2772

the prescribed period, it is only in those circumstances the

appellants' possession would become adverse. There is no
material to that effect in the present case. Therefore, we
are of the view that there is no substance in any of the
contentions advanced on behalf of the appellants."
2909. In Mahesh Chand Sharma (supra), the necessity of
pleading was emphasized and the Court in para 36 said :
In this connection, we may emphasise that a person
pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of the true owner, it is
for him to clearly plead and establish all the facts
necessary to establish his adverse possession. For all the
above reasons, the plea of limitation put forward by the
appellant, or by Defendants Nos. 2 to 5 as the case may, be
is rejected.
2910. Here we may also refer to some more judgements
which have been cited by Sri P.N. Mishra, Advocate, advancing
his arguments on the issues pertaining to adverse possession.
2911. In Smt. Bitola Kuer (supra) in para 16 the Court
said :
It is well settled that tile ordinarily carries with it
the presumption of possession and that when the question
arises is to who was in possession of land, the presumption
is that the true owner was in such possession. In other
word possession follows title. The inevitable Corollary
from this principle is that the burden lies on the person
who claims to have acquired title by adverse possession to
prove his case.
2912. In Prabhu Narain Singh (supra) in para 6 the Court
observed :
2773
A person claiming title to any land by adverse
possession has to be very specific about the area of the
land and the period over which he has been in possession.
2913. In Ramzan Vs. Smt. Gafooran (supra) the Court
observed :
27. It is, therefore, explicit that unless there is
specific plea and proof that adverse possessor has
disclaimed his right and asserted title and possession to the
knowledge of the true owner within a statutory period and
the true owner has acquiesced to it, the adverse possessor
cannot succeed to have it established that he has perfected
his right by prescription.
29. As pointed out above, where the defendants are
not sure who is the true owner and question of their being
in hostile possession then the question of denying title of
true owner does not arise. At the most, the defendants have
claimed and which is found to be correct by the trial court
that they have been in possession of the disputed property
since the inception of the sale deeds in their favour. They
came in possession, according to their showing, as owner
of the property in question. It follows that they exercised
their right over the disputed property as owner and
exercise of such right, by no stretch of imagination, it can
be said that they claimed their title adverse to the true
owner.
2914. In Raja Rajgan Maharaja Jagatjit Singh (supra) it
was held that the defendant-appellant has to establish that the
title to the land in suit held by the owner under the First
Settlement of 1865 had been extinguished under Section 28 of
the Limitation Act due to the adverse possession of the
2774
defendant-appellant or his predecessors for the appropriate
statutory period of limitation and completed prior to the
possession taken under attachment by Tehsildar who thereafter
held it for the true owner. It also says:
"It is well established that adverse possession against an
existing title must be actual and cannot be constructive."
2915. In Md. Mohammad Ali Vs. Jagdish Kalita (supra)
also the change brought in 1963 under Article 65 qua the earlier
Act of 1908 was pointed out and the Court observed:
"By reason of the Limitation Act, 1963 the legal
position as was obtaining under the old Act underwent a
change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his
title and it would no longer be necessary for him to prove,
unlike in a suit governed by Articles 142 and 144 of the
Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it
would be for the defendant so to prove if he wants to
defeat the plaintiffs claim to establish his title by adverse
possession."
2916. Mahadeo Prasad Singh and others Vs. Karia
Bharthi, AIR 1935 PC 44 is a judgment which deals with the
issue of commencement of limitation under Article 144 of
Limitation Act 1908. It was held therein that a person in actual
possession of Math is entitled to maintain a suit of recovery of
property pertaining to Math not for his own benefit but for the
benefit of Math. On the matter of limitation the Court held:
"It is common ground that the article of the Indian
Limitation Act of 1908 applicable to the claim is Article
144, which prescribes a period of 12 years from the date
2775
when the possession of the appellants became adverse to
the math. Their case is that in 1904, when Rajbans settled
his dispute with the plaintiff, he ceased to be the mahant of
Kanchanpur and repudiated the title of the math of the
village of Saktni as well as to the other villages which he
got in pursuance of the compromise. On that date, it is
contended, he began to hold the property adversely to the
institution, and the action, which was brought after the
expiry of 12 years from that date, was barred by time."
2917. To the same effect is the view taken in Gopal Datt
Vs. Babu Ram, AIR 1936 All 653.
2918. From the above discussion what boils down is that
the concept of adverse possession contemplates a hostile
possession, i.e., a possession which is expressly or impliedly in
denial of the title of the true owner. Possession to be adverse
must be possession by a person who does not acknowledge the
other's right and in fact deny the same. A person who bases his
title on adverse possession must show by clear and unequivocal
evidence that his possession was hostile to the real owner and
amounted to denial of his title to the property claimed. In order
to determine whether the act of a person constitute adverse
possession is 'animus in doing that act' and it is most crucial
factor. Adverse possession commenced in wrong and is aimed
against right. A person is said to hold the property adversely to
the real owner when that person in denial of owner's right
excluded him from the enjoyment of his property. Adverse
possession is that form of possession or occupancy of land
which is inconsistent with the title of the rightful owner and
tends to extinguish that person's title. Possession is not held to
be adverse if it can be referred to a lawful title. The persons
2776
setting up adverse possession may have been holding under the
rightful owner's title, i.e., trustees, guardians, bailiffs or agents,
such person cannot set up adverse possession. Burden is on the
defendant to prove affirmatively.
2919. An occupation of reality is inconsistent with the
right of the true owner. Where a person possesses property in a
manner in which he is not entitled to possess it, and without
anything to show that he possesses it otherwise than an owner,
i.e., with the intention of excluding all persons from it, including
the rightful owner, he is in adverse possession of it. Where
possession could be referred to a lawful title it shall not be
considered to be adverse. The reason be is that a person whose
possession can be referred to a lawful title will not be permitted
to show that his possession was hostile to another's title. One
who holds possession on behalf of another does not by mere
denial of other's title make his possession adverse so as to give
himself the benefit of the statute of limitation. A person who
enters into possession having a lawful title cannot divest another
of that title by pretending that he had no title at all.
2920. Adverse possession is of two kinds. (A) Adverse
from the beginning or (B) that become so subsequently. If a
mere trespasser takes possession of A's property, and retains it
against him, his possession is adverse ab initio. But if A grants a
lease of land to B, or B obtains possession of the land as A's
bailiff, or guardian, or trustee, his possession can only become
adverse by some change in his position. Adverse possession not
only entitled the adverse possessor, like every other possessor,
to be protected in his possession against all who cannot show a
better title, but also, if the adverse possessor remains in
possession for a certain period of time produces the effect either
2777
of barring the right of the true owner, and thus converting the
possessor into the owner, or of depriving the true owner of his
right of action to recover his property although the true owner is
ignorant of the adverse possessor being in occupation.
2921. In Hari Chand Vs. Daulat Ram (supra) the Court
held if the encroachment was not new one but the structure was
in existence prior to acquiring title over the property the decree
on the basis of adverse possession cannot be granted in favour
of the plaintiff. Para 10 and 11 of the judgment reads as under:
"10. On a consideration of these evidences it is quite clear
that the disputed kachha wall and the khaprail over it is
not a new construction, but existed for over 28 years and
the defendant has been living therein as has been deposed
to by Ramji Lal vendor of the plaintiff who admitted in his
evidence that the land in dispute and the adjoining kachha
walls had been affected by salt and the chhappar over the
portion shown in red was tiled roof constructed about 28
years back. This is also supported by the evidence of the
defendant, D.W. 1, that the wall in dispute was in existence
when the partition was effected i.e., 28 years before. On a
consideration of these evidences the Trial Court rightly
held that the defendant had not trespassed over the land in
question nor he had constructed a new wall or khaprail.
The trial court also considered the report 57C by the court
Amin and held that the wall in question was not a recent
construction but it appeared 25-30 years old in its present
condition as (is) evident from the said report. The suit was
therefore dismissed. The lower appellate court merely
considered the partition deed and map Exts. 3/1 and 3/2
respectively and held that the disputed property fell to the
2778
share of the plaintiff's vendor and the correctness of the
partition map was not challenged in the written statement.
The court of appeal below also referred to Amin's map 47
A which showed the encroached portion in red colour as
falling within the share of plaintiff's vendor, and held that
the defendant encroached on this portion of land marked in
red colour, without at all considering the clear evidence of
the defendant himself that the wall and the khaprail in
question existed for the last 28 years and the defendant
has been living there all along. P.W. 1 Ramji Lal himself
also admitted that the wall existed for about 28 years as
stated by the defendant and the kachha walls and the
khaprail has been effected by salt. The lower appellate
court though held that P.W. 1 Ramji Lal admitted in
cross-examination that towards the north of the land in
dispute was the khaprail covered room of Daulat Ram in
which Daulat Ram lived, but this does not mean that the
wall in dispute exists for the last any certain number of
years, although it can be said that it is not a recent
construction. Without considering the deposition of
defendant No. 1 as well as the report of the Amin 57 C the
IInd Addl. Civil Judge, Agra wrongly held that the
defendant failed to prove that the wall in dispute and the
khaprail existed for the last more than 12 years before the
suit. The Civil Judge further held on surmises as "may be
that the wall and khaprail have not been raised in May,
1961 as is the plaintiff's case, but they are recent
constructions." This decision of the court of appeal below
is wholly incorrect being contrary to the evidences on
record."
2779
"11. On a consideration of all the evidences on record it
is clearly established that the alleged encroachment by
construction of kuchha wall and khaprail over it are not a
recent construction as alleged to have been made in May
1961. On the other hand, it is crystal clear from the
evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that
the disputed wall with khaprail existed there in the disputed
site for a long time, that is 28 years before and the wall
and the khaprail have been affected by salt as deposed to
by these two witnesses. Moreover the court Amin's report
57 C also shows the said walls and khaprail to be 25-30
years old in its present condition. The High Court has
clearly came to the finding that though the partition deed
was executed by the parties yet there was no partition by
metes and bounds. Moreover there is no whisper in the
plaint about the partition of the property in question
between the co-sharers by metes and bounds nor there is
any averment that the suit property fell to the share of
plaintiff's vendor Ramji Lal and Ramji Lal was ever in
possession of the disputed property since the date of
partition till the date of sale to the plaintiff. The plaintiff
has singularly failed to prove his case as pleaded in the
plaint."
2922. In Maharaja Sir Kesho Prasad Singh Bahadur
(supra) the Hon'ble Privy Council has held that mere receipt of
rent by persons claiming adversely is not sufficeint to warrant
finding of adverse possession. The possession of persons or
their predecessors-in-title claiming by adverse possession must
have "all the qualities of adequacy, continuity and
exclusiveness" necessary to displace the title of the persons
2780
against whom they claim. Relevant extracts from page 78 of the
said judgment reads as follows:
"the mere fact that many years after the sale the
Gangbarar maliks or persons depriving title from them are
obtaining rent for the land is in itself very significant. Even
in a locality exposed to dilution by the action of the river
this circumstance alone might be given considerable
weight. But without sufficient proof to cover the intervening
years it was most reasonably held by the learned
Subordinate Judge to be insufficient. The circumstance that
the Maharaja was not in possession or in receipt of rent is,
it need hardly be said, insufficient under Art. 144 to
warrant a finding of adverse possession on behalf of the
respondents or their predecessors-in-title. Their Lordships
are of opinion that on the materials produced it cannot be
contended that the learned Subordinate Judge was obliged
in law to find that the possession of the principal
respondents had "all the qualities of adequacy, continuity
and exclusiveness" (per Lord Shaw 126 CWN 66610 at p.
