198, Sirajul Haq Khan Vs Sunni Central Board of Wakf
\nwhere both Plaintiff and Defendants were Muslims. Thus
\nHindus, Nirmohi Akhara and any of the Defdts in OOS 4 of
\n1989, cannot be treated to be a ‘person interested in a
\nwakf’ u\/s 5(2) of the Wakf Act of 1936. It will also be
\nappreciated that if Nirmohi Akhar and others were to be
\ntreated to be ‘person interested in a wakf’, it was incumbent
\nupon the Wakf Commissioner to issue notices at that very
\ntime before deciding the issue. Even if it be treated to be
\nadministrative, an opportunity of hearing ought to have
\nbeen given to Nirmohi Akhara and Hindu Community as
\nheld, after considering several decisions of Supreme Court,
\nin the case of Muzaffar Hussain Vs. State of U.P, 1982
\nAllahabad Law Journal 909 (DB).\n<\/p>\n
(B)   Wakf Commissioner submits his report of inquiry to
\nState Government u\/s 4(5). The State Govt. has to ‘forward
\na copy’ of the report to Shia as well as Sunni Boards of
\nWakf u\/s 5(1) and commands the Boards, as soon as
\npossible, to ‘notify in the Gazette the Wakfs relating to the
\nparticular sect to which, according to such report, the
\nprovisions of this Act apply’. This signfies that Shia and
\nSunni Boards are required to publish notices, in the
\nGazette, of only those Wakfs which relate respectively to
\nShia and Sunni Wakfs; further, only the particulars of the
\nWakf, without the report, are required to be published.\n<\/p>\n
                                                          1308<\/span><\/p>\n
Mere publication of the particulars of Wakf without the
\nreport cannot constitute notice of Wakf Commissioner’s
\nfinding\/report to Public, much less to any particular
\nindividual.\n<\/p>\n
(C)   Over and above the procedure contained in Ss 4 and
\n5 for the Wakf Commisioner in making survey and
\npreparing lists of Wakfs and their publication by concerned
\nWakf Boards, S. 38 authorises the Wakf Board concerned
\nalso to register a Wakf at its Office. This registration may
\nbe made on an application by Mutwalli under sub-section
\n(2), or by wakif, his descendants, beneficiary or any
\nMuslim of the sect under sub-section (3) or by ‘any person
\nother than the person holding possession’ of wakf property
\nunder sub-section (6). In an application under sub-section
\n(6), the Wakf Board is required to give notice of the
\napplication to the person in possession and hear him. The
\nBoard will make an inquiry and pass final orders. The
\nquestion is that since the Act specifically provides for issue
\nof notice by Wakf Board to a person in possession of wakf
\nproperty (whoever he may be – even a stranger), why no
\nprovision is made for Wakf Commissioner to issue similar
\nnotice to person in possession for the purpose of inquiry
\nu\/ss 4 and 5? An essential distinction is that while Wakf
\nCommissioner is an officer of the State, the Wakf Board is
\nnot; hence while Wakf Commissioner may be presumed to
\nact in a fair and just manner, the Wakf Board may not be
\npresumed so to act, hence specific procedural methodology
\nis prescribed for it in the matter of deciding a matter. As
\nmentioned above, the proceedings before the Wakf
\nCommissioner are quasi-judicial. ‘Natural justice’ would
\n                                                           1309<\/span><\/p>\n
require such notice to be given to person in possession;
\nfailure to do so would render Wakf Commissioner’s
\nfindings and list of Wakfs to be ineffective against
\nstrangers. In this case, Wakf Commissioner did not issue
\nnotice to Nirmohi Akhara who were admittedly in
\npossession of Eastern half of the platform of DS itself as
\nsettled by the British Administration in 1885, in addition to
\nRam Chabutra, Sita Rasoi Chabutra and other portions of
\nDA within the campus of DS. Admittedly, in 1934 during
\nHindu-Muslim riots, Hindus had demolished certain
\nportions of DS, thereby exerting their rights over the
\nproperty to the knowledge of everyone concerned with DS.
\nThe Govt. of U.P. even imposed punitive fine on Hindus for
\ndemolishing portions of DS which was repaired by the
\nGovt. Thus the Hindu public in general (in addition to
\nNirmohi Akhara) was interested in DS, and a general
\npublic notice for Hindu worshippers too was called for.
\nNone was given, hence the entire proceeding of the Wakf
\nCommissioner, declaring DS to be Sunni Wakf, was illegal.
\n(D) Then follows the provision which is most important
\nfor the purposes of these cases: S. 5(2) and 5(3). According
\nto S. 5(2), the Mutawalli of a Wakf, or any person
\ninterested in a Wakf may bring a suit in a Civil Court for a
\ndeclaration that any transaction held by the Commissioner
\nof Wakfs to be Wakf is not Wakf, but no such suit by a
\nperson interested in the Wakf shall be instituted “after more
\nthan one year of the notification referred to in subclause
\n(1)”. Sub-section (3) provides that subject to the final result
\nof such suit “the report of the Commissioner of Wakfs shall
\nbe final and conclusive”. Subsection (4) commands that the
\n                                                        1310<\/span><\/p>\n
Commissioner shall not be made a Defendant to the suit
\nand no suit shall be instituted against him for anything
\ndone by him in good faith under colour of this Act. This
\nbar cannot be made applicable to Plaintiffs of OOS 5 of
\n1989. Firstly, there is no valid Wakf of DS. Secondly, the
\nPlaintiffs were neither Parties to the proceedings before,
\nnor were given an opportunity by Wakf Commissioner to
\ncontest the claim of declaration of DS to be Wakf. Thirdly,
\nneither Nirmohi Akhara, who were admittedly in
\npossession of almost half portion of Platform (Chabutra) of
\nDS lying towards East of a grilled partition wall erected by
\nBritish administration in 1855 in addition to considerable
\nportions of campus of DS, including Ram Chabutra, was
\ngiven     notice   of   the   proceedings,    nor    Hindu
\ndevotees\/community were given general notice although
\nsince 1934 riots they were admittedly asserting rights over
\nit. If the requirements of Section 5 of the Wakf Act of 1936
\napplied to Nirmohi Akhara\/Hindu devotees on the ground
\nthat they were ‘persons interested in the wakf’, then that
\nwas all the more reason for the Wakf Commissioner to
\nhave given notice to these persons. The action and decision
\nof Wakf Commissioner, or by Sunni Central Board of Wakf
\non its basis, therefore, could not be binding on Plaintiffs,
\nNirmohi Akhara or Hindu devotes\/community.
\n(E)     When Wakf Act of 1960 came into force, the Sunni
\nBoard made ‘Registration’ of some of the disputed
\nproperties as Sunni Wakf u\/s 29 of 1960-Act. Supreme
\nCourt held that any Survey report made and Registration of
\nWakf thereon was “futile and of no avail” because
\nRegistration of Wakf under 1936-Act had been kept alive
\n                                                              1311<\/span><\/p>\n
        by 1960-Act and the latter Act permitted Registration of
\n        only those Wakfs which were ‘other than’ those already
\n        Registered under 1936-Act. The claim of Shia community
\n        was upheld and Sunni Community were restrained
\n        permanently from interfering with exercise of rights by
\n        Shias. Now, there is absolutely nothing in common between
\n        Ghulam Abbas’ case and the present cases.\n<\/p>\n
1087.        The creation of waqf was held valid and lawful by
\nthe Prophet Mohammad. It is said that this rule was laid down
\nby Prophet himself and handed down in succession by Ibn Abu
\nNafe and Ibn Omar. Omar got piece of land in Khaiber
\nwhereupon he came to the Prophet and sought his counsel to
\nmake the most pious use of it. The Prophet said “if you like you
\nmay make a waqf of it, as it is, and bestow it in benification”.
\nOmar thereupon bestowed it in charity on his relatives, the poor
\nand slaves and in the path of God, and travellers in a way that
\nthe land itself might not be sold, nor conveyed by gift, nor
\ninherited. It is said that waqf continued in existence for several
\ncentury until the land became waste. The prophet of Islam not
\nonly declared such works to be valid and lawful but also
\nencourage their creation by dedicating his own property, the
\nlittle that he had, in favour of posterity. It would be useful to
\nrefer as to what constitute a lawful waqf under Muslim Law. A
\nDivision Bench decision of Calcutta High Court in Meer
\nMahomed Israil Khan Vs. Sashti Churn Ghose and others, 19
\nILR (Calcutta) (1892) 412 where Justice Ameer Ali answering
\nthe question as to what constitute a lawful waqf under
\nMussulman law observed that there must be a substantial
\ndedication for charitable or pious purpose. His Lordship further
\nobserved:\n<\/p>\n
                                                                   1312<\/span><\/p>\n
              “In the Mussulman system law and religion are
\n        almost synonymous expressions, and are so intermixed with
\n        each other that it is wholly impossible to dissociate the one
\n        from the other: in other words, what is religious is lawful;
\n        what is lawful is religious. The notions derived from other
\n        systems of law or religion form no index to the
\n        understanding or administration of the Mussalman law.
\n        The words “piety” and “charity” have a much wider
\n        signification in Mussalman law and religion than perhaps
\n        in any other. Every “good purpose,” wujuh-ul-khair (to
\n        use the language of the Kiafaya), which God approves, or
\n        by which approach (kurbat) is attained to the Deity, is a
\n        fitting purpose for a valid and lawful wakf. A provision for
\n        one’s children, for one’s relations, and under the Hanafi
\n        Sunni law for one’s self, is as good and pious an act as a
\n        dedication for the support of the general body of the poor.
\n        The principle is founded on the religion of Islam, and
\n        derived from the teachings of Prophet.”\n<\/p><\/blockquote>\n
1088.         Thereafter Justice Ameer Ali proceeded to quote
\nfrom “Hedaya” a commentary by “Fath-ul-kadir” said to be
\nfrequently quoted in “Fatawa-i- Alamgiri” in great detail and it
\nwould be useful to reproduce the same as under:\n<\/p>\n
              “I will give here a few passages from some of the
\n        best known authorities to show how utterly opposed the
\n        view taken in this case is to the Muhammadan law. The
\n        Fath-ul-kadir says–” Literally, it (the word wakf) signifies
\n        detention, . . . . in law . . . according to the Disciples, the
\n        tying up of property in such a manner that the substance
\n        (asl=corpus) does not belong to anybody else excepting
\n        God, whilst the produce is devoted to human beings, or is
\n                                                            1313<\/span><\/p>\n
spent on whomsoever he [the wakif] likes; and the reason
\nof it is that, though a desire to approach the Deity (kurbat)
\nshould form the ultimate motive of all wakfs, yet if, without
\nsuch an (immediate) desire, a person were to dedicate a
\nproperty in favour of the affluent (aghnia), the wakf would
\nbe valid in the same way as a wakf in favour of the indigent
\nor for the purposes of a mosque: for, in giving to the
\naffluent there is as much kurbat as in giving to the poor or
\nto a mosque, and though the profit may not have been given
\nto the poor on the extinction of the affluent [still] it is wakf
\nand will be treated as wakf even before their extinction.\n<\/p><\/blockquote>\n
This principle is founded on the reason that the motive in
\nall wakfs is to make one’s self beloved by doing good to the
\nliving in this world and to approach the Almighty in the
\nnext . . . . .\n<\/p>\n
        “In wakf Islam is not a condition; consequently if a
\nZimmi makes a wakf on his children and his posterity and
\ngives it at the end to the indigent, it is lawful [equally with
\nthat made by a Moslem]. And it is lawful in such a case to
\ngive the usufruct conditioned for the indigent to the poor of
\nboth Moselms and Zimmis. The wakif may lawfully
\ncondition to give the usufruct solely to the poor of the
\nZimmis, and in that will be included Jews and Christians
\nand Magians; or he may condition that a special body of
\nthem may get the produce . . . . whatever condition the
\nwakif makes if it is not contrary to the Sharaa, will be
\nlawful. And so long as the object is not sinful, the wakif
\nmay give to whomsoever he likes . . . According to Abu
\nYusuf the mention of perpetuity [or dedication to an object
\nof a permanent nature] is not necessary to constitute a
\n                                                           1314<\/span><\/p>\n
valid wakf, for the words wakf and sadakah conjunctively
\nor separately imply perpetuity . . . In the Baramika it is
\nstated that, according to Abu Yusuf, when a wakf is made
\nin favour of specific individuals, on their extinction the
\nprofits of the wakf will be applied to the poor . . . Among
\nthe wakfs created by the Sahaba [Companions of the
\nProphet], . . the first is the wakf of Omar (may God be
\npleased with him) of his land called Samagh [at Khaibar] .
\n. that created by Zobair bin Awwam of his house for the
\nsupport of his daughter who had been divorced (by her
\nhusband); . . that of Arkam Mukhzumi, on his children of
\nhis house called Dar-ul-Islam at Safar (near Mecca),
\nwhere the Prophet used to preach Islam, and where many
\nof the disciples, among them Omar, accepted the Faith . . .
\nBaihaki in his Khilafiat has stated upon the authority of
\nAbu Bakr Obaidulla bin Zubair that [the Caliph] Abu Bakr
\n(may God be pleased with him) had a house in Mecca
\nwhich he bestowed in charity upon his children, and that it
\nis still in existence   . .   . And Saad ibn Abi Wakkas
\nbestowed in charity his houses in Medina and Egypt upon
\nhis children, and that wakf is still in existence, and [the
\nCaliph] Osman (may God be pleased with him) made a
\nwakf of Ruma, which exists until to-day, and Amr Ibn al-
\nAas [the Amru of European history], of his lands called
\nWahat in Tayef and of his houses in Mecca and Medina
\nupon his children, and that [wakf] also is still continuing . .
\n. According to Abu Yusuf the wakif may lawfully retain the
\ngovernance of the trust, or reserve the profits for himself
\nduring his lifetime. This has been fully dealt with by Kuduri
\nin two parts . . The jurists, Ahmed ibn-i-Abi Laila, Ibn
\n                                                          1315<\/span><\/p>\n
Shabarma, Zahri, and others, agree with Abu Yusuf.
\nMohammed alone holds a contrary opinion . . . Abu Yusuf
\nbases his rule upon the practice and sayings of the Prophet
\nhimself who used to eat out of the produce of the lands
\ndedicated by him …. Another proof in support of Abu
\nYusuf’s rule is that the meaning of wakf is to extinguish the
\nright of property in one’s self and consign it to the custody
\nof God. Therefore, when a person reserves the whole or a
\nportion of the profits for himself, it does not interfere with
\nthe dedication, for that also implies the approval of the
\nAlmighty and is lawful . . . For example, if a man were to
\ndedicate a caravanserai and make a condition that he may
\nrest in it, or a cistern and condition that he should take
\nwater from it, or a cemetery, and say that he may be buried
\nthere, all this would be lawful. [Further] our Prophet (may
\nthe blessings of God be with him) has declared that a man’s
\nproviding for his subsistence is a sadakah [an act of piety
\nor charity]. This Hadis has been substantially handed
\ndown by a large number [of people] and is authentic, and
\nIbn Maja states from Mikdam bin Maadi Karib that the
\nProphet declared that no gain of a man is so meritorious as
\nthat which he earns by the labour of his hands; and that
\nwhich he provides for the maintenance and support of
\nhimself, the people of his household, his children, and his
\nservants, is a sadakah. And Imam Nisai from Balia and he
\nfrom Buhair has given the same tradition in these
\nwords:-‘Whatever thou providest for thyself is a sadakah.’
\nIbn Haban in his Sahih states that Abu Said reports from
\nthe Prophet that any one who acquires property in a lawful
\nmanner, and provides therewith for his maintenance and
\n                                                                 1316<\/span><\/p>\n
        for that of the other creatures of God, gives alms in the way
\n        of the Lord. . . . And Dar Kutni reports from Jabir that the
\n        Prophet (may God’s blessing be with him) . . . declared
\n        that all good acts are sadakah and that a man providing
\n        subsistence for himself and his children and his belongings,
\n        and for the maintenance of his position, is giving charity in
\n        the way of God. . Tibrani has reported from Abi Imama
\n        that the Prophet of God declared that a man making a
\n        provision for his own maintenance, or of his wife, or of his
\n        kindred, or of his children, is giving sadakah. And in the
\n        Sahih of Muslim it is stated from Jabir that the Prophet
\n        told a man to make a beginning with himself and give the
\n        remainder to his kinsfolk.”\n<\/p>\n
1089.         Justice Ameer Ali further on page 434 of the report
\nobserved that the words “charitable” and “religious” must be
\nunderstood from a Mussulman and not from an English point of
\nview. His view was concurred by Justice O’Kinealy and His
\nLordship also observed on page 437 of the report that “it must
\nbe an endowment for religious or charitable purposes; and if we
\nwant to interpret a document of that kind, what we must naturally
\nlook to is what is really meant by the words “religious” or
\n“charitable” among Muhammadans. As an example, we know
\nthat the words “charitable purpose” in Scotland have quite a
\ndifferent meaning from that in which they are used in England.
\nAnd so in India, in judging of what is really meant by the words
\n“religious” and “charitable” by a Muhammadan, we must take
\nthe view which their law takes, and not what is to be found in the
\nEnglish Dictionary.”\n<\/p>\n
1090.         The term “waqf” literally means detention. The legal
\nmeaning of waqf according to Abu Hanifa, is the detention of a
\n                                                              1317<\/span><\/p>\n
specific thing in the ownership of the wakif or appropriator, and
\nthe devoting or appropriating of its profits or usufruct “in
\ncharity on the poor or other good objects.” According to the two
\ndisciples, Abu Yusuf and Muhammad, waqf signifies the
\nextinction of the appropriator’s ownership in the thing dedicated
\nand the detention of the thing in the implied ownership of God,
\nin such a manner that its profits may revert to or be applied “for
\nthe benefit of mankind”. A waqf extinguishes the right of the
\nwakif or dedicator and transfers ownership to God. By
\ndedication and declaration the property in the wakif is divested
\nand vests in the Almighty.\n<\/p>\n
1091.       For the present purpose an idea of what constitute
\nwaqf in Islam is sufficient and we need not to go into further
\ndetails. With respect to ‘waqf’ as recognised in Islamic Law,
\nsince hereat we are concerned with the relevant legislative
\naspect of the matter as it operated in India, we shall deal with
\nIslamic Law in this respect in detail while dealing with the issue
\nof validity of creation of waqf with respect to the property in
\ndispute.\n<\/p>\n
Administration of Waqfs
\n1092.       The concept of waqf in India got introduced with the
\nestablishment of Muslim rule. It appear that earlier ‘Sultan’ was
\nthe supreme authority over the administration of waqf properties
\nand ultimate power vested in him. There was some
\ndecentralisation of the actual administration, control and
\nsupervision of waqf institutions. At the Centre, the Sadar-us-
\nSadar was entrusted with the overall control of waqfs
\nadministration in the empire. His main work was to supervise
\nwaqfs’ administration and its properties. At the provincial level,
\nit was Sadr-e-Subha and in District, Sadre-e-Sarkar used to look
\n                                                             1318<\/span><\/p>\n
into the administration of waqfs. At the local level, the waqfs
\nused to be looked after by Qazis who also looked after waqf
\ncases. The administration of individual waqf was the
\nresponsibility of Mutawalli, which is still continuing. This kind
\nof arrangement finds mention in detail in Fatwai Alamgiri said
\nto be prepared under the command of Mughal Emperor
\nAurangzeb.\n<\/p>\n
1093.        During the reign of Indian sub-continent by East
\nIndia Company, in the territory under their command so far as it
\nhad charitable and religious institutions of Hindus and
\nMohammedans, they were regulated by British Government
\nexercising visitatorial powers. In exercise of this power, the
\nBritish Government enacted several laws to prevent fraud and
\nwaste, and to secure honest administration of such institutions.
\nThe British Government did not interfere with the personal laws
\nof Hindus and Muslim like inheritance, succession, marriage
\nand religious institutions.\n<\/p>\n
1094.        In 1810, the general superintendence of religious
\nand charitable endowments vested in Board of Revenue and the
\nBoard of Commissioners. Vide Bengal Regulations XIX of 1810
\n(The Bengal Charitable Endowment Public Building and
\nEscheats Regulations, 1810), the Board of Revenue was put in
\npossession of landed and other properties of charitable and
\nreligious endowments, of both Muslims and Hindus. The
\nRegulations were obviously applicable to the area under the
\nauthority of East India Company. The said Regulations,
\nhowever it appears, had no application to the area or to
\nproperties situated in Oudh for the reason that under the
\nagreement of the East India Company with Nawab of Awadh
\n(Lucknow), the said area of Oudh continued to be ruled by the
\n                                                                 1319<\/span><\/p>\n
“Nawabs” till its annexation in 1856.\n<\/p>\n
1095.         After the transfer of power from East India
\nCompany to British Government in 1857, a series of legislation
\ncame including those which were enacted with an object of
\nproper administration of religious and charitable endowment.
\nThe Religious Endowments Act, 1863 (Act 20 of 1863) was
\npassed and the properties relating to religious, charitable and
\npublic endowments were placed under the control of trustees,
\nmanagers or superintendents. Local Committees were appointed
\nwhich exercise the powers of the Board of Revenue or local
\nagents.\n<\/p>\n
1096.       In respect to the Muslim in Oudh area, Oudh Laws Act
\nXVIII of 1876 was enacted. Vide Section 3 thereof, the laws to
\nbe administered in the case of Mohammadans would be the
\nsame as in East Panjub. The East Punjab was governed by
\nPunjab Laws Act IV of 1872 and Sections 5 and 6 thereof
\nprovide as under:\n<\/p>\n
        “5. In questions regarding succession, special property of
\n        females, betrothal, marriage, divorce, dower, adoption,
\n        guardianship, minority, bastardy, family relations, wills,
\n        legacies, gifts, partitions or any religious usage or
\n        institution, the rule of decision shall be–\n<\/p><\/blockquote>\n
                (1) any custom applicable to the parties concerned
\n                     which is not contrary to justice, equity or good
\n                     conscience and has not been, by this or any
\n                     other enactment, altered or abolished, and has
\n                     not been declared to be void by any competent
\n                     authority;\n<\/p><\/blockquote>\n
                (2) the Mahomedan law, in cases where the parties
\n                     are Mahomedans,…. except in so far as such
\n                                                                1320<\/span><\/p>\n
                   law has been altered or abolished by
\n                   legislative enactment, or is opposed to the
\n                   provisions of the Act, or has been modified by
\n                   any such custom as is above referred to.”<\/p><\/blockquote>\n
             “6. In cases not otherwise specially provided for, the
\n        Judges shall decide according to justice, equity and good
\n        conscience.”\n<\/p><\/blockquote>\n
1097.        In respect to certain specified waqfs in Husainabad
\narea in Lucknow (Oudh), Husainabad Endowment Act, 1878
\n(Act 15 of 1878) was enacted.\n<\/p>\n
1098.        In 1908, by enacting new Code of Civil Procedure,
\nSections 92 and 93 were incorporated for the proper
\nadministration of trusts. Under these sections two or more
\npersons having any interest in a trust could file a suit with the
\nprior permission of the Advocate General in relation to a matter
\nregarding the appointment and removal of trustees, matters
\nrelating to the sale, exchange or mortgage of trust property, etc.
\n1099.        Upto 1913 a waqf was valid if the effect of the deed
\nof wqkf was to keep the property in substance to charitable uses.
\nIn Abul Fata Mohammad Vs. Rasamaya, 22 IA 76 it was held
\nby Privy Council that if the primary object of the waqf was the
\naggrandizement of the family and the gift to charity was illusory
\nwhether from its small amount or from its uncertainty and
\nremoteness, the waqf, for the benefit of the family was invalid
\nand no effect could be given to it. This decision caused lot of
\nprotest and dissatisfaction amongst the Muslim communities in
\nIndia since the said decision in particular paralyzed the power of
\nMuslims to make a settlement in favour of family, children and
\ndescendants or what is known as waqf-alal-aulad. Consequently,
\nthe matter was represented by the Indian Muslims before Lord
\n                                                              1321<\/span><\/p>\n
Curzon, the then Viceroy and Governor General of India
\ncanvassing that for family settlement by way of waqf from the
\ntime of Prophet Mohammad down to the present time an
\nunbroken chain of evidence existed to show that the law of
\nwaqf-alal-aulad existed in all countries having Muslim
\npopulation like Arabia, Central Asia, Persia, Afghanistan and
\nIndia. It was represented that the precepts of the Prophet support
\nthe family settlement amongst Muslim by way of waqf. It is said
\nthat the following precepts of the Prophet were cited:\n<\/p>\n
      “The apostle of God said:\n<\/p><\/blockquote>\n
                  “When a Mussalman bestows on his family and
\n            kindered, for the intention of rewards, it becomes
\n            alms, although he has not given to the poor, but to
\n            his family and children.”\n<\/p><\/blockquote>\n
            The apostle of God said:\n<\/p><\/blockquote>\n
                  “There is one Dinar which you have bestowed
\n            in the Road of God, and another in freeing a slave,
\n            and another in alms to the poor, and another given to
\n            your family and children; that is the greatest Dinar
\n            in point of reward which you gave to your family.”\n<\/p><\/blockquote>\n
      The apostle of God said:\n<\/p><\/blockquote>\n
                  “The most excellent Dinar which a man
\n            bestows is that which he bestows upon his own
\n            family. Omme Salma says, “I said to the Prophet, is
\n            there any good thing for me of rewards, for my
\n            bestowing on the Sons of Abu Salmas. His sons are
\n            no otherwise than mine.” The Prophet said: “Then
\n            give to them, and for you are rewards of that you
\n            bestow upon them”\n<\/p><\/blockquote>\n
      The apostle of God said:\n<\/p><\/blockquote>\n
                                                                  1322<\/span><\/p>\n
                         “Giving alms to the poor has the reward of
\n                one alms, but that given to kindered has two
\n                rewards; one the reward of alms, the other the
\n                reward of relationship. “The Prophet of God
\n                declared that a pious offering to ones family (to
\n                provide against their getting into want) is more pious
\n                than giving alms to beggars.”\n<\/p><\/blockquote>\n
1100.       Accepting the claims of Muslims in India, Mussalman
\nWaqf Validating Act, 1913 (Act No. 6 of 1913) (hereinafter
\nreferred to as the “1913 Act”) was enacted to validate the waqf
\ncreated for the benefit of the members of family i.e. waqf-alal-\n<\/p><\/blockquote>\n
aulad. This Act came into force on 07.03.1913. The preamble of
\n1913 Act shows that it was enacted to declare the rights of
\nMuslims to make settlements of property by way of waqf in
\nfavour of their family, children and decedents. The term “waqf”
\nwas defined in Section 2 (1) as under :\n<\/p>\n
        “2. …………………..\n<\/p><\/blockquote>\n
                (1) “Waqf” means the permanent dedication by a
\n                person professing the Mussalman faith of any
\n                property for any purpose, recognized by the
\n                Mussalman law as religious, pious or charitable.”\n<\/p><\/blockquote>\n
1101.       Section 5 of 1913 Act states that nothing therein shall
\naffect any custom or usage whether local or prevalent among
\nMusalman or any particular class or sect. The definition of
\n‘Waqf’ under 1913 Act recognises the concept of waqf as known
\nin Shariyat Law.\n<\/p>\n
1102.      As already stated, a waqf therefore is an unconditional
\nand permanent dedication of property with implied detention in
\nthe ownership of God in such a manner that the property of the
\nowner may be extinguished and its profit may revert to or be
\n                                                                 1323<\/span><\/p>\n
applied for the benefit of mankind except for purposes
\nprohibited by Islam.\n<\/p>\n
1103.   It may, however, be clarified at this stage that a waqf is
\ndistinct from Sadaqah, Hiba and trust. In Islamic Law- Personal
\nby B.R.Verma first published in 1940 (6th Edition published in
\n1986) (reprinted in 1991 by M.H.Beg and S.K.Verma) identify
\nthe above distinction on page 630-631 of the book as under :\n<\/p>\n
             Sadaqah                           Wakf
\n(1)The corpus itself may be (1)The income only can be
\n   consummed.                       sent.\n<\/p>\n
(2)It is only a donation.        (2)It is an endowment.<\/p>\n
\n(3)The legal estate and not (3)The           legal   estate  is\n   merely beneficial interest       transferred to God. It does\n   passes to charity to be held     not vest in the trustee or\n   by trustees appointed by the     mutawalli who cannot deal\n   donor. The trustee can           with the corpus.\n   dispose of the corpus itself.\n<\/pre>\n
1104. The distinction between waqf and sadaqah is that in the
\ncase of former the income only can be spent while in the case of
\nlatter the corpus of the property may be consumed.\n<\/p>\n
               Hiba                              Wakf
\n(1)It relates to absolute interest (1)It is only the usufruct which
\n   in the subject of the gift, the    can be spent and the corpus
\n   donee having a right not           cannot be disposed of except
\n   only to spend the usufruct         under        very      limited
\n   but also the property itself.      conditions.\n<\/p>\n
(2)The donee is a human being. (2)The            ownership         is
\n                                      transferred to God.\n<\/p>\n
(3)There are no limitations as (3)It is made for the benefit of
\n   to the object for which it         mankind.\n<\/p>\n
   can be made.\n<\/p>\n
(4)A hiba to an unborn person (4)A wakf may be made in
\n   is invalid.                        favour of a succession of
\n                                      unborn persons.\n<\/p>\n
           Trust                        Wakf
\n(1)No particular motive is (1)It is generally made with a
\n                                                               1324<\/span><\/p>\n
   necessary.                       pious,      charitable      or
\n                                    religious motive.\n<\/p>\n
(2)The founder may himself be (2)The wakf cannot reserve any
\n   a beneficiary.                   benefit for himself (except to
\n                                    some extent under Hanafi
\n                                    law).\n<\/p>\n
(3)It may be for any lawful (3)The ultimate object must be
\n   object.                          some benefit of mankind.\n<\/p>\n
(4)the property vests in the (4)The property vests in God.
\n   trustee.\n<\/p>\n
(5)A trustee has got larger (5)A mutawalli is only a
\n   power than a mutawalli.          manager or superintendent.
\n(6)It is not necessary that a (6)A wakf is perpetual,
\n   trust maybe perpetual,           irrevocable and inalienable.
\n   irrevocable or inalienable.\n<\/p>\n
(7)It results for the benefit of (7)The cypres doctrine is
\n   the founder when it is           applied and the property
\n   incapable of execution and       may be applied to some
\n   the property has not been        other object.\n<\/p>\n
   exhausted.\n<\/p>\n
1105.    Apparently, Islam is not a necessary condition for
\nconstitution of a waqf. It may be made by a Muslim or a non
\nMuslim but the necessary condition for creation of a waqf is the
\nobject thereof. Ameer Ali in his book on Mohammedan Law
\n(Fourth Edition) Volume I at page 200 has said “Any person of
\nwhatever creed may create wakf, but the law requires that the
\nobject for which the dedication is made should be lawful
\naccording to the creed of the dedicator as well as the Islamic
\ndoctrines. Divine approbation being the essential in the
\nconstitution of a wakf if the object for which a dedication is made
\nis sinful, either according to the laws of Islam or to the creed of
\nthe dedicator it would not be valid.” Thus a non Muslim may
\nalso create a waqf for any purpose which is religious under the
\nMohammedan Law. But the object of the waqf must be lawful
\naccording to the religious creed of the maker as well.\n<\/p>\n
                                                                1325<\/span><\/p>\n
1106.          Section 3 of 1913 Act empowers any person
\nprofessing muslim faith to create a waqf in all other respects in
\naccordance with the provisions of Muslim Law for the following
\namong other purposes, i.e., for the maintenance and support,
\nwholly or partially of his family, children and descendants etc. It
\nwould be useful to reproduce Section 3 as under :\n<\/p>\n
        “3.    It shall be lawful for any person professing the
\n        Mussalman faith to create a waqf which in all other
\n        respects is in accordance with the provisions of Mussalman
\n        law, for the following among other purposes :-
\n           (1)for the maintenance and support wholly or partially
\n               of his family, children or descendants, and
\n           (2)where the person creating a waqf is a Hanafi
\n               Mussalman, also for his own maintenance and
\n               support during his lifetime or for the payment of his
\n               debts out of the rents and profits of the property
\n               dedicated :\n<\/p><\/blockquote>\n
               Provided that the ultimate benefit is in such cases
\n               expressly or implicitly reserved for the poor or for
\n               any other purpose recognised by the Mussalman law
\n               as a religious, pious or charitable purpose of a
\n               permanent character.”\n<\/p><\/blockquote>\n
1107.     1913 Act, however, having not been given retrospective
\neffect did not remove the hardship in its entirety created by the
\ndecision of Privy Council in Abul Fata Mohammad (supra)
\nand in some later cases it was held that 1913 Act could not be
\nconstrued as validating deeds executed before 07.03.1913.
\n1108.         On 05.08.1923 the Mussalman Waqf Act, 1923 (Act
\nNo. XLII of 1923 (hereinafter referred to as “1923 Act”) was
\nenacted with the object of better management of waqf property
\n                                                                        1326<\/span><\/p>\n
and ensuring maintenance of proper accounts and its publication
\nin respect of such properties. The aforesaid Act was applicable
\nto the whole of British India at the relevant time and in 1948 the
\nsaid words were substituted by the words “all the Provinces of
\nIndia”. The term “benefit”, “mutwalli” and “waqf” were defined
\nin Section 2 (a) (c) and (e) of 1923 Act, as under :\n<\/p>\n
      “2.   In this Act, unless there is anything repugnant in the
\n      subject or context,-\n<\/p><\/blockquote>\n
            (a)”benefit” does not include any benefit which a
\n      mutwalli is entitled to claim solely by reason of his being
\n      such mutwalli;\n<\/p><\/blockquote>\n
            (b) ……………………………………..\n<\/p><\/blockquote>\n
            (c)”mutwalli” means any person appointed either
\n            verbally or under any deed or instrument by which a
\n            wakf has been created or by a Court of competent
\n            jurisdiction to be the mutwalli of a wakf, and
\n            includes a naib-mutwalli or other person appointed
\n            by a mutwalli to perform the duties of the mutwalli,
\n            and, save as otherwise provided in this Act, any
\n            person who is for the time being administering any
\n            wakf property;\n<\/p><\/blockquote>\n
            (d)………………………………………\n<\/p><\/blockquote>\n
            (e)”wakf” means the permanent dedication by a
\n            person professing the Mussalman                    faith of any
\n            property for any purpose recognised by the
\n            Mussalman law as religious, pious or charitable, but
\n            does not include any wakf, such as is described in
\n            section, 3 of the Mussalman Wakf Validating Act,
\n            1913, under which any benefit is for the time being
\n            claimable for himself by the person by whom the
\n                                                                 1327<\/span><\/p>\n
              wakf was created or by any of his family or
\n              descendants.”\n<\/p><\/blockquote>\n
1109.        Section 3 of 1923 Act placed an obligation on a
\nMutwalli to furnish certain particulars in respect to waqf
\nproperty, income and expenses etc. within a period of six
\nmonths from the date of commencement of the 1923 Act to the
\nCourt within the local limits of whose jurisdiction the property
\nof the waqf, for which the said person is mutwalli, is situated.\n<\/p><\/blockquote>\n
Non compliance of Section 3 was made penal vide Section 10 of
\nthe said Act.\n<\/p>\n
1110.       Section 10 of 1923 Act provides consequences on
\nfailure to comply with the provisions of Sections, 3, 4 and 5 and
\nreads as under:\n<\/p>\n
              “10. Penalties.–Any person who is required by or
\n        under Sec. 3 or Sec. 4 to furnish statement of particulars or
\n        any document relating to a wakf, or who is required by Sec.
\n        5 to furnish a statement of accounts, shall, if he, without
\n        reasonable cause the burden of proving which shall lie
\n        upon him, fails to furnish such statement or document, as
\n        the case may be, in due time, or furnishes a statement
\n        which he knows or has reason to believe to be false,
\n        misleading or untrue in any material particular, or, in the
\n        case of a statement of accounts, furnishes a statement
\n        which has not been audited in the manner required by Sec.
\n        6, be punishable with fine which may extend to five
\n        hundred rupees, or, in the case of a second or subsequent
\n        offence, with fine which may extend to two thousand
\n        rupees.”\n<\/p><\/blockquote>\n
1111.         A question arose as to whether the Court while
\nexercising power under Section 10 can proceed to look into the
\n                                                              1328<\/span><\/p>\n
question as to whether any property which is denied to be a
\nwaqf property can be investigated and looked into so as to find
\nout whether it is a waqf property within the meaning of Section
\n2(e) of the Act or not. This question came to be considered
\nbefore a Hon’ble Single Judge of Patna High Court in (Syed) Ali
\nMohammad Vs. Collector of Bhagalpur, AIR 1927 Patna 189.
\nThe question was that of application of 1923 Act in respect to
\nproperty where there was a dispute whether it was a waqf
\nproperty or not. The petitioner before the High Court return a
\nnotice issued by the Collector including petitioner’s property in
\nthe list of waqf properties stating that he was not incharge of
\nany waqf property as defined in Section 2(e) of 1923 Act
\nwhereupon the Collector referred the matter to the District Judge
\nwho held the property as a waqf property and the question was
\nwhether the order of District Judge was within jurisdiction or
\nnot. It was held by the Hon’ble Patna High Court that there is no
\nprovision in the Act authorizing the Court, as defined in the Act,
\nto determine as to whether any property which if denied to be a
\nwaqf property, is waqf property, within the meaning of the Act.
\nThe Act neither authorizes the Court to summon witnesses or to
\ntake evidence nor any procedure is prescribed for determining
\nthe question as to whether any property is a waqf property and
\nno provision of appeal or revision is made if any such decision
\nis made. It held that the Act applies to admitted waqfs and not to
\nthe properties which are denied to be the waqf properties.