673) necessary to displace the title of the Maharaja, and
they think that no reason in law exists why his finding of
fact in this respect should not be final."
2923. In Ramzan and others Vs. Smt. Gafooran (supra)
the Hon'ble Allahabad High Court has held that unless there is
specific plea and proof that adverse possession has disclaimed
his right and asserted title and possession to the knowledge of
the true owner within the statutory period and the true owner has
acquiesced to it, the adverse possessor cannot succeed to have it
established that he has perfected his right by prescription.
Where the adverse possessor were not sure as to who was the
2781
true owner and question of their being in hostile possession,
then the question of denying title of true owner does not arise.
Relevant paras 27, 29 and 30 of the said judgment read as
follows:
"27. It is, therefore, explicit that unless there is specific
plea and proof that adverse possessor has disclaimed his
right and asserted title and possession to the knowledge of
the true owner within a statutory period and the true owner
has acquiesced to it, the adverse possessor cannot succeed
to have it established that he has perfected his right by
prescription."
"29. As pointed out above, where the defendants are not
sure who is the true owner and question of their being in
hostile possession then the question of denying title of true
owner does not arise. At the most, the defendants have
claimed and which is found to be correct by the trial court
that they have been in possession of the disputed property
since the inception of the sale deeds in their favour. They
came in possession, according to their showing, as owner
of the property in question. It follows that they exercised
their right over the disputed property as owner and
exercise of such right, by no stretch of imagination, it can
be said that they claimed their title adverse to the true
owner."
"30. Viewed as above, on the facts of the present case, the
possession of the contesting defendants is not of the variety
and degree which is required for adverse possession to
materialise."
2924. In Qadir Bux Vs. Ramchand (supra) the Hon'ble
Allahabad High Court has held that the term "dispossession"
2782
applies when a person comes in and drives out others from the
possession. It implies ouster; a driven out of possession against
the will of the person in actual possession. The term
"discontinuance" implies a voluntary act and openness of
possession followed by the actual possession of another. It
implies that a person discontinuing as owner of the land and left
it to be dispossessed by any one who has not to come in.
Relevant para 30 of the said judgment reads as follows:
"30. The main point for consideration is whether in such
circumstances it can be said that the plaintiff had been
dispossessed or had discontinued his possession within the
meaning of Article 142 of the First Schedule to the Indian
Limitation Act. The term "dispossession" applies when a
person comes in and drives out others from the possession.
It imports ouster: a driving out of possession against the
will of the person in actual possession. This driving out
cannot be said to have occurred when according to the
case of the plaintiff the transfer of possession was
voluntary, that is to say, not against the will of the person
in possession but in accordance with his wishes and active
consent. The term "discontinuance" implies a voluntary act
and abandonment of possession followed by the actual
possession of another. It implies that the person
discontinuing has given up the land and left it to be
possessed by anyone choosing to come in. There must be
an intention to abandon title before there can be said to be
a discontinuance in possession, but this cannot be assumed.
It must be either admitted or proved. So strong in fact is the
position of the rightful owner that even when he has been
dispossessed by a trespasser and that trespasser abandons
2783
possession either voluntarily or by vis major for howsoever
short a time before he has actually perfected his tittle by
twelve years' adverse possession the possession of the true
owner is deemed to have revived and he gets a fresh
starting point of limitation vide Gurbinder Singh v. Lal
Singh, AIR 1965 SC 1553. Wrongful possession cannot be
assumed against the true owner when according to the
facts disclosed by him he himself had voluntarily handed
over possession and was not deprived of it by the other
side."
2925. In Gurbinder Singh and another Vs. Lal Singh
and another, AIR 1965 SC 1553 the Hon'ble Supreme Court
held that in an order that Article 142 is attracted the plaintiff
must initially found in possession of the property and should
have been dispossessed by the defendant or someone through
whom the defendants claim or alternatively the plaintiff should
have discontinued possession. It has also been held that in a suit
to which Article 144 attracted the burden is on the party who
claims adverse possession to establish that he was in adverse
possession for 12 years before the date of suit and for
computation of this period he can avail of the adverse
possession of any person or persons through whom he claims
but not the adverse possession of an independent trespasser.
Relevant paras 6, 8 and 10 of the said judgment read as follows:
"6. In order that Art. 142 is attracted the plaintiff must
initially have been in possession of the property and should
have been dispossessed by the defendant or someone
through whom the defendants claim or alternatively the
plaintiff should have discontinued possession. It is no one's
case that Lal Singh ever was in possession of the
2784
property. It is true that Pratap Singh was in possession of
part of the property--which particular part we do not
know--by reason of a transfer thereof in his favour by
Bakshi Singh. In the present suit both Lal Singh and
Pratap Singh assert their claim to property by success on
in accordance with the rules contained in the dastur ul
amal whereas the possession of Pratap Singh for some
time was under a different title altogether. So far as the
present suit is concerned it must, therefore, be said
that the plaintiffs--respondents were never in possession
as heirs of Raj Kaur and consequently art. 142 would not
be attracted to their suit."
"8. Mr. Tarachand Brijmohanlal, however, advanced an
interesting argument to the effect that if persons entitled to
immediate possession of land are somehow kept out of
possession may be by different trespassers for a period of
12 years or over, their suit will be barred by time. He
points out that as from the death of Raj Kaur her
daughters, through one of whom the respondents claim,
were kept out of possession by trespassers and that from
the date of Raj Kaur's death right up to the date of the
respondents' suit, that is, for a period of nearly 20 years
trespassers were in possession of Mahan Kaur's, and
after her death, the respondents' share in the land, their
suit must therefore be regarded as barred by time. In other
words the learned counsel wants to tack on the adverse
possession of Bakshi Singh and Pratap Singh to the
adverse possession of the Raja and those who claim
through him. In support of the contention reliance is
placed by learned counsel on the decision in Ramayya v.
2785
Kotamma, ILR 45 Mad 370: (AIR 1922 Mad 59). In order
to appreciate what was decided in that case a brief resume
of the facts of that case is necessary. Mallabattudu, the last
male holder of the properties to which the suit related, died
in the year 1889 leaving two daughters Ramamma and
Govindamma. The former died in 1914. The latter
surrendered her estate to her two sons. The plaintiff who
was a transferee from the sons of Govindamma instituted
a suit for recovery of possession of Mallabattudu's
property against Punnayya, the son of Ramamma to whom
Mallabattudu had made an oral gift of his properties two
years before his death. Punnayya was minor at the date of
gift and his eider brother Subbarayudu was managing the
property on his behalf. Punnayya, however, died in 1894
while still a minor and thereafter his brothers Subbarayudu
and two others were in possession of the property. It
would seem that the other brothers died and Subbarayudu
was the last surviving member of Punnayya's family.
Upon Subbarayudu's death the properties were sold by his
daughters to the third defendant. The plaintiffs- appellants
suit failed on the ground of limitation. It was argued on his
behalf in the second appeal before the High Court that as
the gift to Punnayya was oral it was invalid, that
consequently Punnayya was in possession as trespasser,
that on Punnayya's death his heir would be his mother, that
as Subbarayudu continued in possession Subbarayudu's
possession was also that of a trespasser, that as neither
Subbarayudu nor Punnayya completed possession for 12
years they could not tack on one to the other and that the
plaintiff claiming through the nearest reversioner is not
2786
barred. The contention for the respondents was that there
was no break in possession so as to retest the properties in
the original owners, that Punnayya and Subbarayudu
cannot be treated as successive trespassers and that in any
event the real owner having been out of possession for
over 12 years the suit was barred by limitation. The High
Court following the decision of Mookerjee J. in Mohendra
Nath v. Shamsunnessa, 21 Cal. LJ 157 at p. 164:(AIR 1915
Cal. 629 at p. 633), held that time begins to run against the
lastfull owner if he himself was dispossessed and the
operation of the law of limitation would not be arrested by
the fact that on his death he was succeeded by his widow,
daughter or mother, as the cause of action cannot be
prolonged by the mere transfer of title. It may be
mentioned that as Mallabattudu had given up possession
to Punnayya under an invalid gift Art. 142 of the
Limitation Act was clearly attracted. The sons of
Govindamma from whom the appellant had purchased the
suit properties claimed through Mallabattudu and since
time began to run against him from 1887 when he
discontinued possession it did not cease to run by the mere
fact of his death. In a suit to which that Article applies the
plaintiff has to prove his possession within 12 years of his
suit. Therefore, so long as the total period of the plaintiff's
exclusion from possession is, at the date of the plaintiff's
suit, for a period of 12 years or over, the fact that this
exclusion was by different trespassers will not help the
plaintiff provided there was a continuity in the period of
exclusion. That decision is not applicable to the facts of the
case before us. This is a suit to which Art. 144 is
2787
attracted and the burden is on the defendant to establish
that he was in adverse possession for 12 years before the
date of suit and for computation of this period he can avail
of the adverse possession of any person or persons
through whom he claims--but not the adverse possession of
independent trespassers."
"10. This view has not been departed from in any case. At
any rate none was brought to our notice where it has not
been followed. Apart from that what we are concerned with
is the language used by the legislature in the third column
of Art. 144. The starting point of limitation there stated is
the date when the possession of the defendant becomes
adverse to the plaintiff. The word "defendant" is defined in
S. 2(4) of the Limitation Act thus:
'defendant' includes any person from or through whom a
defendant derives his liability to be sued".
No doubt, this is an inclusive definition but the gist of it is
the existence of a jural relationship between different
persons. There can be no jural relationship between
two independent trespassers. Therefore, where a defendant
in possession of property is sued by a person who has title
to it but is out of possession what he has to show in
defence is that he or anyone through whom he claims has
been in possession for more than the statutory period. An
independent trespasser not being such a person the
defendant is not entitled to tack on the previous possession
of that person to his own possession. In our opinion,
therefore, the respondents' suit is within time and has
been rightly decreed by the courts below. We dismiss
this appeal with costs."
2788
2926. In S.M. Karim Vs. Mst Bibi Sakina (supra) the
Hon'ble Apex Court has held that the alternative claim must be
clearly made and proved, adverse possession must be adequate
in continuity, in publicity and extent and a plea is required at the
least to show when possession becomes adverse so that the
starting point on limitation against the party affected can be
found. A mere suggestion in the relief clause that there was an
uninterrupted possession for "several 12 years" or that the
plaintiff had acquired "a possible title" was not enough to raise
such a plea. Long possession is not necessary adverse
possession and prayer clause is not a substitute for a plea.
Relevant paras 3 to 5 of the said judgment read as follows:
"3. In this appeal, it has been stressed by the appellant
that the findings clearly establish the benami nature of the
transaction of 1914. This is, perhaps, true but the
appellant cannot avail himself of it. The appellant's claim
based upon the benami nature of the transaction cannot
stand because S. 66 of the Code of Civil Procedure bars it.
That section provides that no suit shall be maintained
against any person claiming title under a purchase
certified by the Court on the ground that the purchase was
made on behalf of the plaintiff or on behalf of someone
through whom the plaintiff claims. Formerly, the opening
words were, no suit shall be maintained against a certified
purchaser and the change was made to protect not only the
certified purchaser but any person claiming title under a
purchase certified by the Court. The protection is thus
available not only against the real purchaser but also
against anyone claiming through him. In the present case,
the appellant as plaintiff was hit by the section and the
2789
defendants were protected by it."
"4. It is contended that the case falls within the second
sub-section under which a suit is possible at the instance of
a third person who wishes to proceed against the
property, though ostensibly sold to the certified purchaser,
on tie ground that it is liable to satisfy a claim of such
third person against the real owner. Reliance is placed
upon the transfer by Syed Aulad Ali in favour of the
appellant which is described as a claim by the transferee
against the real owner. The words of the second sub-
section refer to the claim of creditors and not to the
claims of transferees. The latter are dealt with in first sub-
section, and if the meaning sought to be placed on the
second sub-section by the appellant were to be accepted,
the entire policy of the law would be defeated by the real
purchaser making a transfer to another and the first sub-
section would become almost a dead letter. In our opinion,
such a construction cannot be accepted and the plaintiff's
suit must be held to be barred under S. 66 of the Code."
"5. As an alternative, it was contended before us that the
title of Hakir Alam was extinguished by long and
uninterrupted adverse possession of Syed Aulad Ali and
after him of the plaintiff. The High Court did not accept
this case. Such a case is, of course, open to a plaintiff to
make if his possession is disturbed. If the possession of the
real owner ripens into title under the Limitation Act and he
is dispossessed, he can sue to obtain possession, for he
does not then rely on the benami nature of the transaction.
But the alternative claim must be clearly made and
proved. The High Court held that the plea of adverse
2790
possession was not raised in the suit and reversed the
decision of the two courts below. The plea of adverse
possession is raised here. Reliance is placed before us on
Sukan v. Krishanand, ILR 32 Pat 353 and Sri Bhagwan
Singh and others v. Ram Basi Kuer and others, AIR 1957
Pat 157 to submit that such a plea is not necessary and
alternatively, that if a plea is required, what can be
considered a proper plea. But these two cases can hardly
help the appellant. No doubt, the plaint sets out the fact
that after the purchase by Syed Aulad Ali, benami in the
name of his son-in-law Hakir Alam Ali continued in
possession of the property but it does not say that this
possession was at any time adverse to that of the certified
purchaser. Hakir Alam was the son-in-law of Syed Aulad
Ali and was living with him. There is no suggestion that
Syed Aulad Ali ever asserted any hostile title against him
or that a dispute with regard to ownership and possession
had ever arisen. Adverse possession must be adequate in
continuity, in publicity and extent and a plea is required at
the least to show when possession becomes adverse so that
the starting point of limitation against the party affected
can be found. There is no evidence here when possession
became adverse, if it at all did, and a mere suggestion
in the relief clause that there was an uninterrupted
possession for "several 12 years" or that the plaintiff had
acquired "an absolute title" was not enough to raise such a
plea. Long possession is not necessarily adverse possession
and the prayer clause is not a substitute for a plea. The
cited cases need hardly be considered, because each case
must be determined upon the allegations in the plaint in
2791
that case. It is sufficient to point out that in Bishun Dayal
v. Kesho Prasad, A.I.R. 1940 P.C. 202 the Judicial
Committee did not accept an alternative case based on
possession after purchase without a proper plea."
2927. In B. Leelavathi Vs. Honamma (supra) the Hon'ble
Supreme Court has held that the adverse possession is a
question of fact which has to be specifically pleaded and proved
and in the absence of any plea of adverse possession, framing of
an issue and adducing evidence could not held that the plaintiffs
had perfected towards the title by way of adverse possession.
Paras 11 of the judgment read as follows:
"11. Plea of adverse possession had been taken vaguely in
the plaint. No categorical stand on this point was taken in
the plaint. No issue had been framed and seemingly the
same was not insisted upon by the plaintiff-respondent.
Adverse possession is a question of fact which has to be
specifically pleaded and proved. No evidence was adduced
by the plaintiff-respondent with regard to adverse
possession. Honnamma, the plaintiff in her own statement
did not say that she is in adverse possession of the suit
property. We fail to understand as to how the High Court,
in the absence of any plea of adverse possession, framing
of an issue and evidence led on the point, could hold that
the plaintiff-respondent had perfected her title by way of
adverse possession."
2928. In Dharamarajan Vs. Valliammal (supra) the
Hon'ble Supreme Court has held that in a claim of adverse
possession openness and adverse nature of the possession has to
be proved against the owner of the property in question.
Relevant para 11 of the said judgment reads as follows:
2792
"11. In our opinion none of these questions could be said
to be either question of law or a substantial question of law
arising out of the pleadings of the parties. The first referred
question of law could not and did not arise for the simple
reason that the plea of adverse possession has been rightly
found against the plaintiff. Karupayee Ammal's possession,
even if presumed to be in a valid possession in law, could
not be said to be adverse possession as throughout it was
the case of the appellant Dharmarajan that it was a
permissive possession and that she was permitted to stay
on the land belonging to the members of the Iyer family.
Secondly it has nowhere come as to against whom was her
possession adverse. Was it adverse against the Government
or against the Iyer family? In order to substantiate the plea
of adverse possession, the possession has to be open and
adverse to the owner of the property in question. The
evidence did not show this openness and adverse nature
because it is not even certain as to against whom the
adverse possession was pleaded on the part of Karupayee
Ammal. Further even the legal relationship of
Doraiswamy and Karupayee Ammal is not pleaded or
proved. All that is pleaded is that after Karupayee
Ammal's demise Doraiswamy as her foster son continued in
the thatched shed allegedly constructed by Karupayee
Ammal. There was no question of the tacking of possession
as there is ample evidence on record to suggest that
Doraiswamy also was in the service of Iyer family and that
he was permitted to stay after Karupayee Ammal. Further
his legal heirship was also not decisively proved. We do
not, therefore, see as to how the first substantial question of
2793
law came to be framed. This is apart from the fact that
ultimately High Court has not granted the relief to the
respondents on the basis of the finding of this question. On
the other hand the High Court has gone into entirely
different consideration based on reappreciation of
evidence. The second and third questions are not the
questions of law at all. They are regarding appreciation of
evidence. The fourth question is regarding the admissibility
of Exhibit A-8. In our opinion there is no question of
admissibility as the High Court has found that Exhibit A-8
was not admissible in evidence since the Tehsildar who had
issued that certificate was not examined. Therefore, there
will be no question of admissibility since the document
itself was not proved. Again the finding of the High Court
goes against the respondent herein. Even the fifth question
was a clear cut question of fact and was, therefore,
impermissible in the Second Appeal."
2929. In A.S. Vidyasagar (supra) the Hon'ble Supreme
Court has held that permissive possession is not adverse
possession and can be terminated at any time by the rightful
owner. Relevant para 5 of the judgment reads as follows:
"5. Adverse possession is sought to be established on the
supposition that Kanthimathi got possession of the
premises as a licensee and on her death in 1948, the
appellant who was 4 years of age, must be presumed to
have become a trespasser. And if he had remained in
trespass for 12 years, the title stood perfected and in any
case, a suit to recovery of possession would by then be
time-barred. We are unable to appreciate this line of
reasoning for it appears to us that there is no occasion to
2794
term the possession of Kanthimathi as that of a licensee.
The possession was permissive in her hands and remained
permissive in the hands of the appellant on his birth, as
well as in the hands of his father living then with
Kanthimathi. There was no occasion for any such licence
to have been terminated. For the view we are taking there
was no licence at all. Permissible possession of the
appellant could rightfully be terminated at any moment by
the rightful owners. The present contesting respondents
thus had a right to institute the suit for possession against
the appellant. No oral evidence has been referred to us
which would go to support the plea of openness, hostility
and notoriety which would go to establish adverse
possession. On the contrary, the Municipal Tax receipts,
Exts. B-39 and 40, even though suggestedly reflecting
payment made by the appellant, were in the name of
Kuppuswami, the rightful owner. This negates the assertion
that at any stage did the appellant assert a hostile title.
Even by examining the evidence, at our end, we come to the
same view as that of the High Court. The plea of adverse
possession thus also fails. As a result fails this appeal.
Accordingly, we dismiss the appeal, but without any order
as to costs."
2930. In Goswami Shri Mahalaxmi Vahuji Vs. Shah
Ranchhoddas Kalidas, AIR 1970 SC 2025 the Hon'ble
Supreme Court held that a party cannot be allowed to set up a
case wholly inconsistent with that pleaded in there written
statement. Relevant para 8 of the said judgment reads as
follows:
"8. We may now proceed to examine the material on
2795
record for finding out 'the true character of the suit
properties viz. whether they are properties of a public trust
arising from their dedication of those properties in favour
of the deity Shree Gokulnathji or whether the deity as
well as the suit properties are the private properties of
Goswami Maharaj. In her written statement as noticed,
earlier, the Ist defendant took up the specific plea that the
idol of Shree Gokulnathji is the private property of the
Maharaj the Vallabh Cult does not permit any dedication
in favour of an idol and in fact there was no dedication in
favour of that idol. She emphatically denied that the suit
properties were the properties of the deity Gokulnathji but
in this Court evidently because of the enormity of evidence
adduced by the plaintiffs, a totally new plea was taken
namely that several items of the suit properties had been
dedicated to Gokulnathji but the deity being the family
deity of the Maharaj, the resulting trust is only a private
trust. In other words the plea taken in the written statement
is that the suit properties were the private properties of the
Maharaj and that there was no trust, private or public. But
the case argued before this Court is a wholly different one
viz., the suit properties were partly the properties of a
private trust and partly the private properties of the
Maharaj. The Ist defendant cannot be permitted to take up
a case which is wholly inconsistent with that pleaded. This
belated attempt to bypass the evidence adduced appears to
be more a manor than a genuine explanation of the
documentary evidence adduced. It is amply proved that
ever since Mathuranathji took over the management of the
shrine, two sets of account books have been maintained,
2796
one relating to the income and expenses of the shrine and
the other relating to that of the Maharaj. These account
books and other documents show that presents and gifts
used to. be made to the deity as well as to the Maharaj. The
two were quite separate and distinct. Maharaj himself has
been making gifts to the deity. He has been, at times
utilising the funds belonging to. the deity and thereafter
reimbursing the same. The account books which have been
produced clearly go to show that the deity and the Maharaj
were treated as two different and distinct legal entities. The
evidence afforded "by the account books is tell-tale. In the
trial court it was contended on behalf of the Ist defendant
that none of the account books produced relate exclusively
to the affairs of the temple. They all record the transactions
of the Maharaj, whether pertaining to his personal
dealings or dealings in connection with the deity. This is an
obviously untenable contention. That contention was given
up in the High Court. In the High Court it was urged that
two sets of account books were kept, one relating to the
income and expenditure of the deity and the other of the
Maharai so that the Maharai could easily find out-his
financial commitments relating to the affairs of the deity.
But in this Court Mr. Narasaraju, learned Counsel for the
appellant realising the untenability of the contention
advanced in the courts below presented for our
consideration a totally new case and that is that
Gokulnathji undoubtedly is a legal personality; in the past
the properties had been dedicated in favour of that deity;
those properties are the properties of a private trust of
which the Maharaj was the trustee. On the basis of this
2797
newly evolved theory he wanted to explain away the effect
of the evidence afforded by the account books and the
documents. We are unable to accept this new plea. It runs
counter to the case pleaded in the written statement. This is
not a purely legal contention. The Ist defendant must have
known whether there was any dedication in favour of Shri
Gokulnathji and whether any portion of the suit
properties were the properties of a private trust. She and
her adviser's must have known at all relevant times the true
nature of the accounts maintained. Mr. Narasaraju is not
right in his contention that the plea taken by him in this
Court is a purely legal plea. It essentially relates to
questions of fact. Hence we informed Mr. Narasaraju that
we will not entertain the plea in question."