\n1112.       However, this view did not find favour with a Full
\nBench decision of Oudh Chief Court in Mohammad Baqar and
\nanother Vs. S. Mohammad Casim and others, AIR 1932
\nOudh 210 where it was held that mere denial of a property as
\nconstituting a waqf property by a person would not deprive
\n                                                                   1329<\/span><\/p>\n
jurisdiction to the Court to consider whether the property is a
\nwaqf property under 1923 Act or not, otherwise, it would defeat
\nthe very objective of the Act. In the majority decision, the Court
\nsaid that it is a recalcitrant Mutawalli to whom the Act intends
\nto reach and if the jurisdiction of the Court is ousted as soon as a
\nMutawalli who has failed to observe the provisions of the Act
\ndenies the alleged waqf that would defeat the very objective of
\nthe legislature. It was held that the application of 1923 Act does
\nnot depend upon the attitude which a Mutawalli may take with
\nregard to origin of an alleged waqf. The Court said:\n<\/p>\n
              “From the definition of the word “wakf” in Cl. (e), S.<\/p>\n
        2 of the Act it is clear that a wakf of the nature described in
\n        S. 3, Mussalman Wakf Validating Act, 1913, is excluded
\n        from the operation of the Act of 1923. With a view to
\n        determine whether an alleged waqf is inside or outside the
\n        scope of the Act the Court must make some inquiry. The
\n        inquiry may be limited merely to an interpretation of the
\n        instrument creating the wakf if there is any or to the
\n        scrutinizing of the terms of an oral wakf.” (page211)
\n1113.       The Court further held:\n<\/p>\n
              “It is true that the Act does not lay down any
\n        obligation on the Court as to the limits to which it should
\n        carry any inquiry which it may wish to make and no party
\n        is entitled to compel the Court to carry inquiry up to any
\n        particular stage. Indeed the Court may refuse to enter into
\n        any inquiry on the ground that the allegations of the parties
\n        disclose a controversy fit to be determined in a regular
\n        suit, and this, in my judgment, explains the absence of any
\n        special rule of procedure. The Court is invested with a
\n        discretion but it cannot, in my opinion, refuse to look into
\n                                                                1330<\/span><\/p>\n
        the merits of the case and stay its hands on the sole ground
\n        that the alleged mutawalli does not admit the alleged
\n        wakf.” (page 213)
\n1114.      It is not the case of any of the parties that any such
\nstatement was furnished in respect to the property in dispute in
\nthe Court as defined under Section 2 (b) of the said Act and the
\nprovisions of the said Act were complied with at all. It is not the
\ncase of the parties, i.e., the plaintiff, Suit-4, or in general,
\nMuslim parties, that the aforesaid Act was applicable to the
\nproperty in dispute or that the compliance of the said Act was
\nmade by the concerned Mutawalli. In the absence of any
\npleadings in respect to 1923 Act, we have no hesitation in not
\nconsidering the matter in the light of 1923 Act inasmuch as if
\nthat be so first of all it would be necessary to consider whether
\nthe property in question was a waqf made in 1528 and continued
\nto be so thereafter and secondly whether any person as
\nMutawalli was in possession of the property in question in 1923
\nand thereafter. We have not been shown any material to show
\nthe existence of the above facts and even if so then why and in
\nwhat circumstances the provisions under 1923 Act were not
\ncomplied with is also not explained. We also find that it is case
\nof none that Section 12 or 13 of 1923 Act at the relevant time
\nwere attracted to the property in dispute and\/or that the said
\nproperty was exempted by the competent government from the
\noperation of 1923 Act.\n<\/p><\/blockquote>\n
1115.         The next legislation is Mussalman Waqf Validating
\nAct (XXIII) of 1930 which made 1913 Act applicable to waqfs
\ncreated before the commencement of 1913 Act with the rider
\nthat the transactions already completed in respect to right, title,
\nobligations, liability etc. shall not be affected in any manner.\n<\/p>\n
                                                                 1331<\/span><\/p>\n
1116.         Then came the 1936 Act (Act No. 13 of 1936)
\npublished in U.P. Gazette dated 20.03.1937. The above
\nenactment was made for the better governance, administration
\nand supervision of certain classes of Muslim waqf in the United
\nProvinces of Agra and Oudh. Section 1 of 1936 Act provides for
\nthe commencement, and extent; and reads as under:\n<\/p>\n
              “(1) Short title, commencement and extent.–(1) This
\n        Act shall be called “the United Provinces Muslim Waqfs
\n        Act, 1936.”\n<\/p><\/blockquote>\n
              (2) This section and sections 2 to 4 shall come into
\n        force at once. The rest of the Act shall not come into force
\n        until such date as the local Government may, by
\n        notification in the Gazette, appoint in this behalf.\n<\/p><\/blockquote>\n
              (3)It shall extend to the whole of the United
\n        Provinces of Agra and Oudh.”\n<\/p><\/blockquote>\n
1117.         We may mention at this stage that Section 1(2)
\nenforces only Sections 2 to 4 at once and the rest of the Act was
\nto come into force on such date as the local Government by
\nnotification in the gazette may appoint in this behalf. Sections 5
\nto 71 of the said Act came into force on 01.07.1941vide
\nnotification dated 20.06.1941 published in Government Gazette
\nof the United Provinces Vol. LXIII, No. XXVI, Part-1, page 311
\ndated 20.06.1941 which reads as under:\n<\/p>\n
              “In exercise of the powers conferred by sub-section
\n        (2) of section 1 of the United Provinces Muslim Waqfs Act,
\n        1936 (U.P. XIII of 1936), the Governor of the United
\n        Provinces is pleased to declare that sections 5 to 71 of the
\n        said Act shall come into force on the 1st day of July, 1941.”\n<\/p><\/blockquote>\n
1118.         The reason for delay in notification giving effect to
\nSections 5 to 71 of 1936 Act came to be noticed in Badrul
\n                                                                 1332<\/span><\/p>\n
Islam Vs. The Sunni Central Board of Waqf, U.P. Lucknow,
\nAIR 1954 Allahabad 459 in para 8 of the judgement as under:\n<\/p>\n
        “It is true that the provisions of Ss. 5 to 71 of the Act did
\n        not come in force till some time in 1941. This fact has no
\n        bearing because it appears that the late enforcement of
\n        these provisions was due to the fact that what was provided
\n        by these provisions could not have been given effect to till
\n        the Central Board had found on investigation through
\n        proper agency the waqfs which were subject to the Act. It
\n        was no use enforcing these provisions which could not
\n        have been given effect to. It was for this reason that these
\n        sections were later enforced.”\n<\/p><\/blockquote>\n
1119.         It is said that the Commissioner of Waqf made
\nsurvey under Section 4 and submitted his report. The Boards
\nproceeded further by issuing notifications in respect to Sunni
\nWaqfs on 26.02.1944 and in respect of Shia Waqfs on
\n15.01.1954 published in the gazette dated 23.01.1954, we are
\nproceeding further presuming as if the rest of the provisions of
\nthe Act were made operative and will try to find out the answer
\nto the above issues accordingly.\n<\/p>\n
1120.         Section 2 of 1936 Act provides for applicability of
\nthe Act to certain category of waqfs and inapplicability to some
\nother category of waqfs and reads as under:\n<\/p>\n
              “2. Applicability of the Act.-(1) Save as herein
\n        otherwise specifically stated, this Act shall apply to all
\n        waqfs, whether created before or after this Act comes into
\n        force, any part of the property of which is situated in the
\n        United Provinces.\n<\/p><\/blockquote>\n
        (2) This Act shall not apply to-\n<\/p><\/blockquote>\n
                    (i) a waqf created by a deed, if any, under the
\n                                                   1333<\/span><\/p>\n
terms of which not less than 75 per cent, of the total
\nincome after deduction of land revenue and cesses
\npayable to Government of the property covered by
\nthe deed of waqf, if any, is for the time being payable
\nfor the benefit of the waqif or his descendants or any
\nmember of his family.<\/p><\/blockquote>\n
      (ii) a waqf created solely for either of the
\nfollowing purposes :\n<\/p>\n
      (a) the maintenance and support of any person
\nother than the waqif or his descendants or any
\nmember of his family,\n<\/p>\n
      (b) the celebration of religious ceremonies
\nconnected with the death anniversaries of the waqif
\nor of any member of his family or any of his
\nancestors,\n<\/p>\n
      (c) the maintenance of private immabaras,
\n      tombs and grave yards, or\n<\/p>\n
      (d) the maintenance and support of the waqif
\nor for payment of his debts, when the waqif is a
\nHanafi Musalman; and\n<\/p>\n
      (iii) the waqfs mentioned in the schedule :\n<\/p>\n
Provided that if the Mutawalli of a waqf to which this
\nAct does not apply wrongfully sells or mortgages, or
\nsuffers to be sold in execution of a decree against
\nhimself, or otherwise destroys the whole or any part
\nof the waqf property, the Central Board may apply
\nall or any of the provisions of this Act to such waqf
\nfor such time as it may think necessary.\n<\/p>\n
      Explanation. A waqf which is originally exempt
\nfrom the operation of this act may, for any reason
\n                                                                  1334<\/span><\/p>\n
              subsequently, become subject to such operation, for
\n              example, by reason of a higher percentage of its
\n              income becoming available under the terms of the
\n              deed for public charities.”\n<\/p>\n
1121.         The Schedule referred to in Section 2(2)(iii) of 1936
\nAct is as under :\n<\/p>\n
        1. Waqfs governed by Act XV of 1878.\n<\/p><\/blockquote>\n
        2. Wazir Begam Trust, Lucknow.\n<\/p><\/blockquote>\n
        3. Agha Abbu Sahib Trust, Lucknow.\n<\/p><\/blockquote>\n
        4. Shah Najaf Trust, King’s side, Lucknow, and Queen’s
\n        side, Lucknow.\n<\/p><\/blockquote>\n
        5. Kazmain Trust, Lucknow.\n<\/p><\/blockquote>\n
1122.         Section 3 contains certain definitions as under:\n<\/p>\n
              “3. In this Act, unless there is anything repugnant in
\n        the subject or context–\n<\/p><\/blockquote>\n
              (1) Interpretation clauses.–“Waqf” means the
\n        permanent dedication or grant of any property for any
\n        purpose recognized by the Musalman law or usage as
\n        religious, pious or charitable and, where no deed of waqf is
\n        traceable, includes waqf by user, and a waqif means any
\n        person who makes such dedication or grant.”\n<\/p><\/blockquote>\n
              (2) “Beneficiary” means the person or object for
\n        whose benefit a waqf is created and includes religious,
\n        pious or charitable objects, and any other object of public
\n        utility established for the benefit of the Muslim community
\n        or any particular sect of the Muslim community.”\n<\/p><\/blockquote>\n
              (3) “Mutawalli” means a manager of a waqf or
\n        endowment and includes an amin, a sajjadanashin, a
\n        khadim, naib mutawalli and a committee of management,
\n        and, save as otherwise provided in this Act, any person
\n                                                                1335<\/span><\/p>\n
        who is for the time being in charge of or administering, any
\n        endowment as such.\n<\/p><\/blockquote>\n
              (4) “Family” includes–\n<\/p><\/blockquote>\n
                     (a) Parents and grand-parents.\n<\/p><\/blockquote>\n
                     (b) Wife or husband.<\/p><\/blockquote>\n
                     (c) Persons related through any ancestor, male
\n              or female.\n<\/p><\/blockquote>\n
                     (d) Persons who reside with, and are
\n              maintained by, the waqif, whether related to him or
\n              not.\n<\/p><\/blockquote>\n
              (5) Property includes Government securities and
\n        bonds, shares in firms and companies, stocks, debentures
\n        and other securities and instruments.\n<\/p><\/blockquote>\n
              (6) “Prescribed” means prescribed by rules made
\n        under this Act.\n<\/p><\/blockquote>\n
              (7) “Court” means, unless otherwise stated either
\n        expressly or by implication, the court of the District Judge
\n        or any other court empowered by the local Government to
\n        exercise jurisdiction under this Act.\n<\/p><\/blockquote>\n
              (8) “Net income” means the total income minus the
\n        land revenue and other cesses payable to Government and
\n        to local bodies:\n<\/p><\/blockquote>\n
              Provided that in the case of land paying land revenue
\n        the recorded income shall be deemed to be the total
\n        income.”\n<\/p><\/blockquote>\n
1123.         Chapter I which has Sections 4 to 24 deals with
\nSurvey of Waqfs and Central Board of Waqfs. Section 4 deals
\nwith the Survey of Waqfs; Section 5 deals with the
\nCommissioner’s report and its publication in the Gazette; and,
\nread as under:\n<\/p>\n
                                                          1336<\/span><\/p>\n
      “4. (1) Survey of waqfs.–Within three-months of the
\ncommencement of this Act the local Government shall by
\nnotification in the Gazette appoint for each district a
\ngazetted officer, either by name or by official designation
\nfor the purpose of making a survey of all waqfs in such
\ndistrict, whether subject of this Act or not. Such officer
\nshall be called the Commissioner of waqfs.”\n<\/p>\n
      (2) The Local Government may, from time to time
\nwhen necessary cancel any appointment under sub-section
\n(1) or make a new appointment.\n<\/p>\n
      (3) The “Commissioner of waqfs” shall, after making
\nsuch inquiries as he may consider necessary, ascertain and
\ndetermine–\n<\/p>\n
              (a) the number of all Shia and Sunni waqfs in
\n      the district;\n<\/p><\/blockquote>\n
              (b) the nature of each waqf;\n<\/p><\/blockquote>\n
              (c) the gross income of property comprised in
\n      the waqf;\n<\/p><\/blockquote>\n
              (d) the amount of Government revenue, cesses
\n      and taxes payable in respect of waqf property;\n<\/p><\/blockquote>\n
              (e) expenses incurred in the realization of the
\n      income and the pay of the mutawalli of each waqf if
\n      the waqf is not exempted under section 2; and\n<\/p><\/blockquote>\n
              (f) whether the waqf is one of those exempted
\n      from the provisions of this Act under section 2:<\/p><\/blockquote>\n
      Provided that where there is a dispute whether a
\nparticular waqf is Shia waqf or Sunni waqf and there are
\nclear indications as to the sect of which it pertains in the
\nrecitals of the deed of waqf, such dispute shall be decided
\non the basis of such recitals.\n<\/p>\n
                                                         1337<\/span><\/p>\n
      (4) In making such inquiries as aforesaid the
\nCommissioner of waqfs shall exercise all the powers of a
\ncivil court for summoning and examining witnesses and
\ndocuments,     making     local     inspections,   appointing
\ncommissioners for examination of witnesses, examining of
\naccounts and making local investigations.\n<\/p>\n
      (5) The Commissioner of waqfs shall submit his
\nreport of inquiry to the local Government.\n<\/p>\n
      (6) The total cost of carrying out the provisions of
\nthis section shall be borne by the mutawallis of all waqfs to
\nwhich the Mussalmans Waqfs Act, 1923, applies in
\nproportion to the income of the property of such waqfs
\nsituated in the United Provinces.\n<\/p>\n
      (7) Notwithstanding anything in the deed or
\ninstrument creating any waqf, any mutawalli may pay from
\nthe income of the waqf property any sum due from him
\nunder sub-section (6).\n<\/p>\n
      (8) Any sum due from a mutawalli under sub-section
\n(6) may, on a certificate issued by the local Government, be
\nrecovered by the Collector in the manner provided by law
\nfor recovery of an arrear of land revenue.\n<\/p>\n
5. Commissioner’s report.–\n<\/p>\n
      (1) The local Government shall forward a copy of the
\nCommissioner’s report to each of the Central Boards
\nconstituted under this Act. Each Central Board shall as
\nsoon as possible notify in the Gazette the waqfs relating to
\nthe particular sect to which, according to such report, the
\nprovisions of this Act apply.\n<\/p>\n
      (2) The mutawalli of a waqf or any person interested
\nin a waqf or a Central Board may bring a suit in a civil
\n                                                                 1338<\/span><\/p>\n
        court of competent jurisdiction for a declaration that any
\n        transaction held by the Commissioner of waqfs to be a
\n        waqf is not a waqf, or any transaction held or assumed by
\n        him not to be a waqf is a waqf, or that a waqf held by him
\n        to pertain to a particular sect does not belong to that sect,
\n        or that any waqf reported by such Commissioner as being
\n        subject to the provisions of this Act is exempted under
\n        section 2, or that any waqf held by him to be so exempted is
\n        subject to this Act:\n<\/p>\n
              Provided that no such suit shall be instituted by a
\n        Central Board after more than two years of the receipt of
\n        the report of Commissioner of waqfs, and by a mutawalli
\n        or person interested in a waqf after more than one year of
\n        the notification referred to in sub-clause (1):\n<\/p>\n
              Provided also that no proceedings under this Act in
\n        respect of any waqf shall be stayed or suspended merely by
\n        reason of the pendency of any such suit or of any appeal
\n        arising out of any such suit.\n<\/p>\n
              (3) Subject to the final result of any suit instituted
\n        under sub-section (2) the report of the Commissioner of
\n        waqfs shall be final and conclusive.\n<\/p>\n
              (4) The Commissioner of waqfs shall not be made a
\n        defendant to any suit under sub-section (2) and no suit
\n        shall be instituted against him for anything done by him in
\n        good faith under colour of this Act.”\n<\/p>\n
1124.         Sections 6, 7 and 8 of 1936 Act show that there shall
\nbe two Waqf Board namely, Shia Central Board and Sunni
\nCentral Board of Waqf. The constitution etc. thereof is provided
\nfrom Section 6 to 17. Section 18 deals with the functions of the
\nCentral Board and reads as under:\n<\/p>\n
                                                                1339<\/span><\/p>\n
      “18. Function of the Central Board.- (1) The general
\nsuperintendence of all waqfs to which this Act applies shall
\nvest in the Central Board. The Central Board shall do all
\nthings reasonable and necessary to ensure that waqfs or
\nendowments under its superintendence are properly
\nmaintained,     controlled      and administered       and     duly
\nappropriated to the purposes for which they were founded
\nor for which they exist.\n<\/p>\n
      (2) Without prejudice to the generality of the
\nprovisions of sub-section (1) the powers and duties of the
\nCentral Board shall be-\n<\/p>\n
              (a)   to complete and maintain and authentic
\n              record     of    rights   containing    information
\n              relating to the origin, income, object, and
\n              beneficiaries of every waqf in each district;\n<\/p><\/blockquote>\n
              (b) to prepare and settle its own budget;\n<\/p><\/blockquote>\n
              (c) to settle and pass budgets submitted by the
\n              mutawallis direct to the Board and any budget
\n              submitted to, but not approved by, a District
\n              Waqf Committee, provided that it is in
\n              accordance with the wishes of the waqif and
\n              the terms of the deed of waqf;\n<\/p><\/blockquote>\n
              (d)   to settle and pass the annual budgets of
\n              the District Waqf Committees;\n<\/p><\/blockquote>\n
              (e)      to institute and and defend suits and\n              proceedings in a court of law relating to-\n                    (i) administration of waqfs,\n                    (ii) taking of accounts,\n                    (iii)     appointment    and     removal     of\n                    mutawallis in accordance with the deed\n                                              1340<\/span>\n\n      of waqf if it is traceable,\n<\/pre>\n
      (iv) putting the mutawallis in possession
\n      or removing them from possession,\n<\/p><\/blockquote>\n
      (v) settlement or modification of any
\n      scheme of management;\n<\/p><\/blockquote>\n
(f) to sanction the institution of suits under
\nsection 92 of the Code of Civil Procedure,
\n1908, relating to waqfs to which this Act
\napplies;\n<\/p>\n
(g)   to take measure for the recovery of lost
\nproperties;\n<\/p>\n
(h)   to settle scheme of management and
\napplication of waqf funds in accordance with
\nthe doctrine of cypres in case of those waqfs,
\nthe objects of which are not evident from any
\nwritten instrument or in cases in which the
\nobjects for which they were created have
\nceased to exist;\n<\/p>\n
(i) to enter upon and inspect waqf properties;\n<\/p>\n
(j) to investigate into the nature and extent of
\nwaqfs and waqf properties and call from time
\nto time for accounts and other returns and
\ninformation from the mutawallis and give
\ndirections for the proper administration of
\nwaqfs;\n<\/p>\n
(k)   to arrange for the auditing of accounts
\nsubmitted by the mutawallis;\n<\/p>\n
(l)   to direct the deposit of surplus money in
\nthe hands of the mutawalli in any approved
\nbank and to utilize it on the objects of waqf;\n<\/p>\n
                                                                 1341<\/span><\/p>\n
                    (m) to supervise and control the District Waqf
\n                    Committees;\n<\/p><\/blockquote>\n
                    (n) to administer the waqf fund;\n<\/p><\/blockquote>\n
                    (o)     to keep regular accounts of receipts and
\n                    disbursement and submit the same in the
\n                    matter prescribed;\n<\/p><\/blockquote>\n
                    (p)     to institute when necessary an inquiry
\n                    relating to the administration of a waqf:
\n                    Provided that in the appointment of mutawallis
\n              or in making any other arrangement for the
\n              management of waqf property the Central Board
\n              shall be guided as far as possible by the directions of
\n              the waqif, if any.”\n<\/p><\/blockquote>\n
1125.         A careful reading of 1936 Act as also all the earlier
\nenactments make it very clear that neither they create a waqf nor
\ndiminish or terminate a waqf nor affect a waqf in any other
\nmanner. On the contrary, the provisions have been made only to
\nprovide   a     statutory     body   for   the   better   governance,
\nadministration and supervision of the waqfs to which the said
\nAct apply. Further vide Section 2(1) of 1936 Act though it
\napplies to all waqfs, whether created before the commencement
\nof the Act or thereafter, if any part of the property of which
\nwaqf is situate in the United provinces but by virtue of Sub-
\nsection (2) of Section 2 certain classes of waqfs have been
\nexcluded. The exclusion under Sub-section (2) of Section 2 of
\n1936 Act is specific and has been categorized with precision. It
\nwould mean that only to the extent the waqfs are excluded by
\nvirtue of sub-section (2) of Section 2 all other waqfs, if a waqf
\nvalidly created, would be governed by 1936 Act.
\n1126.         The term ‘Waqf’ under 1936 Act has also been
\n                                                             1342<\/span><\/p>\n
defined as a permanent dedication or grant of any property for
\nany purposes recognized by the Musalman law or usage as
\nreligious, pious or charitable including waqf by user where no
\ndeed of waqf is traceable.\n<\/p>\n
1127.        However a cumulative reading of the entire 1936
\nAct shows that it does not govern the right of worship of Hindus
\nor Muslims. as the case may be. The object of enactment is to
\nprovide better governance and administration in supervision of
\ncertain classes of Muslim Waqfs. The Waqfs to which the
\naforesaid Act applies are to be supervised and maintained by the
\nCentral Boards, namely, Shia Central or Sunni Central Board, as
\nthe case may be, constituted under Section 6 of the said Act.
\n1128.        At this stage it may be pointed out that there was
\nsome ambiguity between Section 8(1)(i) and Section 12.
\nNoticing the same, vide U.P. Muslim Waqfs (Amendment) Act
\n9 of 1953 which received the assent of          the President on
\n26.02.1953, Section 12 was deleted and Section 8-A was
\ninserted which was held valid by this Court in All India Shia
\nConference Vs. Taqi Hadi and others, AIR 1954 All. 124.
\n1129.        In 1954, the Parliament enacted Waqf Act, 1954
\n(Act XXIX of 1954) (hereinafter referred to as ‘1954 Act’). The
\naforesaid Act though extended to whole of India except the
\nState of Jammu and Kashmir but proviso to Section 1(3) thereof
\nprovides for the State of U.P., Bihar and West Bengal as under :\n<\/p>\n
        “Provided that in respect of any of the States of Bihar,
\n        Uttar Pradesh and West Bengal, no such notification shall
\n        be issued except on the recommendation of the State
\n        Government concerned.”\n<\/p><\/blockquote>\n
1130.        Consequently, 1954 Act did not apply to the State of
\nU.P. since the State of U.P. had its own Act of 1936.\n<\/p>\n
                                                                 1343<\/span><\/p>\n
1131.         Though not necessary for the category of the issues,
\nwith which we are concerned at this stage, but just to complete
\nthe legislative history, we find that the State legislature enacted
\nU.P. Muslim Waqfs Act 1960 (U.P. Act No.XVI of 1960)
\n(hereinafter referred to ‘1960 Act’). This U.P. Act, 1960 received
\nassent of the President of India on 27th August, 1960 and was
\npublished in U.P. Gazette Extraordinary on 3rd September, 1960.
\nVide Section 1(3) of 1960 Act, it came into force at once.
\nSection 2 of 1960 Act provides for the application of the Act
\nand sub-section (1) thereof reads as under :\n<\/p>\n
        “2.   Application of the Act.-(1) Save as herein otherwise
\n        specifically stated, this Act shall apply to all waqfs,
\n        whether created before or after the commencement of this
\n        Act, any part of the property comprised in which it situate
\n        in Uttar Pradesh, and to all the waqfs which at the time of
\n        the coming into force of this act were the superintendence
\n        of the Sunni Central Board or the Shia Central Board
\n        constituted under the U.P. Muslim Waqfs Act, 1936 (U.P.
\n        Act XIII of 1936).\n<\/p><\/blockquote>\n
1132.         Vide Section 85 (2) of 1960 Act, 1936 Act as well
\nas Husainabad Endowment Act, 1878 were repealed. Some
\nmore enactments were repealed by insertion of Section 11 of
\nU.P. Act No.28 of 1971 whereby the following was inserted in
\nSection 85(2) of 1960 Act :\n<\/p>\n
        “The following enactments are also hereby repealed in
\n        their application to any waqf to which this Act applies :
\n        (1) the Bengal Charitable Endoments, Public Buildings and
\n        Escheats Regulation, 1810 (Act XIX of 1810) ;
\n        (2)   the Religious Endoments Act, 1863 (Act XX of
\n        1863) ;\n<\/p><\/blockquote>\n
                                                                1344<\/span><\/p>\n
        (3)the Charitable Endowments Act, 1890 (Act XX of 1890) ;
\n        (4)   the Charitable and Religious Trusts Act, 190 (Act
\n        XIV of 1920):”\n<\/p><\/blockquote>\n
1133.         There was saving provisions in Section 85 by way of
\nproviso which read as under :\n<\/p>\n
        “Provided that this repeal shall not affect the operation of
\n        those Acts in regard to any suit or proceeding pending in
\n        any Court or to an appeal or an application in revision
\n        against any order that may be passed in such suit or
\n        proceeding and subject thereto, anything done or any
\n        action taken in exercise of powers conferred by or under
\n        those Acts shall unless otherwise expressly required by any
\n        provision of this Act, be deemed to have been done or taken
\n        in exercise of the powers conferred by or under this Act as
\n        if this Act were in force on the day on which such thing was
\n        done or action was taken.”\n<\/p><\/blockquote>\n
1134.         Besides, Section 28 of 1960 Act provides saving of
\nwaqfs already registered and provides as under :\n<\/p>\n
        “Savings U.P. Act XIII of 1986.- A waqf registered before
\n        the commencement of this Act under the U.P. Muslim Waqf
\n        Act 1936, shall be deemed to have been registered under
\n        the provisions of this Act.”\n<\/p><\/blockquote>\n
1135.         1960 Act now stands repealed by the Waqf Act,
\n1995 (Central Act) which has come into effect w.e.f. 1st January,
\n1996.\n<\/p>\n
1136.         Now reverting to 1936 Act, the general power of
\nsuperintendence vested in the Central Board is to ensure that the
\nwaqfs or endowments under its superintendence are maintained,
\ncontrolled, administered and duly appropriated to the purposes
\nfor which they were founded or for which they exist. The very
\n                                                              1345<\/span><\/p>\n
functions of the Central Board, as such, do not relate directly to
\nthe right of worship of either the Hindus or Muslims in any
\nmanner. To some extent, however, it may be said that if a
\nreligious Waqfs is not properly maintained and administered,
\nand, it causes hindrance or obstruction in observance of such
\nreligious activities for which the Waqf was created, the right of
\npeople in general who are entitled to use Waqf property for the
\npurposes it is created, to that extent may be obstructed, but
\ndirectly it cannot be said that 1936 Act in any manner deals with
\nthe right of worship of any of the member of the community for
\nwhose benefit the Waqf is created.       It is moreso when the
\nquestion of a member(s) of a community other than Muslim
\narises since neither his right of worship in any manner is sought
\nto be affected by 1936 Act nor otherwise it does appear to do so.
\n1137.       In respect to 1936 Act this question came to be
\nconsidered by the Apex Court in Siraj-ul-Haq Khan and others
\nVs. The Sunni Central Board of Waqf U.P. and others, AIR
\n1959 SC 198 in an appeal taken against the judgment of this
\nCourt in Sunni Central Board of Waqf Vs. Siraj-ul-Haq Khan
\nand others, AIR 1954 All. 88. The matter pertains to Darga
\nHazarat Syed Salar Mahsood Ghazi situated in the Village
\nSingha Parasi, District Bahraich. The appellants were members
\nof the Waqf Committee, Darga Sharif, Bahraich and filed a suit
\nseeking a declaration that the properties of suit were not covered
\nby the provisions of 1936 Act. The Court considered the words
\n“the Mutawalli of a waqf or any person interested in a waqf”
\nunder Section 5(2) of 1936 Act, and, construing the same, it
\nheld that it would mean “any person interested” in what is held
\nto be a waqf and in order to find out so it is open to the
\nCommissioner of the Waqf to find out whether a property is a
\n                                                                 1346<\/span><\/p>\n
waqf or not and if he includes such a property in the list of waqf,
\nthe person challenging such decision would be included by the
\nwords “any person interested in a waqf” under Section 5(2). It
\nwould be appropriate to reproduce the relevant observations in
\npara 16 of the judgment:\n<\/p>\n
            “The word ‘waqf’ as used in this sub-section must be
\n      given the meaning attached to it by the definition in S. 3
\n      (1) of the Act and since the appellants totally deny the
\n      existence of such a waqf they cannot be said to be
\n      interested in the ‘waqf’. The argument thus presented
\n      appears prima facie to be attractive and plausible; but on a
\n      close examination of S. 5(2) it would appear clear that the
\n      words “any person interested in a          waqf” cannot be
\n      construed in their strict literal meaning. If the said words
\n      are given their strict       literal meaning, suits for a
\n      declaration that any transaction held by the Commissioner
\n      to be a waqf is not a waqf can never be filed by a mutawalli
\n      of a waqf or a person interested in a waqf. The scheme of
\n      this sub-section is clear. When the Central Board assumes
\n      jurisdiction over any waqf under the Act it proceeds to do
\n      so on the decision of three points by the Commissioner of
\n      Waqfs. It assumes that the property is a waqf, that it is
\n      either a Sunni or a Shia waqf, and that it is not a waqf
\n      which falls within the exceptions mentioned in S. 2. It is in
\n      respect of each one of       these decisions that a suit is
\n      contemplated by S. 5, sub-s. (2). If the decision is that the
\n      property is not a waqf or that it is a waqf falling within the
\n      exceptions mentioned by S. 2, the Central Board may have
\n      occasion to bring a suit. Similarly if the decision is that the
\n      waqf is Shia and not Sunni, a Sunni Central Board may
\n                                                         1347<\/span><\/p>\n
have occasion to bring a suit and vice versa. Likewise the
\ndecision that the property is a waqf may be challenged by a
\nperson who disputes the correctness of the said decision.\n<\/p><\/blockquote>\n
The decision that a property does not fall within the
\nexceptions mentioned by S. 2 may also be challenged by a
\nperson who claims that the waqf attracts the provisions of
\nS. 2. If that be the nature of the scheme of suits
\ncontemplated by S. 5(2) it would be difficult to imagine
\nhow the mutawalli of a waqf or any person interested in a
\nwaqf can ever sue for a declaration that the transaction
\nheld by the Commissioner of the waqfs to be a waqf is not a
\nwaqf. That is why we think that the literal construction of
\nthe expression “any person interested in a waqf” would
\nrender a part of the sub-section wholly meaningless and
\nineffective. The legislature has definitely contemplated that
\nthe decision of the Commissioner of the Waqfs that a
\nparticular transaction is a waqf can be challenged by
\npersons who do not accept the correctness of the said
\ndecision, and it is, this class of persons who are obviously
\nintended to be covered by the words “any person interested
\nin a waqf “. It is well-settled that in construing the
\nprovisions of a statute courts should be slow to adopt a
\nconstruction which tends to make any part of the statute
\nmeaningless or ineffective; an attempt must always be
\nmade so to reconcile the relevant provisions as to advance
\nthe remedy intended by the statute. In our opinion, on a
\nreading of the provisions of the relevant sub-section as a
\nwhole there can be no doubt that the expression “any
\nperson interested in a waqf” must mean “any person
\ninterested in what is held to be a waqf “. It is only persons
\n                                                                   1348<\/span><\/p>\n
        who are interested in a transaction which is held to be a
\n        waqf who would sue for a declaration that the decision of
\n        the Commissioner of the Waqfs in that behalf is wrong, and
\n        that the transaction in fact is not a waqf under the Act. We
\n        must accordingly hold that the relevant clause on which
\n        Mr. Dar has placed his argument in repelling the
\n        application of S. 5(2) to the present suit must not be strictly
\n        or literally construed, and that it should be taken to mean
\n        any person interested in a transaction which is held to be a
\n        waqf. On this construction the appellants are obviously
\n        interested in the suit properties which are notified to be
\n        waqf by the notification issued by respondent 1, and so the
\n        suit instituted by them would be governed by S. 5, sub-s. (2)
\n        and as such it would be barred by time unless it is saved
\n        under S. 15 of the Limitation Act.”\n<\/p>\n
1138.         The above decision, however related to a matter
\nwhere all the parties before the Court were Muslim and there
\nwas no question about the rights of non Muslim being affected
\nby a decision of the Commissioner of Waqf or Central Board
\nconstituted under Section 6 of 1936 Act. In other words the
\ndecision noted above covered the persons following the same
\nreligious namely, Mohammadan Law but where such a dispute
\nis raised by another party namely a person of different religion
\nlike, Hindu, Christian etc. whether 1936 Act at all will apply in
\nthat case or not, is not touched by the above judgment.
\n1139.         In our view, since 1936 Act does not provide or
\ncontrol the right of worship of Hindu or Muslims, the rival
\ndispute between the persons who are not Muslims, in the matter
\nof an immovable property, whether it is waqf or not would not
\nbe governed by the provisions of 1936 Act but it would be open
\n                                                             1349<\/span><\/p>\n
to non-muslim party to stake his claim without being affected in
\nany manner by the provisions of 1936 Act.\n<\/p>\n
1140.        Our view find support from a Division Bench
\ndecision of Rajasthan High Court in Radhakishan and another
\nVs. State of Rajasthan and others, AIR 1967 Rajasthan 1.
\nThis case had arisen from the Waqfs Act, 1954 (in short “1954
\nAct”) and interpretation of the words “any person interested
\ntherein” appearing in Section 6(1) came to be considered. The
\nCourt held that it would not empower the Board of Waqfs to
\ndecide the question whether a particular property is a waqf
\nproperty or not if such a dispute is raised by a person who is
\nstranger to waqf. The Division Bench therein referred to our
\nFull Bench decision in        Mohammad Baqar (supra) and
\nobserved that in reference to 1923 Act Patna, Lahore, Bombay
\nand Madras High Court took a view that the District Judge has
\nno jurisdiction to hold an inquiry into the nature of property
\nwhere the alleged Mutawalli deny existence of waqf though the
\nAllahabad Chief Court of Oudh took a different view.
\n1141.        We may notice hereat that in the Full Bench
\njudgment of Chief Court of Oudh in Mohammad Baqar
\n(supra) there was no question with respect to jurisdiction of the
\nDistrict Judge where the existence of alleged waqf is denied by
\na stranger and not the Mutawalli, therefore, we do not find that
\nthe decision in     Radhakishan (supra) in any way can be
\nconstrued as a dissenting view to the decision of Oudh Chief
\nCourt in Mohammad Baqar (supra). This is evident from what
\nhas been held by the Rajasthan High Court in paras 24 and 25
\nreproduced as under:\n<\/p>\n
             “24. The present Act No. 29 of 1954 is, no doubt, an
\n        improvement on the Mussalman Wakf Act, 1923, but, in our
\n                                                           1350<\/span><\/p>\n
view, this also does not empower the Board of Wakfs to
\ndecide the question whether a particular property is a wakf
\nproperty or not, if such a dispute is raised by a person who
\nis a stranger to wakf. This view is further confirmed by the
\nprovisions of section 59 of the Act which lays down that in
\nany suit or proceeding in respect of a wakf or any wakf
\nproperty by or against a stranger to the wakf or any other
\nperson, the Board may appear and plead as a party to the
\nsuit or proceeding.\n<\/p>\n
      25.   To    sum     up    the   position,    the   Wakf
\nCommissioner, though he is invested with the powers of a
\ncivil court in respect of certain matters, is not a civil court
\nempowered to decide a disputed question whether a
\nparticular property is a wakf property or not. He has only
\nto make a survey of wakf property existing in the State at
\nthe date of commencement of the Act and to make a report
\nof survey to the State Government. When the State
\nGovernment forwards the report to the Board of Wakfs, it
\nbecomes the duty of the Board to examine it. Thereafter the
\nBoard should publish, in the official gazette, a list of wakfs
\nexisting in the State. The law does not require the
\nCommissioner to make a survey of wakf properties which
\nhave already become extinct as such. If he mentions in his
\nreport that certain properties were once wakf properties
\nand can still be recovered as such, then the proper course,
\nin our opinion for the Board is to file a suit, get them
\ndeclared as wakf properties and to recover their
\npossession. If a dispute about existence of a wakf is raised
\nby a person who is stranger to the wakf, then it is neither
\nfair nor proper for the Board to include such properties in
\n                                                                   1351<\/span><\/p>\n
        the list published in the official gazette. Section 6, in our
\n        opinion, refers only to those triangular disputes which
\n        exists between the Board of Wakf, the mutawalli and a
\n        person interested in the wakf. If there is a dispute between
\n        these three on a question whether a particular property is a
\n        wakf property or whether a wakf is a Shia wakf or a Sunni
\n        wakf, it is open to any one of them to institute a suit in a
\n        civil court of competent jurisdiction. If a suit is instituted,
\n        the decision of the Civil Court will be final. If no such suit
\n        is filed by any one of them within a year from the date of
\n        publication of the list of wakfs the Court would not
\n        entertain the suit thereafter and the list of the wakf shall be
\n        final and conclusive between them. The object of Section 6
\n        is to narrow down the dispute between the Board of Wakf,
\n        the Mutawalli and the person interested in the wakf as
\n        defined in section 3. In our view, it does not concern a
\n        dispute if it is raised by a person who is an utter stranger
\n        to the wakf. The list cannot be final and conclusive as
\n        against a non muslim who is not covered by Section 6(1) of
\n        the Act. Again, if a dispute whether a particular property is
\n        a wakf property or not, is raised by a non-muslim and a
\n        stranger to the wakf, the Board of Wakfs has no
\n        jurisdiction to decide the matter in its own favour under
\n        Section 27 and enter it in the register. The Board’s decision
\n        under section 27 would not be binding against such
\n        persons. For the same reason, the Board would not be able
\n        to recover possession of the property from such persons
\n        under Section 36B of the Act.”\n<\/p>\n
1142.         The judgment of Rajasthan High Court was taken in
\nappeal before the Apex Court in The Board of Muslim Wakfs,
\n                                                                 1352<\/span><\/p>\n
Rajasthan Vs. Radha Kishan and others, AIR 1979 SC 289.
\nTwo questions raised in appeal. Firstly, the meaning of the
\nwords “any person interested therein” in Section 6(1) and (4) of
\nWaqf      Act,   1954    and   secondly,   the   power    of   Waqf
\nCommissioner to make survey of waqf properties whether it
\nincludes an inquiry about certain property as a waqf property or
\nnot. The Apex Court referring to the various judgments
\nconsidered by the Rajasthan High Court held that they would be
\nof no assistance in interpreting the provisions of Waqf Act,
\n1954. However, it was held in para 23 of the judgment that the
\nHigh Court was right in determining the scope of Section 6(1) of
\n1954 Act but fell in error in curtailing the ambit and scope of an
\ninquiry by the Commissioner of Waqf under Section 4(3) and by
\nthe Board of Waqfs under Section 27 of the Act.
\n1143.         For our purpose, the meaning assigned by the Apex
\nCourt in Section 6(1) to the words “any person interested
\ntherein” would be relevant to answer the issues noticed above
\nand in this regard it would be appropriate to notice hereunder
\nparas 31, 32, 33, 34, 35 and 36 of the judgment as under:\n<\/p>\n
        “31. That leaves us with the question as to the scope of
\n        sub-s. (1) of S. 6. All that we have to consider in this
\n        appeal is, whether if the Commissioner of Wakfs had
\n        jurisdiction to adjudicate and decide against the
\n        respondents Nos. l and 2 that the property in dispute was
\n        wakf property, the list of wakfs published by the Board of
\n        Wakfs under sub-s. (2) of S.        5 would be final and
\n        conclusive against them under S. 6(4) in case they had not
\n        filed a suit within a year from the publication of the lists.<\/p><\/blockquote>\n
        The question as to whether the respondents Nos.1 and 2
\n        can be dispossessed, or their possession can be threatened
\n                                                           1353<\/span><\/p>\n
by the Board of      Wakfs by     proceeding under S. 36B
\nwithout filing a suit in a civil court of competent
\njurisdiction does not arise for our consideration.”
\n“32. In the present case, the respondents Nos. 1 and 2
\nwho are non Muslims, contended that they are outside the
\nscope of sub-s. (1) of S. 6, and consequently, they have no
\nright to file the suit contemplated by that sub-section and,
\ntherefore, the list of wakfs published by the Board of Wakfs
\nunder sub-s. (2) of S.5 cannot be final and conclusive
\nagainst them under sub-s. (4) of S. 6, It was urged that
\nrespondents Nos. 1 and 2 were wholly outside the purview
\nof sub-s. (1) of S. 6 and they must, therefore, necessarily
\nfall outside the scope of the enquiry envisaged by sub-s. (1)
\nof S. 4, as the provisions contained in Sections 4, 5 and 6
\nform part of an integrated scheme. The question that arises
\nfor consideration, therefore, is as to who are the parties
\nthat could be taken to be concerned in a proceeding under
\nsub-s. (1) of S. 6 of the Act, and whether the list published
\nunder sub-s. (2) of S. 5 declaring certain property to be
\nwakf property, would bind a person who is neither a
\nmutawalli nor a person interested in the wakf.”
\n“33. The answer to these questions must turn on the true
\nmeaning and construction of the word ‘therein’ in the,
\nexpression ‘any person interested therein’ appearing in
\nsub-s. (1) of S. 6. In order to understand the meaning of
\nthe word ‘therein’ in our view, it is necessary to refer to the
\npreceding words ‘the Board or the mutawalli of the wakf’.
\nThe word ‘therein’ must necessarily refer to the ‘wakf’
\nwhich immediately precedes it. It cannot refer to the ‘wakf
\nproperty’. Sub-section (1) of S. 6 enumerates the persons
\n                                                            1354<\/span><\/p>\n
who can file suits and also the questions in respect of
\nwhich such suits can be filed. In enumerating the persons
\nwho are empowered to file suits under this provision, only
\nthe Board, the mutawalli of the wakf, and ‘any person
\ninterested therein’,       thereby necessarily meaning any
\nperson interested in the wakf, are listed. It should be borne
\nin mind that the Act deals with wakfs, its institutions and its
\nproperties. It would, therefore., be logical and reasonable
\nto infer that its provisions empower only those who are
\ninterested in the wakfs to institute suits.”
\n“34. In dealing with the question, the High Court
\nobserves:\n<\/p>\n
                 “In our    opinion, the words “any person
\n      interested therein” appearing in sub-section (1) of S.
\n      6 mean no more than a person interested in a wakf as
\n      defined in clause (h) of S. 3 of the Act……….\n<\/p>\n
            It is urged by learned counsel for the
\n      petitioners that the legislature has not used in
\n      Section 6(1) the words “any person interested in a
\n      wakf” and, therefore, this meaning should not be
\n      given to the words “any person interested therein”.
\n      This argument is not tenable because the words “any
\n      person interested therein” appear soon after “the
\n      mutawalli of the wakf” A and therefore the word
\n      ‘therein’ has been used to avoid re petition of the
\n      words “in the wakf” and not to extend the scope of
\n      the section to persons who fall outside the scope of
\n      the words “person interested in the wakf”. The
\n      purpose of section 6 is to confine the dispute between
\n      the wakf     Board, the mutawalli and a person
\n                                                          1355<\/span><\/p>\n
      interested in the wakf.”\n<\/p>\n
      That, in our opinion, is the right construction.\n<\/p>\n
35.   We are fortified in that view by the decision of this
\nCourt in Sirajul Haq Khan v. The Sunni Central Board of
\nWakf, U.P.<\/a> 1959 SCR 1287:(AIR 1959 SC 198). While
\nconstruing S. 5(2) of the United Provinces Muslins Wakf
\nAct, 1936, this Court interpreted the expression “any
\nperson interested in a wakf” as meaning ‘any person
\ninterested in what is held to be a wakf’, that is, in the
\ndedication of a property for a pious, religious or
\ncharitable purpose. It will be noticed that sub-s. (1) of S.6
\nof the Act is based in sub-s. (2) of S. 5 of the United
\nProvinces Muslims Wakf Act, 1936, which runs thus:\n<\/p>\n
      “The mutawalli of a wakf or any person interested in
\na wakf or a Central Board may bring a suit in a civil court
\nof competent jurisdiction for a declaration that any
\ntransaction held by the Commissioner of Wakfs to be a
\nwakf is not a wakf, or any transaction held or assumed by
\nhim not to be a wakf, or that a wakf held by him to pertain
\nto a particular sect does not be- long to that sect, or that
\nany wakf reported by such Commissioner as being subject
\nto the provisions of this Act is exempted under section 2,
\nor that any wakf held by him to be so exempted is subject to
\nthis Act.”\n<\/p>\n
The proviso to that section prescribed the period of one
\nyear’s limitation, as here, to a suit by a mutawalli or a
\nperson interested in the wakf.\n<\/p>\n
36.   The two provisions are practically similar in content
\nexcept that the language of the main enacting part has
\nbeen altered in sub-s. (1) of S. 6 of the present Act and put
\n                                                                   1356<\/span><\/p>\n
        in a proper form. In redrafting the section, the sequence,
\n        of the different clauses has been changed, therefore, for the
\n        expression “any person interested in a wakf” the legislature
\n        had to use the expression “any person interested therein”.
\n        The word ‘therein’ appearing in sub-s. (1) of S. 6 must,
\n        therefore, mean ‘any person interested in a waker’ as
\n        defined in S. 3(h). The object of sub-s. (1) of S. 6 is to
\n        narrow down the dispute between the Board of Wakfs, the
\n        mutawalli and the person interested in the wakf, as defined
\n        in S. 3 (h).”\n<\/p>\n
1144.         The Apex Court having said so as noticed above
\nquoted the findings of the Rajasthan High Court with reference
\nto Section 6 in para 37 of the judgment and in para 38 it says
\nthat it is in agreement with the reasoning of the High Court. The
\nanswer has further been crystallized by the Apex Court in paras
\n39 and 43 of the judgment as under:\n<\/p>\n
        “39. It follows that where       a stranger who is a non-
\n        Muslim and is in possession of a certain property his right,
\n        title and interest therein cannot be put in jeopardy merely
\n        because the property is included in the List. Such a person
\n        is not required to file a suit for a declaration of his title
\n        within a period of one year. The special rule of limitation
\n        laid down in proviso to sub s. (1) of S. 6 is not applicable
\n        to him. In other words, the list published by the Board of
\n        Wakfs under sub-s. (2) of S. 5 scan be challenged by him by
\n        filing a suit for declaration of title even after the expiry of
\n        the period of one year, if the necessity of filing such suit
\n        arises.”\n<\/p><\/blockquote>\n
        “43. In view of the foregoing, the right of the respondents
\n        Nos. 1 and 2 in respect of the disputed property, if at all
\n                                                                   1357<\/span><\/p>\n
        they have any, will remain unaffected by the impugned
\n        notification. They are at liberty to bring a suit for the
\n        establishment of their right and title, if any,         to the
\n        property.”\n<\/p><\/blockquote>\n
1145.         As noticed above the Apex Court also referred to
\nSection 5(2) of 1936 Act and observed that it is pare materia to
\nSection 6(1) and (4) of Waqf Act, 1954.\n<\/p>\n
1146.         The above decision of the Apex Court in
\nRadhakishan (supra) was followed in Board of Mulim Wakfs
\nVs. Smt. Hadi Begum and others, AIR 1992 SC 1083 where in
\npara 10 of the judgment the Court briefly reproduced what was
\nheld in Radhakishan (supra) regarding the right, title and
\ninterest of a non-muslim with reference to the Waqf Act, 1954
\nwhich also contain the provisions, pari materia with 1936 Act,
\nand held:\n<\/p>\n
        “The right, title and interest of a person who is non-muslim
\n        and is in possession of certain property is not put in
\n        jeopardy simply because that property is included in the
\n        list published under sub-sec. (2) of S. 5 and he is not
\n        required to file a suit in a Civil Court for declaration of his
\n        title within the period of one year and the list would not be
\n        final and conclusive against him. Sub-sec. (4) of S. 6 makes
\n        the list final and conclusive only between the Board, the
\n        mutawalli and the person interested in the wakf.” (para 10)
\n1147.         To the same effect is a decision of an Hon’ble Single
\nJudge in Marawthwada Wakf Board Vs. Rajaram Ramjivan
\nManthri and others, AIR 2002 Bom. 144. With reference to
\nWaqf Act 1954, in para 19 of the judgement, it observed:\n<\/p><\/blockquote>\n
        “Therefore, from the above, it is extremely clear that the
\n        respondent No. 1, who is a non-Muslim, being a Hindu,
\n                                                                 1358<\/span><\/p>\n
        could not file a suit u\/S. 6 of the Wakf Act, 1954, but he
\n        cannot be barred from filing a suit especially in view of the
\n        fact that his right, title and interest have been jeopardised
\n        in view of the notification issued by the Government of
\n        Maharashtra aforesaid.”\n<\/p><\/blockquote>\n
1148.         Another Hon’ble Single Judge of this Court in U.P.\n<\/p><\/blockquote>\n
Sunni Central Waqf Board, Lucknow Vs. State of U.P. and
\nothers, 2006(6) ADJ 331 considering Act No.XVI of 1960
\nwhich contain similar provisions as that of 1936 Act, in para 9
\nof the judgment, observed:\n<\/p>\n
        “There is no dispute that the respondent No. 3 by virtue of
\n        sale deed became the owner of the property is dispute. The
\n        respondent No. 3 being non Muslim, the provisions of U.P.
\n        Muslim Waqf Act, 1960 was not applicable as held by this
\n        Court in the case of Chedda Singh and others Vs.
\n        Additional Civil Judge, Moradabad and others.”\n<\/p><\/blockquote>\n
1149.         A similar view was taken in an earlier decision of
\nthis Court in Chedha Singh and others Vs. Additional Civil
\nJudge, Moradabad and others, 1996 Supp. AWC 189 which
\nhas been followed in U.P. Sunni Central Waqf Board,
\nLucknow (supra).\n<\/p>\n
1150.         Now, therefore, it is well settled that Section 5 of
\n1936 Act would have no application qua the rights of Hindus in
\ngeneral and plaintiff (Suit-1) in particular in respect to his right
\nof worship. He would not be bound mere by inclusion of the
\nproperty in a notification issued under Section 5(1) of 1936 Act.