2931. In the matter of plea of adverse possession, mutually
inconsistent or mutually destructive pleas must not be taken in
the plaint. Whenever the plea of adverse possession is raised, it
pre supposes that onwer is someone else and the person taking
the plea of adverse possession is not the actual owner but has
perfected his title by prescription since the real owner failed to
initiate any proceeding for restoring the possession within the
prescribed period under the statute.
2932. In P Periasami Vs. P Periathambi (supra) it was
said:
Whenever the plea of adverse possession is projected,
inherent in the plea is that someone else was the owner of
the property.
2933. In Mohan Lal v. Mirza Abdul Gaffar (1996) 1SCC
639, the Court said
"As regards the first plea, it is inconsistent with the
2798
second plea. Having come into possession under the
agreement, he must disclaim his right thereunder and plead
and prove assertion of his independent hostile adverse
possession to the knowledge of the transferor or his
successor in title or interest and that the latter had
acquiesced to his illegal possession during the entire
period of 12 years, i.e., up to completing the period his title
by prescription nec vi, nec clam, nec precario.
2934. In Karnataka Board of Wakf Vs. Government of
India & others (2004) 10 SCC 779, the Court held that
whenever the plea of adverse possession is projected, inherent
therein is that someone else is the owner of the property. In para
12 it said:
The pleas on title and adverse possession are
mutually inconsistent and the latter does not begin to
operate until the former is renounced.
2935. The decision in Mohal Lal (supra) has also been
followed in Karnataka Board of Wakf (supra) and in para 13,
the Court said:
As we have already found, the respondent obtained
title under the provisions of the Ancient Monuments Act.
The element of the respondent's possession of the suit
property to the exclusion of the appellant with the animus
to possess it is not specifically pleaded and proved. So are
the aspects of earlier title of the appellant or the point of
time of disposition. Consequently, the alternative plea of
adverse possession by the respondent is unsustainable.
2936. The propositions laid down above, in our view,
admit no exceptions and we are in general respectful agreement.
2937. Thus in the light of the above legal principles, we
2799
shall endeavour to find out whether Muslims are in possession
of the property in suit i.e. Suit-1 from 1528 AD continuously,
openly and to the knowledge of plaintiff and Hindus in general,
and, if so, its effect. Here we may remind that property in suit
with reference to Suit-1 means the inner courtyard and the
building.
2938. First of all, the pleadings need be seen to find out
entry of Muslims for taking possession of the property in suit, as
claimed, from 1528 AD. Their case is that (a) the disputed
structure was raised by Emperor Babar after conquering India
and during the period when he stayed at Ayodhya through his
Governor/Commander/Counselor (Vazir) Mir Baqi in 1528 AD.
(b) After construction of the disputed structure he dedicated it as
Waqf in general for the benefit of entire Muslim and Muslims,
therefore, have a right of worship therein. (c) Emperor Babar
after the above construction of the disputed mosque (disputed
structure) made a grant of Rs. 60/- per annum from his royal
treasury towards Khitabat (recitation of Khutb), repair and
miscellaneous expenses of disputed mosque. (d) The above
grant continued during Mughal regime. During the period of
Nawabs of Awadh, the amount of grant was increased to Rs.
302 Anna 3 paissa 6 per annum. The above grant continued by
British Government also and at the time of first settlement.
2939. It is in fact not disputed by learned counsels for the
parties that Babar-Nama, whether translated by A.S.Beveridge
or others i.e. John Layden, William Erskine, F.G.Talbot,
Elphinstone etc. none contain anything to show that Babar ever
entered Ayodhya city or crossed Saryu river or otherwise
reached thereto. The description available in Babar-Nama (the
description for the period 3
rd
April, 1528 to 17
th
September,
2800
1528 is not available), shows that Babar reached near Ayodhya
on 28.3.1528 AD and stayed about 2-3 kos away but with
respect to his visit or entry in Ayodhya, at least in Babar Nama,
there is nothing. Therefore, the question that he himself visited
Ayodhya and commanded for construction of a mosque thereat
does not arise. Similarly whether he issued such a command to
anyone is also not shown. Al least is is not proved at all. The
claim of the Muslim parties that as a result of dedication by
Babar, they came in possession, therefore, renders baseless and
falls on the ground.
2940. It is also not in dispute that there is no evidence,
documentary or otherwise, which may show that Babar or any
of his agent made any waqf or dedicated any property for public
use or that the Muslims in general or in particular were placed in
possession of any part of the land comprising the disputed site
and no direct evidence is available.
2941. We do find the situation improbable due to lapse of
long time but then in order to find out correctness of such a
positive averment, we have an option to look into other material
to search for other probabilities. Reason being that these are the
this is a facts pleaded by defendants 1 to 5 (Suit-1), as is evident
from para 9 and 16 of the plaint. This is a fact in issue,
therefore, evidence has to be adduced by the defendants 1 to 5
(Suit-1). The burden lie on them. Since all the four suits were
clubbed together and evidence has been recorded permitting to
be used interchangeably we make no distinction in evidence if
led on behalf of muslim parties. On this aspect, their stand is
substantially same.
2942. The burden primarily lie on the party who desires
the Court to give judgment as to any legal right or liability
2801
dependent on the existence of fact which he asserts. In other
words, a person who has invited a Court to give judgment on
any legal right or liability and in support thereof has pleaded
existence of certain facts to prove the existence of those facts,
the result of the person failing to do so, would go against him.
When the muslim parties plead that the Muslims have
possession over the wakf Maszid Babri since 1528, the burden
of proof lie upon the plaintiffs to prove existence of the said
facts. There cannot be any defence that the matter relates back
to an event which occurred 433 years back, and suit was filed
after more than 400 years, therefore, it is not possible to produce
any direct evidence. Since it is a fact not admitted by the other
side, i.e., the Hindu parties, burden of proof lie upon the muslim
parties to prove the aforesaid facts. In a issue relating to the title
no presumption can help. This would also not be a matter of
public history for which the Court may resort for its aid to
appropriate books and documents of reference under Section 57
of the Indian Evidence Act, 1872 (hereinafter referred to as
Evidence Act). In a title suit, the contents of Gazetteer etc.
also cannot be relied to prove title of the party concerned but
they have to prove the same by producing relevant evidence.
Though we have not excluded various historical documents and
books made available to us to find out the truth, primarily onus
lie upon the muslim parties to place relevant evidence so as to
claim successful execution of the plea of continuous possession.
2943. Issue No. 7 (Suit-1) though not very specifically but
is based on the claim of Muslim parties that they have matured
their title due to adverse possession, this issue has been framed
and, therefore, requisite pleadings and proofs, i.e., onus would
lie upon the defendants no. 1 to 5 and 10. We have reproduced
2802
the pleadings of the defendants 1 to 5 and 10 relevant for the
aforesaid Issue No. 7 (Suit-1) and it is evident therefrom that the
claim for title on account of adverse possession was pleaded
only in para 16 of the written statement of defendants no. 1 to 5
but no such pleading find mention in the written statement filed
on behalf of defendant no. 10. The defendants no. 1 to 5 have
died long back and there is no substitution in Suit-1 except of
defendant no. 2/1. Therefore, strictly speaking, except defendant
no. 2/1, the defendants no. 1 and 3 to 5 cease to be party in Suit-
1. However, no evidence led on behalf of these defendants.
2944. The pleadings of defendant no. 10 are much short of
the requirement of such a case of possession. Despite our best
endeavour, we find no clear averments or something even
suggesting their claim with regard to title on the basis of adverse
possession. The principles laid down for defence based on
adverse possession necessitates party to plead who is the owner
of the property against whom he is possessing the land to his
knowledge, and is continuously, openly enjoying it peacefully
for the period of limitation prescribed under the statute and that
too exclusive and uninterrupted. We find no such pleading in the
written statement of defendant no. 10 (Suit-1). In fact, the
defendant no. 10 in para 19 of its written statement has pleaded
that the plaintiff has neither shown any personal claim or title
over the property in suit nor has been able to set up any right or
title over the said property on the basis of customary or
easementary right. Para 19 of the written statement of defendant
no. 10 in Suit-1 is reproduced as under:
"That the plaintiff has neither shown any personal claim or
title in the plaint over the property in suit nor he has been
able to set up any right or title over the said property on
2803
the basis of customary or easementary right,"
2945. This shows that the defendant no. 10 was aware that
the suit has not been filed by the plaintiff claiming himself to be
the owner of the property in dispute or having a title over the
same in any other manner. Further, from a reading of para 10,
11 and 25 of the written statement of defendant no. 10 together,
it appears that the claim of defendant no. 10 throughout in Suit-
1 is that the ownership of the property in dispute vest in God
almighty after the creation of Wakf and construction of a
Mosque by Mir Baki during the regime of Emperor Babar and
since then, it continuously being used and possessed by
Muslims for worship and none else. In para 17 of the written
statement, defendant no. 10 has pleaded that the plaintiff has
never remained in possession or occupation of the building in
suit, he has no right, title or claim over the said property and as
such the suit is barred by the provisions of Section 41 of the
Specific Relief Act. In para 15, the case set up is that Muslims
had all along remained in possession of the said mosque right
from 1528 AD upto the date of attachment of the said mosque
under Section 145 Cr.P.C. We may add that the date of
attachment is 29
th
December, 1949. Therefore, in the entire
written statement of defendant no. 10, we fail to find any case of
adverse possession set up by defendant no. 10. So far as simple
possession since 1528 AD is concerned, even in that respect no
evidence has been placed.
2946. It would be useful to refer certain observations of a
Single Judge of this Court in Abdul Halim Khan Vs. Raja
Saadat Ali Khan and others, AIR 1928 Oudh 155, which, in
our view, squarely applies to the facts and pleadings of this case
and we are in respectfully agreement therewith:
2804
One of the general principles governing the law of
limitation is that a person can only be considered to be
barred, if he has a right to enter and does not exercise that
right within the period fixed by the Limitation Act. The
maxim of law is contra non valentem agree nulla currit
praescriptio (prescription does not run against a party who
is unable to act); vide Broom's Legal Maxims, 9
th
edn., p.
576. Accordingly possession cannot become adverse
against a person as long as he is not entitled to claim
immediate possession. Ex facie it must follow that a person
who is not in existence cannot be considered to be in a
position to claim whether immediate or otherwise. It is
evident that in the eyes of the law the plaintiff did not come
into existence as long as he was not adopted. His adoption
took place on 27
th
July 1914. He must be deemed to have
come into existence only then. It was, therefore, obviously
not possible for him to claim possession of the property
before that date, and if he was not in a position to claim it
at all, having not been then in existence, it would be absurd
to say that another person was in possession adversely to
him. One might fairly ask: Adverse against whom? It
certainly cannot be adverse against the plaintiff, who
was not then in existence. It may have been adverse
against any other person, but we are not concerned with
such person unless the plaintiff can be shown to have
derived his title from such person. (page189-190)
2947. Recently, in Vishwanath Bapurao Sabale (supra),
the Apex Court in respect to a claim of title based on the
pleading of adverse possession said as under:
"for claiming title by adverse possession, it was necessary
2805
for the plaintiff to plead and prove animus possidendi.
A peaceful, open and continuous possession being the
ingredients of the principle of adverse possession as
contained in the maxim nec vi, nec clam, nec precario, long
possession by itself would not be sufficient to prove adverse
possession."
2948. What should have been pleaded and what a person
claiming adverse possession has to show has been laid down by
the Apex Court categorically in Karnataka Board of Wakf
(supra) :
11. In the eye of the law, an owner would be
deemed to be in possession of a property so long as there is
no intrusion. Non-use of the property by the owner even for
a long time won't affect his title. But the position will be
altered when another person takes possession of the
property and asserts a right over it. Adverse possession is a
hostile possession by clearly asserting hostile title in denial
of the title of true owner. It is a well- settled principle that
a party claiming adverse possession must prove that his
possession is nec vi, nec clam, nec precario, that is,
peaceful, open and continuous. The possession must be
adequate in continuity, in publicity and in extent to show
that their possession is adverse to the true owner. It must
start with a wrongful disposition of the rightful owner and
be actual, visible, exclusive, hostile and continued over the
statutory period. ..... Physical fact of exclusive possession
and the animus posdendi to hold as owner in exclusion to
the actual owner are the most important factors that are to
be accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one
2806
of fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other
party, (d) how long his possession has continued, and (e)
his possession was open and undisturbed. A person
pleading adverse possession has no equities in his favour.
Since he is trying to defeat the rights of true owner, it is for
him to clearly plead and establish all facts necessary to
establish his adverse possession.
2949. Earlier also, a three-Judges Bench of Apex Court in
Parsinni & another Vs. Sukhi (supra) laid down the following
three requisites for satisfying the claim based on adverse
possession:
"5. The appellants claimed adverse possession.
The burden undoubtedly lies on them to plead and prove
that they remained in possession in their own right adverse
to the respondents. .... Possession is prima facie evidence
of title. Party claiming adverse possession must prove that
his possession mast be "nee vi nee clam nee precario" i.e.
peaceful, open and continuous. The possession must be
adequate, in continuity, in publicity and in extent to
show that their possession is adverse to the true owner."
2950. In Maharaja Sir Kesho Prasad Singh Bahadur
(supra), it was held that in order to obtain a favourable finding
of adverse possession, one must have to satisfy all the qualities
of adequacy, continuity and exclusiveness. Reliance was placed
on Kuthali Moothavur Vs. P. Kunharankutty AIR 1922 PC
181.
2951. We can look into this issue from another angle. A
2807
perusal of the entire plaint (suit-1) would show that the
plaintiff's case is not that of title or ownership of the property in
dispute. What he actually claim is that he believes and treat the
site in dispute being the birth place of Lord Rama having certain
religious symbols like, idol of Lord Rama, Charan Paduka etc.
which is worshipped by Pooja and Darshan since long past
without any obstruction and is entitled to exercise his aforesaid
right of worship without any interference. He expressed an
apprehension of removal of existing idols of Lord Rama kept at
the place in dispute, the boundary whereof is mentioned at the
bottom of the plaint (suit-1), hence, he has sought a declaration
that he is entitled to visit and worship the place in dispute
without any obstruction according to religious scriptures of
Hindus and the defendants have no right to interfere in the
aforesaid right of the plaintiff. He further has sought a
permanent mandatory injunction restraining the defendants from
removing idols of Lord Rama from the place they are, not to put
lock on the entry door and not to create any obstruction in Pooja
and Darshan in any manner. The boundary given at the bottom
of the plaint shows that the premises in dispute in Suit-1
constitute only the "inner courtyard" and "building" existed
thereat. In fact, the plaintiff has not even mentioned the
existence of any building but he has simply said that at the place
at which the idols of Lord Rama were existing on the date of
filing of the suit be not removed. The plaint is verified and
signed on 13
th
January 1950 and filed in the Court on 16.1.1950.
Therefore, averments in various paragraphs of the plaint
obviously relate at least to that date.
2952. There is no claim of ownership or title by the
plaintiff. It is a simple suit seeking continuous enforcement of
2808
right of worship and a restraint order against the defendants
from creating any obstruction in exercise of the said right. In the
absence of any claim set up by the plaintiff about his title etc.,
we find no occasion on the part of the defendants to claim that
they are possessing property in dispute continuously, openly and
to the knowledge of the plaintiff, and Hindus in general, when
all this has nothing to do with the plaintiff's right of worship
which he claims to have been exercising much before the date of
filing of the suit and want continuance of that right without any
interference. So far as the plea of holding possession of the
property in dispute against the Hindus in general, we find that a
statement under Order X Rule 2 C.P.C. was made on behalf of
the plaintiff on 15.09.1951 wherein it has clearly been stated
that Suit-1 is not a representative suit but has been filed for
enforcing personal right of worship of the plaintiff, as is evident
from following:
Q. In what capacity does the plaintiff seek to exercise
the relief which he seeks in the plaint.
Ans. In my individual capacity.
Q. What is your individual capacity.
Ans. My individual capacity is distinct from public
capacity and in this matter an idol worshipper."
2953. The case set up by the defendant-muslim parties
against the plaintiffs in this case is a bit in deviation to what
actually the dispute is. The plaintiffs neither asserted his
possession over the property in dispute nor disputed anybody's
possession. 'Possession' means what we understand even if it has
to be seen in the context every time as defined and discussed in
detail above. The consensus of the meaning of the word
possession or what the term "possession" connotes is something
2809
showing actual power over the object concern, amount of will
one can exercise, and intention to possess something. Not the
least, the power of authority to exclude others is also an integral
part thereof. Possession is nine parts of the law means the
person in possession can only be ousted by one whose title is
better than his. All these factors, in our view, are absent when a
person claims exercise of a right other than based on possession.
The plaintiff has sought to assert right of worship at the place in
dispute, alleging some kind of interference at the end of
defendants. He has sought a declaration about his right of
worship, and, its enforcement without any restriction and further
that the place in dispute as it stood on the date he filed the suit
should remain undisturbed since he had been exercising his right
of worship with the same status in the past also. The later
question necessarily give birth to another question as to whether
the status of the place in dispute, as stated on the date of filing
of the suit, was actually the same for sufficiently past time as
claimed by the plaintiff. That may be one which need to be
decided on the basis of evidence, but so far as principal question
is concerned it remains the same, i.e., enforcement of right of
worship only, without claiming title, ownership or possession of
the property. A worshipper when go to a religious place does
not come into possession of the place of worship since it is a
kind of incorporeal right not connected directly with the
possession of the property in the sense, the term "possession in
law" usually is known but it is a kind of enjoyment of a property
and that too temporarily, for a small time, though frequently. As
stated by the Privy Council in Mosque known as Masjid
Shahid Ganj (supra) the right of worshipper may be regarded
as an individual right. It is not a sort of easement in gross but an
2810
ultimate in general right of a beneficiary. This individual
character of the right to go to a mosque or temple for worship
matters nothing when the land is no longer a waqf or a temple.
If for one or the other reasons the subject itself goes or
disappear the right of all beneficiaries would also go and then
the worshipper cannot ask for recovery or reconstruction of the
endowment on the ground that since he had a beneficiary right
of worship, for his right cannot extend beyond subject matter. In
this case, the defendant, probably to defeat this assertion of the
plaintiff that the property in dispute is a temple open for worship
by a Hindu, pleaded the construction of mosque in 1528 AD and
continuous possession and worship by muslims since then. The
initial onus lie upon the plaintiff, but having discharged the
same, it shifts to the muslim side. The onus is different than
burden. Onus may continue to shift. That being so, obviously
the onus lie upon the muslim parties to prove it. To start, they
proceeded with two inscriptions claimed to be fixed on the
property in dispute since the time it was constructed. Those
inscriptions, we have already discussed in detail while
discussing issues relating to period of construction, and have
held that it is not proved that those inscriptions were installed in
1528 AD or that the building in dispute itself was constructed in
1528 AD and the muslim parties pleading this fact have not
been able to prove it. The two inscriptions have been held
unworthy of any reliance.
2954. Next comes a complaint dated 28.11.1858 submitted
by Thanedar Sheetal Dube and some other documents which we
shall discuss a bit later. But at this stage we may point out that
the claim of adverse possession in the light of Article 144 or
extinction of title vide Section 27 of the Limitation Act, in a
2811
case where enforcement of a right of worship is involved, may
not be attracted.
2955. When a right of worship is claimed and it is said that
no obstruction should be created therein, it is a de die indium
right and interference, if any, as and when made also would
confer a fresh cause of action. The Privy Council in Hukum
Chand Vs. Maharaj Bahadur Singh (supra) has said that the
section of the Swetambari in placing charans with the nails in
three of the shrines is a wrong of which the Digambaris are
entitled to complaint and is a continuing wrong, as to which
under Section 23 a fresh period begins to run at every moment
of the day on which the wrong continues.
2956. That being so, since the cause of action is a
continuing one, the question of any benefit under Article 144 of
LA 1908 even otherwise would not arise.
2957. If we take the Issue 7 (Suit-1) as if it only talks of
possession of the property in suit continuously, openly from
1528 to the knowledge of plaintiff, and Hindus in general, and
having no concern with the building, the nature of possession,
whether adverse or otherwise, even then we find that Muslims
have completely failed to prove the same. Except of bare
pleadings, nothing has been brought on record to prove that the
Muslims kept possession of the property in Suit from 1528 and
onwards. The issues pertaining to date of construction have
already been decided by us and we have recorded a finding that
the Muslim parties have failed to prove that the disputed
structure was constructed in 1528. In view of the aforesaid
finding, the question of possession of property in dispute by
Muslims in 1528 even otherwise would not arise. There are a
few published documents, i.e., books which throw some light
2812
about the persons visiting the disputed site between 1528 to
1858. The first one is a Travellers' Account of William Finch
who visited India between 1607 to 1611. Therein neither he
found any such Mosque in the area called fort of Ram Chandra
nor he found any Muslim person visiting that area. Instead he
has mentioned that Hindus visit the place in the belief that it is
the place belong to Lord Rama. This Traveller's Account has
been published by William Foster in his book "Early Travels in
India" (supra) (Book No. 60). At page 176 thereof (Exhibit 19
Suit 5, Register 21 Page 271), William Finch has said:
"the castle built foure hundred yeeres agoe. Heere are also
the ruines of Ranichand(s) castle and houses, which the
Indians acknowled(g)e for the great God, saying that he
tooke flesh upon him to see the tamasha of the world. In
these ruines remayne certaine Bramenes, who record the
names of all such Indians as wash themselves in the river
running thereby; which custome, they say, hath continued
foure Iackes of yeeres ..."
2958. Then comes the Traveller's Account of Father
Joseph Tieffenthaler, who visited Oudh area sometimes between
1766 to 1771. He mentions, Emperor Aurengzebe got the
fortress called Ramcot demolished and got a Muslim temple,
with triple domes, constructed at the same place. Others say that
is was constructed by 'Babor'. Fourteen black stone pillars of 5
span high, which had existed at the site of the fortress, are seen
there. Tieffenthaler did not find any Muslim visiting the said
place which is clearly the place in dispute. Tieffenthelar,
however, has referred to the visit of Hindus and their worship in
the disputed site by going for parikrama thrice and prostrating
on the ground.