\nMoreover, in this particular case since the notification itself has
\nbeen held invalid so far as the property in question is concerned,
\nmeaning thereby, in the eyes of law, there was no notification
\nunder Section 5(1) of 1936 Act and, therefore, also the
\n                                                               1359<\/span><\/p>\n
restriction or benefit if any under the Act would not be
\napplicable to either of the parties. No further provision has been
\nshown to us from 1936 Act to affect the rights of Hindus in
\ngeneral and plaintiff (Suit-1) in particular affecting their\/his
\nright of worship etc..\n<\/p>\n
1151.        Therefore, both the issues are answered in favour of
\nplaintiff (Suit-1) and defendants (Suit-4) in particular and in
\nfavour of Hindu parties in General. Issues No. 5(b) (Suit-4) and
\n9(a) (Suit-1) are answered accordingly.\n<\/p>\n
1152.        Issue No. 5(e) (Suit-4) reads as under:\n<\/p>\n
        “Whether in view of the findings recorded by the learned
\n        Civil Judge on 21.4.1966 on issue no.17 to the effect that
\n        “No valid notification under section 5(1) of the Muslim
\n        Waqf Act ( No. XIII of 1936) was ever made in respect of
\n        the property in dispute”, the plaintiff Sunni Central Board
\n        of Waqf has no right to maintain the present suit?”\n<\/p><\/blockquote>\n
1153.        Issue 5(e) (Suit-4) raises a very basic question about
\nthe maintainability of Suit-4 pursuant to the finding recorded by
\nthe leaned Civil Judge where no valid notification has been
\nissued under Section 5(1) of the Act in respect to the property in
\ndispute. The question is whether in such circumstances,
\nplaintiff, Sunni Central Board of Waqf (Suit 4) has any right to
\nmaintain the present suit or not. This leads us to examine about
\nthe Waqfs covered by 1936Act as also when the Sunni Central
\nBoard of Waqf can file a suit.\n<\/p>\n
1154.        Sri P.N. Mishra, learned counsel for the defendant
\nNo.20 in suit 4 submitted that once it is held that there is no
\nvalid notification issued under Section 5 of 1936 Act and in
\nview of the further fact that no attempt was made by any person
\nincluding the alleged Mutawalli to get the alleged waqf
\n                                                              1360<\/span><\/p>\n
registered under Section 38 with the plaintiff No.1 in Suit-4 and
\nthe Sunni Central Waqf Board has failed to take any steps to get
\nthe alleged waqf registered by issuing necessary directions, as
\nthe case may be, under Section 39\/40 of 1936 Act, it is evident
\nthat the disputed building in suit is never treated to be waqf by
\nthem and therefore, since it was not a waqf, the Act itself is not
\napplicable. Hence suit-4 by plaintiff No.1 is not maintainable.
\nHe also submitted that even otherwise there was no waqf at all,
\nhence 1936 Act is inapplicable. Sunni Central Waqf Board has
\nno right to file the above suit.\n<\/p>\n
1155.       We find that though under the various provisions of
\n1936 Act, the legislature has attempted and made various
\nprovisions so that any waqf in the State of U.P., if existed, may
\nbe known to the Sunni Central Waqf Board so that it may be
\nproperly supervised and administered. However, the Act does
\nnot contain any provision that even though a waqf has been
\ncreated in accordance with Islamic Law yet it would not be
\ngoverned by the Act and shall be beyond the power of
\nsupervision, administration of Sunni Central Waqf Board or
\nShia Central Waqf Board, as the case may be for the mere
\nreason that it was not notified under Section 5 of the 1936 Act,
\nnot registered due to fault of the Mutawalli, if any or due to
\ninaction of the Board itself. It is, however, admitted by learned
\ncounsel for the defendant No.20 that the Act neither creates a
\nwaqf nor extinguish the same if the same is already in existence.
\nIn these circumstances, particularly in the absence of any
\nprovision in the Act, we have to consider whether there is any
\nintrinsic indication in the Act to necessarily exclude such a waqf
\nfrom the purview of 1936 Act merely for its non notification or
\nregistration etc. with the Board. If we find that there is no such
\n                                                                1361<\/span><\/p>\n
intrinsic hint in the Act also then to accept the submission, wide
\nenough, as advanced by Sri Mishra that even though there is a
\nvalid waqf, if it is not notified or registered with the Board or if
\nno person has filed a suit for declaration that there is no waqf
\nwithin the prescribed limitation, such waqf even if validly
\ncreated would not be covered by 1936 Act, would mean that we
\nhave read certain words in the statute which do not actually
\nexist. It travels in the realm of casus omissus which normally
\nthis Court shall not presume unless there is a necessary
\ncompulsion to do so. Considering the basic purpose for which
\nthe 1936 Act was enacted we find it difficult to read any such
\nwords in the statutes.\n<\/p>\n
1156.        The Waqf Act, 1954 though not applicable to the
\nState of U.P. but therein the provisions are mostly pari materia
\nwith 1936 Act. To start with there also was no provision which
\nrestrain the Central Board or anyone to initiate proceedings for
\nenforcing rights on behalf of a waqf not registered with the
\nBoard but later on Section 55-E was inserted therein by Act No.
\n69 of 1984 which bar enforcement of right on behalf of
\nunregistered waqf by anyone which included the Waqf Board
\nalso. It reads as under:\n<\/p>\n
             “55-E. Bar to the enforcement of right on behalf
\n        of unregistered waqfs.-(1) Notwithstanding anything
\n        contained in any other law for the time being in force, no
\n        suit, appeal or other legal proceeding or the enforcement
\n        of any right on behalf of any waqf which has not been
\n        registered in accordance with the provisions of this Act,
\n        shall be instituted or commenced or heard, tried or decided
\n        by any Court after the commencement of the Waqf
\n        (Amendment) Act, 1984, or where any such suit, appeal or
\n                                                                 1362<\/span><\/p>\n
        other legal proceeding had been instituted or commenced
\n        before such commencement, no such suit, appeal or other
\n        legal proceeding shall be continued, heard, tried or
\n        decided by any Court after such commencement unless
\n        such waqf has been registered, after such commencement
\n        unless such waqf has been registered, after such
\n        commencement, in accordance with the provisions of this
\n        Act.\n<\/p><\/blockquote>\n
                (2) The provisions of sub-section (1) shall apply, as
\n        far as may be, to the claim for set-off or any other claim
\n        made on behalf of any waqf which has not been registered
\n        in accordance with the provisions of this Act.”\n<\/p><\/blockquote>\n
1157.           We may notice that neither any similar provision
\nwas made in 1936 Act nor in Act No. XVI of 1960, therefore, it
\nwould not be appropriate to read something in U.P. Waqf Act,
\n1936 which actually did not find mention therein.
\n1158.           We may clarify at this stage that a provision pari
\nmateria with Section 55-E of 1954 Act has been included in
\nWaqf Act, 1995 in Section 87 but we are not concerned thereto
\nin this case.\n<\/p>\n
1159.           A collective reading of various provisions of 1936
\nAct shows that any ‘waqf’ defined under Section 3(1), whether
\nexisted at the time when 1936 Act came into force, or, came into
\nexistence subsequently, unless excluded under Section 2(2),
\nwould be covered by Section 2(1). In the present suits, there is
\nan issue no. 6 (Suit-3) questioning the very existence of a ‘Waqf’
\nand, therefore, unless that issue is answered in favour of the
\nplaintiffs (Suit-4), it can obviously be not said that the property
\nin dispute constituted ‘a Waqf’ under Section 3(1) of 1936 Act
\nand, therefore, will be covered by Section 2(1) of 1936Act since
\n                                                             1363<\/span><\/p>\n
it is not excluded by Section 2(2). Apparently the purpose of
\nsurvey and notification under Section 5(1) is to identify the
\nWaqfs as also the concerned Central Board which would
\nexercise the power of superintendence over the Waqf concerned
\ni.e. whether it is Sunni or Shia. Absence of a notification under
\nSection 5(1) in respect to a property which is a ‘Waqf’ otherwise
\nwould not result in exclusion of other provisions of 1936 Act.
\nThe function of Central Board and its power of superintendence
\nis not circumscribed to the ‘Waqfs’ as notified under Section
\n5(1) of the Act.\n<\/p>\n
1160.       A perusal of Section 18 on the contrary shows that
\ngeneral power of superintendence of all Waqfs to which “the
\nAct applies” is vested in the Central Board. Similarly, Section
\n38 of the Act also says that there is an obligation regarding
\nregistration of ‘Waqf’ whether it is subject to 1936 Act or not
\nand whether created before or after the commencement of the
\nAct, at the office of Central Board of the sect to which the Waqf
\nbelongs, namely, if the Waqf is a sunni Waqf, with Sunni
\nCentral Board of Waqf, otherwise, with the Shia Central Board
\nof Waqf. The obligation for making application for registration
\nis upon the Mutwalli. Non compliance of Section 38 is an
\noffence punishable under Section 60. In case of failure of a
\nMutwalli to get the Waqf registered, the power is also conferred
\nupon the Central Board itself to issue such a direction vide
\nSection 40 of 1936 Act. Section 39 provides for maintaining a
\nregister of Waqfs by the Central Board containing particulars in
\nrespect to each Waqf. The said provision is not confined to only
\nsuch Waqfs as are notified under Section 5(1) of 1936 Act.
\nSection 47 confers power upon the Central Board to apply the
\nCourt seeking direction in cases of undisposed Waqf funds or
\n                                                                1364<\/span><\/p>\n
where the directions in the deed of waqf are no longer sufficient
\nto carry out the intention of the waqif or where is a case for the
\napplication of doctrine of cypres. Here also the entitlement of
\nthe Central Board to approach the Civil Court is not confined to
\nthe waqfs notified under Section 5(1). Section 48 and 49 also
\nare applicable to “any waqf” to which 1936 Act applies and not
\nconfined to the waqfs notified under Section 5(1) of the Act.
\nSimilarly, Section 52 also provides for notice of suits to the
\nCentral Board where any suit relating to title to any waqf
\nproperty or to the rights of a Mutwalli is instituted in any civil
\nCourt. It is also not confined to the waqfs notified under Section
\n5(1) of the Act. Same is the position under Section 53 and 54 of
\nthe Act. We are, therefore, of the view that subject to Issue No.
\n6 (Suit-3), if answered in positive, i.e. in favour of plaintiffs
\n(Suit-4) or against the plaintiffs (Suit-3),i.e. if it is held that
\nmosque was dedicated by emperor Babar for worship by
\nMuslims in general and results in creation of a public waqf
\nproperty, in that condition, Issue No. 5 (e) has to be answered in
\nfavour of the plaintiffs (Suit-4) and it is to be held that the
\nplaintiff, Sunni Central Board of Waqf, has a right to maintain
\nthe suit even though a valid notification under Section 5(1) of
\n1936 Act was never issued in respect to the property in question.
\nOtherwise, this suit at the instance of Sunni Central Board of
\nWaqf would not be maintainable.\n<\/p>\n
1161.       It is true that in Tamil Nadu Wakf Board Vs.
\nHathija Ammal, AIR 2002 SC 402 which was a case arising
\nout of the provisions of Waqf Act, 1954 and in particular
\nSections 4, 5, 6 and 27 thereof, the Court held that since the
\nBoard itself possess power to decide whether a particular
\nproperty is waqf property or not and its decision is final unless it
\n                                                              1365<\/span><\/p>\n
is revoked or modified by a civil court by virtue of Section 27 of
\n1954 Act and, therefore, the Board cannot file a suit for
\ndeclaration that any property is a waqf property and for its
\npossession. However, in our view, the above judgment does not
\napply to a case governed by 1936 Act which contain no
\nprovision pari materia to Section 27 of 1954 Act.
\n1162.       At this stage we may also refer an earlier decision of
\nthis Court in Afzal Hussain Vs. 1st Additional District Judge,
\nAIR 1985 All. 79 where it was held that before taking an action
\nunder Section 57A, for recovery of possession of waqf property
\nfrom unauthorised occupants, the first inquiry which the Board
\nhas to make is whether the immovable property in respect of
\nwhich action is to be taken is entered as property of waqf in the
\nregister of waqfs maintained under S. 30 of 1960 Act being a
\njurisdictional issue. The above judgment also is not applicable
\nfor the reason that Section 57A provides for summery eviction
\nof unauthorised occupants and is applicable only in such cases
\nwhere the property is entered in the register of waqfs maintained
\nunder Section 30. Therefore, the dictum laid down therein
\ncannot be extended to a case where a suit is to be filed by the
\nWaqf Board for declaration of possession of a waqf even though
\nit is neither notified under Section 5(1) nor registered with it
\nunder 1936 Act.\n<\/p>\n
1163.       Sri Siddiqui, however, tried to overcome the
\ndifficulty as a result of invalidation of the notification by the
\nCivil Judge by contending that neither it afects the power of
\nSunni Board to maintain the suit nor shall bring into the
\nquestion of limitation. Placing reliance on the Apex Court’s
\ndecision in U.P. Shia Central Board of Waqf Vs. U.P. Sunnir
\nCentral Board of Waqf, AIR 2001 SC 2086, he contended that
\n                                                              1366<\/span><\/p>\n
mere non-availability of the notification shall not deprive the
\nBoard from registering a property as a waqf property on its own
\ninquiry. He further submits that the Hindu parties have also filed
\ncertain documents after obtaining certified copies thereof from
\nthe Sunni Board and that being so, it is not open to them to
\nchallenge that the waqf in question is not registered.
\n1164.       The submissions of Sri Siddiqui, however, are not
\nsustainable. It is though not disputed that U.P. Act 1936
\ncontemplated enlistment of waqfs in the register of concerned
\nWaqf Board in three ways, i.e., based on the list prepared by the
\nCommissioner of Waqfs and consequential notification; on the
\napplication of the Mutwalli of the concerned waqf and
\nregistration by the concerned waqf after issuing notice by the
\nWaqf Board itself but we have to look all these aspects in the
\nlight of the U.P. Act 1936 which continued to hold the field till
\n1960. Sections 1 to 4 came into force on 20.3.1937 but rest of
\nthe provisions, i.e., Sections 5 to 71 were enforced with effect
\nfrom 1.7.1947. The only way in which the disputed waqf
\nclaimed to have been registered by the Waqf Board was the
\nnotification dated 26.2.1944 based on the report of the
\nCommissioner. That notification was found invalid by the Civil
\nJudge in its judgment dated 21.4.1966. It is nobody’s case and
\neven the counsel for the Waqf Board do not claim that till issue
\nno. 17 was decided by the Civil Judge except of the notification
\ndated 26.2.1944, there was any other procedure or method
\nfollowed by the Sunni Board to enlist or register the concerned
\nwaqf in the register of the Waqf Board. Neither it is pleaded nor
\nthere is any material on record to substantiate the same. U.P.
\nAct 1936 was substituted by U.P. Act 1960. This continued to
\nhold the field till the Waqf Act 1995 was enacted by the
\n                                                                1367<\/span><\/p>\n
Parliament. It is only in the pleadings which the Waqf Board
\nfiled after 1989, wherein for the first time it has pleaded that the
\nwaqf in question was registered by the Board under Section 30
\nof U.P. Act 1960. Till then there was no pleading, no material to
\nshow that the waqf in question was registered with the Board in
\nany other manner except the notification dated 26.2.1944. That
\nwas declared invalid on 21.04.1966 by the Civil Judge. In the
\ncase of Shia Waqf Board (Supra) there was reference made
\nunder section 8 of U.P. Act 1960 since there was a dispute
\nwhether the concern waqf was a Sunni waqf or Shia waqf. The
\nApex Court held that where a dispute arose about the nature of
\nthe waqf whether it is a Shia waqf or a Sunni waqf, the only
\nrequirement under section 8 is the existence of dispute and not
\nthe existence of notification. Referring to section 6 (4) it further
\nobserved that if a notification has already been issued, then the
\nrestriction is that such dispute can be referred only within a
\nperiod of one year and not after expiry thereof but so long the
\nnotification is not there, outer limit will not be attracted. We do
\nnot find this judgment to lend any help to the plaintiff (Suit-4)
\nor Sunni Board in any manner.\n<\/p>\n
1165.       Similarly the pleading with respect to section 29 (8)
\nalso has no relevance in the case in hand since it is not the case
\nof the Sunni Waqf Board that except the notification dated
\n26.02.1944 there was any other order of the waqf board which
\nexisted declaring the waqf in question as a waqf registered with
\nthe Board and the same having not been challenged under
\nsection 29(8) within time prescribed and thereafter could not
\nhave been raised in this regard. This pleas wholly baseless and
\nis not attracted in these matters.\n<\/p>\n
1166.       Even otherwise, Suit-4 has been filed not only by
\n                                                                   1368<\/span><\/p>\n
the Sunni Central Waqf Board but there are nine more
\nindividual muslim parties being plaintiffs no. 2 to 10. It is
\nobvious that they are muslims and, therefore, would be
\ninterested in the property in dispute to which they claim to be a
\nwaqf property. The right to file a suit by a muslim in respect to a
\nproperty claimed to be a “waqf property” came to be considered
\nbefore a Division Bench in Anjuman Islamia Vs. Najim Ali
\nand others, AIR 1982 MP 17 and in para 7 of the judgement it
\nheld:\n<\/p>\n
              “7. We shall first consider the question whether the
\n        suit was not tenable at the instance of the plaintiff. In brief
\n        S. 195 of the Principles of Mohammedan Law by Mulla
\n        (18th Edition), is the complete answer to this question,
\n        which contemplates that a suit for a declaration that
\n        property belongs to a wakf can be brought by
\n        Mohammedans interested in the wakf. Anjuman is a society
\n        of Mohammedans registered under the Societies Act (Act
\n        No. 21 of 1860), as per registration certificate No. 104 of
\n        1960-61 (Exhibit P-5). Admittedly the members of plaintiff
\n        Anjuman and its president Shri Mohd. Abdul Qadir (PW 1)
\n        are residents of Chhatarpur and belong to Muslim
\n        community. They are, therefore, persons very much
\n        interested in the property in suit which they claim to be
\n        wakf property. The suit, therefore, instituted at their
\n        instance would be perfectly competent and tenable and the
\n        learned District Judge was wrong in holding otherwise.”\n<\/p><\/blockquote>\n
1167.         In the absence of any other precedent persuading us
\nto take a different view, we find ourselves in respectful
\nagreement thereto. We therefore hold that Suit-4 cannot be said
\nto be not maintainable provided the issue regarding the very
\n                                                                 1369<\/span><\/p>\n
nature of the disputed property whether it is a waqf or not is
\ndecided in favour of the plaintiffs (Suit-4) i.e. subject to the
\nissue as to whether the disputed property is a waqf or not, i.e.,
\nissue no. 6 (Suit-3) if decided in favour of plaintiffs (Suit-4),
\ni.e., defendants (Suit-3).\n<\/p>\n
1168.         Issue No. 18 (Suit-4) is as under:\n<\/p>\n
        “What is the effect of the judgment of their Lordships of the
\n        Supreme Court in Gulam Abbas and others vs. State of
\n        U.P. and others AIR<\/a> 1981 Supreme Court 2198 on the
\n        finding of the learned Civil Judge recorded on 21st April,
\n        1966 on issue no. 17?”\n<\/p><\/blockquote>\n
1169.         Issue No. 18 (Suit-4) relates to the effect of the
\njudgement of the Apex Court in Gulam Abbas (supra) on the
\nIssue No. 17 (Suit-4) decided by the learned Civil Judge vide his
\njudgement dated 21.4.1966. Sri Jilani argued that the
\nnotification dated 26.02.1944 under Section 5 (1) of 1936 Act
\nwas relied by the Apex Court in the above judgment meaning
\nthereby the notification cannot be said to be void ab initio and it
\nwould be deemed as if the decision of the leaned Civil Judge is
\nno more a good law in view of the fact that the law laid down by
\nthe Apex court is the law of the land vide Article 145 of the
\nConstitution of India.\n<\/p>\n
1170.         Sri M.M. Pandey, counsel for plaintiffs (Suit-5),
\nhowever, submitted that the decision in Ghulam Abbas’s case
\nmay be considered. In respect of Doshipura Mosque and other
\nproperties, the Wakf Commissoner, after survey and inquiry,
\nmade a report dt 28\/31.10.1938 u\/s 4(5) of Wakf Act 1936 with
\nAppendix VIII of Sunni Wakfs, excluding the Mosque, and
\nAppendix X of Shia Wakfs including the Mosque; copies of the
\nreport were sent to both Shia and Sunni Boards of Wakf. On
\n                                                              1370<\/span><\/p>\n
receipt of the report, Shia Board published Notification dt.
\n15.1.1954 of Appendix X in Gazette dt. 23.1.1954 u\/s 5(1).
\nNeither Sunni Board nor any person interested in the Wakf filed
\nsuit u\/s 5(2), within the period prescribed, to challenge the
\nomission of disputed properties from Appendix VIII. However,
\nSunni Board published Notification dt. 26.2.1944, u\/s 5(1),
\nincluding disputed properties, obviously not based on Appendix
\nVIII (which had excluded the properties). Supreme Court held
\nSunni Board’s Notification dt. 26.2.1944 to be invalid on the
\nground that it was not based on Appendix VIII while S.5(1)
\nrequired   the   Notification   to   be   ‘in   accordance   with’
\nCommissioner’s report and that Wakf Commisioner’s report with
\nAppendix X became ‘final and conclusive’ in favour of Shia
\nWakf.\n<\/p>\n
1171.      We have perused the above judgment very carefully.
\nThe dispute before the Apex Court in Gulam Abbas (supra)
\nwas between the members of Shia and Sunni communities of
\nmuslims. In Mohalla Doshipura of Varanasi City, both sects of
\nmuslims, namely, Shias and Sunnis reside. Both revere the
\nmartyrdom of Hazrat Imam Hussain and Hazrat Imam Hasan,
\ngrandsons of Prophet Mohammad during Moharram but in
\ndifferent manner. The members of Shia sect in Mohalla
\nDoshipura numbering about 4000 constitute a religious
\ndenomination having a common faith and observe Moharram
\nfor two months and eight days in a year in memory of Hazrat
\nImam Hussain who along with his 72 followers attained
\nmartyrdom at Karbala. The said religious belief is practised by
\nthe men-folk and the women-folk of the Shia community by
\nholding Majlises (religious discourses), Recitations, Nowhas,
\nMarsia, doing Matam (wailing) and taking out processions with
\n                                                            1371<\/span><\/p>\n
Tabut Tazia, Alams, Zuljinha etc. For performing these religious
\nrites, practices and observances, the Shia community has been
\ncustomarily using from time immemorial nine plots in Mohalla
\nDoshipura and the structures on some of them, particulars
\nwhereof are as under :\n<\/p>\n
           “Plot No. 246; on which stands a Mosque which, it is
\n     common ground, belongs to both the sects as it was
\n     constructed out of general subscription from members of
\n     both the sects and every Mohammadan is entitled to go in
\n     and perform his devotions according to the ritual of his
\n     own sect or school.\n<\/p><\/blockquote>\n
           Plot No. 247\/1130: on which stands the Baradari
\n     (Mardana Imambara- A structure of white stone having 12
\n     pillars) constructed by Shias in 1893 used for holding
\n     Majlises,   Recitations,   Marsia    and    doing    other
\n     performance.\n<\/p><\/blockquote>\n
           Plot No. 245: on which there is a Zanana Imambara
\n     used by Shia ladies for mourning purposes and holding
\n     Majlises etc.
\n           Plot No. 247: on which there is Imam Chowk used
\n     for placing the Tazia thereon (said to have been
\n     demolished by the Sunnis during the pendency of the
\n     instant proceeding).\n<\/p><\/blockquote>\n
           Plot No. 248\/23\/72: a plot belonging to one
\n     Asadullah, a Shia Muslim, with his house standing thereon.\n<\/p><\/blockquote>\n
           Plot No. 246\/1134: on which stands a Sabil Chabutra
\n     (platform for distributing drinking water) belong to one
\n     Nazir Hussain, a Shia Muslim.\n<\/p><\/blockquote>\n
           Plots Nos. 602\/1133, 602 and 603 : being vacant
\n     plots appurtenant to the Baradari in plot No. 247\/1130
\n                                                                    1372<\/span><\/p>\n
        used for accommodating the congregation assembled for
\n        Majlises etc. when it over-lows the Baradari.”\n<\/p><\/blockquote>\n
1172.        The manner in which the religious rights, practices
\nand functions used to be performed by the members of Shia
\ncommunity is mentioned in the judgment. The claim of Shia
\ncommunity to perform their religious rights on the said nine
\nplots and structures thereon based on two foundations’ (1)
\ndecisions of competent Civil Court adjudicating rights in their
\nfavour in earlier litigations and (2) registration of Shia Waqfs
\nconcerning the plots and structure for performance of theses
\npractices and functions under Section 5 and 38 of 1936 Act,
\nwhich     had   become     final   as no suit        challenging     the
\nCommissioner’s report and registration was filed within two
\nyears by any member of Sunni community or the Sunni Central
\nBoard of Waqf.\n<\/p>\n
1173.        For the purpose of issue no. 18 (Suit-4), we need not
\nto go into the details of the first aspect of the matter, i.e., the
\nvarious suits and proceedings which became final between the
\ntwo sects and instead straight way come to that part of the
\njudgment which deals with the notification dated 26.02.1944
\nissued under 1936 Act. The Shia sect claim that the
\nCommissioner       of    Waqf      submitted   his     report      dated
\n28\/31.10.1938 to the State government under Section 4(5)
\nshowing the plots and structures referred to above as Shia
\nWaqfs. This was followed by notification dated 15.1.1954
\nissued under Section 5(1) of 1936 Act by the Shia Central Board
\nof Waqf and published in the U.P. Gazette dated 23.1.1954. No
\nsuit challenging to the said notification was filed either by Sunni
\nCentral Board of Waqf or any Sunni Muslim within the period
\nprescribed under Section 5(2) of 1936 Act. The Sunni sect,
\n                                                                    1373<\/span><\/p>\n
however, relied on the notification dated 26.2.1944 issued by
\nthe Sunni Central Baord of Waqf under Section 5(1) of 1936
\nAct following the report of Commissioner of Waqf in respect to
\nthe waqfs which he identified a Sunni Waqf.\n<\/p>\n
1174.         After analysing the provisions of 1936 Act as well
\nas Muslim Waqf Act 1960 (Act No.14 of 1960) (hereinafter
\nreferred to as “1960 Act”), the Apex Court discusses the facts
\npertaining to preparation of report by Commissioner and
\nnotifications issued under 1936 Act, in para 16 of judgment as
\nunder :\n<\/p>\n
              “It appears that the Government of Uttar Pradesh
\n        appointed Shri Munshi Azimuddin Khan, A deputy
\n        Collector, as a Chief or Provincial Commissioner of Wakfs
\n        under Section 4A of the 1936 Act for the purpose of making
\n        a survey of all the Wakfs in all the districts of the State. …
\n        After making the necessary inquiries Shri Munshi
\n        Azimuddin Khan submitted to the State Government his
\n        Report dated 28th\/31st October, 1938 and annexed several
\n        appendices to his Report; Appendix VIII referred to Waqfs
\n        pertaining to Sunnis and declared as subject to the 1936
\n        Act and Appendix IX mentioned Waqfs pertaining to Sunni
\n        sect which were exempted from the Act; Appendices X and
\n        XI contained corresponding information about the Shia
\n        Waqfs which were respectively declared as subject to the
\n        Act or exempt from the Act. The original Report bearing
\n        the signature of Shri Munshi Azimuddin Khan, Chief Waqfs
\n        Commissioner was produced before us marked Exh. A) for
\n        our inspection by Mr. Rana, Counsel for the State of U.P.
\n        and the same was made available for inspection to the
\n        parties. There is a slip attached to the Report placed in
\n                                                                    1374<\/span><\/p>\n
        between Annexure VII and Annexure XIII containing an
\n        endorsement to the effect : “Appendices VIII and IX sent to
\n        the Sunni Board” and “Appendices X and XI sent to the
\n        Shia Board” with the signature of the Chief Commissioner
\n        of Waqfs below it……Presumably the aforesaid action of
\n        sending the relevant appendices along with a copy of the
\n        Commissioner’s report to the respective Sunni Central
\n        Waqf Board and the Shia Central Waqf Board was taken as
\n        required by Section 5(1) of the Act. ……. after receiving the
\n        aforesaid documents (Report together with the appendices
\n        X and XI), the Shia Central Waqf Board, as required by
\n        Sec. 5(1) of the Act, took steps to notify in the Official
\n        Gazette all the waqfs relating to their sect on the basis of
\n        the Appendices annexed to the Report; the relevant
\n        Notification under Section 5 (1) was issued on 15th
\n        January, 1954 and published in the Government Gazette on
\n        23rd January, 1954. ………Admittedly, no suit was filed
\n        either by the Sunni Central Board or any other person
\n        interested in those Wakfs challenging the decision recorded
\n        in his Report by the Chief or Provincial Commissioner for
\n        Wakfs within the time prescribed under Section 5 (2) of the
\n        Act, and, therefore, the Chief Commissioner’s Report
\n        together with the appendices X and XI thereto dated
\n        28th\/31st October 1938, on the basis of which the
\n        Notification dated 15th January, 1954 was issued and
\n        published in Official Gazette on 23rd January, 1954, must
\n        be held to have become final and conclusive as between the
\n        members of the two communities.”\n<\/p><\/blockquote>\n
1175.         Thereafter, in para 17 of the judgement, the Apex
\nCourt dealt with the notification dated 26th February, 1944 relied
\n                                                             1375<\/span><\/p>\n
by the members of Sunni community and said:\n<\/p>\n
           “As against the aforesaid material respondents 5 and
\n     6 and through them the Sunni community have relied upon
\n     a Notification dated 26th February, 1944 issued by the
\n     Sunni Central Wakfs Board under Section 5(1) of the U.P.<\/p><\/blockquote>\n
     Muslim Wakfs Act, 1936 following upon the receipt of the
\n     Report of the Chief or Provincial Commissioner of Wakfs
\n     in respect of mosque in Doshipura showing the same as
\n     Sunni Wakf, copy whereof has been annexed as Annexure
\n     S-2 to the affidavit dated 6th February, 1980 of Mohd. Basir
\n     Khan filed on behalf of the Sunni Central Waqfs Board as
\n     its “Pairokar’. This Notification on which reliance has
\n     been placed by the Sunnis appears to us of doubtful validity
\n     and probative value for the reasons which we shall
\n     presently indicate. Though issued and published earlier in
\n     point of time than the Notification of Shia Central Waqfs
\n     Board, it is admittedly not based on Appendices VIII and
\n     IX annexed to the Chief Commissioner’s Report dated
\n     28th\/31st October, 1938 but on the basis of some Registers
\n     of Waqfs (meaning lists of Waqfs) said to have been
\n     received by the Sunni Board from the Commissioner of
\n     Wakfs. Curiously enough the Sunni Central Waqfs Board
\n     had stated through two affidavits dated 6th January, 1980
\n     and 9th January, 1980 of their Pairokar Shri Mohd. Basir
\n     Khan that along with the copy of the Commissioner’s
\n     report Registers of Waqfs were received but no appendices
\n     like Appendices VIII and IX were received from the
\n     Commissioner, that according to the Registers of Waqfs
\n     there were 245 charitable Sunni Waqfs in the District of
\n     Banaras which were covered by the 1936 Act and all such
\n                                                        1376<\/span><\/p>\n
Waqfs were accordingly notified by the Sunni Board in the
\ngovernment Gazette by issuing the Notification dated 26th
\nFebruary, 1944 under Section 5(1) of the Act. The original
\nReport of the Commissioner does not refer to anything like
\nRegisters of Waqfs but, as stated earlier, it refers to
\nAppendices Nos. VIII, IX, X and XI and the endorsement on
\nthe slip under the signature of the Chief Commissioner
\nshows that the former two appendices were sent to the
\nSunni Board and the latter two to the Shia Board. In face of
\nthis endorsement and having regard to the fact that the
\nShia Board had received Appendices X and XI along with
\nthe Commissioner’s Report which that Board offered to
\nproduce, it is difficult to accept the Statement of the
\nPairokar of the Sunni Board that no appendices were
\nreceived by the Board along with a copy of the
\nCommissioner’s Report. It seems that relevant appendices,
\nthough received, are being withheld as their production
\nwould be adverse to the Sunnis. Apart from that aspect it is
\nclear on their own admission that the Notification under
\nSec. 5 (1) of the 1936 Act was issued by the Sunni Central
\nWaqfs Board not on the basis of Appendices VIII and IX
\nwhich formed part of the Commissioner’s Report but on the
\nbasis of some Registers of Waqfs said to have been
\nreceived by it. The notification regarding the Sunni Waqfs
\nissued on the basis of material which did not form part of
\nthe Chief Commissioner’s Report would be in violation of
\nSection 5(1) of the Act which required issuance of a
\nNotification thereunder ‘according to’ the Commissioner’s
\nReport and as such the Notification dated February 26,
\n1944 relied upon by respondents 5 and 6 and members of
\n                                                                        1377<\/span><\/p>\n
        the Sunni community would be of doubtful validity. … ….We
\n        are, therefore, clearly of the view that the Notification
\n        dated 26th February, 1944 issued under Section 5(1) of the
\n        1936 Act by the Sunni Board is of no avail to the Sunnis for
\n        the purpose of defeating the customary rights of the Shias
\n        to perform their religious ceremonies and functions on the
\n        other plots and structures thereon.”\n<\/p>\n
1176.           From the above judgment, thus, it is evident that the
\nApex Court, in fact, did not rely on the notification dated
\n26.2.1944 but instead held it to be of doubtful validity and
\nprobative value having not been issued in accordance with the
\nprocedure prescribed under Section 5 of 1936 Act. In our view,
\ninstead of upsetting the judgment of the learned Civil Judge, it,
\nin fact, strengthened the said decision which has held that the
\nnotification dated 26th February 1944 was not a valid
\nnotification in respect to property in dispute. In view of the
\nabove discussion, we have no manner of doubt that the Apex
\nCourt’s decision in Gulam Abbas (supra) does not affect the
\nfinding of the learned Civil Judge on Issue No. 17 (Suit-4) as
\ncontained in his judgement dated 21.4.1966, but on the contrary,
\nsupport and strengthen his said finding. Issue No. 18 (Suit-4) is
\nanswered accordingly.\n<\/p>\n
1177.           Issue No. 9(b) (Suit-1) reads as under:\n<\/p>\n
        “Were the proceedings under the said Act referred to in
\n        written statement para 15 collusive? If so its effect?”
\n1178.           Issue No. 9(b) (Suit-1) is based on the pleadings of
\nthe plaintiffs in para 15 of his replication which reads as under:\n<\/p>\n
        ^^15-   ,sDV ua0 13 lu~ 1936 fcYdqy ultra vires gS v\u00a9j mlds
\n        lEcU\/k ;fn dksbZ dk;ZokbZ dh xbZ rks og lc void gS oknh fdlh
\n        uksfVl ds cU\/ku esa ugha gS vkSj u fdlh dk;Zokgh ftldk o.kZu \/kkjk 15
\n                                                                      1378<\/span><\/p>\n
        esa fd;k x;k gS bl vfHk;ksx ij dksbZ izHkko gS oknh dk vuqeku gS fd
\n        og vfHk;ksx eqlRek ijLij “kM;U=h Hkkouk \u00bc lkft’kh \u00bd ls ;ksftr fd;k
\n        FkkA^^
\n        “15. Act no.13 of 1936 is ultra vires and the proceeding, if
\n        any, in its pursuance is void. The plaintiff is not bound by
\n        any notice nor does any proceeding, mentioned in para-15,
\n        have any bearing on this case. According to the plaintiff,
\n        this case has been filed collusively.” (E.T.C.)
\n1179.            In this paragraph reply contain with respect to para
\n15 of the written statement filed on behalf of defendants 1 to 5
\nwhich reads as under:\n<\/p><\/blockquote>\n
        ^^15-    ;g fd ce\u00a9ftc eqLkfye oDQ ,sDV 13 lu 1936 phQ dfe’uj
\n        vkSdkQ eqdjj gq, vkSj     phQ dfe’uj et+dwj us ckn rgdhdkr o
\n        eqvk;uk ekSdk elftn ckcjh ;g r; fd;k fd elftn ckcjh dk rkehj
\n        dqfuUnk ‘kgU’kkg    ckcj lqUuhmy etgc Fkk vkSj oDQ eqrkfYyd
\n        elftn etdwj lqUUkh oDQ gS vkSj blh flyflys esa dkuwuh
\n        uksVhfQds’ku Hkh tkjh dj fn;kA^^
\n        “15. That a Chief Commissioner of ‘Aukaf’ (plural of
\n        Waqf) was appointed under the Muslim Waqf Act 13 of
\n        1936, and after investigation and inspection of the disputed
\n        site Babri mosque the Chief Commissioner decided that
\n        emperor Babar, the builder of Babri mosque, was of Sunni
\n        sect and the Waqf in respect of the disputed mosque is a
\n        Sunni Waqf, and (he) also issued a legal notification in this
\n        behalf.” (E.T.C.)
\n1180.            To the same effect the defendant No.10 has also
\npleaded in paras 14 and 16 which reads as under:\n<\/p><\/blockquote>\n
        “14. That after the promulgation of U.P. Muslim Waqf
\n        Act, 1936, the Chief Commissioner of Waqfs had got a
\n        survey made in respect of the waqf properties and in that
\n        connection survey of the mosque in question was also
\n                                                                   1379<\/span><\/p>\n
        conducted and the same was registered as a waqf and a
\n        gazette notification had also been issued in respect thereto
\n        under the provisions of the U.P. Muslim Waqf Act, 1936.”
\n        “16. That the said mosque stands registered as a mosque
\n        in the office of the U.P. Sunni Central Board of Waqf,
\n        hereinafter referred to as the Board, as Waqf No. 26
\n        Faizabad even in the Register of Waqfs maintained under
\n        section 30 of the U.P. Muslim Waqf Act, 1960.”\n<\/p><\/blockquote>\n
1181.         In para 15 of the written statement of defendants no.\n<\/p><\/blockquote>\n
1 to 5 the statement of fact with respect to the inquiry made by
\nthe Chief Commissioner of Waqf and the notification dated
\n26.02.1944 has been made. This notification has already held to
\nbe invalid, so far as the disputed property is concerned. No
\nmaterial has been placed before this Court to show that the
\nalleged proceedings under 1936 Act in any manner were the
\nresult of any conspiracy, mala fide etc. of the muslim parties. In
\nfact the plaintiff (Suit-1) could not substantiate the plea of
\nconspiracy taken in para 15 of his replication and during the
\ncourse of arguments the learned counsel for the plaintiff (Suit-\n<\/p>\n
1), in fact, gave up the said plea and neither advanced any
\nsubmission      nor   could    substantiate   the    same.   In    the
\ncircumstances, issue no. 9(b) (Suit-1) is answered against the
\nplaintiff (Suit-1) and it is held that the proceedings referred to
\nin para 15 of the written statement (Suit-1) cannot be said to be
\ncollusive in the absence of placing anything before this court to
\nsubstantiate the same. In these circumstances, the question of
\nconsidering its effect does not arise.\n<\/p>\n
1182.         Issue No. 9(c) (Suit-1) is as under:\n<\/p>\n
        “Are the said provisions of the U.P. Act 13 of 1936 ultra
\n        vires for reasons given in the statement of plaintiff’s
\n                                                                 1380<\/span><\/p>\n
        counsel dated 9.3.62 recorded on paper no. 454-A?”\n<\/p><\/blockquote>\n
1183.           Sri P.D. Goswami, counsel for the plaintiff (Suit-1)
\non 08\/09.03.1962 made the following statement:\n<\/p>\n
                “Sri P.D. Goswami advocate for the plffs state that
\n        the report of the commissioner spoken of in para 15 of the
\n        W.S. has no effect on the rights of the plff nor do the
\n        provisions of Sec 5(3) of U.P. Act 13 of 1936 apply to the
\n        present suits as they are based on a right of worship of plff
\n        who is a Hindu. According to him the provisions of this Act
\n        are applicable to the property and the rights of the Muslims
\n        only.\n<\/p><\/blockquote>\n
                He does not give up the plea taken by him in the
\n        replication in that connection.\n<\/p><\/blockquote>\n
                According to him the said Act has been repealed by
\n        U.P. Act 16 of 1960. He further adds that in case the said
\n        Act be considered applicable to the present suits it is ultra
\n        vires the provisions of the Govt of India Act 1935 and is in
\n        conflict with the Ancient Monuments Preservation Act (Act
\n        No. VII of 1904).”\n<\/p><\/blockquote>\n
1184.     As we have already held that firstly, there was no valid
\nnotification under Section 5(1) of 1936 Act regarding the
\nproperty in dispute, and secondly, that the said Act does not
\napply to non muslims, we do not find any occasion to go into
\nthis issue further since the statement of the learned counsel itself
\nwas conditional, i.e., if 1936 Act is held applicable to Suit-1 and
\n2 then it is ultra vires of the provisions of the Government of
\nIndia Act, 1935 and is in conflict with the Ancient Monument
\nPreservation Act (Act No. 7 of 1904).\n<\/p>\n
1185.           Even otherwise, we do not find as to how Act No. 7
\nof 1904 would come into picture in the case in hand. The
\n                                                                 1381<\/span><\/p>\n
aforesaid Act of 1904 was promulgated on 18.03.1904 with the
\npreamble as under:\n<\/p>\n
              “Whereas it is expedient to provide for the
\n        preservation of ancient monuments, for the exercise of
\n        control over traffic in antiquities and over excavation in
\n        certain places, and for the protection and acquisition in
\n        certain cases of ancient monuments and of objects of
\n        archaeological, historical or artistic interest.”\n<\/p><\/blockquote>\n
1186.         The statement of objects and reasons of 1904 Act
\nreads as under:\n<\/p>\n
              “The object of this measure is to preserve to India its
\n        ancient monuments in antiquities and to prevent the
\n        excavation by unauthorised persons of sites of historic
\n        interest and value.<\/p><\/blockquote>\n
              2. In 1898 the question of antiquarian exploration
\n        and research attracted attention and the necessity of taking
\n        steps for the protection of monuments and relics of
\n        antiquity was impressed upon the Government of India. It
\n        was then apparent that legislation was required to enable
\n        the Government to discharge their responsibilities in the
\n        matter and a Bill was drafted on the lines of the existing
\n        Acts of Parliament modified so as to embody certain
\n        provisions which have found a place in recent legislation
\n        regarding the antiquities of Greece and Italy. This draft
\n        was circulated for the opinions of local Governments and
\n        their replies submitted showed that the proposals
\n        incorporated in it met with almost unanimous approval, the
\n        criticism received being directed, for the most part, against
\n        matters of detail. The draft has since been revised, the
\n        provisions of the Draft Bill prepared by the Government of
\n                                                        1382<\/span><\/p>\n
Bengal have been embodied so far as they were found
\nsuitable and the present Bill is the result.\n<\/p>\n
3.The first portion of the Bill deals with protection of
\n“Ancient monuments” an expression which has been
\ndefined in clause 2 (now section 2). The measure will apply
\nonly to such of these as are from time to time expressly
\nbrought within its contents though being declared to be
\n“protected monuments”. A greater number of more famous
\nbuildings in India are already in possession or under the
\ncontrol of the Government; but there are others worthy of
\npreservation which are in the hands of private owners.
\nSome of these have already been insured or are fast falling
\ninto decay. The preservation of these is the chief object of
\nthe clause of the Bill now referred to and the provisions of
\nthe Bill are in general accordance with the policy
\nenunciated in section 23 of the Religious Endowments Act,
\n1863 (20 of 1863), which recognises and saves the right of
\nthe Government “to prevent injury to and preserve
\nbuildings remarkable in their antiquity and for their-
\nhistorical or architectural value or required for the
\nconvenience of the public”. The power to intervene is at
\npresent limited to cases to which section 3 of the Bengal
\nRegulation 19 of 1810 or section 3 of the Madras
\nRegulation VII of 1817 applies. In framing the present Bill
\nthe Government has aimed at having the necessity of good
\nwill and securing the co-operation of the owners concerned
\nand it hopes that the action which it is proposed to take
\nmay tend rather to the encouragement than to the
\nsuppression of private effort. The Bill provides that the
\nowner or the manager of the building which merits greater
\n                                                          1383<\/span><\/p>\n
care than it has been receiving may be invited to enter into
\nan agreement for its protection and that in the event of his
\nrefusing to come to terms the collector may proceed to
\nacquire it compulsorily or take proper course to secure its
\napplication. It has been made clear that there is to be no
\nresort to compulsory acquisition in the case the monument
\nis used in connection with religious observances or in other
\ncase until the owner has had an opportunity of entering
\ninto an agreement of the kind indicated above; and it is
\nexpressly provided that the monument maintained by the
\nGovernment under the proposed Act, shall not be used for
\nany purpose inconsistent with its character or with purpose
\nof its foundation, and that, so far as is compatible with the
\nobject in view the public shall have access to it free of
\ncharge. By the 4th proviso of clause 11 (now section 10) it
\nis laid down that in assessing the value of the monument
\nfor the purpose of compulsory acquisition under the Land
\nAcquisition Act, 1894 (1 of 1894) its archaeological,
\nartistic or historical merits shall not be taken into account.
\nThe object of the Government as purchaser being to
\npreserve at the public expense and for the public benefits
\nan ancient monument with all its associations, it is
\nconsidered that the value of those associations should not
\nbe paid for.\n<\/p>\n
4.    The second portion of the Bill deals with movable
\nobjects of historical or artistic interest and these may be
\ndivided into two classes; the first consists of ornaments,
\nenamels, silver and copper vessels, Persian and Arabian
\nManuscripts, and curios general. These are for the most
\npart portable and consequently difficult to trade; they are
\n                                                          1384<\/span><\/p>\n
as a rule artistic; are of historic interest and it would be
\nimpracticable even were it desirable to prevent a dealer
\nfrom selling and a traveller from buying them. The
\nsculptural carvings, images, bas-reliefs, inscriptions and
\nthe like form a distinct class by themselves, in that their
\nvalue depends upon their local connection. Such antiquities
\nmay, as in the case of those of Swat, be found outside India
\nor in Native States and this the Legislature cannot reach
\ndirectly; while as regards the British territory and under
\nthe existing law, it is impossible to go beyond the
\nprovisions of the Indian Treasure Trove Act, 1878 (6 of
\n1878). (In these circumstances, it is proposed, by clause 18
\nof the Bill to take power to prevent the removal from
\nBritish India of any antiquities which it may be deemed
\ndesirable to retain in the country, and at the same time to
\npresent importation. By thus putting a stop on draft in such
\narticles it is believed that it will be possible to protect
\nagainst spoilation a number of interesting places situated
\nwithout and beyond British territory. Clause 19 aims at
\nproviding   for   antiquities   such   as   sculptures   and
\ninscriptions which belong to another place and ought
\ntherefore to be kept in situ or deposited in local museums.
\nThe removal of these, it is proposed to enable the local
\nGovernment to prohibit by notification and the clause also
\nprovides that, if the object is movable, the owner may
\nrequire the Government to purchase it outright and that, if
\nit is immovable the Government shall compensate the
\nowner for any loss caused to him by the prohibition. Clause
\n20 (now section 19) deals with the compulsory purchase of
\nsuch antiquities if that is found to be necessary for their
\n                                                                1385<\/span><\/p>\n
        preservation and the owner is not willing on personal or
\n        religious grounds to part with them. In such cases it is
\n        proposed that the price to be paid should be assessed by
\n        the Collector, subject to a right of appeal to the local
\n        government but it is for consideration whether the Land
\n        Acquisition Act of 1894 should be followed and reference
\n        to the Courts allowed.\n<\/p>\n
        5.    The third portion of the Bill deals with excavations
\n        and gives power to make rules to prohibit or regulate such
\n        operations.”\n<\/p>\n
1187.         The term “ancient monument” and “antiquities” are
\ndefined in Section 2(1) and (2) of 1904 Act which read as under:\n<\/p>\n
              “2(1) “Ancient monument” means any structure,
\n        erection or monument or any tumulus or place of
\n        interment, or any cave, rock-sculpture, inscription or
\n        monolith, which is of historical, archaeological or artistic
\n        interest, or any remains thereof, and includes–\n<\/p><\/blockquote>\n
              (a) the site of an ancient monument;\n<\/p><\/blockquote>\n
              (b) such portion of land adjoining the site of an
\n              ancient monument as my be required for fencing or
\n              covering in or otherwise preserving such monument;
\n              and\n<\/p><\/blockquote>\n
              (c) the means of access to and convenient inspection
\n              of an ancient monument;<\/p><\/blockquote>\n
              (2) “antiquities” include any movable objects which
\n        the Central Government, by reason of their historical or
\n        archaeological associations, may think it necessary to
\n        protect against injury, removal or dispersion;”\n<\/p><\/blockquote>\n
1188.         The term “owner” is also defined in Section 2(6) as
\nunder:\n<\/p>\n
                                                                  1386<\/span><\/p>\n
              “2(6) “owner” includes a joint owner, invested with
\n        power of management on behalf of himself and other joint
\n        owners, and any manager or trustee exercising powers of
\n        management over an ancient monument, and the successor
\n        in title of any such owner and the successor in office of any
\n        such manager or trustee:\n<\/p><\/blockquote>\n
              Provided that nothing in this Act shall be deemed to
\n        extend the powers which may lawfully be exercised by such
\n        manager or trustee.”\n<\/p><\/blockquote>\n
1189.         Section 3 provides for “protected monuments”. It is
\nnot the case of any of the parties that the disputed building was
\never notified by the Government as a “protected monument”
\nunder Section 3 of 1903 Act.\n<\/p>\n
1190.         Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 are
\napplicable to a “protected monument”, i.e., an “ancient
\nmonument” which is declared to be “protected monument” by
\nnotification in the official gazette under Section 3 and, therefore,
\nex facie would have no application to the property in dispute.
\n1191.         Section 10A which was inserted in 1932 is only in
\nrespect to control of the Central Government where it finds that
\nmining, quarrying, excavation, blasting and other operations of a
\nlike nature needs to be restricted and regulated for the purpose
\nof protecting or preserving any “ancient monument”. This also
\nhas nothing to do with the disputed property as there is no such
\ncase of either party. We, therefore, find nothing in 1904 Act in
\nany manner to affect the provisions of 1936 Act.
\n1192.         So far as the Government of India Act, 1935 is
\nconcerned, learned counsel for the plaintiff (Suit-1) could not
\nshow anything therein to substantiate his plea of ultra vires of
\n1936 Act. It is no doubt true that 1936 Act was repealed by U.P.\n<\/p>\n
                                                                 1387<\/span><\/p>\n
Act No. XVI of 1960 but that by itself would not make anything
\nalready done under 1936 Act redundant or illegal or non est. In
\nfact the transactions already taken place are duly protected
\ntherein i.e. in 1960 Act. The counsel for the plaintiffs in fact
\ncould not substantiate the plea so as to persuade this Court to
\nanswer issue no. 9(c) (Suit-1) in his favour and it is accordingly
\ndecided in negative.\n<\/p>\n
1193.         Now comes Issue No. 16 (Suit-3) which reads as
\nunder:\n<\/p>\n
        “Is the suit bad for want of notice u\/s 83 of U.P. Act 13 of
\n        1936?”\n<\/p>\n
1194.         We find that there is no pleading to this effect i.e.
\nrequirement of such notice, in the written statements of
\ndefendants in Suit-3. In fact in para 27 of written statement of
\ndefendant no. 10 (Suit-1) a plea of want of notice under Section
\n56 of 1936 Act has been taken which reads as under:\n<\/p>\n
        “27. That the suit is not maintainable even on account of
\n        the reason that no notice was served upon the Board as
\n        required by section 56 of the U.P. Muslim Waqf Act, 1936
\n        and the suit is liable to be dismissed even on this account.”\n<\/p><\/blockquote>\n
1195.         Learned counsel for the defendant (Suit-3) neither
\ncould substantiate their case to support the above issue nor in
\nfact could place anything before this Court to assist us to
\nconsider the above issue in an effective manner.
\n1196.         In fact there is no Section 83 in 1936 Act. In the
\nwritten statement filed in Suit-3 by the defendants No.6 to 8
\nthere is no such pleading with reference to any provision of
\n1936 Act alleging that the same bars the suit. The defendant
\nNo.9, however, has stated before the Court that the plaint of
\nSuit-4 be treated as his written statement and there also we do
\n                                                                1388<\/span><\/p>\n
not find any such pleading referring to any provision of 1936
\nAct on the basis whereof it is said that the suit is barred for want
\nof any notice. The only objection with reference to 1936 Act
\ntaken is in para 9 and 10 of the plaint (Suit-4) which states that
\nthe Commissioner of Waqfs made an enquiry with reference to
\nthe disputed building as a public waqf and based thereon the
\nState Government issued a notification on 26th February, 1944
\nwhich having not been challenged by the Hindus or any person
\ninterested denying the report of the Commissioner of the Waqfs
\non the ground that it was a Muslim waqf or it was a Hindu
\ntemple hence now it cannot be challenged. It is only in Suit-1,
\nthe defendant No.10 in para 27 of its written statement has said
\nthat due to absence of notice, as required by Section 56 of 1936
\nAct, the suit is not maintainable and is liable to be dismissed.
\nEven if we read issue 16 (Suit-3) that instead of Section 83 of
\n1936 Act, it ought to be Section 56 of 1936 Act, we do not find
\nthat it requires any notice before filing a suit and in fact
\nreference to Section 56 is not correct, as is evident from a bare
\nperusal thereof, which is reproduced as under:\n<\/p>\n
        “56. Appointment of mutawalli.- When there is vacancy in
\n        the office of mutawalli of a waqf and there is no one
\n        competent to be appointed under the terms of the deed of
\n        waqf, or where the right of any person to act as mutawalli
\n        is disputed, the Central Board may appoint any person to
\n        act as a mutawalli for such period and on such conditions
\n        as it may think fit.”\n<\/p><\/blockquote>\n
1197.         However, there is another Section 53 in 1936 Act
\nwhich contain some provision with reference to notice and reads
\nas under :\n<\/p>\n
        “53. No suit shall be instituted against a Central Board in
\n                                                                  1389<\/span><\/p>\n
        respect of any act purporting to be done by such Central
\n        Board under colour of this Act or for any relief in respect
\n        of any waqf, until the expiration of two months next after
\n        notice in writing has been delivered to the Secretary, or left
\n        at the office of such Central Board, stating the cause of
\n        action, the name, description and place of residence of the
\n        plaintiff and the relief which he claims ; and the plaint
\n        shall contain a statement that such notice has been so
\n        delivered or left.”\n<\/p><\/blockquote>\n
1198.         From a bare perusal of Section 53 of 1936 Act, it is
\nevident that its scope and purpose is wholly different. Even
\notherwise, the requirement of notice under Section 53 in 1936
\nAct is akin to Section 80 CPC. The Apex Court in para 25 of the
\njudgment in Siraj-ul-Haq Khan (supra) has considered Section
\n53 and its effect and has observed that this Section is similar to
\nSection 80 of the Civil Procedure Code and thereafter having
\nsaid so further says that it was incumbent upon the appellants to
\nhave given the requisite notice under Section 53 before
\ninstituting the suit and failure to do so would bar the suit being
\nnot maintainable. The parties before us were required to show as
\nto how Section 53 in the case in hand would be attracted to
\nwhich none has assisted the Court. However, as observed by the
\nApex Court in Siraj-ul-Haq Khan (supra), the compliance is
\nmandatory where Section 53 is applicable. Without considering
\nthe question as to whether the relief sought in Suit-3 would
\nattract Section 53 or not; and, proceeding by assuming that
\nSection 53 would apply, we are of the view that this provision
\nhas been made for the benefit of Central Board concerned in
\nparticular and Muslim communities in general. It is always open
\nto a party for whose benefit the provisions has been made to
\n                                                               1390<\/span><\/p>\n
waive such benefit. This aspect we have already considered in
\nrespect to the issues relating to Section 80 CPC above and
\nfollowing the reasons as are applicable to Section 80 CPC, we
\nare of the view that the benefit under Section 53 can also be
\nwaived. If non-issuance of notice and defect under Section 53 is
\nnot pressed by the concerned Board before the Court, non-
\ncompliance of Section 53 would not vitiate the suit. The issue is
\nanswered accordingly.\n<\/p>\n
1199.        Issue 5(f) (Suit-4) relates to U.P. Act XVI of 1960
\nand reads as under:\n<\/p>\n
        “Whether in view of the aforesaid finding, the suit is
\n        barred on account of lack of jurisdiction and limitation as
\n        it was filed after the commencement of the U.P. Muslim
\n        Waqf Act, 1960?”\n<\/p><\/blockquote>\n
1200.        In the written statement dated 20th July, 1968, filed
\nby defendants No.13 and 14 (Suit-4), it has been pleaded that
\nafter the enforcement of U.P. Act XVI of 1960, the suit in
\nquestion having been filed in 1961, is not saved under Section
\n85(2) thereof. They further say that Section 9(2) of 1960 Act
\nalso would not save the finality of the decision of the
\nCommissioner of Waqfs since 1936 Act itself having vanished
\nafter repeal and therefore, the suit on behalf of Sunni Central
\nWaqf Board is wholly without jurisdiction.
\n1201.        During the course of arguments, however, learned
\ncounsel for the defendants could not substantiate the above
\nobjection and could not show as to how Section 85(2) and
\nSection 9(2) of 1960 Act would be attracted in the case in hand
\nto make the suit without jurisdiction and beyond limitation. It is
\ntrue that notification issued under Section 5(1) of 1936 Act has
\nbeen held to be invalid so far as the property in dispute is
\n                                                                1391<\/span><\/p>\n
concerned but in case the property in dispute is found to be
\nwaqf, no provision in U.P. Act XVI of 1960 has been shown
\nwhich may deprive the Sunni Central Waqf Board or other
\nplaintiffs of Suit-4 to maintain the suit in respect to a property
\nwhich they claim to be a ‘waqf property’ and to claim its
\npossession in case it is not otherwise impermissible in law. At
\nleast we are not able to find any provision under U.P. Act XVI
\nof 1960 which may prohibit either plaintiff No.1 (Suit-4) or
\nother plaintiffs from maintaining Suit-4 in question provided the
\nproperty in dispute is a “waqf” within the meaning of Shariyat
\nLaw.\n<\/p>\n
1202.         In view of above, we do not find any substance and
\ndecide issue 5 (f) (Suit-4) against the defendants and in favour
\nof the plaintiffs (Suit-4) holding that the suit in question is not
\nbarred having been filed after the commencement of U.P. Act
\nNo.XVI of 1960.\n<\/p>\n
1203.         Now we come to Issues 23 and 24 (Suit-4) which
\ncan be considered together, and read as under:\n<\/p>\n
        “Whether the Waqf board is an instrumentality of State? If
\n        so, whether the said Board can file a suit against the State
\n        itself?”\n<\/p><\/blockquote>\n
        “If the Waqf Board is State under Article 12 of the
\n        Constitution? If so, the said Board being the State can file
\n        any suit in representative capacity sponsoring the case of
\n        particular community and against the interest of another
\n        community?”\n<\/p><\/blockquote>\n
1204.         The learned counsels for the defendants could not
\npoint out any pleadings raising such objection therein. However,
\nthey contended that since the Sunni Central Waqf Board has
\nbeen constituted under 1936 Act and therefore, being a statutory
\n                                                              1392<\/span><\/p>\n
body, its constitution, function etc. can be looked into from the
\nvarious provisions of the statutory enactment and that itself
\nwould be sufficient to give necessary information. Though
\nprima facie we find it difficult to accept the above proposition,
\nbut, however, we proceed to consider the above issues analyzing
\nthe relevant provisions of 1936 Act as well as 1960 Act to find
\nout whether there is any substance in these issues.
\n1205.          It is not in dispute that Sunni Central Waqf Board
\nhas been established under Section 6(1) of 1936 Act. Its
\nconstitution is provided in Section 7 thereof. The two provisions
\nread as under:\n<\/p>\n
        “6. Establishment of Central Boards.-(1) there shall be
\n        established in the United Provinces two separate Boards to
\n        be called the “Shia Central Board” and the “Sunni
\n        Central Board” of waqfs. Each such Board shall be a body
\n        corporate and shall have perpetual succession and a
\n        common seal and shall by its said name sue or be sued.”
\n        “7. Constitution of Sunni Central Board.- The Sunni
\n        Central Board shall consist of-\n<\/p><\/blockquote>\n
        (i)    five members to be elected in the manner prescribed
\n        by Sunni members of the local legislature,\n<\/p><\/blockquote>\n
        (ii)   four members to be elected in the manner prescribed
\n        by the District Waqf Committees.\n<\/p><\/blockquote>\n
        (iii) three members to be co-opted by the above nine
\n        members from persons whom they regard as ulamas, and
\n        two members from among mutawallis, and\n<\/p><\/blockquote>\n
        (iv) the President, if he is not one of the above fourteen
\n        members :\n<\/p><\/blockquote>\n
        Provided that the first Sunni Central Board shall be
\n        established by the local Government within three months of
\n                                                              1393<\/span><\/p>\n
        the date on which this section comes into force and shall
\n        consist of-\n<\/p><\/blockquote>\n
        (i)    five members to be elected, in such manner as the
\n        local Government may direct, by the Sunni members of the
\n        local legislature;\n<\/p><\/blockquote>\n
        (ii)   two members to be elected, in such manner as the
\n        local Government may direct, by the Sunni members of
\n        Executive Committee of the Provincial Muslim Educational
\n        Conference ;\n<\/p><\/blockquote>\n
        (iii) three members to be co-opted by the above seven
\n        members from persons whom they regard as ulamas ; and\n<\/p><\/blockquote>\n
        (iv) three members to be co-opted by the above ten
\n        members.”\n<\/p><\/blockquote>\n
1206.          Section 10 of 1936 Act provides that the members of
\nCentral Board shall hold office for five years. Section 13 of
\n1936 Act provides for the place where the office of the Central
\nBoard shall be located and Sections 14 to 17 of 1936 Act are in
\nrespect to manner of function and requisite staff of such Board.
\nSection 18 of 1936 Act provides for the functions of the Central
\nBoard which we have already referred to.\n<\/p>\n
1207.          Chapters 3, 4, 5, 6 and 7 of 1936 Act contain
\nprovisions with regard to registration of waqfs, audit of
\naccounts, enquiry and supervision, legal proceedings and
\nadministration charges. Chapter 8 of 1936 Act provides for
\nMutawalli and Section 58 of 1936 Act confers powers upon the
\nBoard to remove Mutawalli from his office in certain
\ncircumstances. Section 68 of 1936 Act provides that the
\nGovernment shall not be liable for any expenditure incurred in
\nthe administration of 1936 Act.\n<\/p>\n
1208.          From a perusal of 1936 Act, it is evident that the
\n                                                                1394<\/span><\/p>\n
Central Sunni Waqf Board is a statutory body constituted in
\naccordance with the provisions of the said Act. By no stretch of
\nimagination it can be said to be either a Department of the State
\nGovernment or an instrumentality of the State Government.
\n1209.       A similar question came up for consideration in
\nrespect to the employees of certain statutory bodies like Jal
\nNigam, Banks, Local Bodies etc. where the employees claim
\nthemselves to be the Government employees as the bodies are
\ncontrolled by the Government but negativing the said contention
\nit was held by the Apex Court that the statutory bodies are
\nneither a Department or part and parcel of the State Government
\nnor the employees of the statutory bodies can be said to be the
\nGovernment employees.\n<\/p>\n
1210.       Being a statutory body constituted under statute
\nhaving powers, functions and duties, which the Waqf Board is
\nliable to perform, it may be covered by the term ‘Other
\nAuthority’ under Article 12 of the Constitution of India but that
\nby itself would neither make it an instrumentality of the State
\nGovernment of U.P. nor would deprive it to file a suit where it is
\naggrieved against some action of the State Government or its
\nauthorities. The Waqf Board having been constituted with a
\nparticular objective i.e. for the better governance, administration
\nand supervision of certain classes of Muslim Waqfs, from its
\nvery nature, its duty is confined for the welfare of certain special
\nkind of properties of the persons of a particular community and
\nin particular religion i.e. Muslims. It will wholly be
\nmisconceived to suggest that by representing or sponsoring the
\ncause of members of a particular community against another
\ncommunity i.e. Muslims against Hindus, the Waqf Board is
\ncausing discrimination though it is a “State” under Article 12 of
\n                                                                1395<\/span><\/p>\n
the Constitution. No authority could be placed before this Court
\nbinding upon us to take a view different than what we have
\ndiscussed above.\n<\/p>\n
1211.         On the contrary, we find support from a decision of
\nthe Apex Court in Syed Yousuf Yar Khan and others Vs. Syed
\nMohammed Yar Khan and others, AIR 1967 SC 1318 where a
\nsomewhat similar contention was raised that the “Waqf Board”
\nis an agent of Central Government but rejecting the same the
\nApex Court in para 4 of the judgment held as under:\n<\/p>\n
              “(4) Counsel submitted that the present suit was a
\n        suit by or on behalf of the State Government and was
\n        therefore governed by art. 149 of the Indian Limitation Act
\n        1908. He submitted that the Board of Muslim Endowments,
\n        Hyderabad, which according to him was the Board of
\n        Wakfs constituted under the Muslim Wakfs Act 1954, was
\n        an agent of the Central Government. By s. 9(2) of the
\n        Muslim Wakfs Act, 1954, the Board of Wakfs is a body
\n        corporate and by s. 15 of this Act, the Board is vested with
\n        the right of general superintendence of wakfs and is
\n        empowered to take measures for the recovery of the lost
\n        properties of any wakf and to initiate and defend suits and
\n        proceedings relating to wakfs. Counsel submitted that a
\n        corporation may be an agent of the State Government, and
\n        in support of this contention relied upon Halsbury’s Laws
\n        of England, 3rd Ed., Vol. 9, p. 10-Tamlin v. Hannaford
\n        (1949) 2 All E. R. 327, and the observations of Shah, J. in
\n        State Trading Corporation of India Limited v. The
\n        Commercial Tax Officer, A.I.R.<\/a> 1963 S.C. 811, 849, 850,
\n        paras. 115-117. He submitted that the State Government
\n        has delegated its functions of superintendence over wakfs
\n                                                                1396<\/span><\/p>\n
        to the Board of Wakfs and the Board should therefore be
\n        regarded as an agent of the State Government. We are
\n        unable to accept this contention. By the Religious
\n        Endowments Act 1863, the Government divested itself of
\n        the   management     and   superintendence    of   religious
\n        endowments which was vested in it under Regn. 19 of 1810
\n        and Regulation 7 of 1817. The Board of Wakfs though
\n        subject to the control of the State Government, is a
\n        statutory corporation and is vested with statutory powers,
\n        functions and duties. The Board has power to hold property
\n        and is in control of the wakf fund (ss. 9 and 48). The State
\n        Government has no concern with the property vested in the
\n        Board save during the period of supersession of the Board
\n        under s. 64. Nor is the State Government liable for any
\n        expenditure incurred by the Board in connection with the
\n        administration under the Act (S. 54). The Board of Wakfs is
\n        not discharging a governmental function. The Act nowhere
\n        says that the Board would act as the agent of the State
\n        Government. It rather indicates that the Board is not the
\n        agent of the Government and the Government is not
\n        responsible for its acts. We must, therefore, hold that the
\n        Board of Wakfs is not an agent of the State Government
\n        and a suit instituted by it for the recovery of a wakf
\n        property is not a suit by or on behalf of the State
\n        Government.”\n<\/p><\/blockquote>\n
1212.         In Syed Yousuf Yar Khan (supra) the issue of
\nidentifying mutawalli with the State Government was also
\nraised by contending that the mutawalli is an agent of the
\n“Government” in order to take the benefit of Article 149 of the
\nLimitation Act but that was also rejected by the Apex Court by
\n                                                                 1397<\/span><\/p>\n
observing:\n<\/p>\n
        “5.   Counsel next submitted that the mutawalli is the
\n        agent of the State Government and that in any event the
\n        limitation for a suit by the mutawalli starts on the date of
\n        his appointment. In support of this contention counsel
\n        relied upon the decision in Jewun Doss Sahoo v. Shah
\n        Kubeer-ood-Deen, (1837-41) 2 Moo Ind. App. 390 at p.
\n        422 (PC) where the Privy Council held that under the law
\n        then in force it was the duty of the Government to protect
\n        endowments and the mutawalli in that case was the
\n        procurator of the Government and his right to sue arose on
\n        his being appointed mutawalli. This ruling of the Privy
\n        Council was given under Regulation 19 of 1810. Since the
\n        passing of the Religious Endowments Act 1863, the
\n        mutawalli cannot be regarded as a procurator of the
\n        Government. He is not appointed by the Government, nor
\n        does he manage the endowment on its behalf and a suit by
\n        him for the recovery of the wakf property cannot now be
\n        regarded as a suit on its behalf, see Shaikh Laul Mahomed
\n        v. Lalla Brij Kishore, (1872) 17 Suth WR 430 and Behari
\n        Lal and Ors. v. Muhammad Muttaki,<\/a> (1898) ILR 20 All.
\n        482 at p. 488 (FB).”\n<\/p><\/blockquote>\n
1213.         In view of the above, we find it difficult to hold that
\nthe Waqf Board is an instrumentality of the State. However,
\neven if it is an instrumentality of State, we do not find any
\ndisability for the Board to file a suit against the State if there is
\nany wrong done by the State or its authorities. In our view, the
\nissue which has been raised to suggest as if the Sunni Central
\nWaqf Board if held as an instrumentality of the State, would be
\nincompetent to maintain a suit against the State is thoroughly
\n                                                                  1398<\/span><\/p>\n
misconceived.\n<\/p>\n
1214.         The concept of instrumentality of the “State” came
\nto be noticed in the light of considering the applicability of Part
\nIII of the Constitution of India dealing with fundamental rights
\nvis a vis the meaning of the words “other authority” under
\nArticle 12 of the Constitution. To find out the bodies to whom
\nPart III of the Constitution would apply, and if there is any
\ninfringement etc., the complaint may be raised before the High
\nCourt or the Supreme Court directly under writ jurisdiction also
\nthis concept was developed. To understand the concept, it would
\nbe prudent to have a perusal of Article 12 of the Constitution :\n<\/p>\n
        “Article 12.      In this Part, unless the context otherwise
\n        requires, “the State” includes the Government and
\n        Parliament of India and the Government and the
\n        Legislature of each of the States and all local or other
\n        authorities within the territory of India or under the control
\n        of the Government of India.”\n<\/p><\/blockquote>\n
1215.         The Central and State Governments, the legislatures,
\nCentral and Provincial, and, Local authorities are obviously
\ncovered by the term “the State” under Article 12. The question
\narose as to what are the bodies which would answer the
\ndescription of “other authorities” so as to qualify to be within
\nthe ambit of the word ‘the State’ to attract Part-III of the
\nConstitution. In Ramana Dayaram Shetty Vs. International
\nAirport Authority of India and others, 1979 (3) SCC 489 the
\nquestion arose as to whether “International Airport Authority of
\nIndia” is “the State” within the meaning of Article 12 so as to
\nattract the provisions under Part-III of the Constitution.
\nAdmittedly, “International Airport Authority of India” was
\nneither the Government, Central or State, nor Legislature nor a
\n                                                                1399<\/span><\/p>\n
Local authority. The question arose as to whether the words
\n“other authorities” within the territory of India or under the
\ncontrol of the Government of India would include “International
\nAirport Authority of India” so as to attract the provisions under
\nPart-III of the Constitution. In this context the matter was
\nexamined. The Apex Court held that “International Airport
\nAuthority of India” is ‘the State’ within the meaning of Article
\n12 of the Constitution of India and, therefore, the provisions of
\nArticle 14 are attracted. If the act or omission on the part of
\nInternational Authority of India is found to be arbitrary or
\ndiscriminatory.\n<\/p>\n
1216.       There are catena of decision on this aspect but it
\nmay not be necessary for us to consider in detail all such
\nauthorities laying down various tests to determine when a body
\nor authority can be said to be an “instrumentality” of the State
\nso as to be within the ambit of the words “other authorities” for
\nthe purposes of Article 12 of the Constitution of India for the
\nreason that in case a body qualify such tests and becomes an
\n“instrumentality of the State” and, therefore, becomes “an
\nauthority” within the words “other authorities” under Article 12
\nof the Constitution, the result would be that provisions of Part-
\nIII of the Constitution would be applicable to it and any
\ninfringement thereof would be subject to judicial review directly
\nbefore the superior courts in writ jurisdiction, i.e., under Article
\n226 of the Constitution of India as also under Article 32 of the
\nConstitution. For our purposes suffice it to mention that an
\n“instrumentality of the State” does not mean a “department of
\nthe State Government”.\n<\/p>\n
1217.       The learned counsels for the defendants, despite of
\nrepeated query, could not tell us as to how an instrumentality of
\n                                                                 1400<\/span><\/p>\n
the State cannot invoke the jurisdiction of a Civil Court for
\nenforcing its common law rights by filing a civil suit. It appears
\nthat misconception on the part of the defendants in Suit-4 is that
\nan instrumentality of the State, if comes within the words ‘the
\nState’ under Article 12 of the Constitution, the distinction of
\npersonality between the State Government as well as such
\ninstrumentality disappear and, therefore, one may not file suit
\nagainst another. This is apparently fallacious and lacks
\nsubstance. A body incorporated in accordance with the
\nprocedure prescribed by statute or a statutory body, i.e.,
\nconstituted under a statute or by a statute, on its own is a juristic
\npersonality, i.e., legal person, who can possess property, enter
\ninto transactions by executing contract with the other persons
\n(including natural, legal or juristic persons) and also to sue or be
\nsued. An authority or statutory body which can be said to be an
\ninstrumentality of the State does not become necessarily a part
\nand parcel of the Government.\n<\/p>\n
1218.         The term ‘Government’ in its wider sense includes
\nall the wings of Government, viz., executive, legislative or
\njudicial but in narrower sense, it is normally the executive wing
\nof the State.\n<\/p>\n
1219.         Bombay High Court in Emperor Vs. Bhaskar
\nBalwant Bhopatkar, (1906) ILR 30 Bom 421 observed:\n<\/p>\n
              “What is contemplated under this section is the
\n        collective body of the Government . . . . . It means that the
\n        person or persons collectively, in succession, who are
\n        authorized to administer the Government for the time
\n        being. One particular set of persons may be open to
\n        objection and to assail them, and to attack them and excite
\n        hatred against them, is not necessarily exciting hatred
\n                                                                 1401<\/span><\/p>\n
        against the Government, because they are only individuals
\n        and not representatives of that abstract conception which is
\n        called Government . . . . . The individual is transitory and
\n        may be separately criticized but that which is essentially
\n        and inseparably connected with the idea of Government
\n        established by law cannot be attacked without coming
\n        within this section.”\n<\/p><\/blockquote>\n
1220.         In Annie Besant Vs. Government of Madras, AIR
\n1918 Mad 1210, Madras High Court said:\n<\/p>\n
        “Government denotes an established authority entitled and
\n        able to administer the public affairs of the country. On the
\n        other hand, ‘Government’ is not identical with any
\n        particular individuals who may be administering the
\n        Government.”\n<\/p><\/blockquote>\n
1221.         Dixon J. in Burns Vs. Ransley, (1944) 79 CLR 101
\nexplaining the word “Government” as under:\n<\/p>\n
                    “I take the word “Government” to signify the
\n              established system of political rules, the governing
\n              powers of the country consisting of the executive and
\n              the Legislature considered as an organized entity and
\n              independently of the persons of whom it consists from
\n              time to time. Any interpretation which would make
\n              the word cover the persons who happen to fill
\n              political or public offices for the time being, whether
\n              considered collectively or individually, would give
\n              the provision an application inconsistent with the
\n              parliamentary and democratic institutions and with
\n              the principles of the common law as understood in
\n              times, Governing the freedom of criticism and of
\n              expression.”\n<\/p><\/blockquote>\n
                                                              1402<\/span><\/p>\n
1222.       A Full Bench of this court in Ram Nandan Vs.
\nState, AIR 1959 All 101 observed that the term “Government”
\nhas not been defined anywhere. Considering various provisions
\nof the Constitution this Court observed that the “Government”
\nmeans the executive machinery of the Union and of the States. It
\nmeans the President acting with the advice of the Council of
\nMinisters and the Governors acting with the advice of their
\nCouncils of Ministers. It is the system of Government or
\ninstitution consisting of the President and the Governors acting
\nwith the advice of their Councils of Ministers and not the actual
\npersons holding the offices of Presidents or Governors and the
\nMinisters advising them. This Court quoted the approval and
\nfollowed the observations of Bombay and Madras as noted
\nabove in Bhaskar Balwant Bhopatkar (supra) and Annie
\nBesant (supra) respectively.\n<\/p>\n
1223.       In State of U.P. Vs. Nemchandra Jain, 1984 (2)
\nSCC 405 the term “Government” was analyzed by the Apex
\nCourt observing that from the legal point of view, Government
\nmay be described as the exercise of certain powers and the
\nperformance of certain duties by public authorities or officers,
\ntogether with certain private persons or corporations exercising
\npublic functions. The structure of the machinery of Government,
\nand the regulation of the powers and duties which belong to
\ndifferent parts of this structure, are defined by the law, which
\nalso prescribes, to some extent, the mode in which these powers
\nare to be exercised or those duties are to be performed.
\nGovernment generally connotes three estates, namely, the
\nLegislature, the Executive and the Judiciary. In a narrow sense it
\nconnotes executive only.\n<\/p>\n
1224.       The word “Government” has been defined in
\n                                                                   1403<\/span><\/p>\n
Section 3(23) of the General Clauses Act, 1897 as under:\n<\/p>\n
              “3(23). “Government”.–This sub-section says that
\n        the terms “Government” or “the Government”, shall
\n        include both the Central Government and any State
\n        Government.”\n<\/p><\/blockquote>\n
1225.         The term “State Government” has also been defined
\nin the General Clauses Act, 1897 in Section 3(60). The above
\ndefinition of General Clauses Act in fact does not give any exact
\nmeaning except of referring the words, in general and in broader
\nsense.\n<\/p>\n
1226.         The Constitution declares the “Government” being
\nentitled to file a suit or to be sued by virtue of Article 300 of the
\nConstitution which reads as under :\n<\/p>\n
              “Article 300. (1) The Government of India may sue
\n        or be sued by the name of the Union of India and the
\n        Government of a State may sue or be sued by the name of
\n        the State and may, subject to any provisions which may be
\n        made by Act of Parliament or of the Legislature of such
\n        State enacted by virtue of powers conferred by this
\n        Constitution, sue or be sued in relation to their respective
\n        affairs in the like cases as the Dominion of India and the
\n        corresponding Provinces or the corresponding Indian
\n        States might have sued or been sued if this Constitution had
\n        not been enacted.\n<\/p><\/blockquote>\n
              (2) If at the commencement of this Constitution–\n<\/p><\/blockquote>\n
             (a) any legal proceedings are pending to which the
\n                 Dominion of India is a party, the Union of India
\n                 shall be deemed to be substituted for the
\n                 Dominion in those proceedings; and\n<\/p><\/blockquote>\n
             (b) any legal proceedings are pending to which a
\n                                                                1404<\/span><\/p>\n
                 Province or an Indian State is a party, the
\n                 corresponding State shall be deemed to be
\n                 substituted for the Province or the Indian State in
\n                 those proceedings.”\n<\/p><\/blockquote>\n
1227.         Similarly, Section 79 C.P.C. provides for suits to be
\nfiled by or against the Government, as under :\n<\/p>\n
              “Section 79. Suits by or against the Government–
\n        In a suit by or against the Government, the authority to be
\n        named as plaintiff or defendant, as the case may be, shall
\n        be–\n<\/p><\/blockquote>\n
              (a) in the case of a suit by or against the Central
\n                 Government, the Union of India, and\n<\/p><\/blockquote>\n
              (b) in the case of a suit by or against a State
\n        Government, the State.”\n<\/p><\/blockquote>\n
1228.         Interpreting Article 300 of the Constitution of India
\nthe Apex Court in State of Punjab Vs. Okara Grain Buyers
\nSyndicate Ltd. and others, AIR 1964 SC 669 observed that this
\nArticle does not give rise to any cause of action but merely says
\nthat the State can sue or be sued as a juristic personality. The
\njuristic personality of the State is conferred as a whole which
\nconsists of the executive government headed by the Governor
\nand it is not divided into various branches or department of the
\nGovernment so as to result constituting such number of juristic
\npersonality as are the departments in a State Government.\n<\/p><\/blockquote>\n
1229.         Nothing has been brought to us and neither any
\nauthority has been cited nor anything else has been placed
\nbefore us to persuade us to take a view that the Sunni Central
\nWaqf Board can be held to be a department of the State
\nGovernment so as to bar a suit against the State Government.
\nHad it been a department of the “Government” obviously a civil
\n                                                             1405<\/span><\/p>\n
suit under Section 9 CPC would not be maintainable for the
\nreason that the State Government is a juristic personality as a
\nwhole which consists of all its limbs, i.e., various departments
\netc. Each and every department of the State Government cannot
\nbe said to be an “independent juristic personality” which can
\nsue or be sued.\n<\/p>\n
1230.       The term “department of a State Government” also
\ncame to be considered before this Court in Ram Chandra Vs.
\nDistrict Magistrate, AIR 1952 All. 520 and this Court held that
\na department is a unit or branch of the Government, either
\nUnion or State, under the political control of a Minister or
\nSecretary of State or President of the Board. Individual officers
\nserving under a department do not constitute a department. The
\ndepartment has an entity distinct and separate from the officers
\nserving under it.\n<\/p>\n
1231.       Drawing distinction between the “Government” and
\n“Instrumentality of the State” within meaning of Article 12 of
\nthe Constitution in reference to Section 80 C.P.C. the question
\narose as to whether notice before filing a suit is a condition
\nprecedent to Electricity Board or not. The High Court of Kerala
\nin V.Padmanabhan Nair Vs. Kerala State Electricity Board
\nAIR 1989 Kerala 86 held that the statutory bodies like
\nElectricity Board, Food Corporation, Urban Development
\nCorporation etc. may be an “Instrumentality of the State” within
\nthe meaning of “Article 12” of the Constitution, nevertheless
\nwould not answer the description of “Government” as
\nunderstood in law and has understood in the context of Section
\n80 C.P.C.\n<\/p>\n
1232.       We have referred to the term “Government” in detail
\nonly to demonstrate that the personality of the Government for
\n                                                                1406<\/span><\/p>\n
the purpose of being sued or to sue is not to be looked into as
\nfurther divided in various departments but it is the entire
\nexecutive government including all its departments which
\nconstitute the “Government”, a legal personality, having status
\nto sue or be sued in that capacity.\n<\/p>\n
1233.         Where there is a dispute between two “States” of the
\nUnion of India or between one or more States and the Union of
\nIndia, Article 131 of the Constitution confers original
\njurisdiction upon the Apex Court in regard to resolution of such
\ndispute. In this context, the Apex Court in Chief Conservator of
\nForests, Government of Andhra Pradesh Vs. Collector and
\nothers, AIR 2003 SC 1805 observed that neither the
\nConstitution of India nor CPC contemplates that two
\ndepartments of a State or the Union of India will fight a
\nlitigation in a Court of law. It is neither appropriate nor
\npermissible for two departments of the “State” to fight litigation
\nin a Court of law. Various departments of the Government are
\nits limbs and, therefore, they must act in coordination and not in
\nconfrontation. Although that was a case with respect to the
\njustification of filing a writ petition yet the Apex Court
\ndeprecated the attempt of filing writ petition by one department
\nagainst another and invoking extraordinary jurisdiction of the
\nHigh Court. The Court observed that it smacks of indiscipline. It
\nalso held to be contrary to the basic concept of law that requires
\nfor suing or be sued there must be either a natural or juristic
\nperson.\n<\/p>\n
1234.         In para 13 of the judgment, the Court held:\n<\/p>\n
        ” Every post in the hierarchy of the posts in the
\n        Government set-up, from the lowest to the highest, is not
\n        recognised as a juristic person nor can the State be treated
\n                                                                     1407<\/span><\/p>\n
        as represented when a suit\/proceeding is in the name of
\n        such offices\/posts or the officers holding such posts,
\n        therefore, in the absence of the State in the array of parties,
\n        the cause will be defeated for non-joinder of a necessary
\n        party to the lis…”\n<\/p><\/blockquote>\n
1235.         It was made clear that the above principle does not
\napply to a case where an official of the Government acts as a
\nstatutory authority and sues or pursues further proceeding in its
\nname because in that event, it will not be a suit or proceeding
\nfor or on behalf of a State \/Union of India but by the statutory
\nauthority as such.\n<\/p>\n
1236.         With respect to the two departments fighting with
\neach other, in para 14 of the judgment, the Court observed:\n<\/p>\n
        “It was not contemplated by the framers of the Constitution
\n        or the C. P. C. that two departments of a State or the Union
\n        of India will fight a litigation in a court of law. It is neither
\n        appropriate nor permissible for two departments of a State
\n        or the Union of India to fight litigation in a court of law.
\n        Indeed, such a course cannot but be detrimental to the
\n        public interest as it also entails avoidable wastage of
\n        public money and time. Various departments of the
\n        Government are its limbs and, therefore, they must act in
\n        co-ordination and not in confrontation. Filing of a writ
\n        petition by one department against the other by invoking
\n        the extraordinary jurisdiction of the High Court is not only
\n        against the propriety and polity as it smacks of undiscipline
\n        but is also contrary to the basic concept of law which
\n        requires that for suing or being sued, there must be either a
\n        natural or a juristic person.”\n<\/p><\/blockquote>\n
1237.         Best C.J. in Neale Vs. Turton (1827) 4 Bing. 149 at
\n                                                               1408<\/span><\/p>\n
page 151 observed that there is no principle by which a man can
\nbe at the the same time plaintiff and defendant. Sometimes it
\nmay happen that a person may be having different capacities in
\nwhich he may act but as opined by Salmond in Salmond On
\nJurisprudence (supra) a man having two or more capacities
\nwould not derive a power to enter into a legal transaction with
\nhimself. Double capacity does not connote double personality.
\nIn certain circumstances, now by statute this concept has been
\ndiluted but so far as the two departments of the Government are
\nconcerned, the law of the land as already noticed above, is
\nholding the field and we need not deal into this aspect any
\nfurther.\n<\/p>\n
1238.       Thus, it is now settled that a department of the
\nGovernment by itself has no legal personality and, therefore, it
\nlacks capacity to sue or be sued ignoring the personality of the
\nState. A department of the Government can always sue or be
\nsued under the cover of the personality of the State and not of its
\nown.\n<\/p>\n
1239.       This concept, however, would not apply to the cases
\nwhere a statutory body or an incorporated body on its own enjoy
\nthe capacity of legal persona and, therefore, is well within its
\nright to sue or be sued under its own name.\n<\/p>\n
1240.       Nobody could suggest in these cases that the Sunni
\nCentral Waqfs Board can be said to be a department of the
\nGovernment. It cannot thus be identified with the Government.
\nOnce it is clear that the Waqfs Board has a different and
\nindependent juristic personality than the “Government”, in the
\nabsence of any prohibition or bar either specifically or by or
\nnecessary implication in the statute, filing of a suit by one
\nindividual juristic personality against another cannot be
\n                                                                 1409<\/span><\/p>\n
objected. Exclusion of remedy by way of filing a civil suit
\ncannot be assumed easily and unless there is an express or by
\nnecessary implication a bar provided by the statute, a suit under
\nSection 9 cannot be held “not maintainable”. Though we have
\nexpressly held that Sunni Central Waqfs Board is not an
\ninstrumentality of the State, yet even if it is so, we are clearly of
\nthe view that there is no impediment in its way in filing a suit in
\nits own name against the State or its authorities for redressal of
\nits grievance, if there is anything wrong by such authority.
\n1241.       So far as the second issue that if it is a “State” within
\nArticle 12 of the Constitution, it may not act in a manner which
\nmay amount to discrimination against one set of community, we
\nhave already said and at the pain of repetition hold that the
\nstatutory functions of the Waqfs Board is to supervise the
\nmanagement of the Waqfs registered in various manners as
\nprovided in the statute and in such discharge of duty, it can take
\nall such steps as permissible in law irrespective of fact whether
\nsuch step is against an individual of a different religion or the
\nentire community of different faith.\n<\/p>\n
1242.       Looking the matter in a wider concept, the act of the
\nSunni Central Central Waqfs Board in filing Suit-4 even
\notherwise cannot be said to be an act discriminatory to a
\ncommunity inasmuch treating the disputed property as a Waqf
\ncreated in accordance with the Islamic laws, the Board is trying
\nto protect the same from being usurped by anybody else, be that
\nit is an individual or a group of individuals or the entire
\ncommunity and in this respect if in a particular manner all such
\npersons constitute members of a particular community, that will
\nnot make the act of the Sunni Central Waqfs Board
\ndiscriminatory or\/and against a particular community.\n<\/p>\n
                                                               1410<\/span><\/p>\n
1243.         We answer both the above issues accordingly. We
\nhold that neither the Waqf Board is “an Instrumentality of the
\nState” nor it suffers any disability of filing a suit against State
\nGovernment or its authorities nor there is anything wrong in the
\nWaqf Board to file a suit representing the cause of Muslim
\ncommunity particularly for protection of a property which it
\nclaims to be a “waqf property”. This is the principal function
\nunder the Act 1936, substituted by various subsequent Acts, as
\ndiscussed above. Even if the Waqf Board is treated to be an
\n“other authority” under Article 12 of the Constitution and
\ncovered by the term ‘State’ as defined under Article 12 of the
\nConstitution, there is no impediment in the way of Sunni Central
\nWaqfs Board in maintaining its suit.\n<\/p>\n
1244.         Issue 28 (Suit-5) reads as under:\n<\/p>\n
        “Whether the suit is bad for want of notice under Section
\n        65 of the U.P. Muslim Waqfs Act, 1960 as alleged by
\n        defendants 4 and 5? If so, its effect.”\n<\/p><\/blockquote>\n
1245.         Defendant No.4-Sunni Central Waqf Board (Suit-5)
\nin para 45 of the written statement dated 26\/29 August, 1989 has
\npleaded about the non-maintainability of suit for want of notice
\nand it reads as under:\n<\/p>\n
        “That as the subject matter of the instant suit is a waqf
\n        property and stands registered as a waqf in the Register of
\n        Waqf maintained by the Sunni Waqf Board under section
\n        30 of the Waqf Act and a Gazette notification in respect
\n        thereto has also been issued by the State Government in
\n        1944 and the same stands recorded as a mosque even in
\n        the revenue record and other government records and the
\n        same is even accepted as a mosque by the State
\n        Government and its officers in the written statements filed
\n                                                                   1411<\/span><\/p>\n
        in Regular Suit No. 2 of 1950 as well as in Regular Suit No.