2813
2959. Then comes Walter Hamilton's East India
Gazetteer (supra) (first published in 1828). On page 353
under heading 'Oude', he says:
"This town is esteemed one of the most sacred places
of antiquity.
Pilgrims resort to this vicinity, where the remains of
the ancient city of Oude, and capital of the great Rama, are
still to be seen; but whatever may have been its former
magnificence it now exhibits nothing but a shapeless mass
of ruins. .... among which are the reputed site of temples
dedicated to Rama, Seeta, his wife, Lakshman, his general,
and Hanimaun (a large monkey), his prime minister. The
religious mendicants who perform the pilgrimage to Oude
are chiefly of the Ramata sect, who walk round the
temples and idols, bathe in the holy pools, and perform the
customary ceremonies.
2960. In 1858 came another "Gazetter" of Edward
Thornton (supra) (Book No. 10) (Exhibit 5, Suit-5). There also
is a mention of building of a Mosque after demolition of a
temple. It also says that the Mosque is embellished with
fourteen columns of only five or six feet in height, but of very
elaborate and tasteful workmanship. It also talks of a
quadrangular coffer of stone, whitewashed, five ells long, four
broad, and protruding five or six inches above ground as the
cradle in which Rama was born as the seventh avatar of Vishnu;
and is accordingly abundantly honoured by the pilgrimages and
devotions of the Hindus. This clearly show the existence of the
Bedi found by Tieffenthaler at the disputed site, reiterated by
Edward Thornton in his Gazetteer published in 1858, and that
the Hindus used to visit the property in suit but there is nothing
2814
to show that at any point of time Namaz was offered by
Muslims and they used to visit it.
2961. There are some documents also and their effect may
be perused hereat. The first document is a letter/application
dated 28
th
November, 1858 of Sheetal Dubey, Thanedar
(Exhibit-19, Suit-1) (Register -5, page 61) which says as under:

n| i-n,
i i i i - --| lr n lr | iii il
- ~ i | -l - -ii r i i n niil
l r - li i lii | ini ii li i i|
li i| i-n lr i n n ii lii ri r|
il ii li| i ni in ; i i ii ri i i|
n
|
l | i|n ii i i -i ii zs - srs ;
(Hindi Transliteration)
Gareeb Parwar salamat Khuda wand,
Today Mr. Nihang Singh Faqir Khalsa resident of
Punjab, organised Hawan and Puja of Guru Govind
Singh and erected a symbol of Sri Bhagwan, within the
premises of the Masjid. At the time of pitching the symbol,
25 sikhs were posted there for security. Deemed necessary
so requested. May your regime progress. Pleasure.
2815
Applicant.
Your obedient servant
Sheetal Dubey, Thanedar Oudh
Dated November 28, 1858.
2962. A perusal of the said letter/application shows that it
was a kind of information conveyed by the above police official
seeking instructions for further action but do not show either
that the Muslims were in possession of the property or the
building in dispute or the disputed site or that there used to be
any Namaz therein. But this, however, shows that on the site in
dispute, existence of Mosque is recognised.
2963. The letter dated 30
th
November, 1858 (Exhibit 20,
Suit-1) (Register 5, page 65) is a complaint made by Syed
Mohd. claiming himself to be a Khateeb (Moazzim Maszid
Babri) at Oudh. The contents of this document have also been
published in a Book which has been placed before us. Exhibit
17 (Suit-5) (Register 20, pages 187-197) contains photocopy of
frontispiece and Annexure-4 from the book Babri Masjid by
Syed Shahabuddin Abdurrhman, 3
rd
Edn. 1987 published at
Azamgarh. It contains contents of a petition of Mohammad
Asgar on 30.11.1858. The typed Hindi transliteration supplied
by the plaintiffs (Suit-5) at page 197 Register 20 (paper no.
107C1/81) reads as under:
(i| -l-)
i i| - i- n i i r -l- - i- ;in - -ii
r l i i r r | il - -
-i| i - i - - -i i i ri l i i
i rni i i r r i n i | ni ili
li n i- ii i i ilni iii - ni r -
i i-n - -iln il r i ii | iln
n i i li| n ir l-| l- ri -il
r - i ir l-i ri ii i i -i li in|
2816
-i i - n r i l ri ; n | i| n-|
i n n i i li r ; n |r lin| iln r ri i
--|i r l i- - ni ii i ni ir r - ri l
ini - i -i i; i - in | i i i
- -i r i ir -l- |
-i r-- i n|
-i l -l- i| i i
so - srs ;
Respected Sir, It is matter of your honour's attention.
Kindly consider the fact that Masjid is a place of worship
of the Muslims and not that of Hindus. Previously the
symbol of Janamasthan had been there for hundreds of
years and Hindus did Puja. Because of conspiracy of Shiv
Ghulam Thandedar Oudh Government, the Bairagis
constructed overnight a Chabutra up to height of one
'Balisht' until the orders of injunction were issued. At that
time the Deputy Commissioner suspended the Thanedar
and fine was imposed on Bairagis. Now the Chabootra has
been raised to about 1 yards. Thus sheer high-
handedness has been proved. Therefore it is requested that
Murtaza Khan Kotwal City may be ordered that he himself
visit the spot and inspect the new constructions and get
them demolished (sic) and oust the Hindus from there; the
symbol and the idol may be removed from there and
writing on the walls be washed.".
Sd/- Syed Mohammad Khatib,
Moazzim Masjid Babri sites in Oudh
Dated November 30, 1858." (ETC)
Copy of letter dated 30.11.1858 is Exhibit 20 (Suit-1)
(Register-5 page 65).
2964. This complaint is also in the same line as that of the
2817
letter dated 28
th
November, 1858 (Ex.-19, Suit 1). It also does
not show that regular Namaz was offered in the disputed
building or disputed site or that the Muslims used to visit
regularly or occasionally treating it a place of worship. On the
contrary, complaint says that the Hindu religious symbols have
been placed inside and for hundreds of years Hindus are
worshipping thereat. This goes against the claim that Namaz
was going on. It proves that no namaz inside at least till 30
th
November, 1858 when the above complaint made or was
offered. Further, at the disputed site, worship by Hindus was
continuing and that too for the last hundreds of years.
2965. Exhibit 21 (Suit-1) (Register 5 page 69-72A) is a
report dated 01.12.1858 submitted by Sheetal Dubey Thanedar
Oudh communicating the order of higher authority to Sant
Nihang Singh, Faqir for leaving the place but receive no reply.
Sheetal Dubey reported what actually transpired. There is
nothing to show that actually the aforesaid/Nihang was evicted
from the disputed site or that symbol of worship etc., he had
created, was removed. It also appear that Sheetal Dubey sought
further instructions from higher authority. To us, this document
also does not help the Muslims to prove their possession at the
disputed site and the building.
2966. Exhibit 22 (Suit-1) (Register 5, page 73) is again a
report dated 6
th
December, 1858 of Sheetal Dubey informing
that the notice of eviction was served upon Nihang Singh Fakir.
This also does not inform the consequences of such service.
2967. It appears that an order was passed to oust the Fakir
and remove symbol and to arrest him and send to the Court.
Exhibit A-70 (Suit-1) (Register 8, Page 573) is a copy of the
said order dated 15th December, 1858.
2818









"Copy of the order dated 05.12.58, Suit No.884.
Application Thanedar Oudh for re-erecting the symbol in
the Majid Janam Asthan, Tek Singh Faqir Khalsa.....
(Sic)...decided on December 6, 1858.
In the case was Robekar issued today. It was known
that as per order dated November 30, 1858, the Faqir
sitting in the Masjid Babri be ousted. Parwana to the
Thanedar Oudh with the order ..... (Sic)... that if the
Faqir does not move from there, he should be arrested
and sent to the Court. December 5, 58.
Signature of the officer in English.
Note ............is not legible."
2968. Pursuant thereto Thanedar P.S. Oudh submitted
report i.e. Ex. A-69 (Suit 1) (Register 8 Page 569) on the same
date of its compliance i.e. removal of religious symbol and
ouster of Faqir from the mosque. It says:


( )


2819



r - -i ii o l- srs ; o - -i o ss |
iiii i ii lii -l- --ii n - l r
| iii -ir~i i-i - i - i- - i r l-
/rs i i i r i l- n i -l- --ii ii i ni
i | i rni ii lii ni|
r - r i l - -i iil ri ili n ri|
"Copy of the order dated December 10, 1858 Suit
No.884 on the application of Thanedar Oudh for re-
erecting the symbol within Masjid Janam Sthan. Saint Tek
Singh Faqir, Khalsa, resident of Mohalla Ram Kot, (Kot
Ram Chandra), decided on December 15, 1858. Robekar
issued today in which Jhanda (flag) was uprooted from the
Masjid Janam Asthan and the Faqir residing therein was
ousted. Ordered that the case be consigned to the office.
Dec. 10, 1858."
2969. Exhibit 31 (Suit 1) (Register 5, Page 117-121) is
another application dated 05.11.1860 by Mir Rajab Ali
complaining that a Chabootara and a pillar made within Babari
Masjid Oudh may be removed after due enquiry as it is in
violation of law. However, there is a mention that whenever the
Moazzim calls for Azan, Bairagis create nuisance by blowing
Conch shell. Nothing more is said therein.
2970. Exhibit 54 (Suit-4) (Register 12 page 359) is an
application dated 12
th
March, 1861 by Mohd. Asghar, Mir
Razab Ali and Mohd. Afzal as Khateeb/Moazzin, Masjid Babri
situated Janam Asthan Oudh stating that some Imkani Singh has
made a Chabutara near Masjid Babri at Janam Asthan Oudh and
despite of order to remove, has not complied the same. There is
2820
nothing to show that there was any compliance even thereafter
and at any point of time later.
2971. It appears that Deputy Commissioner Fyzabad on
18
th
March 1862 directed to consign the record to office.
2972. There are some further documents i.e. Ex. A-16
(Suit 1) (Register 7, page 185-191); Ex. A-14 (Suit 1) (Register
7 Page 181); Ex. A-17 (Suit 1) (Register 7 page 193-197)
regarding the grant of village Bahooranpur and Sholapuri in lieu
of the cash grant of Rs.302 and 3 and a half anna for
maintaining the mosque subject to showing a conduct of peace
and to perform all duties of landholders in matter of police and
political service as required by them by the authorities and not
to favour in any way the enemies of British Government. It
appears that the three persons were more interested in obtaining
the land grant and the building in dispute was used by them as
object for such gain cover but no document shows that at any
point of time either the Muslims attended the mosque to offer
Namaz therein till then or that even those persons who were
alleging or representing themselves as Khatib or Mutwalli of the
mosque ever made any arrangement for ensuring offering of
Namaz by Muslims therein.
2973. Exhibit A-13 (Suit-1) (Register 6 page 173) is an
application dated 25.09.1866 by Mohd. Afzal Mutwalli Masjid
Babri situated at Oudh complaining about a Kothari constructed
by some Bairagis and that they are also trying to built a temple
near mosque. The request was made to stop them and remove
construction already made.
2974. The above complaint was made by Mohd. Afzal
though earlier only Mohd. Asgar and Mir Rajab Ali has claimed
themselves to be Mutwalli of the said mosque and obtained
2821
grant in their name. How and in what manner Mohd. Afjal
became Mutwalli is not known.
2975. Exhibit 29 (Suit-1) (Register 5, page 105) dated 12
th
October, 1866 is an order of Deputy Commissioner, Faizabad on
the complaint of Mohd. Afzal against Tulsidas and others
directing consignment of record to office.