\n        25 of 1950, (the instant suit could not be instituted against
\n        the answering defendants until the expiration of two
\n        months next after notice, in writing, had been delivered or
\n        left at the office of the Board as per requirement of Section
\n        65 of the U.P. Muslim Waqf Act, 1960 and no such notice
\n        having been given to the answering defendants by the
\n        plaintiffs, the suit is not maintainable and is liable to be
\n        dismissed).”\n<\/p><\/blockquote>\n
1246.         To examine the correctness of the above objection,
\nlet us consider Section 65 of U.P. Act No.XVI of 1960 which
\nreads as under :\n<\/p>\n
        “Notice of suits by parties against the Board.- No suit
\n        shall be instituted against the Board in respect of any act
\n        purporting to be done by it in pursuance of this Act or of
\n        any rules made thereunder until the expiration of two
\n        months, next after notice in writing has been delivered to
\n        or left at the office of the Board, stating the cause of action
\n        the name, description and place of residence of the plaintiff
\n        and the relief which he claims; and the plaint shall contain
\n        a statement that such notice has been so delivered or left.”\n<\/p><\/blockquote>\n
1247.         From a bare reading of Section 65 of 1960 Act it is
\nevident that the same would apply where a suit is filed
\nquestioning the validity of any action of the Waqf Board. It
\nclearly says that in respect of any act purporting to be done by
\nthe Board in pursuance of 1960 Act or of any rules made
\nthereunder, if a suit is filed, the same would not be maintainable
\nunless a two months’ notice has been given in writing to the
\nBoard giving the details, as mentioned in the aforesaid
\nprovision. Suit-5 does not challenge any action of the Waqf
\n                                                              1412<\/span><\/p>\n
Board taken under 1960 Act or the rules framed thereunder. Ex
\nfacie, the above provision is inapplicable considering the relief
\nsought by the plaintiffs (Suit-5) which is confined to a
\ndeclaration that the property in dispute therein belong to
\nplaintiffs themselves and have sought a permanent injunction
\nagainst the defendants prohibiting them from interfering with or
\nraising any objection or placing any obstruction in construction
\nof a new temple at the disputed site.\n<\/p>\n
1248.        Learned counsel for the defendants 4 and 5 (Suit-5)
\ncould not show as to how Section 65 would be attracted in
\nrespect of Suit-5. In fact they could not show that any action of
\nthe Waqf Board taken under 1960 Act or rules framed
\nthereunder has been the cause of action for filing Suit-5. We
\ntherefore, have no hesitation in holding Section 65 of U.P. Act
\nNo.XVI of 1960 has no application in respect to the reliefs
\nsought in Suit-5 and therefore, the suit cannot be held “not
\nmaintainable” for want of notice.\n<\/p>\n
1249.        Since the provisions itself is not applicable, as we
\nhave said, the question of considering its effect does not arise.
\nThe issue is answered accordingly.\n<\/p>\n
1250.        Though no such issue specifically has been framed,
\nbut during the course of argument       Sri P.N.Mishra, learned
\ncounsel appearing for defendant No.20 (Suit 4) pointed out that
\nU.P. Act No.XVI of 1960 has been repealed by Central Act No.
\n43 of 1995 i.e. Waqf Act, 1995 (hereinafter referred to as ‘1995
\nAct’)which has came into force on 01.01.1996. He drew our
\nattention to Section 112 of 1995 Act which read as under :\n<\/p>\n
        “Repeal and savings.-(1) The Waqf Act, 1954 (29 of 1954)
\n        and the Waqf (Amendment) Act, 1984 (69 of 1984) are
\n        hereby repealed.\n<\/p><\/blockquote>\n
                                                                1413<\/span><\/p>\n
        (2)   Notwithstanding such repeal, anything done or any
\n        action taken under the said Acts shall be deemed to have
\n        been done or taken under the corresponding provisions of
\n        this Act.\n<\/p><\/blockquote>\n
        (3)   If, immediately before the commencement of this Act,
\n        in any State, there is in force in that State, any law which
\n        corresponds to this Act that corresponding law shall shall
\n        stand repealed;\n<\/p><\/blockquote>\n
              Provided that such repeal shall not affect the
\n        previous operation of that corresponding law, and subject
\n        thereto, anything done or any action taken in the exercise
\n        of any power conferred by or under the corresponding law
\n        shall be deemed to have been done or taken in the exercise
\n        of the powers conferred by or under this Act as if this Act
\n        was in force on the day on which such things were action
\n        was taken.”\n<\/p><\/blockquote>\n
1251.         He submits that since all State Laws have also been
\nrepealed by sub-section (3) of Section 112, U.P. Act No.XVI of
\n1960 is no more operative since 1st January, 1996. He also drew
\nour attention to Section 87 of 1995 Act which reads as under :\n<\/p>\n
        “87. Bar to the enforcement of right on behalf of
\n        unregistered      waqfs.-(1)   Notwithstanding     anything
\n        contained in any other law for the time being in force, no
\n        suit, appeal or other legal proceeding for the enforcement
\n        of any right on behalf of any waqf which has not been
\n        registered in accordance with the provisions of this Act,
\n        shall be instituted or commenced or heard, tried or decided
\n        by any Court after the commencement of this Act, or where
\n        any such suit, appeal or other legal proceeding had been
\n        instituted or commenced before such commencement, no
\n                                                                  1414<\/span><\/p>\n
        such suit, appeal or other legal proceeding shall be
\n        continued, heard, tried or decided by any Court after such
\n        commencement unless such waqf has been registered, in
\n        accordance with the provisions of this Act.
\n        (2)   The provisions of sub-section (1) shall apply as far as
\n        may be, to the claim for set-off or any other claim made on
\n        behalf of any waqf which has not been registered in
\n        accordance with the provisions of this Act.”\n<\/p><\/blockquote>\n
1252.         It is contended by him that the notification dated 26 th
\nFebruary, 1944 in respect to the property having been held
\ninvalid, no suit in respect to an unregistered waqf is
\nmaintainable and Section 87 encompass even the pending suits.
\nHe submits that even hearing or trial of the pending suit in
\nrespect to an unregistered waqf is not permissible.
\n1253.         Sri Jilani, learned counsel for the plaintiffs (Suit-4)
\nraised serious objection to the above argument pointing out that
\nsince no such issue has been framed, it would not be permissible
\nfor this Court to look into this aspect of the matter and the above
\nargument has to be rejected outright as not entertainable.
\n1254.         We gave our serious thought to the matter. Since
\nSection 87 of 1995 Act prohibits even pending suits from being
\nheard and tried in respect to an unregistered waqf and this being
\na mandate of law, this Court cannot ignore the same merely
\nbecause there is no formal issue framed in this respect
\nparticularly considering the fact that enactment of 1995 Act is a
\nsubsequent event and the said Act has come into force during
\nthe pendency of this matter i.e. at the stage when this Court
\nstarted recording evidence. However, we find that the question
\nwhether Suit-4 cannot proceed by virtue of the mandate contain
\nin Section 87 of 1995 Act is not a pure question of law since
\n                                                              1415<\/span><\/p>\n
condition precedent for attracting the said provision is that the
\nwaqf has not been registered with the Board at all.
\n1255.       Despite our enquiry from the learned counsel for the
\ndefendant No.20, Sri Mishra could not show any such pleading
\nin the written statement or additional written statement. In fact
\nno such averment has been made in any of the written statement
\nor additional written statement of any of the defendants that the
\nproperty in dispute is not a registered waqf.
\n1256.       On the contrary, Sri Jilani drew our attention to his
\nwritten statement dated 26\/29 August, 1989, para 45 (quoted
\nabove) (Suit-5) and para 16 of the written statement dated
\n24.2.1989 of defendant no. 10 (Suit-1) wherein it is averred that
\nthe property in question is a waqf property registered as a waqf
\nin the register of waqf maintained by the Sunni Waqf Board
\nunder Section 30 of Act XVI of 1960. Sri Jilani pointed out that
\nSection 30 of U.P. Act No.XVI of 1960 provides for register of
\nwaqfs, which is to be maintained by the Board containing details
\nof each such waqfs.\n<\/p>\n
1257.       It is not the case of any of the defendants (Suit-4)
\nthat there is no registration or that registration was not done
\nvalidly in accordance with the procedure prescribed under the
\nAct or the averments contained in para 45 of the written
\nstatement of defendants No.4 (Suit-5) or para 16 of the written
\nstatement of defendant no. 10 (Suit-1) is factually incorrect.
\nSince the question as to whether a particular waqf property is a
\nregistered one or unregistered one is a question of fact and there
\nbeing an averment stating that the disputed property is a
\nregistered waqf, which has not been pleaded to be incorrect by
\nthe other side, we are of the view that Suit -4 filed by the Waqf
\nBoard and others cannot be held not maintainable by virtue of
\n                                                              1416<\/span><\/p>\n
Section 87 of 1995 Act.\n<\/p>\n
1258.       It would also be important to notice that the
\nNotification under Section 5 of Act of 1936 was held invalid by
\nthe learned Civil Judge in 1966, to be more precise on 21st April,
\n1966. The defendant No.4 had filed its written statement in Suit
\n5 on 26\/29 August, 1989 stating that the property in question is
\nregistered as waqf in the register of waqfs maintained by the
\nBoard under Section 30 of Act 16 of 1960. There are three ways
\nin which details of Muslim waqfs can be collected and thereafter
\nthey are to be entered in the register maintained by the Board;\n<\/p>\n
(i) pursuant to the notification issued by the Board after enquiry
\nmade by the Waqf Commissioner; (ii) On an application made
\nby the Mutwalli of the concerned waqf; and (iii) Suo moto by
\nissuing notice by the Board to the Mutawalli of the Waqf..
\n1259.       The averments that the disputed building is
\nregistered as ‘waqf’ in the Board under Section 30 of Act 16 of
\n1960 having not been seriously challenged by the plaintiffs
\n(Suit-5), no issue on this aspect has been framed. Lots of
\namendments were made in the pleadings after the decision of
\nthe Apex Court in Dr. Mohammad Ismail (supra) but no
\namendment or addition of any issue in this regard has been
\nfound necessary by any of the parties opposing the authority of
\nthe Sunni Board in pursuing Suit-4 as plaintiff or other suits as
\ndefendant. Mere declaration of the Notification issued under
\nSection 5 of Act 1936 as invalid would not deprive the Sunni
\nBoard to take steps for registration of the building in dispute as
\nwaqf in the register maintained by it under Act 16 of 1960. In
\nthe absence of any factual foundation, it would not be justified
\nfor this Court to take recourse of Section 87 of 1995 Act and
\nnon suit Sunni Board or other muslim parties.\n<\/p>\n
                                                               1417<\/span><\/p>\n
1260.        Sri Mishra, however, made some detailed legal
\narguments on this aspects hence we propose to consider such
\nsubmissions to find out substance, if any, therein.
\n1261.        It is said that Section 87 has a non obstante clause
\nand therefore its mandate shall prevail not only over any
\ncontract but to any other law for the time being in force.
\nReliance is placed on Union of India and Others Vs. SICOM
\nLtd. and Anr. 2009 AIR SCW 635 (at page 638) where para 3
\nreads as under:\n<\/p>\n
        “3. Mr. Shekhar Naphade, Learned senior counsel
\n        appearing on behalf of the respondent, on the other hand,
\n        submitted that principle that a crown debt prevails over
\n        other debt is confined only to the unsecured ones as
\n        secured debts will always prevail over a crown debt. Our
\n        attention in this behalf has been drawn to the non obstante
\n        clause contained in Section 56 of the 1951 Act. It was
\n        furthermore contendd that for the self-same reason Section
\n        529A in the Companies Act was inserted in terms by way of
\n        special provisions creating charge over the property and
\n        some of the State Government also amended their Sales
\n        Tax Laws incorporating such a provision. The Central
\n        Government also with that view, amended the Employee’s
\n        Provident Funds and (Miscellaneous) Provisions Act, 1952
\n        and Employee’s State Insurance Act, 1948.\n<\/p><\/blockquote>\n
             The learned counsel appears to be right.”\n<\/p><\/blockquote>\n
1262.        Reliance is also placed on State Bank of India Vs.
\nOfficial Liquidator of Commercial Ahmedabad Mills Co. and
\nOthers 2009 CLC 73 where Gujrat High Court in para 13 of the
\njudgement observed:\n<\/p>\n
        “Section 529-A of the Act opens with a non obstante
\n                                                              1418<\/span><\/p>\n
        clause… Therefore, the said provision has an over writing
\n        effect not only qua the provisions of the act but also any
\n        other law for the time being in force…”.\n<\/p><\/blockquote>\n
1263.         The proposition with respect to a provision having
\nnon obstante clause being a well established legal principal
\nadmits no doubt. However this by itself may not result in any
\nconsequence to the suits in question.\n<\/p>\n
1264.         Sri Mishra further submitted that the prohibition
\ncontained against unregistered waqf is quite reasonable and in
\naccord with the judgement of the Apex Court in Bhandara
\nDistrict Central Cooperative Bank Ltd. and Others Vs. State
\nof Maharashtra and Anr. 1993 Supp (3) SCC 259 wherein
\nSection 145 of Maharashtra Cooperative Societies Act, 1996,
\nwhich barred an unregistered society from using the word
\n‘cooperative’ in its name or title, was held reasonable and in the
\ninterest of general public. There is no challenge to the
\ncorrectness of Section 87 of 1995 Act and therefore, in our
\nview, the aforesaid submission and the authority cited would
\nhave no application in this case.\n<\/p>\n
1265.         Relying on a decision of Andhra Pradesh High
\nCourt in Pamulapati Buchi Naidu College Committee
\nNidubroly and Ors. Vs. Government of Andhra Pradesh and
\nOrs. AIR 1958 A.P. 773, it was submitted that registration of
\nwaqf confers right upon the Sunni Central Board of Waqf to sue
\nor be sued in respect of the affairs and properties of the
\nregistered waqf while in case of unregistered waqf of alleged
\nBabari Masjid, the Sunni Central Board of Waqf has no right to
\nmaintain Suit-4. In the above decision it was held that if a
\nsociety is not registered under the Act, it would have the
\ncharacter of an association which cannot sue or be sued except
\n                                                                 1419<\/span><\/p>\n
in the name of all the members of the association. Registration
\nof the society confers on it certain advantages. Once the society
\nis registered, it enjoins the status of a legal entity apart from the
\nmembers constituting the same and is capable of suing or being
\nsued. To the same effect is another authority relied by Sri
\nMishra i.e. Radhasoami Satsang Sabha Dayalbag Vs.
\nHanskumar Kishanchand AIR 1959 MP 172 wherein the
\nCourt said that the registration under the Societies Registration
\nAct confers on a society a legal personality and make it
\ncorporation or quasi corporation capable of entering into
\ncontracts.\n<\/p>\n
1266.        In our view, the submission as well as the reliance
\non the aforesaid judgments in the case in hand is thoroughly
\nmisconceived though the ratio of the said authorities is
\nunexceptionable. It is not the case of defendant No.20 that the
\nSunni Central Waqf Board, a statutory body, was not constituted
\nin accordance with the provisions contained in U.P. Act, 1936.
\nThe U.P. Muslims Waqf Act whether of 1936 or 1960 or the
\nCentral Waqf Acts of 1954 or 1995 neither create a waqf nor
\nextinguish one, if it already exists. They recognize the waqfs
\ncreated and existing in accordance with the law of Islam and
\nmake provisions for proper administration and maintenance
\nthereof primarily so as to avoid any maladministration,
\nmisfeasance of waqf property. Registration of waqf in effect,
\nconsidering in the light of the provisions of the aforesaid
\nenactments, only means that the waqf is known to the concerned
\nWaqf Board as to whether it is a Shia waqf or Sunni waqf and
\nhaving entered their name in the register, the concerned Board
\nshould be in a capacity to supervise management and
\nadministration etc. of such waqfs. The purpose of enactment is
\n                                                              1420<\/span><\/p>\n
public interest so that the waqf property may not be
\nmisappropriated or misused. With this objective the legislature
\nintend to compel so as to have a complete picture of all existing
\nvalid waqfs created in accordance with Islamic law, has made
\nsuch provision. By itself, it neither affects the existence of a
\nwaqf which though created in accordance with the Islamic law
\nbut for one or the other reason could not have been entered in
\nthe register of the concerned Waqf Board nor extinguish it.
\nBesides, Section 87 it does not say that a pending suit in respect
\nof a waqf which has not been registered shall stand abated or be
\ndismissed but provides that it shall not be tried, or heard or
\ndecided by the Court, after the commencement of the Act,
\nunless such waqf has been registered in accordance with the
\nprovisions of 1995 Act. Meaning thereby even during pendency
\nof a matter, such a waqf can be registered by the Waqf Board
\nand thereafter the suit, if pending but deferred, would continue
\nand can be heard and decided.\n<\/p>\n
1267.       It is also contended that under U.P. Act, 1936, a
\nwaqf can be registered by the Sunni Board pursuant to its name
\nfind mention in the gazette issued by the Central Board under
\nSection 5(1) or if it is registered on an application of Mutawalli
\nunder Section 38(2) or where the Central Waqf Board has issued
\ndirection to concerned Mutawalli to apply for registration of a
\nwaqf or supply any information regarding waqf. It is said that
\nthe notification dated 26th February 1944 qua the alleged waqf in
\nquestion having been declared invalid, registration based
\nthereon also becomes null and void. Further that there is no
\nregistration as per the procedure prescribed in Section 38 or 40
\nof 1936 Act, it cannot be said that the Sunni Board can maintain
\na suit on behalf of such a waqf since Section 18(1) and (2)
\n                                                                1421<\/span><\/p>\n
enable the concerned Board to maintain suit in respect of
\nadministration and recovery of lost properties only of those
\nwaqfs to which the provision of the Act applies. It is contended
\nthat the Act being inapplicable to waqf in question due to its non
\nregistration, the plaintiffs have no right to maintain Suit-4 and it
\nis liable to be dismissed.\n<\/p>\n
1268.       In our view, there is no occasion to consider this
\naspect of the matter for reasons more than one. The notification
\nunder Section 5(1) of 1936 Act has been held invalid so far as
\nthe alleged waqf in question is concerned. This is not disputed
\nby the learned counsels appearing for the plaintiffs (Suit-4).
\nHowever, there is a presumption on the part of the defendant
\nNo.20 that the alleged registration claimed by the plaintiffs
\n(Suit-4) in para 45 of written statement in Suit-5 is based on the
\nnotification dated 26th February, 1944 and none else though
\ndefendant 4 (Suit-5) (Central Sunni Waqf Board) has taken this
\nstand in para 45 of their written statement by referring to
\nSection 30 of Act 16 of 1960 and not that of U.P. Act, 1936.
\nThere is no averment in pleadings of any of the Hindu parties
\nincluding defendant No.20 that this averment of defendant No.4
\nin Suit No.5 is incorrect or that there is no registration of the
\nwaqf in question at all. In the absence of any such facts pleaded
\nby the concerned parties and in particular defendant no. 20, we
\nfind no reason to consider this aspect of the matter merely on
\nthe presumption of defendant No.2 particularly when the
\nquestion is a mixed question of fact and law and in the absence
\nof specific factual pleading, it would not be appropriate to
\npresume certain facts and thereafter decide the applicability of
\nSection 87 of 1995 Act in this case.\n<\/p>\n
1269.       In the written submissions Volume 2 at page 254
\n                                                                 1422<\/span><\/p>\n
para 11 it has been contended by Sri Mishra:\n<\/p>\n
        “As after invalidation of notification under Section 5(1) of
\n        the United Provinces Act, 1936 neither fresh survey of the
\n        waqf in question was caused under Section 6 of the
\n        Uttar Pradesh Muslim Wakfs Act, 1960 nor application
\n        for registration was made under Section 29(2) of the
\n        said Act of 1960 within a period of three months nor the
\n        Board did take any steps for registration of the said wakf
\n        under Section 31 of the said Act of 1960. The alleged
\n        wakf remained unregistered wakf to which neither 1936 Act
\n        nor 1960 Act or 1995 Act are applicable as such the
\n        Plaintiff Wakf Board has no locus standi and instant Suit is
\n        hit by the provision of Section 87(1) of the Wakf Act, 1995.
\n        As such, the instant suit is not fit for being continued,
\n        heard, tried or decided and is liable to be dismissed on this
\n        score alone.”\n<\/p><\/blockquote>\n
1270.         In respect to the procedure to be followed under
\n1960 Act without there being any pleading, the learned counsel
\nhas presumed that neither any registration was made under
\nSection 29(2) nor any steps were taken under Section 31 of Act
\n16 of 1960 nor any fresh survey of the waqf in question was
\nmade under Section 6 of the aforesaid Act, hence the waqf in
\nquestion remain unregistered. In the absence of any pleading,
\nwe find it difficult to entertain the above submission involving
\npure factual aspects which ought to have been pleaded.
\nReference is also made to Section 66E of Waqf Act, 1954 but
\nSri Mishra, learned counsel could not dispute that Waqf Act,
\n1954, which was a Central Act, was not made applicable to the
\nState of Uttar Pradesh and therefore, reliance on the said
\nprovision is wholly misplaced.\n<\/p>\n
                                                                1423<\/span><\/p>\n
1271.         Sri Mishra referred to Section 6 of the Societies
\nRegistration Act, 1860 and Section 69(2) of Partnership Act,
\n1932 which are concerned to registered Society or Firm but in
\nour view, the same would have no application to the case in
\nhand for the reason we have already discussed above with
\nreference to the decisions in Pamulapati Buchi Naidu College
\nCommittee Nidubroly (supra) and Radhasoami Satsang
\nSabha Dayalbag (supra).\n<\/p>\n
1272.         Referring to Section 2 of Shariyat Act, 1937 as
\namended by Madras Act 18 of 1949 as also the Apex Court’s
\ndecision in C.Mohammad Yunus Vs. Syed Unnissa and Ors.
\nAIR 1961 SC 808, it is contended that the Act was applied to all
\ncities and provinces but in our view, neither the aforesaid
\nprovisions nor the decision of the Apex Court in C. Mohammad
\nYunus (supra) has any relevance with the point in question.
\n1273.         Referring to certain documents, which are on record,
\nand the translation provided thereof, Sri Mishra has submitted in
\nhis written arguments as under:\n<\/p>\n
        A.    In the application for registration of waqf made
\n        under section 38 of the United Provinces Muslim Waqfs
\n        Act, XIII of 1936 being exhibit 38 on pages 199 to 205 of
\n        the Volume No.11 of the documents filed in the instant
\n        suit by the Plaintiffs in its column no.3 it has been stated
\n        that there is no waqf but the waqifs are Emperor Babar
\n        and Nawab Sa’-a-Dat Ali Khan. Below column no.16
\n        there is a note which says that the claim of the alleged
\n        Mutwalli’s family is that the within mentioned property
\n        said to be granted for maintenance of the alleged Babari
\n        Mosque at somewhere else is not a waqf but a Service
\n        Grant in their favour. The aforesaid application tells the
\n                                                         1424<\/span><\/p>\n
Emperor Babar and Nawab Sa’-a-Dat Ali Khan as joint
\nwaqifs which is quite impossible because the Emperor
\nBabar died in 1530 AD while Nawab Sa’a-Dat Ali Khan
\nascended on throne in 1732 AD as such the persons who
\nwere not contemporary and there was a gap of 202 years
\nbetween the former and later they cannot be joint waqifs
\nof same of one waqf alleged to be Babri Masjid Waqf.\n<\/p><\/blockquote>\n
This fact alone totally falsify the claim of the plaintiffs
\nthat the alleged waqf was created by the Emperor Babar.
\nThe grant in question was also a service grant not a waqf.
\nThe person who made application namely, Syed Kalbe
\nHussain had also his vested interest as it appears from the
\nnote of the application that his intention was to file a case
\nagainst the persons who were enjoying their property
\nclaiming the same to be a service grant; from being
\nmotivated with such spirit and he made the aforesaid
\napplication for registration making fraudulent dishonest
\nfalse and frivolous statements.\n<\/p>\n
B.    Be it mentioned herein that the plaintiffs have used
\nfraud upon this Hon’ble Court by producing wrong
\ntransliteration of the note contained in said application for
\nregistration. Though in its original Urdu text it has been
\nrecorded that the persons recorded in revenue records do
\nnot consider it waqf but in Hindi transliteration thereof the
\nplaintiffs by deleting the word ‘nahi’ of vital importance
\nwhich finds place in between the words ‘waqf’ and
\n‘tasleem’ have made it meant that those persons says that it
\nis waqf and nankar mafi. This fact came into light when
\nthe original text was read over in open Court by the
\nHon’ble Justice S.U.Khan, J. during my argument.\n<\/p>\n
                                                       1425<\/span><\/p>\n
C.   In the list of Sunni Waqfs published in supplement
\nto the Government Gazette of United Provinces dated 26 th
\nFebruary, 1944 under Section 5 of U.P. Muslim Waqfs
\nAct, XIII of 1936 to which, according to the report of the
\nCommissioner of waqfs, the provisions of the said Act
\napply; on page 11 at serial no.26 (being the volume No.12
\nof the documents filed in the instant suit) it has been
\nnotified that Babri Mosque is located at Qasba Shahnawa
\nnot at Ramkot in Ayodhya. Hindi transliteration of
\nrelevant page of the said gazette notification containing
\nthe name of Badshah Babar on serial No.26 is on page
\nno.341 to 345 of volume 12 of the documents filed in the
\ninstant suit. Hindi Transliteration of the proforma of the
\nlist as well as the entries against item no.26 of the said
\nreads as follows:\n<\/p>\n
    ukes okfdQ ;k uke&,&eroyh ekStwnk       ukS b;rs tk;nkn
\n    oDQ                                     edwQk
\n 26 ckn’kkg ckcj  lS;n eksgEen tdh ercyh
\n                  efLtn      ckcjh     dLck
\n                  ‘kkguck Mkd[kkuk n’kZuxj
\n     From the above Gazette notification dated 26th
\nFebruary, 1944 it appears that Badshah Babar had erected
\na Mosque in Shahnawa town within the postal jurisdiction
\nof Darshan Nagar of which Syed Mohammed Zaki was
\nMutawalli. The said gazette notification did not say that
\nthere was a mosque in Ramkot Pargana Havelli, Ayodhya
\nin the district of Faizabad. As such said Babri Mosque
\nWaqf cannot be construed to be waqf of any other Babri
\nMosque located anywhere else.\n<\/p>\n
D.   In the said gazette notification dated 26th February,
\n1944 (on page 479 of the volume 12 of the documents
\nfiled in the instant suit) another Babri Mosque along with
\n                                                        1426<\/span><\/p>\n
the Mausoleum of the Emperor Babur has been mentioned
\nin some other district perhaps in the district of Kanpur. It
\nis well known recognized and admitted fact that the
\nMausoleum of the Emperor Babur is in Kabul, Afganistan
\nnot in India. This is glaring example of the facts of fraud,
\nforgery and fabrication.\n<\/p>\n
E.    From the above mentioned relevant entries of the list
\nof the gazette notification dated 26th February, 1944 it
\nbecomes clear that the waqf commissioners had not
\ndischarged their duties as it was cost upon them under the
\nprovisions of the United Provinces Muslim Waqfs Act,
\n1936 and in very casual manner either on hearsay they
\nhave listed several properties as of waqfs or the concern
\nWaqf Commissioner were active participant in the fraud,
\nforgery and fabrication.\n<\/p>\n
F.    The Waqf Commissioner Faizabad’s report dated 8th
\nFebruary, 1941 says that it appears that in 935 A.H.
\nEmperor Babar built Babari or Janam Asthan Mosque at
\nAjudhya and appointed one Syed Abdul Baqi as the
\nMutwalli and khatib of the Mosque and for its
\nmaintenance an annual grant of Rs.60 was allowed by the
\nsaid Emperor which continued till the fall of the Mughal
\nkingdom. Later on said grant was increased by Nawab Sa-
\na-Dat Ali Khan to Rs.302\/3\/6 but no original papers about
\nthis grant by the king of Oudh are available. Relevant
\nextract of said report reads as follows:\n<\/p>\n
      “It appears that in 935 A.H. Emperor Babar built
\n      this mosque and appointed Syed Abdul Baqi as the
\n      mutwalli and khatib of the Mosque (vide clause 2
\n      statement filed by Syed Mohammad Zaqi to whom a
\n                                                         1427<\/span><\/p>\n
      notice was issued under the Wakf Act.) An annual
\n      grant of Rs.60\/- was allowed by the Emperor for
\n      maintenance of the mosque and the family of the
\n      first mutwalli Abdul Baqi. This grant was continued
\n      till of the fall of the Moghal Kingdom at Delhi and
\n      the ascendancy of the Nawabs of Oudh.\n<\/p><\/blockquote>\n
      According to Cl. 3 of the written statement of
\n      Mohammad Zaki Nawab Sa’adat Ali Khan, King of
\n      Oudh increased the annual grant to Rs.302\/3\/6. No
\n      original papers about this grant by the king of Oudh
\n      are available.”<\/p><\/blockquote>\n
      From the aforesaid extract it is crystal clear that the
\nCommissioner on the basis of mere statement of Syed
\nMohammed Zaki found that the Disputed Janam Asthan
\nStructure was a mosque built by Emperor Babar which is
\nin total discard to his duty cast upon him under said Act
\nXIII of 1936.\n<\/p>\n
G.    Commissioner’s said report dated 8th Feb. 1941 says
\nthat after the mutiny the British Govt. continued the above
\ngrant in cash upto 1864 and in the later year in lieu of cash
\nsome revenue free land in village Bhuraipur and
\nSholeypur was granted. The said report further records
\nthat Syed Mohammed Zaki produced a copy of the grant
\norder of the British Govt. which was made on condition
\nthat Rajab Ali and Mohammad Asghar would render
\nPolice, Military or Political service etc. Thereafter the
\ncommissioner records that the above-mentioned object is
\nelucidated in Urdu translation as follows:\n<\/p>\n
      “After the Mutiny, the British Government, also
\n      continued the above grant in cash upto 1864, and in
\n                                                            1428<\/span><\/p>\n
     the latter year in lieu of the cash grant, the British
\n     Government ordered the grant of some revenue free
\n     land in villages Bhuraipur and Sholeypur. A copy of
\n     this order of the British Government has been filed
\n     by the objector Syed Mohammad Zaki (vide Flag
\n     A). This order says that ‘the Chief Commissioner
\n     under the authority of the Governor General in
\n     Council is pleased to maintain the Grant for so long
\n     as the object for which the grant has been made is
\n     kept up on the following conditions’. These
\n     conditions require Rajab Ali and Mohammad
\n     Asghar to whom the sannad was given, to perform
\n     duties of land holder in the matter of Police Military
\n     or political service etc. Thus the original object of
\n     the state grant of Emperor Babar and nawab Sa’adat
\n     Ali Khan is continued in this Sunnad by the British
\n     Government also i.e. maintenance of the mosque.
\n     The Nankar is to be enjoyed by the grantees for so
\n     long as the object of the grant i.e. the mosque is in
\n     existence.”\n<\/p><\/blockquote>\n
H.   In fact, this Urdu elucidation is creation of the said
\nWaqf Commissioner as it is not in the alleged Sunned
\nbeing page 33 of the volume 6 of the documents filed in
\nthe instant suit. Hindi transliteration and meaning of the
\nsaid elucidative Urdu text as incorporated in the Waqf
\nCommissioner’s said report reads as follows:\n<\/p>\n
     **ml ukudkj dks tcrd fd efLtn ftlds okLrs ;s ukudkj nh<\/p>\n
     x;h Fkh cjdjkj gSA glcs ‘kjk;r]ntZ tSy dk;e Qjekrs gSa \u00bctks<\/p>\n
     ‘krsZa fy[kh x;h gSa mls dgrs gSa\u00bd**
\n                                                          1429<\/span><\/p>\n
      A handwritten copy of the said sunnad with some
\nerror has been reproduced at page 27 of volume 10 of the
\ndocuments filed in the instant suit. In the said alleged
\noriginal version of the grant Urdu elucidation did not find
\nplace. From the said alleged original version of the alleged
\ngrant, it becomes crystal clear that the grant, if any, it was
\na service grant for rendering police, military and political
\nservices to the British Govt. against the enemies of the
\nBritish Govt. Be it mentioned herein that in those days in
\nthe eyes of the Britishers the persons who were fighting
\nagainst them for liberation of their motherland i.e. India
\nthey were considered to be mutineers and enemies of the
\nBritishers. As such it can be inferred that the said service
\ngrant was given for helping the Britishers to defeat and
\nrout the freedom fighters, not for a good cause of
\nmaintaining any Mosque. Full text of the alleged
\nSUNNAD from page 33 of Vol. 6 (hand written copy on
\npage 27 of Vol. 10 that is not accurate) is reproduced as
\nfollows:\n<\/p><\/blockquote>\n
                  “Chief commissioner’s
\n      It having been established after due enquiry, that
\n      Rajub ally and Mohamad Usgar received a Cash
\n      Nankar of (Rs.302.3.6) Rupees three hundred to and
\n      three annas and six pie from Mouzah Shanwah Zila
\n      Faizabad from former Government. The Chief
\n      Commissioner, under the authority of the Governor
\n      General in Council is pleased to maintain the grant
\n      for long as the object for which the grant has been
\n      made is kept the following conditions. That they shall
\n      have surrendered all sunnads, title deeds, and other
\n                                                         1430<\/span><\/p>\n
      documents relative to the grant. That they and their
\n      successor shall strictly (illegible) all the duties of
\n      land-holder in matter of police, and an (torn) or
\n      political service that they may be required of them by
\n      the authorities and that they shall never fall under
\n      the just suspicion of favouring in any way designs of
\n      enemies of the British Government. If any one of
\n      these conditions is broken by Rajub ally and
\n      Mohamad Usgar or their successor the grant will be
\n      immediately resumed.”\n<\/p><\/blockquote>\n
I.    From the aforesaid alleged to be original text of the
\ngrant as produced by the plaintiffs it becomes crystal clear
\nthat Urdu interpolation has been done by the said
\nCommissioner with sole motive to deprive the Hindus
\nfrom their sacred shrine of Sri Ramjanamsthan which has
\nbeen described as Babri Mosque in the plaint as well as
\nJanam Asthan Mosque in the said Commissioner’s report.\n<\/p><\/blockquote>\n
From the words ‘Janam Asthan Mosque’ itself it becomes
\nclear that the alleged Mosque was erected over the birth
\nplace of someone, and since time immemorial said place is
\nbeing worshipped by the Hindus asserting that it is the
\nbirth place of the Lord of Universe Sri Ram it is needless
\nto say that according to the said Commissioner, the
\nalleged Mosque was erected over the janamasthan of Sri
\nRamlala.\n<\/p>\n
J.    The said Waqf Commissioner after recording the
\nfacts that Syed Mohammed Zaki had submitted before him
\nthat the said British grant was a service grant in favour of
\nhis predecessors for rendering police, military and
\npolitical services to the Britishers subject to resumption on
\n                                                         1431<\/span><\/p>\n
non-fulfillment of the aforesaid conditions thus it was not
\na waqf property granted for maintenance of the alleged
\nmosque; the commissioner without any cogent evidence
\nrejected his said contention simply stating that he did not
\nagree to that view because the grant was not originally
\ngranted by the Britishers but it was continuation of
\noriginal grant granted by the Muslim rulers as also for the
\nreasons that after the Ajodhya riot of 1934 Syed
\nMohammad Zaki had presented an application to Deputy
\nCommissioner in which he had described himself as
\nMutawalli or trustee of the mosque and of the trust
\nattached thereto. In fact, prior to coming on this reference,
\nin the preceding paragraphs of his said report the said
\ncommissioner himself has recorded that no paper of old
\ngrant even of the Nawabs of Oudh was available and
\nplaced before him. It is contrary to the law of evidence to
\ndraw inference on the basis of the statement of a person
\nwhose credibility was found suspicious, doubtful and non-
\nreliable. As in his report the commissioner records that
\nsaid Syed Mohammed Zaki was an opium addict and most
\nunsuited for the proper performance of the duties expect
\nof a Mutwalli of an ancient and historical mosque, which
\nwas not kept even in proper repairs for which reason he
\nrecommended to discharge the said Mutwalli. Relevant
\nextract from said report is reproduced as follows:\n<\/p>\n
      “Syed Mohammad Zaki, the objector, who is known
\n      as the Mutwalli of the Babari mosque, and also
\n      called himself as such raises an objection to the land
\n      in Sholeypur and Bhuranpur being regarded as a
\n      waqf, because he says the grant has been made for
\n                                                    1432<\/span><\/p>\n
his substenance only (in Urdu). In do not agree with
\nthis view of his. The written statement filed by
\nMohammad Zaki himself is sufficient to show that
\nthe grant has been continued ever since 935 A.H.\n<\/p><\/blockquote>\n
only because he and his ancestors were required to
\nlook after the mosque and keep it in proper
\ncondition out of the income allowed to them and
\nalso to provide for the maintenance of himself and
\nhis ancestors out of a part of the same grant.
\nClearly then the grant of land to Mohammad Zaki
\nmust be regarded as a Waqf, the purpose of which is
\nthe maintenance of the religious building known as
\nthe Babari Mosque.\n<\/p>\n
The learned counsel for Mohammad Zaki has also
\nargued.\n<\/p>\n
1) That the particular grant of land in Sholeypur and
\nBhureypur     has   been    made    by    the    British
\nGovernment. A Non-Muslim body and hence the
\ngrant cannot be regarded as Muslim Waqf.\n<\/p>\n
2) That the grant is a conditional one, being subject
\nto resumption on non fulfillment by the grantee of
\nany of the police Military or duties enjoined in the
\nSunnad, and that on account of these conditions the
\ngrant cannot be classed as a Muslim Waqf.\n<\/p>\n
I do not agree with either view. firstly the British
\nGovernment only continued a grant which had been
\nmade by the Muslim Government originally and in
\nthese circumstances, I cannot but regard the grant as
\na waqf.\n<\/p>\n
3) As for the second point the conditions have been
\n                                                       1433<\/span><\/p>\n
     imposed upon the grantee, and not upon the way in
\n     which the grant to be utilized, which latter purpose
\n     is recognised as maintenance of the mosque. It is
\n     clear that if the conditions are broken the enjoyment
\n     of the grant by the Mutwalli himself for his sustence
\n     is to be withdrawn apparently implying that any
\n     other mutwalli will then be appointed to administer
\n     the grant for the original purpose of maintaining the
\n     mosque. I am strengthened in this view because I
\n     find the mention of the object of the grant i.e.
\n     maintenance of the mosque at the very outset of the
\n     Sunnad and the desirability thereof seems to be clear
\n     from the whole Sunnad.\n<\/p>\n
           I also find that after the Ajodhya riot of 1934,
\n     Syed Mohammad Zaki presented an application
\n     (Flag Ex. A) to Deputy Commissioner, in which he
\n     clearly described himself as Mutwalli or trustee of
\n     the mosque and of the trust attached thereto.\n<\/p>\n
           I also find that this same Mohammad Zaki
\n     submitted accounts in 1925 in Tahsildar’s court in
\n     which he stated that the income from the grant
\n     managed by him was utilized for maintenance of the
\n     mosque, pay of Imam Muezzin and the provisions of
\n     Iftari etc., during Ramzan after deduction of Rs.20\/-
\n     per month for sustence of the Mutwalli himself. The
\n     pay of the Mutwalli spends a much greater portions
\n     of the income on his own personal needs.\n<\/p>\n
K.   The Wakf Commissioner Faizabad in his said report
\ndated 8th Feb. 1941 says that he examined Abdul Ghaffar,
\nthe then pes Niwaz who deposed that the imam was not
\n                                                         1434<\/span><\/p>\n
being paid for last 11 years and thereafter the said
\ncommissioner says that the then Syed Mohammud Zaki
\nwas an opium addict and most unsuited to the proper
\nperformance of the duties expected from an Mutwalli of
\nan ancient and historical mosque, thus he was liable to be
\ndischarged from his duties. Relevant extract from the said
\nreport which is on page nos. 45 to 48 of the volume No. 6
\nof the documents filed in the instant suit read as follows:\n<\/p>\n
      “The present Mutwalli is of course a Shia. There is
\n      no information as to the sect to which Abdul Baqi
\n      himself belonged, but the founder Emperor Babar-
\n      was admittedly a Sunni, the Imam and Muezzin at
\n      the mosque are Sunni and only Sunnis say their
\n      prayer in it. Abdul Ghaffar the present Pesh Niwaj
\n      was examined by me. He swear that the ancestors of
\n      Mohammad Zaki were Sunnis who latter on was
\n      converted to Shia. He further said that he did not
\n      receive his pay during the last 11 years. In 1936 the
\n      Mutwalli executed a pronote promising to pay the
\n      arrear of pay by installment but upto this time
\n      nothing actually was done. I think therefore that this
\n      should be regarded as a Sunni Trust.\n<\/p><\/blockquote>\n
            I must say in the end that from the reports that
\n      I have heard about the present Mutwalli, he is an
\n      opium addict (vide his statement flag Ez) and most
\n      unsuited to the proper performance of the duties
\n      expected of a Mutwalli of an ancient and historical
\n      mosque, which is not kept even in proper repairs. It
\n      is desirable that, if possible, a committee of
\n      management should be appointed to supervise the
\n                                                        1435<\/span><\/p>\n
      proper maintenance and repairs of the mosque and
\n      discharge of his duties by the Mutwalli.”\n<\/p><\/blockquote>\n
L.    From the second report of the Commissioner of
\nWaqf Faizabad being report dated 8th February, 1941 it
\nbecomes clear that the Imam was not being paid since
\n1930 and the alleged Mutwalli was an opium addict and
\nmost unsuitable person and in 1934 riots on 27th March,
\nthe alleged Mosque was demolished it can be safely
\ninferred that Sri Ramjanamsthan temple structure was
\nbeing used as a mosque because it cannot be imagined that
\na person will discharge duty of imam without getting
\nsalary for such a long period as according to Islamic law,
\nonly salary is the prescribed means of livelihood no imam
\ncan survive for want of salary as such in fact neither there
\nwas any mosque nor there was any mutwalli or imam.
\nM.    From exhibit-62 being page nos.367 to 405 of
\nvolume 12 of the documents filed in the instant suit which
\nis a report of the four historians it becomes crystal clear
\nthat how said report has been prepared having some
\ndesign in mind or inadvertently and negligently which
\nreflects from page 397 of the said volume where the
\ndimension of the vedi described by Tieffenthaler has been
\nwrongly reproduced as “a square platform 5 inches above
\nground, 5 inches long and 4 inches wide, constructed of
\nmud and covered with lime. The Hindus call it Bedi, that
\nto say, the birth place. The reason is that here there was a
\nhouse in which Beschan (Bishan = Vishnu) took the form
\nof Ram”. Though correct dimension given by Tiffenthaler
\nreads “a square chest, raised five inches from the ground,
\ncovered with lime, about five ells in length by not more
\n                                                          1436<\/span><\/p>\n
than four in breadth. The Hindoos call it bedi, the cradle;
\nand the reason is, that there formerly stood here the house
\nin which Beshan (Vishnoo) was born in the form of Ram.”
\nThis correct translation is given in the book ‘Modern
\nTraveller’ volume 3, published by James Duncan in 1828.