2976. It appears that Mohd. Asgar as Khatib and Mohd.
Afjal as Muazzim Masjid Babari moved an application dated
22
nd
February, 1870 stating their claim on 21 trees of Imli on the
ground that Masjid Babari situtated at Janam Asthan is ancestral
and under the possession of them since ancient times hence a
decree be issued in respect to graveyard and Imli trees in their
favour.
2977. By order dated 22
nd
August, 1871 Exhibit 25 (Suit
1) (Register 5 page 87) the claim of Mohd. Asgar about
ownership of graveyard was rejected but regarding the tamarind
trees, his claim was allowed.
2978. Exhibit 30 (Suit 1) (Register 5 page 107) is a memo
of appeal no. 56 filed against the order dated 3
rd
April 1877 of
Deputy Commissioner Faizabad whereby he had granted
permission to Hindus to open a new door in the northern outer
wall of the disputed building. It was complained that the wall
being that of the mosque, this alternation could not have been
allowed to Hindus. It also complained that on 7
th
November,
1873 Mahant Baldev Das was ordered to remove idol i.e.
Charan Paduka but has failed to comply. Hence permission to
open a door in the wall of Masjid Babari could not have been
given to him. He also complained of making of a "Chulha" in
the compound for Puja by Baldeo Dass Bairagi and request was
made for removal of this new construction.
2822
2979. Exhibit 15 (Suit 1) (Register 5 page 41-43) is a
report submitted by the Deputy Commissioner on the appeal of
Mohd. Asgar permitting opening of a door on the northern outer
wall of the disputed building. He treated outer compound i.e. the
outer courtyard as Janam Asthan and the disputed building
inside the grilled partition wall as mosque and said that for the
convenience of visitors to Janam Asthan and rush on fair days,
the said opening was allowed in public interest. He also declared
attempt of Mohd. Asgar lacking bona fide.
2980. Mohd. Asgar filed suit no.374/943 Exhibit 24 (Suit
1) (Register 5 page 83-85) claiming rent against user of
Chabutara and Takhat near the door of Babari Masjid for
organizing Kartik Mela at the occasion of Ram Navmi regarding
1288-1289 Fasli. It shows that in the courtyard and Chabutara,
since ancient times, Mela Kartiki and Ram Navmi was being
organized. This suit was dismissed on 18
th
June, 1883.
2981. An application dated 2
nd
November, 1883, Exhibit
18 (Suit 1) (Register 5 Page 55) was submitted by Mohd. Asgar
as Mutwalli Masjid Babari claiming that he is entitled to get the
wall of mosque whitewashed but is being obstructed by
Raghubar Das though he has right only to the extent of
Chabutara and Rasoi.
2982. The Assistant Commissioner thereafter passed the
following order on 22
nd
January, 1884 Exhibit 27 (Suit 1)
(Register 5 Page 95):





2823









ri- -i ii zz | ss ; o - -i o ssr
i - -ii i - i zz | ss ; o ;i| i
l-- - l- ir ri ii
- r-- n i- i i
i - -i ril| | i r i | i r - ir l-|
l- ;l-ni | n; i i i r-i;i | n; l
| | rini ii -l | ---n nr
i - r-- n i -ni li ni l ir| ii
nii i r lrin | r l - i- |- ri ii
i i i; -n i| -iin | i |
r - r i l
i ni n ri i i l i n ri - - -
zz | s ; o
"Copy of the order sheet dated January 22, 1884 in case
no. 19435-Janamsthan, Judgement dated January 22,
1884, Ijlasi Janab Assistant Commissioner Sahab Bahadur
Faizabad.
Syed Mohd. Asghar vs. Raghubar Das.
Today the case was called out in presence of the
parties. As per orders of the Deputy Commissioner, parties
were informed accordingly. Raghubar Das was restrained
from carrying out repairs etc in the internal and outer part
2824
of the compound and Mohd. Asghar was advised not to
lock the outer door of the mosque. It is necessary that the
old existing orders be observed and complied with and
there should be no interference in it.
Order.
All the papers be consigned.
Dated January 22, 84.
Sd/- English."
2983. Raghubar Das made a complaint dated 27.06.1884
Exhibit 28 (Suit 1) (Register 5 Page 99-101) to the Assistant
Commissioner requesting him to make spot inspection since the
Muslims were violating the order of desisting from
whitewashing the wall.
2984. Then comes the admitted litigation (mentioned in
written statement) relied by the defendant Muslim parties
heavily, i.e., 1885 Suit which also says that in the outer
courtyard there existed Ram Chabutara, Sita Rasoi and the
same visited by Hindus but there is not even a whisper that the
Muslims at any point of time visited the disputed site and
offered Namaz.
2985. In order to find out whether the words or phrases
used by the parties in the plaint amounts to admission or not one
has to find out whether the assertion is clear and unambiguous
or it is sometimes a loose expression due to the reason of
draftman casualness or otherwise. In Mohd. Shah Vs.
Fasihuddin Ansari (supra) while observing that the assertions
of one Gulab were nothing but loose expression, the Court
observed:
Inadvertent expressions of dubious and ambiguous
meaning cannot be twisted into admissions against the
maker's interest when the surrounding circumstances
indicate that he had been consistently asserting the
2825
contrary over a series of years. Something stronger than
that would be required. Had the assertions been clear and
unambiguous the matter would have been different but
"Imambara mosque compound" is anything but
clear.(Para 33)
2986. It is true that P. Carnegy in his book "Historical
Sketch" (supra) has mentioned in detail about Ramkot and
thereafter he has dealt with the disputed place on pages 20 and
21. Under the heading "Hindu Muslim Differences", he has said:
"The Janmasthan is within a few hundred paces of the
Hanuman Garhi. In 1855, when a great rupture took place
between the Hindus and Muhammadans, the former
occupied the Hanuman Garhi in force, while the
Musalmans took possession of the Janmasthan......The
Hindus then followed up this success, and at the third
attempt took the Janmasthan, at the gate of which 75
Mahomedans are buried in the "Martyrs' grave" (Ganj-
Shahid.) ..... It is said that up to that time the Hindus
and Mahomedans alike used to worship in the mosque-
temple. Since British rule a railing has been put up to
prevent disputes, within which, in the mosque, the
Mahomedans pray; while outside the fence the Hindus
have raised a platform on which they make their
offerings.
2987. This report was published in 1870. If we consider
the above observations of P. Carnegy in the light of the
documents placed on record of the corresponding period, i.e.,
1858 to 1885 as discussed above, we find that till 1885 the
property in dispute remained in possession of Hindus in which
they continued to visit for worship. In the alleged riot of 1855
2826
temporarily Muslims took possession but thereafter the Hindus
regained it. Then the British authorities tried to resolve dispute
by creating a dividing wall sometimes in 1856-57 but it is
evident from the report of 28
th
November, 1858 and complaint
dated 30
th
November, 1858 (Exhibit 20, Suit-1) (Register 5,
page 65), that despite grilled dividing wall erected by the
British authorities restraining Hindus from entering the inner
courtyard, worship by Hindus in the inner courtyard continued
against which complaints were made frequently. Sometimes
when they made some new structure for worship, orders were
passed for removal thereof but whether all such orders were
executed, is not known. Amongst all these things, one thing
which we find missing is mention of Namaz or possession of by
Muslims of the disputed building and/or the property in dispute.
2988. Even if we assume some truth in what has been said
by P. Carnegy, it does not mean that the property in dispute
(inner courtyard) was in possession of any particular community
or individual. It shows on the contrary that both Hindus and
muslims, freely, frequently and openly were visiting the place in
dispute for worship and that being so this itself belie the claim
of muslim parties in this suit necessitating answer of the issue in
question in negative, i.e., against the defendants.
2989. The issue in question needs to be answered whether
the muslims being in possession of the property in suit from
1528 AD continuously, openly and to the knowledge of plaintiff
and Hindus in general and if so its effect. Therefore, in order to
get answer of this issue in favour of the defendants at whose
pleading it has been framed, unless it is shown by cogent
material that the muslims came into possession of the property
in suit in 1528 AD, they cannot succeed. As we have already
2827
held while discussing issues relating to period of construction,
this itself could not have been proved that the building in
dispute was constructed in 1528 AD, the question of possession
of property in suit in 1528 AD would not arise. No material to
show possession of muslims from 1528 AD atleast till 1855 is
on record. When the first aspect itself is not proved, the further
occasion to suggest that such imaginary possession was
continuous, open, to the knowledge of the plaintiff does not
arise. Moreover the plaintiff could not have the knowledge of
the possession of muslims from 1528 AD since he claimed to be
a mere worshipper at the property in dispute and on this aspect
also the defendants muslim parties have failed to discharge their
burden. The knowledge and opinion need be qua real owner. No
such owner is pleaded. It is suggested that since a lot of
complaints etc. were made by Rajjab Ali and Mohammad
Asghar since November 1858 and onwards, and they were also
sanctioned grant by the British Government for maintenance of
the mosque in respect whereto no Hindu party raised any
objection, hence by the conduct of Hindus, a presumption can
be drawn that the muslims were in possession of the property
since very beginning.
2990. The conduct of the parties, though is a relevant fact,
but in a title suit cannot succeed simply by referring to one or
the other party, but one has to prove his own case. In M/s
Kamakshi Builders (supra) the Court said:
"24. . . . . Conduct may be a relevant fact, so as to apply the
procedural law like estoppel, waiver or acquiescence, but
thereby no title can be conferred.
25. It is now well-settled that time creates title.
26. Acquisition of a title is an inference of law arising
2828
out of certain set of facts. If in law, a person does not
acquire title, the same cannot be vested only by reason of
acquiescence or estoppel on the part of other.
28. . . . by reason of presumption alone, the burden is not
discharged, a title is not created.
29. A claim of title by prescription by Respondent No. 1
again is not tenable. It based its claim on a title. It had,
therefore, prima facie, no animus possidendi."
2991. Neither the conduct of the plaintiff or other Hindu
parties can help the defendants nor in the absence of any
evidence to show entry of muslims in property in suit from 1528
AD, we find an occasion to decide issue in question in
affirmance. Though not specifically worded but the ingredients
mentioned in issue 7 (Suit-1) reflects to the claim of adverse
possession taken by the defendants muslim parties (Suit-1). We
have no hesitation in holding that such a claim has not been
proved at all.
2992. In order to set up a claim based on adverse
possession, it is incumbent upon the person who has set up this
plea to prove that:
(1) So and so is the owner of the property.
(2) The defendant is possessing the property from a
particular date.
(3) The possession is to the knowledge of the owner,
hostile, continuous, exclusive, uninterrupted and peaceful
with an intention of possession i.e. animus possidendi.
(4) The possession has continued for twelve years and
more and, therefore, the title of owner stands extinguished
creating a title by prescription in such defendant.
2993. Though there are some documents showing the
2829
account statements of the Mosque in dispute but the fact
remains that the defendants have completely failed to discharge
burden of proof even prima facie of the facts as pleaded by them
so as to succeed on this issue. Issue No. 7 (Suit-1) is,
accordingly, decided in negative i.e. against the defendant-
Muslim parties.