\nIt is crystal clear that in the report of said historians the
\nword ‘ells’ has been translated as ‘inches’ in fact, ells
\nmeans yards which has been correctly translated in the
\ntranslation made available by the Govt. of India to this
\nHon’ble Court. Tieffenthelar has not stated that the Bedi
\nwas of mud, it is creation of the mind of the aforesaid
\nhistorians, as such said report of the historians is not
\nreliable for the reasons of being prepared by incompetent
\npersons or for being biased, motivated.\n<\/p>\n
N.    The page No. 155 of volume 6 of the documents
\nfiled in the instant suit purported to be copy of a folio of a
\nregister contains a pedigree wherein it has been written
\nthat the mafi was created for the muezzin and khattib of
\nmasjid Babari of Oudh date and year of the waqf is
\nunknown to Syed Baqi therefore his son Syed (illegible)
\nAli, his son Syed Hussain Ali who was in possession for
\nabout 60 years now his son-in-law Rajab Ali and his
\ndaughter’s son Muhammad Asgar are in existence and
\nwere in receipt of cash from village Shahnawa vide receipt
\n(illegible) till fasali year 1263. In the year 1264 fasali
\nenquiry about mafi was started but riot took place
\n(illegible) crop (illegible) year 63 fasali was found
\n(illegible) original (illegible) of and is document
\n(illegible) in respect of mafi (illegible) settlement of
\nvillage versus (illegible). A copy of the said contents has
\n                                                         1437<\/span><\/p>\n
also been compiled in the said volume no.6 of the
\ndocuments filed in the instant suit on its page nos. 157 to\n<\/p>\n
161.
\nO.     From the said enquiry report it appears that during
\nthe period of 332 years people of five generations
\nincluding Syed Baqi held the office of muezzin and
\nkhattib of alleged Babri mosque during the period of 1528
\nto 1860 which means 66\u00bd years was average of each
\ngenerations which is quite impossible as according to Life
\nInsurance Corporation’s assessment average span of a
\nchange of generation is 26 years. And this pedigree is
\ncompletely false, forged and fabricated one. During this
\nperiod 16 generations of the Mughal rulers elapsed
\naverage whereof comes about 20 \u00be years. In the matter of
\nRadha Krishan v. State of Bihar the Hon’ble Supreme
\nCourt has laid down the principle of law to evaluate and
\njudge authenticity of a pedigree which has been
\nreproduced in this argument at relevant place.
\nP.     The alleged documents and\/or transliteration thereof
\nbeing page nos. 53 to 61 of the volume no.6 of the
\ndocuments filed in the instant suit tells that the alleged
\nBabri Mosque was demolished by the rioters and Bairagis
\non 27th March, 1934. The damaged domes were beyond
\nrepair. The allege list of damages says that apart from
\ndamaging the building, the Hindus either burnt or took
\naway with them three pieces of mats, six pieces of
\nmatress, one piece of box, two pieces sandal, six pieces of
\ncurtains, five pieces of pitchers, hundred places badhana
\nmitti, four pieces of small earthen pot, one piece chahar,
\nwater pot (illegible) three pieces Kasauti Patthar Tarikhi, 3
\n                                                         1438<\/span><\/p>\n
x 1\u00bd sq. ft. one piece, ladder two pieces, large iron jar two
\npieces. From the said list it is crystal clear that no
\nengraved stone i.e. inscription was either carried away by
\nthe rioters or destroyed by the rioters. As such the story of
\nthe destruction of inscription is wholly concocted and the
\ninscription which was prepared by the contractor was done
\nat the instance of the Britishers to deprive the Hindus from
\ntheir religious place and make the said place as bone of
\ncontention between Hindus and Muslims to facilitate their
\npolicy of divide and rule. As it has been written in the East
\nIndia Gazetteer 1828 p. 352, 2nd column last para as well
\nas the preface of the Neil B.E. Baillie’s Digest of
\nMoohummudan Law Vol.2 Edn. 1875 Introduction p. xi
\nand xii.\n<\/p>\n
Q.    In Waqf Commissioner’s report dated Feb. 8 1941, it
\nhas been recorded that the alleged Babri Mosque was built
\nby one Abdul Baqi on being ordered to do so by the
\nEmperor Babur. He records that there is no document to
\nshow that grant was sanctioned to the said Mosque either
\nby the Mughal Emperors or Nawabs of Oudh, but as in
\n1864 a sunnud was issued stating that the grant was given
\nto the grantee for rendering military, police and political
\nservices. It may be presumed that it was granted in
\ncontinuance of the grants of Mughal Emperors to Nawabs
\nof Oudh right from the Emperor Babur. The said
\nCommissioner in his waqf report has committed forgery
\nand fabrication by inserting certain words in Urdu
\ntranscript to show that the grant was given for
\nmaintenance of the alleged Babri Mosque. In fact, said
\nsunnud is on record and entire sunnud is in English
\n                                                                1439<\/span><\/p>\n
        language and nothing is written in the said sunnud in Urdu
\n        transcript as such question of grant for maintenance of
\n        Babri Mosque cannot and does not arise at all. He says
\n        that some return submitted in the office of Tahsildar in
\n        1995 shows that though major expenses was done by the
\n        grantee for his own maintenance, but a portion thereof was
\n        spent on maintaining alleged Babri Mosque. Be it
\n        mentioned herein that if grant would have been spent on
\n        maintaining alleged Babri Mosque its account would have
\n        been submitted to the District Civil court which was made
\n        mandatory under the provisions of The Mussalman Wakf
\n        Act, 1923 under Section 3 of the said Act. Report also
\n        says that the Imam was not paid for last 11 years i.e. since
\n        1930 as also that the Mutwalli is a drug addict and the
\n        alleged Mosque is in not good condition as such Mutwalli
\n        should be removed.\n<\/p>\n
1274.         Suffice it to say that Section 87 would be attracted
\nwhere a waqf is not registered under the Act. If there was some
\nirregularity or discrepancy in the procedure observed, whether
\nthat would make a waqf otherwise registered by the Central
\nSunni Waqf Board as unregistered, is neither an issue framed
\nnor there is requisite pleadings by the concerned parties giving
\nan opportunity to plaintiffs (Suit-4) to place on record the
\nrelevant evidence. So far as the appreciation of the documents,
\nreferred to above in sub paras A to Q, we are clearly of the view
\nthat the same would not negate an otherwise positive assertion
\nby defendant 4 (Suit-5) which is not disputed at all by the other
\nside by challenging the said pleading. Moreover no issue on this
\naspect has been framed. In our view, the suits in question cannot
\nbe held to be barred by Section 87 of the Act.\n<\/p>\n
                                                                1440<\/span><\/p>\n
1275.        There is another aspect. There are specific issues
\nconcerning the very existence of the waqf and creation of a valid
\nwaqf in accordance with Shariyat Law. Where such a basic issue
\nis involved about the very existence of a waqf, whether in such a
\ncase also Section 87 would have any application or not, we have
\nour serious doubts but on this aspect in the absence of any
\npleadings or arguments on the part of the respective parties
\nwe find no occasion to express a final opinion. We are not
\ninclined to widen the scope of the suits in question, the canvass
\nwhereof is already enlarged extraordinarily and we have enough
\ncomplicated issues to consider and decide having wider
\nramifications. In the totality of the circumstances, as also the
\ndiscussion as above, we are clearly of the view that the suits in
\nquestion cannot be held untriable at this stage by virtue of
\nSection 87 of 1995 Act. The submission of Sri P.N.Mishra,
\nlearned counsel for defendant 20 in Suit-4 with reference to
\nSection 87 of 1995 Act is hereby rejected. We, however, make
\nit clear that the submissions with respect to various documents
\nin the above mentioned paragraphs F to Q are in fact not
\nrelevant to the above aspect of the matter. We intend to consider
\nit later on while deliberating on the concerned issues involving
\nthose documents and their effect.\n<\/p>\n
(E) Miscellaneous issues like representative nature of suit,
\nTrust, Section 91 C.P.C., non joinder of parties, valuation\/
\ninsufficient Court fee\/under valuation and special costs.
\n1276.        Issue no. 6 (Suit-4) reads as under:\n<\/p>\n
             “Whether the present suit is a representative suit,
\n        plaintiffs representing the interest of the Muslims and
\n        defendants representing the interest of the Hindus?”\n<\/p><\/blockquote>\n
1277.        Issue no. 6 (Suit-4) pertains to the nature of the suit
\n                                                                  1441<\/span><\/p>\n
in a representative capacity in respect to both the parties, i.e.,
\nplaintiffs and defendants. It is not disputed by learned counsel
\nfor the parties that the Civil Judge passed order dated
\n08.08.1962 under Order 1 Rule 8 CPC permitting plaintiffs to
\nrepresent the interest of Muslims and the defendants to represent
\nthe interest of Hindus. The relevant part of the order says:\n<\/p>\n
        “I therefore allow appln 4-C and reject the objections 77-C
\n        & 97-C. The pltffs are permitted to sue representing the
\n        entire Muslim community and the pltffs are also permitted
\n        to sue the defdts no. 1 to 4 on behalf of and for the benefit
\n        of the entire Hindu community.”<\/p><\/blockquote>\n
        None has made any submission otherwise. The issue is
\nanswered accordingly in affirmance.\n<\/p>\n
1278.         Issue No.22 (Suit-4) relates to special costs in case
\nsuit is dismissed. It reads as under:\n<\/p>\n
              “Whether the suit is liable to be dismissed with
\n        special costs?”<\/p><\/blockquote>\n
        Learned counsel for the defendants have fairly stated that
\nthey do not press for any special costs and for they it would be
\nsufficient if the suits are decided on merits expeditiously.\n<\/p>\n
        In the circumstances and in view of the above statement
\nmade on behalf of the learned counsel appearing for the
\ndefendants in Suit-4, we answer Issue no.22 in negative i.e. no
\nspecial costs need be awarded.\n<\/p>\n
1279.         Issues no. 11(a) and 11(b) (Suit-1) reads as under:\n<\/p>\n
              “(a) Are the provisions of section 91 C.P.C.
\n        applicable to present suit? If so, is the suit bad for want of
\n        consent in writing by the Advocate General?\n<\/p><\/blockquote>\n
              (b) Are the rights set up by the plaintiff in this suit
\n        independent of the provisions of section 91 CPC? If not, its
\n                                                                   1442<\/span><\/p>\n
        effect.”\n<\/p><\/blockquote>\n
1280.         These issues are in respect to Section 91 CPC which
\nreads as under:\n<\/p>\n
        “91. Public nuisances and other wrongful acts affecting
\n        the public.–(1) In the case of a public nuisance or other
\n        wrongful act affecting, or likely to affect, the public, a suit
\n        for a declaration and injunction or for such other relief as
\n        may be appropriate in the circumstances of the case, may
\n        be instituted,-\n<\/p><\/blockquote>\n
            (a) by the Advocate General, or\n<\/p><\/blockquote>\n
            (b) with the leave of the Court, by two or more persons,
\n            even though no special damage has been caused to
\n            such persons by reason of such public nuisance or
\n            other wrongful act.]
\n    (2) Nothing in this section shall be deemed to limit or
\n    otherwise affect any right of suit which may exist
\n    independently of its provisions.”\n<\/p><\/blockquote>\n
1281.         The onus to prove the above issue initially lie upon
\nthe defendants but no arguments have been advanced in respect
\nto the above issue. Besides, we find from the record that Sri
\nChaudhary Kedarnath, Advocate, counsel of the plaintiff, Gopal
\nSingh Visharad, who initially filed Suit-1, made a statement on
\n15.09.1951 under Order 10 Rule 2 stating that he is filing the
\nabove suit for enforcement of his individual right of worship
\nand, therefore, has a right to maintain the above suit in his
\nindividual capacity. The relevant part of his statement is as
\nunder:\n<\/p><\/blockquote>\n
        “Q. In what capacity does the plaintiff seek to exercise the
\n        relief which he seeks in the plaint.\n<\/p><\/blockquote>\n
        Ans. In my individual capacity.\n<\/p><\/blockquote>\n
                                                                1443<\/span><\/p>\n
        Q. What is your individual capacity.\n<\/p><\/blockquote>\n
        Ans. My individual capacity is distinct from public capacity
\n        and in this matter an idol worshipper.”\n<\/p><\/blockquote>\n
1282.         It also appears that an application was filed on
\nbehalf of defendants no. 1 to 5 under Order 1 Rule 8 CPC before
\nthe Civil Judge, Faizabad praying that the suit be treated to be in
\na representative capacity but the said application was rejected on
\n27.10.1951. The order has attained finality as nothing has been
\nplaced before us to show that the matter was taken up before the
\nhigher Court assailing the order dated 27.10.1951. Section 91
\nCPC does not take away the independent right of a person where
\nsuch right partly relates to a public right of others also. It lays
\ndown merely the procedure to be adopted in a representative suit
\nwhere a right of suit already exist. It did not confer or extinguish
\na new right on its own. In Kadarbhai Mahomedbhai and
\nanother Vs. Haribhari Ranchhodbhai Desai and another, AIR
\n1974 Gujarat 120 a suit was filed by a person affected by public
\nnuisance praying for removal of the public nuisance alleging
\nspecial damage to him and it was held that such a suit is not
\nbarred either by Section 91 CPC or Order 1 Rule 8 CPC. To the
\nsame effect is the view taken by this Court in Mst. Bhagwanti
\nVs. Mst. Jiuti and another, AIR 1975 Allahabad 341. In view
\nof the above we answer issue no. 11(a) (Suit-1) in negative and
\nhold that neither Section 91 CPC is applicable to Suit-1 nor it is
\nbad for want of consent in writing by Advocate General. Issue
\nNo. 11(b) (Suit-1) is answered in affirmance, i.e., the right of
\nthe plaintiff is independent as set up by him in the plaint as also
\nin view of the statement under Order 10 Rule 2 CPC and has
\nnothing to do with Section 91 CPC. The question of the
\nsubsequent part of the issue 11(b) need not be decided in view
\n                                                                   1444<\/span><\/p>\n
or our answer in favour of the plaintiff, i.e., in affirmance.\n<\/p><\/blockquote>\n
1283.          Issue no. 12 (Suit-1) reads as under:\n<\/p>\n
               “Is the suit bad for want of steps and notice under
\n        Order 1, Rule 8 CPC? If so, its effect?”\n<\/p>\n
1284.          This issue is with reference to Order 1 Rule 8 CPC
\nwhich reads as under:\n<\/p>\n
               “8. One person may sue or defend on behalf of all
\n        in same interest.–(1) Where there are numerous persons
\n        having the same interest in one suit,-\n<\/p><\/blockquote>\n
           (a) one or more of such persons may, with the
\n           permission of the Court, sue or be sued, or may defend
\n           such suit, on behalf of, or for the benefit of, all persons
\n           so interested;\n<\/p><\/blockquote>\n
           (b) the Court may direct that one or more of such
\n           persons may sue or be sued, or may defend such suit,
\n           on behalf of, or for the benefit of, all persons so
\n           interested.\n<\/p><\/blockquote>\n
     (2) The Court shall, in every case where a permission or
\n     direction is given under sub-rule (1), at the plaintiffs
\n     expense, give notice of the institution of the suit to all
\n     persons so interested either by personal service, or, where,
\n     by reason of the number of persons or any other cause, such
\n     service     is   not   reasonably    practicable,   by      public
\n     advertisement, as the Court in each case may direct.
\n     (3) Any person on whose behalf, or for whose benefit, a suit
\n     is instituted or defended, under sub-rule (1), may apply to
\n     the Court to be made a party to such suit.\n<\/p><\/blockquote>\n
     (4) No part of the claim in any such suit shall be abandoned
\n     under sub-rule (1), and no such suit shall be withdrawn
\n     under sub-rule (3), of rule 1 of Order XXIII, and no
\n                                                                 1445<\/span><\/p>\n
     agreement, compromise or satisfaction shall be recorded in
\n     any such suit under rule 3 of that Order, unless the Court
\n     has given, at the plaintiffs expense, notice to all persons so
\n     interested in the manner specified in sub-rule (2).
\n     (5) Where any person suing or defending in any such suit
\n     does not proceed with due diligence in the suit or defence,
\n     the Court may substitute in his place any other person
\n     having the same interest in the suit.\n<\/p><\/blockquote>\n
     (6) A decree passed in a suit under this rule shall be binding
\n     on all persons on whose behalf, or for whose benefit, the suit
\n     is instituted, or defended, as the case may be.\n<\/p><\/blockquote>\n
           Explanation.-For the purpose of determining whether
\n     the persons who sue or are sued, or defend, have the same
\n     interest in one suit, it is not necessary to establish that such
\n     persons have the same cause of action as the person on
\n     whose behalf, or for whose benefit, they sue or are sued, or
\n     defend the suit, as the case may be.”\n<\/p><\/blockquote>\n
1285.       As we have already discussed above the application
\nfiled on behalf of defendants no. 1 to 5 under Order 1 Rule 8
\nCPC was rejected by Civil Judge, Faizabad by order dated
\n27.10.1951. The plaintiff had also made statement under Order
\n10 Rule 2 CPC that the right of worship, he is claiming by
\nmeans of Suit-1, is his individual and personal right hence Order
\n1 Rule 8 CPC has no application. That being so, the question of
\ntaking steps and notice under Order 1 Rule 8 CPC does not
\narise. Issue no. 12 (Suit-1) is accordingly answered in
\nnegative, i.e., in favour of the plaintiff (Suit-1).
\n1286.       Issue no. 15 (Suit-1) pertains to non-joinder of
\ndefendants and says:\n<\/p>\n
            “Is the suit bad for non-joinder of defendants?”\n<\/p>\n
                                                                  1446<\/span><\/p>\n
1287.         It is not pointed out by any of the defendants as to
\nwho has not been impleaded as defendant though a necessary or
\nproper party in the suit. No arguments have been advanced on
\nthis aspect and in the absence thereof we answer issue no. 15
\n(Suit-1) in negative, i.e., in favour of the plaintiffs (Suit-1).
\n1288.         Issue no. 16 (Suit-1) reads as under:\n<\/p>\n
              “Are the defendants or any of them entitled to special
\n        costs under Section 35-A C.P.C.”\n<\/p>\n
1289.         It relates to special costs. Section 35A CPC says:\n<\/p>\n
              “35A. Compensatory costs in respect of false or
\n        vexatious claims or defenses.–(1) If any suit or other
\n        proceedings including an execution proceedings but
\n        excluding an appeal or a revision any party objects to the
\n        claim of defence on the ground that the claim or defence or
\n        any part of it is, as against the objector, false or vexatious
\n        to the knowledge of the party by whom it has been put
\n        forward, and if thereafter, as against the objector, such
\n        claim or defence is disallowed, abandoned or withdrawn in
\n        whole or in part, the Court, if it so thinks fit] may, after
\n        recording its reasons for holding such claim or defence to
\n        be false or vexatious, make an order for the payment the
\n        object or by the party by whom such claim or defence has
\n        been put forward, of cost by way of compensation.
\n            (2) No Court shall make any such order for the
\n     payment of an amount exceeding three thousand rupees or
\n     exceeding the limits of it pecuniary jurisdiction, whichever
\n     amount is less:\n<\/p><\/blockquote>\n
             Provided that where the pecuniary limits of the
\n     jurisdiction of any Court exercising the jurisdiction of a
\n     Court of Small Causes under the Provincial Small Cause
\n                                                                 1447<\/span><\/p>\n
     Courts Act, 1887 (9 of 1887) or under a corresponding law
\n     in force in any part of India to which the said Act does not
\n     extend and not being a Court constituted under such Act or
\n     law, are less than two hundred and fifty rupees, the High
\n     Court may empower such Court to award as costs under this
\n     section any amount not exceeding two hundred and fifty
\n     rupees and not exceeding those limits by more than one
\n     hundred rupees:\n<\/p><\/blockquote>\n
            Provided, further, that the High Court may limit the
\n     amount or class of Courts is empowered to award as costs
\n     under this Section.\n<\/p><\/blockquote>\n
            (3) No person against whom an order has been made
\n     under this section shall, by reason thereof, be exempted
\n     from any criminal liability in respect of any claim or defence
\n     made by him.\n<\/p><\/blockquote>\n
            (4) The amount of any compensation awarded under
\n     this section in respect of a false or vexatious claim or
\n     defence shall be taken into account in any subsequent suit
\n     for damages or compensation in respect of such claim or
\n     defence.”\n<\/p><\/blockquote>\n
1290.        Learned counsels for the defendants have at the
\noutset stated that they do not press any cost whatsoever and for
\nthem the biggest compensation would be the decision of the
\nmatter at the earliest and, therefore, none has pressed the above
\nissue. In the result issue 16 (Suit-1) is answered in negative,
\ni.e., in favour of the plaintiff (Suit-1).\n<\/p>\n
1291.        Issues no. 11, 12 and 15 (Suit-3) read as under:\n<\/p>\n
             “Is the suit bad for non-joinder of necessary
\n        defendants?”\n<\/p><\/blockquote>\n
             “Are defendants entitled to special costs u\/s 35
\n                                                               1448<\/span><\/p>\n
        CPC?”\n<\/p><\/blockquote>\n
              “Is the suit property valued and court fee paid
\n        sufficient?”\n<\/p><\/blockquote>\n
1292.         None has pressed the above issues inasmuch as
\nneither any submissions have been advanced as to who is the
\nnecessary party not impleaded in the suit rendering it bad for
\nnon-joinder nor the learned counsels for the defendants have
\npressed for special cost and on the contrary very fairly have said
\nthat the decision of the suit at the earliest is itself the biggest
\ncost to them. No arguments have been advanced with respect to
\nthe valuation and the Court fees in the matter. We, therefore,
\nanswer issues no. 11 and 12 (Suit-3) in negative, i.e., in favour
\nof the plaintiffs (Suit-3). Issue no. 15 (Suit-3) is answered in
\naffirmance, i.e., in favour of the plaintiff (Suit-3).
\n1293.         Issue no. 20 (Suit-5) reads as under:\n<\/p>\n
            “Whether the alleged Trust creating the Nyas ,
\n    defendant no.21, is void on the facts and grounds stated in
\n    paragraph 47 of the written statement of defendant no.3?”\n<\/p><\/blockquote>\n
1294.         Defendant no. 3 represented by Sri R.L. Verma,
\nAdvocate has not placed anything before this Court to show as
\nto how the alleged trust defendant no. 21 is void. Besides,
\ndefendant no. 21 is not seeking any relief as such before us. The
\nquestion as to whether the alleged trust is void or not would
\nhave no material bearing on the matter to the relief sought in
\nSuit-5 which has been filed on behalf of two deities through
\nnext friend. We, therefore, find no reason to answer the
\naforesaid issue in the present case. Issue no. 20 (Suit-5),
\ntherefore, remain unanswered since it is unnecessary for the
\ndispute in the present case to adjudicate on the said issue. The
\nlearned counsel for defendant no. 3 (Suit-5) also could not make
\n                                                                   1449<\/span><\/p>\n
any submission persuading us to take a different view.\n<\/p>\n
(F) Issues relating to the Person and period- who and when
\nconstructed the disputed building:\n<\/p>\n
1295.         Mainly there are three issues under this category
\nwhich requires adjudication on the question whether the
\nbuilding in dispute was constructed in 1528 AD and whether the
\nconstruction was made by Babar or under his orders by any of
\nhis agent including Mir Baki.\n<\/p>\n
1296.         To be more precise, issues no. 6 (Suit-1), 5 (Suit-3)
\nand 1(a) (Suit-4) fall in this category.\n<\/p>\n
1297.         Issue No.6 (Suit-1) reads as under:\n<\/p>\n
              “Is the property in suit a mosque constructed by
\n        Shahanshah Babar commonly known as Babri Mosque, in
\n        1528 A.D.?”\n<\/p><\/blockquote>\n
1298.         Defendants no.1 to 5 (Suit-1) in para 9 of their
\nwritten statement said:\n<\/p>\n
        **nQk 9- ;g fd ftl tk;nkn dk eqn~nbZ us nkok fd;k gS og
\n        ‘kgU’kkg fgUn ckcj ‘kkg dh rkehj djnk efLtn ekSlwek ckcjh efLtn
\n        gSA ftldks ‘kga’kkg etdwj us ckn Qrsgvkch fgUnqLrku nkSjku d;ke
\n        v;ks\/;k vius othj o eqnk:y eksgke ehj ckdh ds ,greke ls lu~
\n        1528 bZ0 esa rkehj djk;k vkSj rkehj djds reke eqlyeku ds fy,
\n        o+DQ vke dj fn;kA ftlesa reke eqlyeku dk gd bcknr gSA**
\n        “Para 9. That the property regarding which the plaintiff
\n        has filed the suit, is the mosque built by Babar, emperor of
\n        India, which is called Babri Masjid. It was built by the
\n        aforesaid emperor, after his conquest of India, in the year
\n        1528 through his Governor and confederate (eqnk:y eksgke )
\n        Mir Baqi during his stay at Ayodhya and after building the
\n        same, he created a universal Waqf in favour of Muslims in
\n        general, and all the Muslims have the right of worship over
\n                                                                   1450<\/span><\/p>\n
        there.” (E.T.C.)
\n1299.          In the replication filed by the plaintiff, he denied the
\nexistence of Babri Masjid in para 9 and said:\n<\/p><\/blockquote>\n
        ^^ckcjh efLtn gksus ls bUdkj gSA**
\n        “Its existence as Babri Mosque is denied” (E.T.C.)
\n1300.          The defendant no.10 (Suit-1) in para 2 and 10 of the
\nwritten statement have said:\n<\/p><\/blockquote>\n
        “2.    …. and the same was constructed during the regime
\n        of Emperor Babar…..”\n<\/p><\/blockquote>\n
        “10. That the property in suit is an old mosque
\n        constructed around the year 1528 A.D. during the regime
\n        of Emperor Babar under the supervision of Mir Baqi and
\n        the same has always been used as a mosque and it was
\n        never used as a temple or as a place of worship for any
\n        other community except muslims.”\n<\/p><\/blockquote>\n
1301.          Issue No.5 (Suit-3) reads as under:\n<\/p><\/blockquote>\n
        “Is the property in suit a mosque made by Emperor Babar
\n        known as Babari Masjid?”<\/p><\/blockquote>\n
1302.          In Suit-3, defendants no. 6 to 8 in written statement
\ndated 28th March, 1960 in para 15 have said:\n<\/p>\n
        **\/kkjk 15-. ;g fd ftl tk;nkn dk eqn~nS;ku us nkok fd;k gS og
\n        ‘kgu’kkg fgUn ckcj ckn’kkg ds rkehj djnk eLkthn ekSles ckcjh
\n        elftn gS ftldks ‘kgu’kkg etdwj us vius othj o enk:y eksgke
\n        ehjckdh ds ,greke ls 1528 bZ0 esa rkehj djk;k vkSj eqlyekuku ds
\n        fy;s od~Q vke dj fn;k ftlesa reke eqlyeku dk gd bcknr gSA**
\n        “Para 15. That the property regarding which the plaintiff
\n        has filed a claim, is a mosque built by Babur, Emperor of
\n        India, and is known as Babri Masjid. The mosque was built
\n        by the afore-named Emperor through his Secretary and
\n        Commander, Mir Baqi in 1528 and was given in public
\n        waqf to Muslims in which Muslims in general have a right
\n                                                                1451<\/span><\/p>\n
        of worship.” (E.T.C.)
\n1303.         The plaintiffs (Suit-3), in replication, have denied
\npara 15 of the written statement and said:\n<\/p><\/blockquote>\n
        “15. The allegations contained in para 15 of the written
\n        statement are totally incorrect and are denied. The
\n        property in suit is neither a mosque nor is it known as
\n        Babri Mosque, nor was it built by Emperor Babar nor is it
\n        known as Babri Mosque, nor was it built by Emperor
\n        Babar through Mir Abdul Baqi. Nor was it made wakf. The
\n        property in suit is the temple of Janma Bhumi.”\n<\/p><\/blockquote>\n
1304.         Issue No.1(a) (Suit-4) reads as under:\n<\/p><\/blockquote>\n
        “When was it built and by whom-whether by Babar as
\n        alleged by the plaintiffs or by Meer Baqi as alleged by
\n        defendant no.13?”\n<\/p><\/blockquote>\n
1305.         Plaintiffs (Suit-4) in para 1 and 2 of the plaint have
\nsaid:\n<\/p><\/blockquote>\n
        “1.   That in the town of Ajodhiya, Pergana Haveli Oudh
\n        there exits an ancient historic mosque, commonly known
\n        as Babri Masjid, built by Emperor Babar more than 433
\n        years ago, after his conquest of India and his occupation
\n        of the territories including the town of Ajodhiya, for the
\n        use of the Muslims in general, as a place of worship and
\n        performance of religious ceremonies.”
\n        “2. That in the sketch map attached herewith, the main
\n        construction of the said mosque is shown by letters A B C
\n        D, and the land adjoining the mosque on the east, west,
\n        north and south, shown in the sketch map attached
\n        herewith, is the ancient graveyard of the Muslims, covered
\n        by the graves of the Muslims, who lost the lives in the
\n        battle between emperor Babar and the previous ruler of
\n                                                                1452<\/span><\/p>\n
        Ajodhiya, which are shown in the sketch map attached
\n        herewith. …..The mosque and the graveyard are in
\n        Mohalla Kot Rama Chander also known as Rama Kot
\n        Town, Ayodhya. The Khasra number of mosque and the
\n        graveyard in suit are shown in the Schedule attached
\n        which is part of the plaint.”\n<\/p><\/blockquote>\n
1306.         Defendants no.1 and 2 (Suit-4) while denying paras
\n1 and 2 of the plaint, in written statement dated 12 th March,
\n1962 have in para 2 pleaded:\n<\/p><\/blockquote>\n
        “2. That para 2 of the plaint is absolutely wrong and is
\n        denied. There was never any battle between Babar and the
\n        ruler of Ajodhya on any graveyard or mosque built as
\n        dictated by the said Babar.”\n<\/p><\/blockquote>\n
1307.         Defendant no.2 (Suit-4) in his written statement
\ndated 25th January, 1963 while denying paras 1 and 2 (Suit-4),
\nhas further pleaded in para 2 of his written statement:\n<\/p><\/blockquote>\n
        “2. That para 2 of the plaint is absolutely wrong and is
\n        denied, there was never any battle between Babar and the
\n        ruler of Ajodhya on any grave yard or Mosque alleged to
\n        the built (as dictated) by the said Babar.”\n<\/p><\/blockquote>\n
1308.         Defendants no. 3 and 4 (Suit-4), in their written
\nstatement dated 22\/24 August, 1962 have pleaded in paras 1 and
\n2 as under:\n<\/p><\/blockquote>\n
        “1.   The allegations contained in para one of the plaint
\n        are totally incorrect and are denied. There does not exist
\n        any mosque known as ‘Babri Masjid’ in Ajodhya – Nor
\n        was any mosque built by Emperor Baber in Ajodhya more
\n        than 460 years ago as alleged- Nor did Babar made any
\n        conquest or occupation of any territory in India at the time
\n        alleged in the plaint- The story of the mosque as narrated
\n                                                                  1453<\/span><\/p>\n
        in plaint para 1 is a pure fiction.”\n<\/p><\/blockquote>\n
        “2.   The allegations contained in Para 2 of the plaint are
\n        totally incorrect and are denied. The alleged sketch map is
\n        entirely false and imaginary and is the outcome of the
\n        plaintiffs fancy. On the Khasra no mentioned in the sketch
\n        map there stands neither any mosque nor any grave. The
\n        story of the alleged battle between Emperor Babar and any
\n        previous ruler of Ajodhya, whose name the plaintiffs are
\n        unable to mention in the plaint is pure canard. Neither did
\n        any Muslim lose his life in any battle on the land of the said
\n        Khasra Nos nor is there any grave or grave yard of any
\n        Muslim at the said place. . . . The real facts are that the
\n        said Khasra numbers pertain to the ‘Temple of Janam
\n        Bhumi’ and other land appurtenant thereto.”\n<\/p><\/blockquote>\n
1309.         In the additional written statement dated 28\/29
\nNovember, 1963, the defendants no.3 and 4 (Suit-4) in para 38
\nsaid:\n<\/p><\/blockquote>\n
              “Emperor Babar never built a mosque as alleged by
\n        the plaintiffs and….”<\/p><\/blockquote>\n
1310.         Defendant No.13\/1 (Suit-4) Dharam Das in his
\nwritten statement dated 24th December, 1989 in para 1 said:\n<\/p>\n
        “1.   That the contents of paragraph 1 of the plaint are
\n        denied. It is submitted that Babar was not a fanatic but a
\n        devout Muslim who did not believe in destroying Hindu
\n        temples, it was Mir Baqi, who was a Shia and commanded
\n        Babar’s hords, who demolished the ancient Hindu temple
\n        of the time of Maharaja Vikramaditya of Sri Rama Janma
\n        Bhumi, and tried to raise a mosque-like structure in its
\n        place with its materials.”\n<\/p><\/blockquote>\n
1311.         Doubting the very factum whether the disputed
\n                                                              1454<\/span><\/p>\n
building was constructed by Babar during his regime the
\ndefendant no.20 (Suit-4) in his written statement dated 5th
\nNovember, 1989 in paras 32, 33, 34, 35 and 36 has said:\n<\/p>\n
     “32. …There appears to be no description of any so called
\n     Baburi Masjid allged to have been constructed by Emperor
\n     Babur.\n<\/p><\/blockquote>\n
     “33. That the Faizabad Gazetteer, Volume 43 (XLIII) of
\n     the District Gazetteers of the United Provinces of Agra and
\n     Avadh compiled by Sri H.R. Nevill, I.C.S., published by
\n     Government Press in 1905 under the topic ‘Directory’
\n     while dealing with Ayodhya (at page 12-F) affirmed that
\n     “The Janmsthan was in Ramkot and marked the birthplace
\n     of Ram”. Later on, it is said, “The Mosque has two
\n     inscriptions, one on the outside and the other on the pulpit;<\/p><\/blockquote>\n
     both are in Persian and bear the date 935 Hizri, of the
\n     authensity of the inscriptions there can be no doubt, but no
\n     record of the visit to Ayodhya is to be found in the
\n     Musalman historians. It must have occurred about the time
\n     of his expedition to Bihar.” It is to be noted that nothing
\n     has been found so far to establish the visit of Babur to
\n     Ayodhya. Only on the basis of these two inscriptions, the
\n     conclusion is being drawn all round that the mosque was
\n     built by Babur. It is very doubtful that it was so built. It
\n     appears to be a creation of Britishers sometimes in the
\n     Nineteenth century in order to create hatred between the
\n     two communities of India viz. Hindus and Muslims and
\n     thereby implement an effective policy of communal
\n     disharmony, and thereby create problems of law and order
\n     so that their annexation of Avadh may be justified on moral
\n     grounds. The script on the outer inscription of the mosque
\n                                                         1455<\/span><\/p>\n
is pretty bold and more artistic, a style which was
\ndeveloped sometimes in the middle half of the Nineteenth
\ncentury while the inner inscription is very fine and thin, a
\nstyle developed in the latter half of the Nineteenth century.
\nIt is therefore absolutely certain that on the basis of these
\ntwo inscriptions it cannot be concluded that either the
\nmosque was build in 1528 AD or in 935 Hizri, or it was
\nbuilt by Emperor Babur or his Governor Mir Baqui, as
\nstated therein.”\n<\/p>\n
“34. That in the U.P. District Gazetteers Faizabad
\npublished by U.P. Government in 1960 and edited by Smt.
\nEsha Basanti Joshi at page 47 quotes the inscription inside
\nthe mosque and relies on it for the date of construction of
\nthe mosque. The translation of the inscription in Persian
\ngiven by her is as follows-\n<\/p>\n
“By the command of Emperor Babur whose justice is an
\nedifice reaching upto the very height of the heavens. The
\ngood hearted Mir Baqui built this alighting- place of
\nangels; Buvad Khair Baqi: (May this goodness last for
\never). The year of building it was made clear when I said
\nBuvad Khair Baqi (=935).”\n<\/p>\n
This also shows that for both the things i.e. for year of
\nconstruction and for naming Emperor Babur as the builder
\nof the mosque, authorities have relied upon only on two
\ninscriptions found in the mosque.”\n<\/p>\n
“35. That in the Babur Nama translated by Annette
\nSusannah Beveridge, Vol. II published by Sayeed
\nInternational, New Delhi, in appendix ‘U’ the heading is
\n‘The Inscriptions of Babur’s mosque in Ayodhya (Awadh)’.
\nWhile reproducing the inscription inside the mosque, and
\n                                                         1456<\/span><\/p>\n
translating it at page IXXVIII after quoting the cuplets and
\ngiving its translation and working out the number 935 to
\nidentify the year, the author at the bottom appended the
\nfollowing notes, which is very important-\n<\/p>\n
‘Presumably the order for building the mosque was given
\nduring Babur’s stay in Aud (Ayodhya) in 934 A.H. at
\nwhich time he would be impressed by the dignity and
\nsanctity of the ancient Hindu shrine- it (at least in part)
\ndisplaced and like the obedient follower of Muhammad he
\nwas in intolerance of another Faith, would regard the
\nsubstitution of a temple by a mosque as dutiful and worthy.
\nThe mosque was finished in 935 A.H. but no mention of its
\ncompletion is in the Babur Nama. The diary for 935 A.H.
\nhas lost much matter, breaking off before where the
\naccount of Aud might be looked for. On the next page the
\nauthor says, ‘The inscription is incomplete and the above
\nis the plain interpretation which can be given to the cuplets
\n(aforesaid) that are to hand.”\n<\/p>\n
“36. That the Britishers in achieving their object got a
\nbook published in 1813 by Laiden and known as Memoirs
\nof Badruddin Mohd. Babur, Emperor of Hindustan and for
\nthe first time in this book it was stated that Babur in March
\n1528 passed through Ayodhya and even though Laiden has
\nnot mentioned that Babur in Ayodhya demolished the
\nHindu temples and built the mosque in their place, yet the
\nBritish rulers gave currency to this false news that Babur
\ndemolished    the   Ram    Janma     Bhumi    Mandir     and
\nconstructed the Baburi Masjid thereon. The translated
\nBabur Nama, Memoirs of Babur, published in 1921 and
\ntranslated by M.A.S. Beveridge has mentioned that Babur
\n                                                                   1457<\/span><\/p>\n
        never interfered with the religion of others and even
\n        though he visited various Hindu temples he appreciated
\n        their archaeological beauties. It appears there are no
\n        evidences that Babur ever visited Ayodhya or demolished
\n        any Hindu temple in Ayodhya. To claim the disputed
\n        mosque as one built by Babur 400 years ago by the
\n        plaintiffs is therefore wholly wrong. In fact, in Faizabad
\n        Gazetteers 1960 at page 352, it is said ‘It is said that at the
\n        time of Muslim conquest there were three important Hindu
\n        shrines (Ayodhya) and little else, the Janmasthan temple,
\n        the Swargadwar and the Treta-ke-Thakur. The Janmasthan
\n        was in Ramkot and marked the birth place of
\n        Ram………….”\n<\/p>\n
1312.          In para 41, 46, 49 and 50, defendant no.20 though
\nhas given some other reasons to show that the building in
\ndispute was not constructed in 1528 AD by Babar but they are
\nmore in the nature of characteristics of mosque etc. and
\ntherefore, we propose to refer while considering those issues.
\n1313.          Sri Zafaryyab Jilani submitted that it has never been
\ndoubted by any authoritative Historian and others that the
\nbuilding in dispute was constructed in 1528 AD under the
\ncommand of Babar by one of his commander Mir Baki. He
\nadmits that the said findings are based on the inscriptions fixed
\non the disputed building, which came to be noticed for the first
\ntime by Dr. Buchanan in the earlier part of 19 th century and has
\nconsistently been acknowledged and affirmed thereafter by
\nseveral authorities like Robort Montgomry Martin, P. Karnegi,
\nAlexander Cunningham, W.C.Benett, A.S.Beveridge as well as
\nthe ASI. He contends that for the first time this novel argument
\nhas been advanced by defendant no. 20 raising doubt over
\n                                                               1458<\/span><\/p>\n
whether the building in dispute was constructed by Babar or not
\nthough nothing has been placed on record to prove the same.
\n1314.        Per contra, challenging the very basic submission of
\nthe plaintiffs (Suit-4) about construction of the disputed building
\nby Babar in 1528 AD based on the inscriptions installed thereat,
\nSri Misra very ably argued that the basic premise itself is
\nunsubstantiated, baseless and false. He said that it is an admitted
\nposition that Babar was a Sunni Muslim governed by Hanafi
\nschool of law as mentioned by A.S. Beveridge in her work titled
\nas “Babur-Nama” (hereinafter referred to as the “Babur-Nama
\nby Beveridge”) translated in English from original Turki text,
\nfirst published in 1921 (reprinted in 2006 by Low Price
\nPublications, Delhi). On page 15, faith of Babur is described in
\nthe following manner:\n<\/p>\n
             “He was a true believer (Hanafi mazhablik) and pure
\n        in the Faith, not neglecting the Five Prayers and, his life
\n        through, making up his omissions. He read the Qur’an very
\n        frequently and was a disciple of his Highness Khwaja
\n        ‘Ubaidu’l-lah (Ahrari) who honoured him by visits and
\n        even called him son.”\n<\/p><\/blockquote>\n
1315.        Sri Misra points out that in “Babur-Nama by
\nBeveridge” the daily description of Babar by two days in Hijra
\n934 has not been given though for the entire earlier part a de
\ndie-diem description is given. However, in Hijra 935, narration
\nof events for about 5 months and more is missing. Babar when
\ninvaded India entered from the northern front and defeated
\nSultan Ibrahim Lodi, Emperor of Delhi in the battle of Panipat
\nin April, 1526 AD. He became king\/Emperor of the entire area
\nof which Sultan Ibrahim Lodi was exercising his authority as
\nEmperor of Delhi. There was no change of reign in the matter of
\n                                                                 1459<\/span><\/p>\n
religion inasmuch as Ibrahim Lodi was also a Muslim and Babar
\ndefeated him, therefore, the Muslim rule continued. There was
\nonly a change of the Ruler. So far as Oudh is concerned, it was
\nruled directly by Delhi Emperor, i.e., Ibrahim Lodi and with his
\ndefeat the said area immediately fell within the authority of
\nBabar. In “Babur-Nama by Beveridge” the arrangement of
\nOudh area, has been narrated at page 527 under the head
\n“Action against the rebels of the East” as under:\n<\/p>\n
              “Sl. Ibrahim had appointed several amirs under
\n        Mustafa Farmuli and Firuz Khan Sarang-khani, to act
\n        against the rebel amirs of the East (Purab). Mustafa had
\n        fought them and thoroughly drubbed them, giving them
\n        more than one good beating. He dying before Ibrahim’s
\n        defeat, his younger brother Shaikh Bayazid-Ibrahim being
\n        occupied with a momentous matter-had led and watched
\n        over his elder brother’s men. He now came to serve me,
\n        together with Firuz Khan, Mahmud Khan Nuhani and Qazi
\n        Jia. I shewed them greater kindness and favour than was
\n        their claim; giving to Firuz Khan I krur, 46 laks and 5000
\n        tankas from Junpur, to Shaikh Bayazid I krur, 48 laks and
\n        50,000 tankas from Aud (Oude), to Mahmud Khan 90 laks
\n        and 35,000 tankas from Ghazipur, and to Qazi Jia 20
\n        laks.”\n<\/p><\/blockquote>\n
1316.         Sri Mishra says that Shaikh Bayazid, was an
\nappointee of Babar but soon after appointment he (Bayazid)
\nrevolted    and    declared   himself   independent.    About    the
\nappointment of Bayazid, on page 544, “Babur-Nama by
\nBeveridge”, it says:\n<\/p>\n
              “Humayun, in accordance with my arrangements,
\n        left Shah Mir Husain and Sl. Junaid with a body of effective
\n                                                               1460<\/span><\/p>\n
        braves in Juna-pur, posted Qazi Jia with them, and placed
\n        Shaikh Bayazid (Farmuli) in Aude (Oude).”\n<\/p><\/blockquote>\n
1317.        When Bayazid revolted, to defeat him and some
\nother rebel commanders, the Babar while proceeded towards
\nBihar moved via Ayodhya, Jaunpur etc. On 28th March, 1528 he
\nreached near Ayodhya. However there is nothing in Babur-
\nNama to show that he ever entered the city. When Babar came
\nnear Ayodhya, the name of his commander was “Chin Timur”.
\nThere is no mention of any person as “Mir Baqi” in the entire
\nBabur-Nama by Beveridge, who ever entered Ayodhya as a
\ncommander of Baber’s army or otherwise. Bayazid fled away
\nfrom Ayodhya hearing arrival of Babar and his army. Baber’s
\ncommanders chased him from one place to another. Bayazid
\nwas ultimately killed by Humayun. There is no mention of a
\nbattle between Babar or his army and the then ruler of Ayodhya
\nin 1528 AD. There was no occasion of burying muslims who
\nwere killed in the alleged battle in the graves, claimed to exist
\nnear the disputed site.\n<\/p>\n
1318.        “Babur-Nama by Beveridge” shows that Babar was
\nnot fond of destroying temples and instead he visited temples
\nhaving idols at Gwalior and appreciated the Artistry thereof. It is
\nonly at one place where he found naked idols being extremely
\nindecent which he ordered to destroy but not otherwise. Sri
\nMishra says that the very basis of the pleadings of Muslim
\nparties that there was a battle between Babar and the then ruler
\nof Ayodhya in 1528 AD is false and unsubstantiated.
\n1319.        Referring to the inscriptions which are the basis of
\nidentifying the period of construction of disputed building by
\nBabar i.e. 1528 AD, he said that the alleged inscriptions are
\n                                                             1461<\/span><\/p>\n
nothing but a subsequent forgery. They were not installed in
\n1528 AD as claimed. He submits that the first reference of the
\ninscription is found in “Gazetteer of Territories under the
\nGovernment of East India Company and of the Native States
\non the Continent of India” by Edward Thornton, first
\npublished in 1858 AD (reproduced in 1993 by Low Price
\nPublications, Delhi) and at page 739 it says that according to
\nnative tradition the temples were demolished by Aurangzabe,
\nwho build a mosque on the part of the site. The falsehood of the
\ntradition is however, proved by an “inscription on the wall of
\nthe mosque”, attributing the work to the conqueror Babar, from
\nwhom Aurangzabe was fifth in descent. He says that the said
\ninscription has not been quoted in the said gazetteer. However,
\nthe Archaeological Survey of India in its book titled as “The
\nSharqi Architecture of Jaunpur” by A. Fuhrer, first published
\nin 1889, reprinted in 1994 has reproduced the “inscriptions” said
\nto be found on the disputed building at Ayodhya and whatever is
\nmentioned therein has much difference to the text of the
\ninscriptions quoted by Beveridge in her book i.e. “Babur-
\nNama”. This difference fortify the fact that they were
\nsubsequently implanted. Some words are different which show
\nthat the said building was not constructed at the instance of
\nBabar in 1528 AD.\n<\/p>\n
1320.      Fuhrer in Chapter X of the book “The Sharqi
\nArchitecture of Jaunpur” has given details of inscriptions
\nfound at the disputed building at Ayodhya. He points out that
\nBeveridge claimed that texts of the inscriptions on Babar’s
\nMosque in Ayodhya were received by her through her husband’s
\ninquiry made from the Deputy Commissioner of Faizabad. She
\nhas given details of the said inscriptions in Appendices ‘U’ at
\n                                                                1462<\/span><\/p>\n
page lxxvii in ‘Babur-Nama by Beveridge’ (supra). The footnote,
\nitem two, says that a few changes in the turm of expressions
\nhave been made for clearness sake. Again with respect to the
\ndate of building she has tried to read it as 935 and in the
\nfootnote she says that presumably the order for building the
\nmosque was given during Babur’s stay in Aud (Ajodhya) in 934
\nA.H. though Babur-Nama itself shows that Babar reached near
\nAyodhya at the end of 934 A.H. and only two days of Hizra
\n934’s description is missing.\n<\/p>\n
1321.         Sri Misra then referred to the third version of
\ninscriptions published by ASI in “Epigraphia Indica Arabic
\nand Persian Supplement (in continuation of Epigraphia Indo-
\nMoslemica) 1964-1965” (reprinted in 1987). The chapter under
\nthe heading “Inscriptions of Emperor Babar” is said to have
\nbeen written by Late Maulavi M. Ashraf Husain. The
\ninscriptions dated A.H. 935 from Ayodhya are at page 58, 59,
\n60, 61 and 62. The opening part of the Chapter make certain
\ncomments about writer in the following words:\n<\/p>\n
              “A rough draft of this article by the author, who was
\n        my predecessor, was found among sundry papers in my
\n        office. At the time of his retirement in 1953, he had left a
\n        note saying that it might be published after revision by his
\n        successor. Consequently, the same is published here after
\n        incorporation of fresh material and references and also,
\n        extensive revision and editing. The readings have been
\n        also checked, corrected and supplemented with the help of
\n        my colleague, Mr. S.A. Rahim, Epigraphical Assistant,-
\n        Editor.”\n<\/p><\/blockquote>\n
1322.         On page 58 the author refers to the reading of
\ninscriptions by A. Fuhrer and says that he (Fuhrer) has
\n                                                              1463<\/span><\/p>\n
incorrectly read it. In the last paragraph it says that the mosque
\ncontains a number of “inscriptions”. On the eastern facade is a
\nchhajja below which appears a Quranic text and above an
\ninscription in Persian verse. On the central mihrab are carved
\nreligious texts such as the Kalima (first Creed), etc. There was
\nanother inscription in Persian verse built up into right hand side
\nwall of the pulpit. Of these, the last two mentioned epigraphs
\nhave disappeared. They were reportedly destroyed in the
\ncommunal vandalism in 1934 AD but the writer of the chapter
\nSri Ashraf Husain managed to secure an inked rubbing of one of
\nthe them from “Sayyid Badru’l-Hasan of Faizabad”. He further
\nsays that the present inscription restored by the muslim
\ncommunity is not only in “inlaid Nasta’liq” characters, but is
\nalso slightly different from the original, owning perhaps to the
\nincompetence of the restorers in deciphering it properly. The
\nauthor further declare the translation and reading of inscription
\nby “Fuhrer” and Beveridge both incomplete, inaccurate and
\ndifferent from the text. Sri Hussain has based his entire
\nconclusions from the estampage claimed to have been received
\nfrom Saiyyid Badru’s Hasan of Faizabad whose credentials have
\nnot been given. In the bottom note it has said that the tablet was
\nfound in 1906-07 AD by Maulavi M. Shuhaib of the office of
\nthe Archaeological Surveyor, Northern Circle, Agra (Annual
\nProgress Report of the Office of the Archaeological Surveyor,
\nNorthern Circle, Agra, for 1906-07, Appendix-D. The author
\nhad deciphered the three inscriptions on pages 59, 60, 61 and\n<\/p>\n
62.
\n1323.       Sri   Mishra   submits    that   the   differences   in
\ninscriptions appear for the reason that the same were not
\ninstalled in 1528 AD for the simple reason that no such
\n                                                                1464<\/span><\/p>\n
construction at all took place at that time. He refers to the record
\nof Tieffenthaler and submits that Tieffenthaler himself was a
\nfine scholar with an unusual talent for languages. Besides his
\nnative tongue (Austrian) he understood Latin, Italian, Spanish,
\nFrench, Hindustani, Arabic, Persian and Sanskrit. He argued
\nwith vehemence that had such inscriptions been available when
\nTieffenthaler visited Ayodhya after arriving in India in 1740
\nAD, he himself could have read it and would not have said in
\nhis work that an existing temple was demolished by Aurangzabe
\nto construct three domed structure thereat (also mention that
\nsome says that the demolition and construction was made by
\nBabar). Had the inscriptions been there, he would have clearly
\nwritten that the said work was of Babar and not by Aurangzabe.
\n1324.       Sri Mishra says that the actual demolition and
\nconstruction, as the case may be, took place later on and was not
\ndone by Babar. He says that Mir Baqi is not a name but ‘Baqi’
\nmeans ‘Bakshi’, i.e., commander of an army of 100 men and
\n‘Mir’ is a title used to be given to civilian muslims at that time.
\nBesides, there is no mention of any one named “Mir Baqi” who
\nstayed at Ayodhya and undertook the above job. He submits that
\nforgery of inscriptions by replacing and travelling from one
\nplace to another is not unknown. In this regard he referred to the
\ninscriptions of “Rajputon Ki Masjid”. He also points out that
\n“Fuhrer”   mentions of only two           inscriptions   while   in
\n“Epigraphia Indica 1964-65” there is mention of three\/four
\ninscriptions. According to him the inscription might have been
\ninstalled between 1776 to 1807 though the building in dispute
\nmight have been raised earlier but neither by Babar nor during
\nhis time nor by anyone at his instance.\n<\/p>\n
1325.       The other learned counsels appearing on behalf of
\n                                                              1465<\/span><\/p>\n
Hindu parties adhered to their stand that a Hindu temple was
\ndemolished in 1528 AD under the command of Babar and
\nthereafter building in dispute was constructed. However, the
\nlearned counsels submitted that their stand is not taken to be in
\nrefuting or challenging the stand taken by Sri P.N.Mishra,
\nlearned counsel appearing on behalf of defendant no.20 (Suit-4)
\nand the same be examined by this Court on the basis of its own
\nmerits, in the light of the arguments advanced by him as also
\ncontradicted by the learned counsels appearing on behalf of
\nMuslim parties and they (Hindu parties) be not treated to have
\njoined this issue with the Muslim parties. They however submit
\nthat their basic premise continue that is demolition of temple at
\nthe birthplace of Lord Rama and construction of disputed
\nbuilding.\n<\/p>\n
1326.        The question as to whether the building in dispute
\nwas constructed in 1528 AD at the command of Babar or by
\nBabar himself is a very important and pivotal issue, which may
\nhave its reflection on several other issues in all these connected
\nsuits. We proceed to examine this aspect of the matter very
\ncarefully.\n<\/p>\n
1327.        The root of the entire controversy is the disputed
\nbuilding which is said to have been constructed by Emperor
\nBabar through his Commander\/ Governor\/Confederator, Mir
\nBaqi. In the pleadings of muslim parties, though there is some
\ndifference in the language, but in an undisputed manner it has
\nbeen pleaded that the building in dispute got constructed in 1528
\nAD by Emperor Babar after his conquest of India through his
\nCommander\/Governor\/Confederator, Mir Baqi. This is what is
\nthe stand also taken by plaintiffs (Suit-5) and some other Hindu
\nParties.\n<\/p>\n
                                                                1466<\/span><\/p>\n
1328.       Though already referred, but in a concised
\nrecapitulation, we may tell hereat that in para 1 of the plaint
\n(Suit-4) it is averred that in Ayodhya there exist an ancient
\nhistoric mosque commonly known as “Babri Masjid”, built by
\nEmperor Babar more than 433 years ago after his conquest of
\nIndia and his occupation of the territories including the town of
\nAjodhya. It is also said in para 2 that on the land adjoining the
\nsaid mosque, on all the four sides, there existed graveyard of
\nMuslims who lost lives in battle between Emperor Babar and
\nthe previous ruler of Ajodhya. Suit having been filed in 1961,
\n433 years took it back to 1528 AD.\n<\/p>\n
1329.       In Suit-1, defendants No.1 to 5 in para 2 of their
\nwritten statement dated 21st February, 1950, have said that the
\ndisputed building is a mosque constructed by Emperor Babar. In
\npara 9, (additional pleas), it is averred that the disputed building
\nis Babri mosque constructed by Emperor Babar of India, after
\nconquest of India, during his stay at Ayodhya through his
\nMinister\/Commander Mir Baqi. The building in dispute was
\nconstructed in 1528 AD. Similar averments are made by
\ndefendant no.10 i.e. Sunni Central Waqf Board (Suit-1) in paras
\n2 and 10 of their written statement.\n<\/p>\n
1330.       In Suit-3, defendants No.6 to 8 in para 15 of their
\nwritten statement, have said that the disputed building is a Babri
\nMosque constructed by Emperor of India through his
\nMinister\/Commander Mir Baqi in 1528 A.D.
\n1331.       In Suit-5, defendant No.4 Sunni Central Waqf Board
\nin para 13 of written statement dated 26\/29 August, 1989, has
\nsaid that the property in dispute is an old mosque known as
\nBabri Mosque constructed during the regime of Emperor Babar.
\nThis has been reiterated in para 24. However, in para 24-B
\n                                                              1467<\/span><\/p>\n
defendant No.4 states that the land in question undoubtedly
\nbelong to the State when the mosque in question was
\nconstructed on behalf of the State. He further says that Emperor
\nBabar built the Babri Mosque on a vacant land lay in his State
\nterritory and did not belong to any one . It could very well be
\nused by his officers for the purpose of mosque especially when
\nthe Emperor himself consented and gave approval for
\nconstruction of the said mosque.\n<\/p>\n
1332.       The defendant No.5 (Suit-5) in para 40 of written
\nstatement dated 14\/21st August, 1989, has averred that according
\nto the inscription in the mosque, the same was constructed by
\nMir Baqi, one of the Commander of Babar in 1528. The
\nexistence of mosque in 1528 AD has been reiterated in para 67.
\nThe written statement of defendant No.5 has been adopted by
\ndefendant No.6 vide his application dated 21\/22 August, 1989.
\n1333.       Defendant No.24 (Suit-5)in para 12 has referred to
\nthe period of construction of the disputed building as 1528 AD.
\nHowever, in para 15 there is slight change in the stand to the
\neffect that Emperor Babar never came to Ayodhya and the Babri
\nMosque was built by Mir Baqi and not Babar. The period of
\nconstruction as 1528 has been reiterated in para 22.
\n1334.       Defendant    No.25     (Suit-5) though     in general
\nsupported the claim of other Muslim parties but in the written
\nstatement dated 16\/18 September, 1989 it has not disclosed any
\nparticular date of construction of the building in dispute. The
\npleading therefore is that the building in dispute was constructed
\nin 1528 AD by Babar or with his consent by Mir Baqi, a senior
\nofficer of Emperor Babar, but the basis on which the said date is
\nmentioned is not given in the pleadings.\n<\/p>\n
1335.       Except the defendant No.5 (Suit-5) who in written
\n                                                                        1468<\/span><\/p>\n
statement has given the basis of such averment i.e. the
\ninscription installed on the building in dispute, no further details
\nof such inscription has been given either by him or anyone else.
\nWe however find that the only foundation is the inscription on
\nthe disputed building to claim the period of construction as
\nwould appear hereinafter.\n<\/p>\n
1336.         On behalf of the plaintiffs (Suit-4), 32 witnesses
\nhave been examined in all which include Expert Historians (as
\nthey claimed) namely Suresh Chandra Mishra, PW 13; Sushil
\nSrivastava, PW 15; Prof. Suvira Jaiswal, PW 18; and Prof.
\nShirin Musvi, PW-20. Besides, a large number of witnesses
\nexamined on facts have deposed mainly about continuous
\noffering of Namaz in the disputed building till December, 1949,
\npossession of Muslims on the disputed building but some of
\nthem have also said about date of construction of the disputed
\nbuilding being 1528 AD based on their knowledge derived from
\nvarious sources but basically derived from the inscriptions said
\nto be existed in the disputed building, inside and outside, and
\nsome on the basis of History books without referring any name.
\nSome others who claimed Expert Archaeologists have also said
\nsame thing on this aspect.\n<\/p>\n
1337.         It would thus be appropriate to see what has been
\nsaid by these witnesses about the date\/period of construction of
\nthe     disputed     building       as    also     the    basis   of   such
\ninformation\/opinion.\n<\/p>\n
1338.         P.W.13 Sri Suresh Chandra Mishra in his cross
\nexamination has said:\n<\/p>\n
              ^^ckcj esjk pqfuank fo”k; FkkA*^ \u00bcist 54\u00bd
\n              “Babur was my favourite subject.” (E.T.C.)
\n              ^^esjs v\/;;u ds vuqlkj ckcj vo\/k ls gksdj xqtjs FksA ;g ?kVuk
\n        lu~ 1528 ds vklikl dh gSA – – – fookfnr <kWaps dk fuekZ.k lu 1528
\n                                                                    1469<\/span><\/p>\n
esa gqvk FkkA bl ckr dk ftdz Hkh vkrk gS fd lu~ 1528 esa ;g fdl
\nle; fuekZ.k gqvk Fkk] ysfdu eq>s vc ;kn ugha vk jgkA vfHkys[ k ds
\nifjf’k”B es a bldk ftdz vkrk gS A ** \u00bcist 69\u00bd
\n       “As per my study, Babur had passed through Oudh.\n<\/p><\/blockquote>\n
This incident occurred in and around 1528 . . . The
\ndisputed structure was constructed in 1528. There is also a
\nmention as to which time in 1528 this construction was
\nraised but I do not remember that at present. It is
\nmentioned in the appendix to the document.” (E.T.C.)
\n       ^^ftl le; eSa ekSds ij x;k Fkk] rks eS au s bl vfHky s[ k ;kuh
\nbUlfdz I lut dk s Hkh egRoiw. kZ le>k FkkA y sf du ;g vjch
\nes a Fk sA D;ksafd ;g vfrfjDr lwpuk gS vkSj fo’oluh; lwpuk gS blfy,
\nbls eSa vc crk jgk gwWaA igys egRoiw.kZ crk;s x;s fpUgksa vkSj phtksa esa
\nbudk ftdz eSaus ugha fd;k FkkA** \u00bcist 71\u00bd
\n       “At the time when I visited the site, I considered
\nonly these records, viz., inscriptions to be important. But
\nthey were in Arabic language. As that is an additional
\nand credible information, I am telling it now. I did not
\nmake mention of these things in the symbols and objects
\nearlier stated to be important.” (E.T.C.)
\n       ^^;g vfHkys[k vjch esa Fks vkSj eSa vjch Hkk”kk ugha tkurkA ,sl k
\nugh a gS fd eS a vknru >wB ck sy rk gwW aA 14-07-98 dks bl vnkyr
\nesa esjk c;ku gqvk FkkA mlesa eSaus ;g okD; fy[kok;k Fkk fd ^^ogkWa ij
\ntks f’kykys[k Fkk] og Qkjlh esa fy[kk gqvk Fkk ysfdu mlds ckjs esa eq>s
\nigys ls irk FkkA esjk vkt okyk c;ku Bhd gS fd og vfHkys[k vjch
\nesa fy[kk gqvk FkkA okLro esa og f’kykys[k ugha] vfHkys[k FkkA esjk
\nifgyk okyk c;ku fd og Qkjlh esa fy[kk gqvk Fkk] xyr FkkA ;g esjs
\nle>us esa xYrh ds dkj.k ls gks ldrh gSA D;k saf d eS a u gh rk s
\nQkjlh tkurk g wW a vkS j u vjchA eSa ySfVu Hkh ugha tkurkA**
\n                                                                \u00bcist 72\u00bd
\n       “These records were in Arabic and I do not know
\n                                                                   1470<\/span><\/p>\n
Arabic language. It is not that I am a habitual liar. I on
\n14.07.98 gave my statement in this court. In the statement I
\nhad caused it to be recorded that ‘the inscription which was
\nthere, was written in Persian language but I had been in
\nthe know of that from earlier’. My today’s statement is
\ncorrect that the record was written in the Arabic language.
\nActually it was a record, not an inscription. My earlier
\nstatement to the effect that it was written in Persian
\nlanguage, was incorrect. It may be due to mistake in
\nunderstanding it, because I know neither the Persian
\nlanguage nor the Arabic language. I do not know Latin
\neither.” (E.T.C.)
\n       ^^eSaus vius vUos”k.k ds le; tc igyh&igyh ckj ogkWa ij
\nbUlfdzIlu ns[ksa rks eSaus fdlh dks cqyokdj mUgsa ugha is dy fn[kkbZ
\nxbZ iqLrd ds jkseu i`”B &77 ls 79 ij n’kkZ;h x;h gSaA eSaus ekSds ij
\nmu bUlfdzIlUl dk feyku bl iqLrd esa fn;s x;s bUlfdzIlUl ds lkFk
\nfd;k vkSj fQj bl fu”d”kZ ij igqWap x;k fd ;g ogh efLtn gSA ;g
\nckrsa 1989 ;k 1990 dh gSa] ysfdu ,DtsDV frfFk eSa ugha crk
\nik\u00c5WaxkA**\u00bcist 79\u00bd
\n       “In course of my investigation, when I for the first
\ntime saw inscriptions there, I did not call anybody to read
\nthem out to me. I copied the inscription on paper. I did not
\ntake any photograph either. I had gone there with a book. I
\nhad gone there only with the book written by Mrs.
\nBeveridge. . . . . These are those inscriptions that are
\nshown on Roman pages from 77 to 79 of the book shown to
\nme yesterday. On the site I tallied those inscriptions with
\nthe inscriptions given in this book, and then I came to an
\n                                                               1471<\/span><\/p>\n
inference that it was that very mosque. This incident
\npertains to 1989 or 1990 but I am not in a position to tell
\nthe exact dates.” (E.T.C.)
\n      ^^vUos”k.k ds fy, eSa viuk lkjk lkeku bl ifjlj ds ckgj
\nj[kdj [kkyh gkFk vUnj ifjlj esa x;k Fkk vkSj ckgj vkdj eSaus viuk
\nlkeku okil ys fy;kA eSa viuk lkjk lkeku ftlesa esjh iqLrd Hkh
\n‘kkfey Fkh] vius ,d lkFkh ds ikl ifjlj ls ckgj ml LFkku ij NksM+
\nx;k Fkk] tgkWa iqfyl psd dj jgha FkhA** \u00bcist 79&80\u00bd
\n      “In order to carry out investigation, I had gone
\ninside the premises empty-handed and after keeping all my
\nbelongings out of the premises, and after coming out I took
\nall the belongings. I had left all my belongings, including
\nmy book also, with a friend at a place outside the premises
\nwhere the police was checking.” (E.T.C.)
\n      ^^iz’u% D;k vkius ifjlj ls ckgj j[kh gqbZ viuh iqLrd esa nh
\nxbZ vfHkys[kksa dh ‘kSyh vkSj fyfi dk eqdkcyk ifjlj esa okdk Hkou ij
\nyxs vfHkys[kksa ds lkFk ckgj vkdj dj fy;k Fkk\\
\n      mRrj% eSaus ckgj vkdj esy&feyku fd;k FkkA vkSj vUnj tkus ls
\nigys mls le>dj x;k FkkA
\n      ;g nksuksa izfdz;k;sa mlesa ‘kkfey Fkh fd vUnj tkus ds igys ml
\niqLrd esa fn;s x;s vfHkys[kksa dks mudh ‘kSyh vkSj fyfi ds lkFk vius
\nekul iVy ij vafdr fd;k vkSj vUnj tkdj Hkou ij yxs vfHkys[kksa
\nds lkFk mldk feyku fd;k vkSj blh rjg ls vUnj yxs vfHkys[kksa dks
\nns[kdj mudh ‘kSyh vkSj fyfi dks vius ekul iVy ij vafdr dj
\nfy;k vkSj ckgj iqLrd esa fn;s x;s vfHkys[kksa ls mudk feyku dj
\nfy;kA** \u00bcist 80\u00bd
\n      “Question:- After coming outside, did you tally the
\nstyle and script of the records given in your book kept
\noutside the premises with the inscriptions at Waqua
\nBhawan in the premises?\n<\/p>\n
      Answer:- After coming outside I tallied the records
\n                                                                    1472<\/span><\/p>\n
and before going inside I had understood them.\n<\/p>\n
        This exercise included two processes, which were
\nthat before going inside I had recorded the style and script
\nof the records in my mind and on going inside I tallied
\nthem with the inscriptions in the building and that I
\nregistered the style and script of the inside inscriptions in
\nmy mind and on coming out I tallied them with records
\ngiven in the book.” (E.T.C.)
\n        ^^iz0 & ;fn vkidks ,ihxzkQh dk ,DliVZ dgk tk;s rks lgh
\ngksxk ;k xyr\\
\n        m0& ‘kkyhurk ls eSa ,ihxzkQh dk tkudkj gksuk Lohdkj djrk
\ngwWA
\n        iz0& vki ls iz’u fd;k x;k Fkk vkSj ;g tkuuk pkgrk gwWa fd
\nvki vius dks ,ihxzkQh dk fo’ks”kK ekurs gSa ;k ugha\\
\n        m0& ;g ;fn vkRe’yk?kk ;k viuh rkjhQ u le>h tk;s rks eSa
\nfouezrkiwoZd dg ldrk gwWa fd vki eq>s bl oxZ esa j[k ldrs gSaA**
\n                                                            \u00bcist 111\u00bd
\n        “Question:- If you are called an expert in epigraphy,
\nwill it be correct or incorrect to say such?\n<\/p>\n
        Answer:- With humility I accept my being conversant
\nwith epigraphy.\n<\/p>\n
        Question:- You were queried and I want to know
\nwhether you consider yourself to be a specialist in
\nepigraphy or not ?\n<\/p>\n
        Answer:- If it is not taken to be self-praise, I can
\nhumbly       say      that     I    can   be   placed   under      this
\ncategory.”(E.T.C.)
\n        ^^v;ks\/;k ds ckjs esa eSaus tks v\/;;u fd;k gS] og xgu v\/;;u
\nHkh gS vkSj ‘kks\/k Hkh gSA** \u00bcist 170\u00bd
\n        “The study which I have made with regard to
\nAyodhya, is no only a deep study but a research
\n                                                               1473<\/span><\/p>\n
also.”(E.T.C.)
\n       ^^eq>s ;kn ugha vk jgk fd ckcjukesa esa mlds }kjk ;k mlds
\njkT;dky eas v;ks\/;k esa fdlh efLtn ds fuekZ.k dk ftdz vk;k gS ;k
\nughaaA ckcjukek esa ftdz ehjckdh dk gS u fd ^^ckdh**
\ndkA * * \u00bcist 196&197\u00bd
\n       “I fail to remember whether or not the Baburnama
\nmakes mention of the construction of any mosque in
\nAyodhya by him or during his reign. The Baburnama
\nmakes mention of Mir Baqi, not of ‘Baqi’.” (E.T.C.)
\n       ^^eq>s bl le; Lej.k ugha vk jgk fd ckcjukek esa
\n^^ckdhrk’kdUnh** vkSj ^^ckdh’kxkoy** dk Hkh ftdz vk;k gS ;k ughaA
\nvxj ,slk dksbZ ftdz vk;k gS rks og mlds lsukifr ehjckdh ds fy,
\nugha gks ldrkA** \u00bcist 197\u00bd
\n       “At     present       I   fail   to     remember   whether
\n‘Baqitashkandi’ and ‘Baqisadwal’ find mention or not in
\nBaburnama. If there is any such reference, it cannot be for
\nhis army-chief Mir Baqi.” (E.T.C.)
\n       ^^;g dguk xyr gS fd ijf’k;u Hkk”kk dk vfHkys[k 1934 esa dgs
\nx;s naxksa ds ckn yxk;k x;k gksA** \u00bcist 198\u00bd
\n       “It is wrong to say that an inscription in Persian
\nlanguage was engraved after the riots which allegedly
\nerupted in 1934.” (E.T.C.)
\n       ^^ckcj us ckdhrk’kdan h dk s vo\/k dk iz ‘ kkld cuk
\nfn;k FkkA eq>s ;g ckr Li”V ugha gS fd ;g ckdhrk’kdanh ogh O;fDr
\nFkk ;k ugha ftls ehjckdh ds uke ls tkuk tkrk gSA lEHkkouk rks ;gh gS
\nfd ckdhrk’kdanh vkSj ehjckdh ,d gh O;fDr ds 2 uke gksaA eSa bl ckr
\ndks fuf’pr :i ls ugha dg ldrk flQZ lEHkkouk gh gS fd ;g nksuksa
\nuke ,d gh O;fDr ds FksA
\n       bUlfdz I ‘ku ds ckj s esa ,d tuZ y bihxz k fQdk baf Mdk
\niz d kf’kr gq b Z gS a mldk s eS au s i<+k gS A okLro esa ;g ,d tjuy
\ngS tks gj lky izdkf'kr gksrk gSA blds ,d vad esa ,d baldzsi'ku
\n                                                                1474<\/span><\/p>\n
vk;k gS] ,d ys[k vk;k gS ftlesa ckcjh efLtn ds vanj 14 ykbZuksa ds
\nvfHkys[kksa dk ftdz gSA blesa 3 f’kykys[kksa dk ftdz gSA eSaus dy blh
\nvnkyr esa c;ku fn;k Fkk fd ogka ij dsoy ,d f’kykys[k FkkA okLro
\nes a esj k og c;ku tcku ds fLyi djus ds dkj.k gq v kA
\nvkS j bl bEiz s’ ku es a gq v k fd ogk a fdlh u;s tkyh
\nbUldz i ‘ku dk ftdz rk s ugh a gk s jgkA**
\n                                                           \u00bcist 213\u00bd
\n      “Babur appointed Baquitashkandi administrator
\nof Oadh. I am not clear whether or not this Baquitashkandi
\nwas the same person that has come to be known as Mir
\nBaqi. The possibility is that Baquitashkandi and Mir Baqi
\nare two different names of one and the same person. I
\ncannot say this definitely. It is just a possibility that these
\ntwo names were of the same person.\n<\/p>\n
      I have read a journal ‘Epigraphica Indica’ in
\nregard to inscription. Actually, it is a journal published
\nevery year. One of its editions makes mention of an
\ninscription and contains an article which makes mention of
\ninscriptions with 14 lines inside the Babri mosque. It makes
\nmention of three pillar inscription. Yesterday I gave a
\nstatement in this very court that there was just one pillar
\ninscription there. Actually, that statement of mine was
\ndue to slip of tongue and under the impression that there
\nshould not be any mention of any new fake
\ninscription.”(E.T.C.)
\n      ^^eSaus tc fookfnr Hkou dk fujh{k.k fd;k rks ekS d s ij 2
\nf’kykys[ k ns[ k s Fk sA ,d f’kyky s[ k rk s ckgjh }kj ij yxk
\nFkk vkS j nwl jk lEHkor% isy fiV feEcj ij yxk FkkA mlds
\n\u00c5ij yxk gqvk FkkA fujh{k.k ls igys eq>s ;g tkudkjh ugha Fkh fd ogka
\nij 3 f’kykys[k gSaA eq>s dsoy 2 dk gh irk FkkA eq>s 1990&91 ds ikl
\n;g yxk Fkk fd ogka ij 3 f’kykys[k gSaA ;g tkuus ds ckn fd ogka ij
\n                                                                   1475<\/span><\/p>\n
3 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**
\n                                                              \u00bcist 214\u00bd
\n       “When I observed the disputed building, I saw two
\npillar inscriptions on the site. One pillar inscription was
\nat the exterior door and the other one was perhaps at fall
\nfiat member. It was above it. Prior to my observation, I did
\nnot have the knowledge that three pillar inscriptions were
\nthere. I had knowledge only of two ones. In and around
\n1990-1991 I came to know that three inscriptions are there.
\nAfter knowing that three pillar inscriptions are there I did
\nnot have the opportunity for observation. As a matter of
\nfact, after reading I got satisfied that three inscriptions are
\nthere and that alone satisfied my curiosity. Even before
\nobservation of the pillar inscription, I had got the
\ninformation what was written on them.” (E.T.C.)
\n       ^^tgka rd eSa le>rk gwWa] eq>s bl vnkyr esa xokgh ds fy, bl
\nfo”k; ij cqyk;k x;k gS fd ftl Hkwfe ij fookn gS vk;k fd ogkWa fdlh
\nefUnj dks rksM+dj efLtn cukbZ xbZ Fkh ;k ughaa eSaus ;g c;ku fn;k
\ngS**\u00bcist 224\u00bd
\n       “As far as I understand, I have been summoned in
\nthis court to depose whether or not a mosque was
\nconstructed by demolishing a temple on the disputed site. I
\nhave given this statement,” (E.T.C.)
\n       ^^eSaus dqN dne mBk;s Fks fookfnr Hkou dh ,sfrgkfldrk dks
\ntkuus ds fy,A —-ml LFky ij ,d vfHkys[ k Fkk] tks ckcjh
\nefLtn esa Fkk] mldks ns[kkA —- vfHky s[ k ls esj k eryc ckcjh
\nefLtn ea s yxs gq , bUlfdz I lu ls gS A ^^ \u00bcisst 276\u00bd
\n       “I had made some attempts to know the history of the
\n                                                              1476<\/span><\/p>\n
        disputed structure. …. I had seen a record at that place,
\n        which was within the Babri mosque. …. By record, I mean
\n        the inscription at the Babri mosque.” (E.T.C.)
\n             ^^eq>s ijf’k;u ugha vkrhA** \u00bcist 287\u00bd
\n             “I do not know Persian.” (E.T.C.)
\n1339.        The witness has claimed himself to be an Expert
\nHistorian and on page 111 has also claimed that he may be
\nplaced in the category of Expert in “Epigraphy”. His statement
\non page 54 shows that Babar was his favourite subject. He is
\nM.A. in Ancient History (Culture and Archeology) and Ph.D.
\nHe claims that having undergone a deeper inquiry and study on
\nthe dispute he concluded that the mosque was constructed by
\nMir Baqi and for this purpose there was no destruction of any
\nkind at the disputed site. He referred to Skand Puran,
\nBaburnama, his visit to Ayodhya before 1992 and the report
\n(Exhibit D25, Suit-5) (Paper No. 110C1\/96) submitted to the
\nGovernment of India by Prof. R.S. Sharma, Prof. D.N. Jha and
\nProf. Suraj Bhan alongwith Prof. Athar Ali being his study
\nmaterial. However, he admits that he did not find any reference
\nof construction of the disputed building\/Babari mosque in
\nBaburnama and it also contains no reference of Mir Baqi. On
\nthe one hand he accepts of being expert in Epigraphy (page 111)
\nbut simultaneously he admits that neither he knows Arabic nor
\nPersian nor Latin, therefore, he had no occasion to understand
\nthe language in which the alleged inscription was written. In his
\nstatement dated 14.07.1998 he claims that the inscriptions were
\nwritten in Persian but later on page 72 he retracted and said that
\nthe inscriptions were written in Arabic and his earlier statement
\nwas wrong for the reason that neither he understand Persian nor
\nArabic. He attempted this Court to believe in his knowledge of
\n                                                               1477<\/span><\/p>\n
History being an Expert Historian in Ancient History and that he
\nhas made a deep study on the subject which is like a research
\nand therefrom he has come to know that the building in dispute
\nwas constructed in 1528 AD by Mir Baqi but his cross
\nexamination shows that for arriving at the said conclusion,
\nwithout any further inquiry into the matter, what was written
\nabout the inscriptions in Epigraphica Indica (1964-65) as well as
\nBaburnama by Beveridge and on that basis he believed and
\nconcluded as above. The slipshod and casual manner in which
\nhe made inquiry about inscriptions is further interesting. On
\npage 79 he says that he carried inside the disputed building, the
\nbook “Baburnama by Beveridge” and therefrom compared the
\nscript of the inscriptions with the text quoted in the said book
\nand since the matter relate to 1989\/1990 he is not able to tell the
\ncorrect date but thereafter on page 79\/80 he admits that for
\nsecurity reasons his entire belongings were made to be left
\noutside the premises and he went inside the disputed building
\nempty handed. The book was also left outside where police
\nchecking was going. On page 80 when his statement about
\ncomparison of the text of the inscription with the book was
\nfurther examined he says that he kept the text after reading the
\nbook in his mind and compared it with the inscription. This
\nwonderful memory of the witness has to be seen in the light of
\nthe fact that the witness admits that he knows neither Persian
\nnor Arabic. On page 79 he also admits that he also do not know
\nUrdu language.\n<\/p>\n
1340.       The correctness of his statement can further be
\nscrutinised in the light of what has been written by Maulvi F.
\nAshraf Hussain in his paper published in Epigraphica Indica
\n(1965) where he admits that the original two inscriptions were
\n                                                                1478<\/span><\/p>\n
damaged in 1934 and replaced by new one. Therefore, in
\n1989\/90 what PW 13 saw, were the inscriptions replaced in
\n1934 and not that text which was available to Mrs. Beveridge,
\nshe has quoted in her book published in 1921. The difference
\nbetween the text of the inscriptions quoted by Beveridge and
\nthat which was available to Maulvi Ashraf Hussain which he
\npublished in Epigraphica Indica, we would be demonstrating a
\nbit later. Suffice it to mention at this stage that the inscriptions
\nwhich were available in 1989\/1990, having been replaced in
\n1934 contains lot of difference. The alleged deep study\/research
\nof PW 13 thus become seriously suspicious and make this
\nwitness wholly unreliable.\n<\/p>\n
1341.       Further, he claims to have read “Baburnama by
\nBeveridge” but on page 197 could not tell whether the names
\nBaqi Shaghawal and Baqi Tashkandi are mentioned therein or
\nnot. His lack of knowledge in this matter is writ large from the
\nfact that Mrs. Beveridge has suggested that it is probably Baqi
\nTashkandi whose name was mentioned in the inscription as Mir
\nBaqi but PW 13 on page 197 says that even if the names of Baqi
\nTashkandi and Baqi Shaghawal have been mentioned in
\nBaburnama that cannot be connected with the army chief Mir
\nBaqi. He also says that there is reference of Mir Baqi in
\nBaburnama but during the course of arguments the learned
\ncounsel for the plaintiff (Suit-4) admits that the words “Mir
\nBaqi” as such are not mentioned in the entire Baburnama
\ntranslated by Mrs. Beveridge or others but what he submits that
\nmost of the Historians are of the view that “Baqi Tashkandi”
\nwas “Mir Baqi” since he was given the command and made
\nincharge of Awadh by Babar.\n<\/p>\n
1342.       In fact PW 15 another expert historian witness on
\n                                                             1479<\/span><\/p>\n
page 85 has clearly said that “Mir Baqi’s” name does not find
\nmention in Baburnama. He also says that there is nothing in
\nBaburnama which may co-relate “Baqi Tashkandi” with “Mir
\nBaqi”.\n<\/p>\n
1343.      From the entire statement of PW 13 this much is
\nevident that in his opinion for the period of construction of the
\nbuilding, i.e., 1528 AD, and the person who got it constructed,
\ni.e., Mir Baqi, the ultimate reliance is on the inscriptions
\n(whether two or three, that would be discussed later on) and no
\nother authentic material. The opinion of PW 13 in this regard,
\nhowever, is based on the information which he received from
\nthe book “Baburnama” by Mrs. A.S. Beveridge and Epigraphica
\nIndica (1965) from which he was satisfied and concluded his
\nopinion. Beside that, he had no other reliable information to
\nform the said opinion.\n<\/p>\n
1344.      At this stage we may also mention that Dr. S.C.
\nMisra (PW 13) did his Ph.D. under Prof. D.N. Jha (page 49) and
\nclaims to be closely acquainted with him. On page 44 he has
\nalso admitted that except Baburnama by A.S. Beveridge he has
\nread no other translation at all. On page 31 he says that he has
\nintellectually analysed and contemplated whether God is a
\nreality or not and has come to the conclusion that there is no
\nexistence of God, since, he had no occasion to come face to face
\nwith God. On page 53, he says that he has also studied the
\n“History of India” written by “Romila Thaper” and has also
\nconsulted her in the course of so called deep study on the
\ndispute in question and believed whatever she has written is
\ncorrect. On the one hand he claims to be a man of scientific
\ntemperament and in order to believe anything he looks into the
\nmatter and several things, analyse them and only then come to a
\n                                                                    1480<\/span><\/p>\n
concrete finding (page 49) but on page 56 he says that on the
\nbasis of general conception among majority of people and also
\nbecause of acceptance on the part of scholars he accepted that
\nIslam emerged through revelation. From reading of the books
\nenumerated he came to a conclusion that scholars opined that
\nIslam appeared through revelation. On page 57 he admits that
\nneither he know what “revelation” means nor has read the
\nprocess of such revelation and, therefore, he is wholly ignorance
\nof the term “revelation” and its meaning. At several places he
\nsought to correct his statement made earlier which throw light
\non his knowledge of the matter, his confidence as also his
\nmemory. One of such aspect is about the constitution of ASI
\nwhich he stated to be in 1934 on 14.07.1998 but later, on page
\n73\/74, he admits the incorrectness in the earlier statement and
\nrectify the same by stating that it was constituted in 18th century.
\nIn his research he admits of having not read any gazetteer or
\nGovernment gazette (page 74-75). On page 88 he further
\ncontradicted to some extent his statement about his scientific
\ntemperament and says that in respect to “Allahoupanishad” he
\nhas made statement only on secondary basis. He also admits the
\nfalsity of statement that in 1968 he went to the disputed site
\nalongwith his parents but did not go inside although the parents
\nwent (page 33) and on page 93 in this regard he has said:\n<\/p>\n
            ^^;g dguk Hkh xyr gS fd eSaus mlesa ;g xyr c;kuh dh gks
\n      fd tc esjs ekrk&firk bl Hkou ds vUnj pys x;s rks eSa ckgj [kM+k jg
\n      x;k FkkA oSls ;g Bhd gS fd lu~ 66 vkSj lu~ 68 esa Hkh bl fookfnr
\n      ifjlj ds ckgjh eq[; }kj ij rkyk cUn Fkk vkSj dksbZ Hkh O;fDr vUnj
\n      ugha tk ldrk FkkA** \u00bcist 93\u00bd
\n            “It is wrong to say that in the said testimony I have
\n      wrongly stated that when my parents went inside this
\n      building, I was left standing outside the building. However,
\n                                                                        1481<\/span><\/p>\n
        it is true that even in 1966 and 1969 the main outdoor of
\n        this disputed premises was locked and none could go
\n        inside.” (E.T.C.)
\n1345.          On page 167 PW 13 said that there is nothing like
\nSanatan Dharm and on the same page he said that the word
\n“Hindu” is a mixed term which comprises several type of people
\nincluding those who had their origin somewhere outside and
\nwho have assimilated in it. Nobody was original Hindu. It is
\nsubsequent concept. It commenced from circa 4th or 3rd BC.\n<\/p><\/blockquote>\n
1346.          Learned counsel for the defendants (Suit-4) pointed
\nout to us that PW 13 was not an expert of Medieval History
\nand this is evident from his admission on page 152\/153 where
\nhe says that he is teaching students Ancient History and his
\nPh.D. was limited to the study of Kautilya’s Arthshastra. The
\nrelevant part of his statement on page 152\/153 is:\n<\/p>\n
               ^^ftl dkyst esa eSa v\/;;u djrk gwa] ogkWa Hkkjrh; izkphu
\n        bfrgkl esa dsoy eSa gh ,d ,slk O;fDr gwa tks jhMj ds in ij dk;Zjr
\n        gSA gekjs dkyst esa bl foHkkx esa izksQslj ij ij dksbZ O;fDr ugha gSA
\n        gekjs dkyst esa izkphu Hkkjrh; bfrgkl dk dksbZ vyx foHkkx ugha
\n        gS] ;g bfrgkl ds fo”k; esa gh lfEefyr gS vkSj bl rjg ls bfrgkl dk
\n        ,d lkewfgd foHkkx gS] ftlds gsM vkQ n fMikVZes.V Jh ds0 HkkX;k
\n        jko gSaA** \u00bcist 152\u00bd
\n               “In the college where I am a teacher, I am the only
\n        person who is working as a reader of Ancient history. No
\n        person is posted on the psot of professor in this department
\n        in our college. There is no separate department of ancient
\n        Indian history in our college. It is comprised in the history
\n        subject itself and in this way there is a combined
\n        department of history, which is headed by Sri K.Bhagya
\n        Rao.” (E.T.C.)
\n               ^^esjh ‘kks\/k ;kuh MkDV~sV dkSfVY; ds vFkZ’kkL= rd lhfer gS]
\n                                                                              1482<\/span><\/p>\n
        ftlesa vfHkys[kh; v\/;;u Hkh lekfgr gSA ;g Bhd gS fd ;g
\n        vfHkys[kh; v\/;;u Hkh dkSfVY; ds vFkZ’kkL= rd lhfer gSA
\n                 eSa ch0,0 ds fo|kfFkZ;ksa dks i<+krk gwWa vkSj ,e0,0 Qkbuy ds
\n        fo|kfFkZ;ksa dks Hkh i<+krk gwWaA eS a dso y iz k phu bfrgkl i<+k rk gwW aA
\n        izkphu bfrgkl esa ge yksx Hkkjrh; lUnHkZ esa] bl Hkwfe ij loZizFke
\n        vorfjr euq"; ds lk{; feyus ds le; ls 750&800 ,-Mh- rd dk
\n        bfrgkl i<+krs gSaA** \u00bcist 153\u00bd
\n               "My research i.e. doctorate is limited to the study of
\n        Kautilya's      'Arthashastra         and      it    also     comprises
\n        documentary study. It is true that this documentary study is
\n        limited to the study of Kautilya's Arthashastra.\n<\/p><\/blockquote>\n
               I teach the students of B.A. and also those of M.A.<\/p><\/blockquote>\n
        final. I teach ancient history only. In ancient history, we
\n        teach history, in Indian context, from the time we get the
\n        earliest traces of human beings on this earth up to 750-800
\n        AD.” (E.T.C.)
\n1347.          The defendants sought to highlight the fact that PW
\n13 was a paid witness and made certain questions about the
\nmanner in which he comes from Delhi. On page 185 he said:\n<\/p>\n
               ^^eSa fnYyh ls y[ku\u00c5 bl eqdnesa esa xokgh nsus ds fy, dbZ ckj
\n        vk;k gwa vkrh nQk dHkh gokbZ tgkt ls ugha vk;k ysfdu okilh ij
\n        y[kum ls fnYyh 2 nQk gokbZ tgkt ls x;k gwaA vkt Hkh eSa gokbZ
\n        tgkt ls okil tkuk pkgrk gwaA ;g Bhd gS fd bl le; vnkyr esa
\n        esjk gS.M cSx j[kk gqvk gS vkSj ml ij bafM;u ,;j vkSj lgkjk ,;j
\n        ykbZal ds dbZ \u00bcfQj dgk\u00bd ,d&,d Vsx dqy 2 Vsx gSaA** \u00bcist 185\u00bd
\n               “I have been to Lucknow from Delhi several times in
\n        order to depose in this litigation. I never came by air but
\n        on my way back from Lucknow to Delhi I went by air two
\n        times. Even today I want to go back by aeroplane. It is true
\n        that at present my hand bag is kept with the court and it
\n        has many tags (then stated) one tag each of Indian Airlines
\n                                                                        1483<\/span><\/p>\n
        and Sahara Airlines totalling two tags.” (E.T.C.)
\n1348.         However, later on he retracted and made a different
\nstatement on page 201 as under:\n<\/p><\/blockquote>\n
              ^^eSa dHkh Hkh xokgh nsus ds fy, gokbZ tgkt ls ugha vk;k eSa tc
\n        dHkh xokgh ds fy, vkrk gwa rks ;k rks vius ikl ls [kpZ djrk gwa ;k
\n        vnkyr ls feyh gqbZ \/kujkf’k dk iz;ksx djrk gawA eSa jsy ;k=k djrk gwa
\n        vkSj vkus tkus dh fjtosZ’ku djk dj pyrk gwaA eSa lsds.M ,0lh0]
\n        ftlds fy, eSa gdnkj gwa }kjk gh ;k=k djrk gwaA ;g Bhd gS fd eSaus
\n        fiNyh ckj vnkyr dks cryk;k Fkk fd eSa 2 ckj gokbZ tgkt ls Hkh
\n        okil fnYyh x;k gwaA** \u00bcist 201\u00bd
\n              “I never came by air to give my testimony. Whenever
\n        I come for deposition I bear expenses either on my own or
\n        from the amount received from the court. I travel by rail
\n        and get my seat reserved while making to and fro journey. I
\n        travel in second class A.C., to which I am entitled. It is true
\n        that I told the court last time that I had gone back to Delhi
\n        by aeroplane two times.” (E.T.C.)
\n1349.         His statement fails to inspire confidence and lack
\nindependent, fair and impartial opinion. He admits to have done
\nPh.D. under Prof. D.N. Jha who according to him was one of the
\nsignatory to the document “A Historians Report to the Nation”\n<\/p><\/blockquote>\n<\/blockquote>\n
alongwith three others and on page 142 he admits that all these
\nfour persons he considered to be the top historians of the
\ncountry and, therefore, place them above the published research
\nof Hans Baker of Ayodhya. Prof. D.N.Jha in fact did not sign
\nthe letter. The other three took a partisan stand as we shall
\ndemonstrate later. He do not agree with Baker’s conclusions
\nthough reason for such disagreement could not be given by him.\n<\/p><\/blockquote>\n
1350.         PW 15, Sushil Srivastava is a Historian working on
\nthe post of Professor in Maharaja Saya Ji Rao University
\nBaroda. During the course of examination, he rejoined
\n                                                                               1484<\/span><\/p>\n
Allahabad University. He deposed to have seen inscriptions and
\nhas further said that the same appears to have been written in
\nPersian. The script is in Arbo-Persian. He is also author of a
\nbook on the subject titled as “The Disputed Mosque – A
\nHistorical Enquiry” which was published in 1991.
\n1351.          With regard to the date of construction of the
\ndisputed building, inscriptions and his book, PW 15 in his cross
\nexamination has said:\n<\/p>\n
        ^^eSaus fookfnr LFky ds lEcU\/k esa tks iqLrd fy[kh gS] mldks fy[kus ds
\n        le; eq[; xtsfV;j vkSj tks vU; fons’kh ;k=hx.k ds ys[k gSa] mudks
\n        vk\/kkj cuk;k gSA** \u00bcist 9\u00bd
\n        “While writing the book, which I have written about
\n        disputed site, I made main gazetteers and articles of other
\n        foreign travellers, the basis of my book.” (E.T.C.)
\n               ^^ogk a ij eS a Hkhrj o ckgj iz k phu o jktdh;<\/p><\/blockquote>\n
        vfHky s[ k ns[ k s Fk s nk s ckgj Fk sA ,d vanj FkkA ;g y s[ k nhokj
\n        ij fy[k s FksA ;g ys[k fookfnr <kaps ij cgqr \u00c5aps ij fy[ks FksA ;g
\n        ys[k iRFkj ij [kqnk FkkA eSa ;g ugha dg ldrk fd iRFkj ij ckgj dh
\n        rjQ ;g 'kCn fudys gq, Fks ;k Hkhrj [kqns gq, FksA eSaus fookfnr LFky ds
\n        lEcU\/k esa iqjkus eqdneksa esa nkf[ky fjdkMZ bl lEcU\/k esa ugha ns[ksA eSaus
\n        dysDV~sV esa bl lEcU\/k esa j[ks fjdkMZ dk v\/;;u fd;k FkkA eSaus
\n        ih0dkusZxh fMIVh dfe'uj QStkckn }kjk fyf[kr fjiksVZ ogka i<+h FkhA
\n        dysDV~sV dpgjh ds fjdkMZ :e esa eSaus ;g vfHkys[k ns[kk FkkA ih0
\n        dkusZxh }kjk v;ks\/;k Ldsp eSus ,d ikVZ esa ns[kk FkkA bl fjiksVZ esa
\n        v;ks\/;k ds eafnj efLtn dq.M vkfn dk ftdz vk;k gSA fookfnr LFky
\n        dk ftdz eSaus ml fjiksVZ esa i<+k gSA fookfnr LFky ds ckjs esa ml fjiksVZ
\n        esa ih0 dkusZxh us fy[kk gS fd efLtn ckcj us cuok;h Fkh ;g efLtn
\n        1528&29 es a cuok;h FkhA ;g Hkh fy[kk gS fd ;g efLtn tgka
\n        cuok;h x;h gS ogka ij igys jke tUe dk eafnj jgk gksxkA ;g ih0
\n        dusZxh dk uksV 1867 esa izdkf'kr gqvk FkkA blds vykok ogka eSus vkSj
\n        dksbZ fjdkMZ ugha ns[kkA eSaus ts0MCyw0 gkst fMIVh dfe'uj QStkckn dk
\n                                                                1485<\/span><\/p>\n
dksbZ uksV 1905 okyk ugha ns[kkA^^ \u00bcist 13&14\u00bd
\n       “There I had seen inside and outside ancient and
\nofficial inscriptions, two were outside, one was inside.
\nThese inscriptions were written on the wall. These
\ninscriptions were written on much height of the disputed
\nstructure. I cannot say whether these words were engraved
\nprojecting outside or engraved inside the stone. In this
\nconnection, I have not seen the records filed in old cases
\nregarding disputed site. I had studied the records kept in
\nCollectorate in this connection. There I had read the report
\nof P.Karnegi, Dy. Commissioner, Faizabad. I had seen this
\nrecord in the Record Room of Collectorate. I have seen the
\nsketch of Ayodhya in one of the Parts. In this report there is
\nreference of temple, mosque, Kund etc. I have read in that
\nreport reference of the disputed site. In that report,
\nregarding the disputed site, P. Karnegi has written that the
\nmosque was got constructed by Babar in 1528-29. It is
\nalso written that at the place, where this mosque has been
\ngot constructed, there might have been Ram Janam temple
\nearlier. This note of P. Karnegi was published in 1867.
\nExcept this I have not seen any other record there. I have
\nnot seen any note of             1905 by J.W. Hose, Deputy
\nCommissioner, Faizabad.” (E.T.C.)
\n       ^^ckcj v;ks\/;k uxjh dHkh ugha vk;k FkkA** (ist 14\u00bd
\n       “Babar never came to Ayodhya city.” (E.T.C.)
\n^^fookfnr LFky esa tks f’kyk ys[k eSaus tks crk;s gSa og fdl lu~ ds
\nFks ;k fdl dky ds Fks eSa ugha tkurk A eq>s ;g ugha ekywe fd mu
\nf’kykys[kksa ij dkSu lk lu~ ;k lEcr~ fy[kk gqvk FkkA eSaus viuh fdrkc
\nesa ;g ftdz fd;k gS fd fookfnr LFky dks f’kykys[k ij dkSu lk
\nlu ;k lEcr fy[kk gSA fookfnr <kaps ds \u00c5ij tks ys[k fy[kk Fkk ml
\nij tks lu ;k lEor fy[kk Fkk og cso j st lkgc us viuh iq L rd
\n                                                                   1486<\/span><\/p>\n
es a n’kkZ ; k gS eS au s mlh dk s viuh fdrkc esa fy[k fn;k gS A
\nmles a 935&,0,p0 vFkkZ r 1528&29 ,0Mh0 fy[kk gq v k FkkA
\nckgj ;k Hkhrj okys f’kykys[k ,d ls ugha FksA ckgj okyk f’kykys[k
\ndkQh yEck Fkk mldk iRFkj Lysc dkQh yEck Fkk Hkhrj okyk iRFkj ;k
\niRFkj Lysc NksVk FkkA ;g ckgj okyk iRFkj dk Lysc ftl ij f’kykys[k
\nFkk og 10&12 fQV yEck gksxk fQj dgk fd 8&10 gksxkA bl iRFkj ds
\nLysc dh pkSM+kbZ djhc Ms< fQV jgh gksxhA vanj okyk f'kykys[k ckgj
\nokys iRFkj ds Lysc ls vk\/ks ls Hkh NksVk FkkA** \u00bcist 14&15\u00bd
\n       "I do not know as to which year or period the stone
\ninscriptions of the disputed site, which I have referred,
\npertained. I do not know as to which year or Samvat is
\nwritten on those inscriptions. I have referred in my book as
\nto what year or Samvat is written on the stone inscriptions
\nof the disputed site. The year or Samvat written in
\ninscriptions over disputed structure was mentioned by
\nBevrez Saheb in his book. I have written that matter in
\nmy book. Therein 935 A.H., i.e., 1528-29 A.D. was
\nwritten. Stone inscriptions of outside and inside were not
\nsimilar. The outer stone inscription was too much lengthy
\nand its stone slab was very lengthy and inside stone or
\nstone slab was small. This outer stone slab containing the
\ninscription was 10-12 ft in length (Then said) might be 8-10
\nft. The inside stone inscription was smaller than half of the
\nouter stone slab." (E.T.C.)
\n^^ckcjukek esa fookfnr <kaps ds lEcU\/k esa dksbZ ftdz ugha gSA efLtn ds
\nlEcU\/k esa Hkh dksbZ ftdz ugha gSA ckcjukek esa 2 efLtnksa dk ;kuh lEHky
\nokyh efLtn vkSj 'kk;n ikuhir okyh efLtn dk ftdz fd;k x;k
\ngSA**\u00bcist 17\u00bd
\n"There is no reference of disputed structure in Babarnama.
\nNor any reference is there with regard to mosque. In
\nBabarnama, there is reference of two mosques, i.e., of
\n                                                                         1487<\/span><\/p>\n
Sambhal Mosque and perhaps, Panipat Mosque.” (E.T.C.)
\n       ^^eS a ijf’k;u Hkk”kk u i<+ ldrk ga w vkS j u fy[k
\nldrk gw aA eS a vjch Hkh u is dksbZ vPNk Kku ugha gSA^^ \u00bcist 32\u00bd
\n       “Neither I can read nor write Persian. I can also
\nnot read Arabic Language nor can write it. I have no
\nsound knowledge of Sanskrit also.” (E.T.C.)
\n^^;g Bhd gS fd ftl ijf’k;u Hkk”kk dks eSa u i<+ ldrk gwWa vkSj u fy[k
\nldrk gwa mldks is Qkjlh Hkk”kk vkSj
\nfyfi ds ckjs esa eq>s esjs llqj lkgc ls Kku izkIr gqvkA fQj dgk
\nfd ;g dguk lgh gS fd ;g Kku eq>s fookfnr LFky ij ik;s x;s ys[kksa
\nvkSj f’kykys[kksa ds lEcU\/k esa llqj th ls izkIr gqvk FkkA** \u00bcist 37\u00bd
\n       “The script or inscriptions which I had seen at the
\ndisputed site, were in Persian language and script. It is
\ncorrect that I acquired knowledge about Persian language
\nand script from my father in law. Further said, it is correct
\nto say that I acquired knowledge from my father in law,
\nabout script and inscriptions found at the disputed
\nsite.”(E.T.C.)
\n       ^^;g gks ldrk gS fd eSaus fdrkc esa bfrgkldkj gksrs gq, Hkh
\nyksxksa dh Ldkyjyh Qhfyax dks \/;ku esa j[krs gq, mu ij fo’okl fd;k
\nvkSj mudks fo’okl djds fdrkc esa fy[kkA eSaus viuh fdrkc dks fy[krs
\n                                                                      1488<\/span><\/p>\n
le; bldk uke fgLVkfjdy bUDok;jh j[kkA ;g gks ldrk gS fd eSaus
\nbls ,d eksM bfrgkfld tkap dk ekudj fdrkc fy[kh gksA** \u00bcist 38\u00bd
\n       “It might be that despite being a historian, keeping in
\nview the scholarly feeling of the people, I relied on them
\nand noted down in my book. At the time of authoring my
\nbook , I titled it as Historical Inquiry. It may be that
\ntreating it as a turning point of historical investigation, I
\nhave written the book.” (E.T.C.)
\n       ^^;g lgh gS fd esj s llq j th us ;g eglwl fd;k Fkk
\nfd cso j st ds }kjk fookfnr LFky ds y s[ kk s a dk tk s vuq o kn
\nfd;k x;k gS og fcYdq y iwj h rjg ls lgh ugh a gS A **\u00bcist 38\u00bd
\n       “It is true that my father in law felt that the
\ntranslation of articles on disputed site made by Bevarage
\nis not wholly correct.” (E.T.C.)
\n^^lu~ 1988 esa esjk ‘kks\/k dk;Z iwjk ugha Fkk vkSj py jgk FkkA** \u00bcist 39\u00bd
\n“In 1988 my research was not complete and was under
\nprocess.” (E.T.C.)
\n       ^^esj s 1988 ds iz d k’ku ds ckn ls gh esj s mlh ds
\ndkj.k HkkX; tx x;s vkSj eq>s MkDVj dh fMxzh fey x;h vkSj eq>s
\njhMj Hkh cuk fn;k x;kA ftl le; eSa jhMj gqvk Fkk vkSj ih0,p0Mh0
\ndh fMxzh feyh Fkh ml le; bykgkckn fo’ofon;ky; ds
\ndq y ifr Jh oghnmnhu efyd Fk sA ;g Hkh lgh gS fd ml le;
\nm0iz0 ds eq[;ea=h eqyk;e flag ;kno FksA^^ \u00bcist 39\u00bd
\n       “It was only after 1988 publication that my luck
\nbrightened up, I acquired degree of Doctorate and I was
\nappointed Reader also. When I became Reader and was
\nconferred Ph.D. Degree, Sri Wahiuddin Malick was the
\nVice Chancellor of Allahabad University. It is also
\ncorrect that, at that time the Chief Minister of U.P. was
\nMulayam Singh Yadav.” (E.T.C.)
\n       ^^eS a ;g ugh a dg ldrk fd rhu f’kyky s[ kk s a es a
\n                                                                       1489<\/span><\/p>\n
ls ,d f’kyky s[ k Qkjlh es a Fkk vkS j nk s vjch esa Fk s]
\nD;k s af d eq > s bu nk su k s a Hkk”kkvk s a dk Kku ugh a FkkA** \u00bcist 51\u00bd
\n       “I can not say whether out of three inscriptions
\none was in Persian and two were in Arabic, as I had no
\nknowledge of these two language.” (E.T.C.)
\n       ^^eSus viuh iqLrd esa bu rhuksa f’kykys[kksa dk vaWaxzsth vuqokn
\ndjokdj fy[kk gSA vaxzsth vuqokn ds fy, eSaus vius llqj th ls
\nfuosnu fd;k Fkk vkSj mUgh ls djok;k FkkA** \u00bcist 51\u00bd
\n       “In my book I have written about the three
\ninscriptions after getting the same translated in English.
\nFor English transcription I have requested my father-in-
\nlaw and got it done from him.” (E.T.C.)
\n       ^^ijUrq og vjch rFkk ijfl;u tkurs gSaA** \u00bcist 51\u00bd
\n       “But he know Arabic and Persian.” (E.T.C.)
\n       ^^eSaus viuh iqLrd esa ;g fy[kk gS fd LVkby vkQ dSyhxzkQh
\ntks f’kykys[kksa ij gS] mlls ;g lUnsg iSnk gksrk gS fd ;g efLtn ckcj
\n}kjk cuokbZ xbZ Fkh ;k ughaA ;g lgh gS fd bl mijksDr ckr dk
\nvk\/kkj ;g gS fd esjs llqj ‘ke’kqy jgeku Qk:dh lkgc ;g eglwl
\ndjrs FksA ;gh ckr eSaus viuh fdrkc esa fy[kh gSA** \u00bcist 51\u00bd
\n       “I have written in my book that the style of
\nCalligraphy on inscriptions creates doubt whether this
\nmosque was constructed by Babar or not. It is correct that
\nthe basis of the aforesaid fact is that my father-in-law
\nrealized so. I have written this fact in my book.” (E.T.C.)
\n       ^^eS au s lkbUl vkQ dS y hxz k Qh ugh a i<+h gS A ,ihxz k Qh
\ndk fo"k; Hkh eS au s ugh a i<+k gS A ** \u00bcist 51\u00bd
\n       "I have not studied Science of Calligraphy. I have
\nalso not studied the subject of Epigraphy." (E.T.C.)
\n       ^^;g dguk lgh gk s ldrk gS fd fookfnr efLtn
\n1501 ,-Mh- es a cukbZ xbZ gk sA ** \u00bcist 52\u00bd
\n       "It may be right to say that disputed mosque was
\n                                                                       1490<\/span><\/p>\n
built in 1501 AD.” (E.T.C.)
\n       ^^;g gk s ldrk gS fd fookfnr efLtn dk s ckcj ls
\nigys fdlh vkS j us cuok;k gk sA ckcj us 1526 ls 1530
\n,-Mh- rd Hkkjr ds dq N va’ k ij gh fot; iz k Ir dh FkhA**
\n                                                                   \u00bcist 52\u00bd
\n       “It is possible that the disputed mosque might have
\nbeen built by someone else prior to Babar. Between 1526
\nto 1530 AD, Babar conquered over only certain parts of
\nIndia.” (E.T.C.)
\n       ^^fookfnr LFky ij ftu rhu f’kykys[kksa dk ftdz eSaus fd;k gS]
\nmuesa ls nks cgqr \u00c5ij Fks] tks djhc 20&22 fQV \u00c5aps FksA rhljk
\nf’kykys[k uhps Fkk] mldks eSaus 4&5 fQV dh nwjh ls ns[kk FkkA ijfl;u
\nHkh fLdzIV gksrh gSA vjsfcd o Qkjlh fLdzIV esa fy[kh tkrh gSA ;g
\ndguk xyr gksxk fd Qkjlh dksbZ Hkh fyfi ugha gSA ;g lgh gks ldrk
\ngS fd Qkjlh Hkk”kk vjsfcd fyfi esa fy[kh tkrh gSA vjch vkSj ijfl;u
\nfyfi esa dqN vYQkcsV dk vUrj gS] ckdh ,d gh gS bl lEcU\/k esa tks
\nHkh eSaus viuh iqLrd esa fy[kk gS] eSa lsd.M~h lkslZ ds vk\/kkj ij fy[kk
\ngSA lsds.M~h lkslZ nks izdkj ds gksrs gSaA igys okys esa fyf[kr :i esa
\nv[kckj vkfn vkrs gSa] vkSj nwljs esa] fy[kh gqbZ iqLrdsa vkrh gSaA**\u00bcist 52\u00bd
\n       “Out of the three disputed inscriptions on disputed
\nsite which I have mentioned, two were at great height,
\napproximately at the height of 20-22 ft. Third inscription
\nwas downward side which I viewed from a distance of 4-5
\nft. Persian is also a script. Arabic and Persian is written in
\nscript. It will be wrong to say that Persian is not any script.
\nIt may be that Persian language is written in Arabic script.
\nThere is difference of few alphabets in Arabic and Persian
\nscript, remaining are the same. Whatever I have written in
\nthis regard in my book is based on secondary source. There
\nare two sorts of secondary source. In the first category
\ncomes written newspapers etc. and in the second category
\n                                                               1491<\/span><\/p>\n
comes written books.” (E.T.C.)
\n       ^^mDr fookfnr <kapk 16oha 'krkCnh ds vykok 15oh0 'krkCnh dk
\ncuk;k gks ldrk gSA fo'k s" kK ds :i es a esj h jk; es a ;g lEHko
\ngS fd fookfnr <k ap k ckcj dk cuok;k gq v k u gk sA ,d
\nfo'ks"kK ds :i esa eSa ;g dg ldrk gaw fd ;g fookfnr <kapk tkSuiqj ds
\nlqYrku dk Hkh cuok;k gks ldrk gSA** \u00bcist 57\u00bd
\n       "The aforesaid disputed structure might be a
\nconstruction of fifteenth century besides sixteenth century.
\nAs an expert, in my opinion, it is probable that the
\ndisputed structure was not constructed by Babar. As an
\nexpert I can say that, it may be that the disputed structure
\nwas constructed by the Sultan of Juanpur." (E.T.C.)
\n       ^^eSaus viuh fdrkc lR; ds [kkst ds fy, fy[kkA bl iqLrd
\nesa ,d v\/;k; ^^fMM ckcj fCYV fn efLtn** gSA bl iqLrd dks fy[kus
\nds igys eSaus dkQh Nkuchu fd;k FkkA Nkuchu ds i'pkr eS a bl
\nurhts ij igq W ap k fd fookfnr <k ap k ;k rk s rq x yd 'kkldk s a
\n}kjk cuk;k x;k Fkk ;k 'kdhZ 'kkldk s a }kjk cuk;k x;k
\nFkkA eSa bl urhts ij ugha igWaqpk fd ;g vo\/k ds uokcksa }kjk Hkh dqN
\nHkkx cuk;k x;kA vo\/k ds uokck s a dk ,Ecye \u00bcljdkjh fu'kku\u00bd
\nnk s eNfy;kW a Fkh aA orZeku le; esa izns'k jkT; dk ,Ecye Hkh nks
\neNfy;kWa gSaA** \u00bcist 62\u00bd
\n       "I have written my book for discovery of truth. This
\nbook contains a chapter entitled "Did Babar Build the
\nMasjid". Before authoring this book, I had made a
\nthorough probe. After the investigation, I came to the
\nconclusion that the disputed structure had been built
\neither by Tughlaq rulers or Shirky rulers. I did not reach
\nthe conclusion that some part of it was constructed by
\nNawabs of Avadh. The emblem of Nawabs of Avadh was
\n"two fish". Presently also, the emblem of the State
\nGovernment is two fish." (E.T.C.)
\n                                                                              1492<\/span><\/p>\n
        ^^eSaus viuh iqLrd ds i`”B 74 ,oa 75 ij vjsfcd vkSj ijfl;u
\nds ysVlZ ds fLdzIV~l ds ckjs esa jk; fn;k gSA eSaus viuk jk; ;g fn[kkus
\nds fy, fn;k gS fd ckcj v;ks\/;k ugha x;k FkkA** \u00bcist 63\u00bd
\n        “At pages 74 and75 of my book I have recorded my
\nopinion with respect to scripts of Arabic and Persian
\nletters. I have given this opinion in order to demonstrate
\nthat Babar never visited Ayodhya.” (E.T.C.)
\n        ^^eSaus viuh iqLrd ds i`”B la[;k&89 esa ckcjh efLtn ds
\ndSyhxzkQh ds LVkby ij viuh jk; O;Dr fd;k gS vkSj mlds vk\/kkj ij
\n;g fu”d”kZ fudkyk fd bl ckr ij xzhfo;l lUnsg mRiUu gksrk gS
\nfd ;g efLtn ckcj us cuokbZA eq > s vkVZ ;k lkbUl vkQ
\ndS y hxz k Qh dk Kku tjk Hkh ugh a gS A ** \u00bcist 65\u00bd
\n        “At page 89 of my book I have recorded my opinion
\nregarding the style of calligraphy of Babari Mosque, and
\non that basis came to this conclusion that on this point, a
\ngrievous doubt emerges if Babar had built this mosque. I
\nhave not the least knowledge of art or science of
\ncalligraphy.” (E.T.C.)
\n        ^^eSus viuh iqLrd ds dkye&6 i`”B &92] 93 ,oa 94 esa mu
\niqLrdksa dk fooj.k fn;k gS ftuds ckjs esa eq>s tkudkjh gSA eSaus mDr
\nlHkh iqLrdksa dks iwjh rjg ls ugha i<+k gSA buesa ls eSaus ysuiwy] ysMsu]
\ncsofjt ,oa j'kcqd fofy;e dh iqLrdsa eSaus i<+h gSaA ckdh iqLrdsa dsoy
\nFkksMh&FkksM+h i<+h gSaA muesa dqN iqLrdsa ,slh gSa tks eSaus ugha i<+h gSaA**
\n                                                                         \u00bcist 68\u00bd
\n        "In column 6 of pages 92,93 and 94 of my book, I
\nhave given description of those books about which I know.
\nI have not read wholly all the aforesaid books. Out of
\nthese, I have read the books of Lenpool, Laden, Baverige
\nand Rushbook William. I have studied a little the remaining
\nbooks. There are certain books therein, which I have not
\nstudied." (E.T.C.)
\n                                                                      1493<\/span><\/p>\n
       ^^;g lgh gS fd eS au s ftu fdrkck s a dk s ugh a i<+k
\nmudk Hkh ftdz eS au s viuh fdrkc es a Qq V uk sV es a fd;k gS A **
\n\u00bcist 68\u00bd
\n       "It is true that, in the foot note of my book, I have
\nmentioned         those    books      too    which      I    have     not
\nread."(E.T.C.)
\n       ^^eSaus ftu rhu xkaoksa   dk ftdz ,sisfMDl esa fd;k gS mls eSaus
\njsosU;w ds vfHkys[kksa esa ugha ns[kk gS dsoy xtsfV;j ds vk\/kkj ij fy[kk
\ngSA eSaus ;g Kkr ugha fd;k fd fookfnr LFky fdl ekSts esa fLFkr gSA
\neS au s xtsf V;j es a ns[ kk fd fookfnr LFky utwy esa gS A **
\n                                                                  \u00bcist 71\u00bd
\n       "I had not seen in revenue records, the three
\nvillages, which I have mentioned in the appendix and have
\nwritten only on the basis of Gazetteer. I did not find out as
\nto in which village the disputed site lay. I saw in Gazetteer
\nthat the disputed site is in Nuzul." (E.T.C.)
\n       ^^;g dguk xyr gS fd xtsfV;j ekSfyd 'kks\/k dk;Z ds Js.kh esa
\nugha vkrk gSA ;g izkbejh lkslZ ekuk tkrk gSa ;g dguk lgh gS fd
\nxtsfV;j dk ewy L=ksr ftys esa j[ks gq, jsosU;w fjdkMZ gksrs gSaA** \u00bcist 73\u00bd
\n       "It is wrong to say that the gazetteer does not come
\nwithin the category of original research work. It is
\nconsidered a primary source. It is true to say that the basic
\nsource of gazetteer is revenue records maintained in the
\nDistrict." (E.T.C.)
\n       ^^eS au s bl ckr ij xkS j ugh a fd;k fd f'kykys[ k 'kq :
\nls yxs gS a ;k ckn es a yxk fn, x, gS aA ** \u00bcist 77\u00bd
\n       "I did not pay attention on this fact, as to whether
\nthe inscriptions were installed from the beginning or
\ninstalled subsequently." (E.T.C.)
\n       ^^eSaus ckcjh efLtn ds fgLVksfjlVh ds ckjs esa dksbZ izekf.kr
\niqLrd ugha i<+k     dsoy iz'kklfud vaxzst vf\/kdkfj;ksa ds fgLVkfjdy
\n                                                                     1494<\/span><\/p>\n
,dkmaV ,oa xtsfV;j gh i<+k gSA eSaus fdlh Hkkjrh; ;k rqdhZ ;k fons'kh
\neqlyeku ys[kd dh izekf.kd iqLrd dsoy ckcjh efLtn ij ugha is lkbal vkQ ,ihxzkQh dh tkudkjh ugha gSA if’kZ;u vkSj
\nvjsfcd Hkh ugha vkrh gSA** \u00bcist 78\u00bd
\n       “I have no knowledge of Science of Epigraphy. I do
\nnot know even Persian and Arabic.” (E.T.C.)
\n       ^^fookfnr LFky ij tks f’kykys[k eSaus ns[ks ml ij fxurh vafdr
\nugha Fkha ns[kus ij eq>s ;g Kkr ugha gqvk fd f’kykys[k fdl o”kZ esa
\nfy[ks x,A ckn esa eq>s fdlh us crk;k fd ;g 935 ,0,p0ds fy[ks gq,
\ngSa fQj dgk fd izks0 jk\/ks’;ke us eq>s ;g ckr crk;h fd ;g f’kykys[k
\n935 ,0,p0ds fy[ks gq, gSa vkSj eSaus mUgsa lgh eku fy;k ;g ckr eSaus
\ncsofjt lkfgck dh fdrkc ls Hkh i<+hA mijk sD r nk su k s a ys[ kdk s a us
\nf'kykys[ k ds ,ihxz k Qh dk s i<+d j mijk sD r urhtk fudkyk
\nFkkA vkS j eS au s mlh dk s lgh eku fy;kA** \u00bcist 78&79\u00bd
\n       "There was no figure indicated on the inscriptions
\nwhich I saw on the dispute site. On seeing, it could not be
\nknown as to in which year the inscriptions were written.
\nLater on, someone told me that these are written in 935
\nAH, further said, Prof. Radhey Shyam had told me this fact
\nthat these inscription were written in 935 A.H. and I took
\nthe same to be true. I also read this fact in the book of
\nBeverige. The aforesaid two writers had drawn the said
\nconclusion on deciphering the epigraphy of the
\ninscriptions     and     I    considered       the    same     to    be
\ntrue."(E.T.C.)
\n                                                                    1495<\/span><\/p>\n
       ^^f’kykys[k ij ehjckdh dk uke fy[kk Fkk ij mu ehj ckdh
\ndk ftdz ckcjukes a es a ugh a vkrk gS A ** \u00bcist 85\u00bd
\n       “On the inscription, the name of Mir Baqi was
\nwritten but reference of the said Mir Baqi does not find
\nplace in Babarnama.” (E.T.C.)
\n       ^^,slk ckcjukesa esa dqN Hkh ugha feyrk fd f’kykys[k esa ftl
\nckadh dk ftdz vk;k gS og ckadh rk’kdanh jgk gksA** \u00bcist 85\u00bd
\n       “In Babarnama nothing of the sort is found to
\nindicate that Baqi mentioned in the inscriptions would have
\nbeen Banki Tashkandi.” (E.T.C.)
\n       ^^eSa fuf’pr :i ls bl fu”d”kZ ij ugha igqap ldk fd ;g
\nfookfnr s ugha gSA U;wfelesfVd dk Kku eq>s ugha
\ngSA vkdksZykth esa eSaus dksbZ fo’ks”k Kku izkIr ugha fd;kA losZ vkQ yS.M
\ndk dksbZ Kku eSaus izkIr ugha fd;kA lkbZal vkQ vkdhZVsDpj dk eSaus dksbZ
\nfo’ks”k Kku izkIr ugha fd;kA rqdhZ vjch Qkjlh dk Hkh dksbZ Kku eSaus
\nizkIr ugha fd;kA** \u00bcist 106\u00bd
\n        “I have no knowledge of Epigraphy. I have no
\nknowledge of Numismatic. I did not acquire any
\nspecialization in archaeology. I did not acquire knowledge
\nabout survey of land. I did not acquire any specialized
\nknowledge in Science of Architecture. I did not acquire any
\nknowledge of Turkish, Arabic and Persian too.” (E.T.C.)
\n       ^^fookfnr <kaps dk fuekZ.k vk\/kqfud dky esa ugha gqvk gS cfYd
\ne\/; dky esa gqvk gSA** \u00bcist 109\u00bd
\n       "This disputed structure has not been constructed in
\nmodern period, instead, it has been constructed in
\n                                                                  1496<\/span><\/p>\n
Medieval period.” (E.T.C.)
\n       ^^esjh jk; dfu?kae dh fjiksVZ rFkk Q~;wjj dh fjiksVZ tks 1891 dh
\ngS ij gh vk\/kkfjr gSA** \u00bcist 113\u00bd
\n        “My opinion is based only on Cunningham’s Report
\nand Fuhrer’s report of 1891.” (E.T.C.)
\n       ^^fookfnr <k ap s ds fuekZ . k ds le; ds ckjs esa dk sb Z
\niq L rd miyC\/k ugh a gS A ** \u00bcist 114\u00bd
\n       "There is no book available with respect to
\nconstruction of disputed structure." (E.T.C.)
\n       ^^esjh iqLrd dk uke ^^fMLi;wVsM ekLd , fgLVksfjd bUdok;jh**
\ngSA esjh iqLrd esjs 'kks\/k dk urhtk gSA bl iqLrd ds vykok e\/;
\ndkyhu bfrgkl ds ckjs esa esjk dksbZ vU; 'kks\/k ugha gS vkSj u izdkf'kr
\ngqvk gSA** \u00bcist 131\u00bd
\n       "The title of my book is 'Disputed Mosque, a Historic
\nEnquiry'. My book is the outcome of my research. Except
\nthis book, there is no any other research of mine nor
\npublished, about Medieval history." (E.T.C.)
\n       ^^viuh iqLrd fy[kus ds fy, eSaus rhuksa iqLrdksa ;kuh ckcj ukek
\nvkbZus vdcjh vkSj vdcjukek ds vykok vU; iqLrdsa Hkh i<+hA ftuds
\nfooj.k fuEufyf[kr gS%& xtsfV;j \u00bc1868\u00bd] usfoy dk xtsfV;j \u00bc1901\u00bd ls
\n1905 g.Vj }kjk bEihfj;y xtsfV;j] bjfou dh iqLrd] fiyfxzest ls
\nlEcfU\/kr rFkk dqN vU; iqLrdsa ns[kh gSaA blds vykok rhFkZ foospu
\ndk.M ns[kk gS] rkjh[k Qjk cD'k ns[kk gS] dfy?ke dh fjikVZ] Q;wjj dh
\nfjiksVZ lekpkj i= Hkh ns[ksa gSaA** \u00bcist 134\u00bd
\n       "For the purpose of writing my book, Except these
\nthree books, i.e. Babarnama, Aine Akbari and Akbarnama,
\nI read other books also, particulars whereof are:
\nGazetteer(1868), Gazetteer of Nevil (1901 to 1905),
\nImperial Gazetteer by Hunter, Irvin's book and some other
\nbooks related to pilgrimage. Except this, I have also seen
\nTirth Vivechan Khand, Tarikh Fara Bux, I have seen the
\n                                                                   1497<\/span><\/p>\n
Report of Cunningham, Report of Furher                   as also the
\nNewspapers.” (E.T.C.)
\n       ^^1526 igys ds v;ks\/;k dk bfrgkl eSaus mruk gh i<+k gS tks
\nxtsfV;j esa fn;k x;k gSA xtsfV;j 1905 esa Nik Fkk oks v;ks\/;k ds ckjs
\nesa igyk L=ksr FkkA** \u00bcist 137\u00bd
\n       "I have read History of Ayodhya of the period prior
\nto 1526 only to the extent which has been given in the
\ngazetteer. What was published in Gazetteer 1905, was the
\nfirst source about Ayodhya." (E.T.C.)
\n       ^^ftu ckrksa dks eSaus xyr ik;k oks fuEufyf[kr gSa%& 1- ckcj us
\nefLtn ugh a cuok;k D;k s af d ckcj v;k s\/ ;k dHkh ugh a vk;kA
\n       ckcj ds v;ks\/;k u vkus ds izek.k fuEufyf[kr gSA ckcjukek esa
\nckcj ds v;ks\/;k ds vkus dk ftdz ugha gSA ckcjukek esa ;g ftdz ugha gS
\nfd ckcj us v;ks\/;kesa efLtn cukus dk gqDe fn;kA** \u00bcist 137&138\u00bd
\n       "The facts which I found wrong are: 1. Babar did
\nnot get the mosque constructed since he never visited
\nAyodhya.\n<\/p>\n
       The following is the evidence showing that Babar did
\nnot visit Ayodhya. In Babarnama there is no reference of
\nBabar’s visit to Ayodhya. There is no mention in
\nBabarnama that Babar commanded for construction of a
\nmosque in Ayodhya.” (E.T.C.)
\n       ^^v;ks\/;k ds ckjs esa iqjkrRo ls laca\/kh lcls igyh lkexzh dfua?ke
\ndh fjiksVZ esa gh gSA mlds ckn nwljh fjikVZ Q;qjj dh fjiksVZ gSA tks
\n1891 dh laHkor% gSA ;s vkD;kZykftdy losZ vkQ bf.M;k ds MkbjsDVj
\nvkSj vaxzst vQlj FksA** \u00bcist 150\u00bd
\n       “Regarding        Ayodhya,       the    foremost      material
\npertaining to archaeology is in Cunningham’s report only.
\nThereafter, the second report is of Fuhrer, which is
\nprobably of 1891. They were British Officers and Director
\nof Archaeological Survey of India.” (E.T.C.)
\n                                                                    1498<\/span><\/p>\n
       ^^esjk fu”d”kZ gS fd ckcj v;ks\/;k dHkh ugha vk;k FkkA** \u00bcist 156\u00bd
\n       “My conclusion is that Babar never came to
\nAyodhya” (E.T.C.)
\n       ^^esjs bl fu”d”kZ fd ckcj v;ks\/;k dHkh ugha vk;k dk vk\/kkj ;g
\ngS fd ftl :V ls ckcj 1528 esa py jgk Fkk og :V v;ks\/;k gksdj
\nugha FkkA ckcj ds :V dk vk\/kkj ckcjukek gSA ;g vk\/kkj ckcjukek ds
\nml vuqokn dk gS tks cscfjt us fd;k FkkA eSaus cscfjt dk iwjk vuqokn
\ntks mlus ckcjukek dk fd;k gS eSaus i<+k gSA czscfjt ds vuqokn dks
\nns[kdj dgk fd cscfjt us ^^, ;w Mh** vo\/k ekuk gSA czscfjt ds vuqokn
\nds i`"B 401 ,oa 402 dk QksVks izfr esjs lkeus gSaA** \u00bcist 156\u00bd
\n       "The basis of my inference that Babar never came to
\nAyodhya, is that the route by which Babar was proceeding
\nin 1528 was not via Ayodhya. The basis of Babar's route if
\nBabarnama. This basis is the translation of Babarnama by
\nBeverige. I have read the entire transcription of
\nBabarnama, which was made by Beverige. Seeing the
\ntranscription of Beverige, he (witness) said that Beverige
\nhas considered "AUD' as Awadh. Photocopy of pages 401
\nand 402 of Beverige's translation is before me." (E.T.C.)
\n       ^^eSaus viuh iqLrd ds i`"B 71 ij ;g fy[kk gS fd ckcj dks ,d
\neq[; [kyuk;d ds :i esa n'kkZ;k tkrk gS fdUrq ;g vkjksi mlds
\nO;fDrrRo ls esy ugha [kkrk gSA** \u00bcist 206\u00bd
\n       "I have written at page 71 of my book that Babar is
\ndescribed as a main villain but this charge does not match
\nwith his personality." (E.T.C.)
\n       ^^j'kcqzd fofy;e rFkk jk\/ks';ke nksuksa us ckcj ds O;fDrRo ds ckjs
\nessa rkjhQ dh gSA blds vfrfjDr vkj0ih0f=ikBh vkSj cukjlh izlkn
\nlDlsuk us Hkh ckcj dh rkjhQ fd;k gSA** \u00bcist 206\u00bd
\n       "Rushbrook Willian and Radhey Shyam both have
\ncommended about Babar's personality. Besides, R.P.
\nTripathi and Banarsi Prasad Saxena also have praised
\n                                                                  1499<\/span><\/p>\n
Babar.” (E.T.C.)
\n       ^^jk\/k s’ ;ke esj s xq : 1968 ls 1996 rd jgsA eSa mudh
\nfopkj\/kkjk ls izHkkfor vkSj lger gwWA esjh iqLrd ds fy[kus esa Hkh esjs
\nxq: jk\/ks’;ke lkgc dk lg;ksx feyk vkSj le; le; ij eSa iqLrd
\nfy[krs le; muls fMldl djrk FkkA** \u00bcist 207\u00bd
\n       “Radhey Shyam had been my teacher from 1968 to
\n1996. I agree and am influenced with his thought. While
\nwriting my book, I got cooperation from my teacher
\nRadhey Shyam and while writing the book, I used to
\ndiscuss with him from time to time.” (E.T.C.)
\n       ^^eSaus viuh iqLrd ds ist la0 88 ij tks fy[kk gS fd ckcj
\nus ;fn efLtn cukus ds fy, gqDe fn;k gksrk rks ,slk fy[kk gksrk fd
\n^^ckgqDe tghjmn~nhu eks0 ckcj xkth**A tks eSaus \u00c5ij dgk gS ;g eSaus
\ndgha i<+k ugha gS cfYd eSaus ;g vius vki dgk gS fd ;fn ckcj us dgk
\ngksrk rks ,slk gksrkA** \u00bcist 216\u00bd
\n       "I have written at page no. 88 of my book, had Babar
\ncommanded to construct the mosque, it would have been
\nwritten "Under the Command of Zahiruddin Mohd. Babar
\nGhazi". The fact which I stated above, I have not read it
\nanywhere, instead, I have said of my own that if Babar had
\ncommanded, it would have been so." (E.T.C.)
\n       ^^eSaus viuh iqLrd ds i`"B la0 89 ij ;g fy[kk gS fd bldh
\ncgq r lEHkkouk gS fd f'kykys[ k ckn es a yxk;k x;k gk s
\nftles a fy[kk gS fd ;g efLtn ckcj us cuk;h gk sA **
\n                                                             \u00bcist 217\u00bd
\n       "I have written at page no. 89 of my book that there
\nis great probability that the inscription, wherein it is
\nwritten that this mosque had been built by Babar, might
\nhave been installed subsequently." (E.T.C.)
\n       ^^eSaus bl ckr ij 'kks\/k fd;k fd ;g f'kykys[k fdrus iqjkus gSa
\nvkSj dc ds gSaA tks f'kykys[k ckcjh efLtn ds ckgjh nhokj ij yxk Fkk
\n                                                                 1500<\/span><\/p>\n
og f’kykys[k iqjkuk yxrk Fkk ij vUnj okyk f’kykys[k dh fy[kkoV
\n19oha lnh dh yxrh FkhA esjh jk; esa og 19oha lnh dk f’kykys[k gks
\nldrk FkkA ckcjh efLtn esa dqy rhu f’kykys[k Fks ftuesa nks ckgj
\nFks ,d vUnjA** \u00bcist 218\u00bd
\n       “I conducted research on the point as to how much
\nold and of which period these inscriptions are. The
\ninscription engraved on the outer wall of the mosque
\nappeared to be old. But the calligraphy of the inner
\ninscription appeared to be of 19th Century. In my opinion, it
\ncould be an inscription of 19th Century. The Babri mosque
\nhad three inscriptions in all of which two were outside and
\none was inside.” (E.T.C.)
\n       ^^;g ckr fd Hkhrj okyk f’kykys[k u;k izrhr gksrk Fkk eSaus bl
\nvk\/kkj ij fy[kk D;ksafd eq>s dSfyxzkQh dh LVkby ls ,slk izrhr gqvk
\nFkkA dSyhxzkQh LVkby ij eSaus dksbZ v\/;;u ugha fd;k gSA eSaus dqN
\n,DliVZl ls ckr djus ds i’pkr~ bl dSfyxzkfQd LVkby dh ckr
\nfy[kh FkhA** \u00bcist 219\u00bd
\n       “I have written the fact that the inner inscription
\nappeared to be new, because it so appeared from the style
\nof caligraphy. I have not undertaken any study on
\nCaligraphy. After having discussion with few experts, I
\nwrote about this caligraphic style.” (E.T.C.)
\n       ^^;g lgh gS fd eq > s bfrgkl dk Kku cgq r de gS A **
\n                                                            \u00bcist 222\u00bd
\n       “It is true that I have a very little knowledge of
\nhistory.” (E.T.C.)
\n       ^^;g lgh gS fd mijksDr rhuksa iqLrdksa esa fofy;e fQUp ds
\no`rkUr ,d gh gSa ;kuh muds Hkkjr ;k=k ds o`rkUr rhuksa iqLrdksa esa ,d
\ngh gSaA** \u00bcist 228\u00bd
\n       “It is correct that in the aforesaid three books,
\ndescription of William Finch is the same, i. e., their\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Unknown vs K.M. Munireddy (Supra) on 15 September, 1995 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-72838","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nUnknown vs K.M. Munireddy (Supra) on 15 September, 1995 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/unknown-vs-k-m-munireddy-supra-on-15-september-1995\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Unknown vs K.M. 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