2994. Now coming to Issue No. 3 (Suit-3), it has to be
kept in mind that this suit is also confined to the premises within
the inner courtyard and not to the entire premises, i.e., the outer
and inner courtyard including the building. This is what stated
by the counsel for Nirmohi Akhara in his statement made on
17.5.1963 under Order X Rule 1 CPC.
2995. Sri Sarabjeet Lal, Advocate, counsel for the plaintiff
Suit-3) on 17
th
May, 1963 got his statement recorded and
besides other said:
"The present suit is confined to property shown by letters E
F G H I J K L although the entire area shown by letters E
F G H P N M L E belongs to the plaintiff."
2996. He also stated that the plaintiffs are the owner of the
property in dispute and further said:
"This property is not dedicated to the idol although the
temple is made on the land which is the birth place of
Lord Ram. It is owned by the plaintiff and the temple was
made by the plaintiff."
2997. There is no averment in the entire plaint that any of
the defendant is the owner of the property in dispute, that the
plaintiffs are having possession of the said property in the
knowledge of the true owner, with an intention to possess it
adversely, i.e., hostile possession, continuous and peaceful.
What is said in para 5, if the muslims attempted to prove that
2830
they have ever entered it, it would be wrong, they have not been
allowed to enter it atleast ever since the year 1934. The basic
pleadings to claim adverse possession and necessary ingredients
are ex facie absent. Mere long possession does not constitute
adverse possession [See S.M. Karim Vs. Mst. Bibi Sakina
(supra)].
2998. As already discussed above in detail in order to set
up and succeed on a plea of adverse possession, one has to show
as to who is the true owner, the date from which he is
possessing the property, the knowledge of the true owner of
such possession as also that the possession is hostile and the
possessor has intention to hold possession denying the title of
the true owner or in defiance of the right of the true owner. The
possession is continuous, uninterrupted, peaceful and has
continued for more than 12 years. The entire plaint is
conspicuously missing of all the above kind of pleadings, in the
absence whereof, the plea of adverse possession cannot succeed.
2999. Moreover the statement of the plaintiff's counsel is
that the property is owned by the plaintiff; the temple is made
by the plaintiffs, hence question of holding property in dispute
in a hostile possession, against true owner, does not arise. It also
show that the plaintiffs (Suit-3) had no animus possidendi. That
is completely absent. In the absence of pleadings, though no
evidence is admissible, but we may add at this stage that no
document whatsoever to support the necessary ingredients of
adverse possession even otherwise had been placed on record by
the plaintiffs (Suit-3). Most of the evidence is in respect to the
structures which are in the outer courtyard and the right and
possession of the plaintiffs on the said property in the last
several decades. But so far as the inner courtyard is concerned,
2831
only oral evidence has been produced and the attempt also had
been to show that they use to visit the premises in the inner
courtyard to offer worship of Ram Lala's idol thereat and that
Pujaris of Nirmohi Akhara used to perform Sewa thereat. We
have discussed these witnesses and it has been demonstrated
that virtually all of them on this aspect lack creditworthiness,
hence unreliable.
3000. A lot of documentary evidences have also been filed
by the plaintiff (Suit-3) in support of his claim for possession,
but we find that the same do not help the plaintiff (Suit-3) for
throwing light in respect to the premises within inner courtyard.
Most of the documents are of the period subsequent to the date
of attachment and they are concerned with the premises in outer
courtyard. These are:
(A) Exhibit M1 (Suit-4) (Register Vol. 17, page 7) is a
copy of the application dated 11.06.1956 of Abhiram Das
addressed to Additional District Magistrate, Faizabad in
Case No. 58/73 seeking his permission for change of
thatch.
(B) Exhibit M2 (Suit-4) (Register Vol. 17, page 9) is a
copy of the order dated 26.06.1956 passed by the
Additional District Magistrate, Faizabad to the following
effect:
"S.O. Ayodhya
There is no objection if the thatch is repaired.
Please inform the applicant."
(C) Exhibit M3 (Suit-4) (Register Vol. 17, page 11) is a
copy of the application dated 21.12.1962 by Abhiram Das
addressed to the City Magistrate, Faizabad seeking
permission of celebrating anniversary from 21s to 29
th
2832
December, 1962 in the disputed site.
(D) Exhibit M4 (Suit-4) (Register Vol. 17, page 13) is a
copy of the report of Sri Priya Dutt Ram, Receiver of the
disputed premises addressed to the City Magistrate,
Faizabad and it reads as under:
"I am connected with only the premises under
dispute within the railings and the walls on the so-
called Anniversary Day, only two vedic Pundits enter
it, and perform HAWAN on a temporary clay after,
and the same should be allowed this year as well.
As far as function outside the premises, they
have no concern with me.
Of course, it is in my knowledge that on so-
called Anniversary Day, some functions were
organized by Sri Abhiram Dass and also by the
Janambhumi Sewa Samity for the last five years, I
have been out of Faizabad."
(E) Exhibit M5 (Suit-4) (Register Vol. 17, page 15) is a
copy of the order dated 21.12.1962 passed by the District
Magistrate, Faizabad allowing the applicant Abhiram Das
to hold the Ramayan Path and religious ceremonies in the
ground of Janambhumi temple from 21
st
to 29
th
December,
1962.
(F) Exhibit M6 (Suit-4) (Register Vol. 17, page 17) is a
copy of the order dated 26.12.1962 of Sri S.N. Sharma,
the then City Magistrate, Faizabad on an application filed
by Sri Abhiram Das directing S.O. Ayodhya to take steps
for maintaining law and order in the observance of
religious function by Sri Abhiram Das in the ground of
Janambhumi temple and one Baba Baldev Das at Sumitra
2833
Bhawan and to prevent any disturbance from Baba Baldev
Das at the Janambhumi temple site.
(G) Exhibit M7 (Suit-4) (Register Vol. 17, page 29) is a
copy of Khatauni 1374 Fasli which has been filed to show
that some land was gifted by worshipper in the name of
Janambhumi Ayodhya in respect whereto the entries were
made in khatauni in December, 1967. The aforesaid land
situate at Tahsil Navabganj, District Kunda.
(H) Exhibit 2 (Suit-3) (Register Vol. 9, page 49) is a copy
of the order dated 9.2.1961 of City Magistrate, Faizabad
permitting replacement of the covers or sirki covers by the
sheets on the applicant's own land uncovered by
attachment provided it is in accordance with the laws of
Municipality. Sri R.L. Verma submitted that this shows
continue possession of plaintiff (Suit-3) on the disputed
land but we do not find anything to fortify the above
submission in the above document and in our view it is
not relevant for the purpose of suit in question.
(I) Exhibit 3 (Suit-3) (Register Vol. 9, page 51) is a copy
of some certificate issued by Municipality Board,
Faizabad. The document is torn and the handwriting part
therein is illegible. In our view, such a document cannot
be relied or accepted for any purpose. In any case, one of
the remark contained therein is as under:
"(3) There will arise no right of ownership over
the land from this certificate on which permission is
granted to build the house or building but the
applicant himself will be responsible of all sort of
dispute whatever may arise in respect of title."
This remark is self speaking and, therefore, lends no
2834
credence to the plaintiffs (Suit-3).
(J) Exhibit 4 (Suit-3) (Register Vol. 9, page 53-57)
contains two copies of the Architect's map and a
certificate no. 397 dated 6
th
September 1963 of Executive
Officer, Municipal Board, Faizabad for the period
25.3.1964 to 24.3.1965 permitting some construction
pertaining to tin shed. It is sought to argue that since Ram
Chabutara was in the possession of the plaintiff (Suit-3),
they were also permitted to make construction thereon by
Municipal Board, Ayodhya. In any case, it pertains to
outer courtyard.
(K) Exhibit 5 (Suit-3) (Register Vol. 9, page 59) is a copy
of the letter dated 6.2.1961 submitted by Vedanti Rajaram
Chandracharya to the City Magistrate, Faizabad
complaining that they have been permitted by Nagar
Palika, Faizabad to place a tin shed on the outer side of
Janambhumi but the Police is preventing it and says that
they have no authority. Therefore, the Police may be
directed not to create any obstruction in the said function.
(L) Exhibit 6 (Suit-3) (Register Vol. 9, page 61-64) is a
copy of the application dated 27.9.1950/29.12.1950
against the order passed by the City Magistrate under
Section 145 Cr.P.C.
(M) Exhibit 7 (Suit-3) (Register Vol. 9, page 65-67) is a
copy of the order dated 30.7.1953 passed by Sri Prem
Shankar, City Magistrate, Faizabad for consigning record
of 145 Cr.P.C. proceeding since the civil suit was already
pending and, therefore, he directed that subject to further
orders in those matter or when the temporary injunction is
vacated till then the proceedings are being consigned to
2835
record.
3001. Some documents of an earlier period have also been
filed but they also show an arrangement made by the plaintiff
(Suit-3) outside the inner courtyard rather outside the premises
in dispute and, therefore, do not help the plaintiff (Suit-3) for
deciding the issue in question in their favour. These are:
(A) Exhibit 8 (Suit-3) (Register Vol. 9, page 69) is a copy
of the agreement permitting Jhingoo son of Gaya for
providing drinking water to the pilgrimages visiting
Ramjanambhumi site at Ayodhya. It is said to be written
on 11.6.1900.
(B) Exhibit 9 (Suit-3) (Register Vol. 9, page 73-75) is a
copy of agreement of Theka Shop of Janambhumi Ramkot
Ayodhya by Gopal son of Babu in favour of Narottamdas
on 13.10.1942.
(C) Exhibit 10 (Suit-3) (Register Vol. 9, page 77-79) is a
copy of the agreement dated 29.10.1945 regarding Theka
Shop in favour of Narottamdas.
(D) Exhibit 12 (Suit-3) (Register Vol. 9, page 93 to 99) is
a copy of the judgment dated 22.10.1923 of Additional
Subordinate Judge, Faizabad in Appeal No. 10 of 1923
Mahant Narottamdas Vs. Ramswaroop Das. It appears that
a suit claiming possession over a plot no. 163 measuring 2
bigha 2 biswa was raised but the said suit was dismissed
by the Trial Court vide judgment dated 22.10.1923. It is
unrelated with disputed site. The order of the Court said as
under:
"Judgment
The applt as Mahant & manager of the temple
Janam Asthan alias Janam Bhumi, Akhara Nirmohi
2836
situat in M. Kot Ramchandar, Ajudhya sued the
respdt in the Court of the Munsif of Fyzabad for the
recovery of possession of 3 bis. 17 bisw. land out of a
plot no. 163 measuring 2 big 3 bis situate in M. Kot
Ramchandar, Ajudhya Parg. Haweli Oudh on the
allegations that he was the owner for the said plot as
being in possession of the same since a long time.
That in Dec. 1921 the deft wrongfully dispossessed
the plff appt out of the aforesaid land in building A
compound with a chabutra (platform) thereon. Hence
the suit.
The respdt admitted the building of a
compound & chabutra on the plot in question but
denied the claim. He pleaded that the applt had no
right in the land in suit nor had he ever been in
possession of the same. That the land in suit
appertained to the temple of Mast Ram as its
sahan. That it belonged to Mast Ram, who was in
possession of the same. That Bhagwan Das & Gopal
Das chelas of Mahant Mast Ram gave the land in suit
to Bhagwan Das Udasi chela of Mahanta Madho
Ramji by a registered deed dated 25
th
Oct.. 1892.
That Bhagwan Das Udasi gave the land in suit to
Narayan Das by a registered deed dated 11
th
January, 1896. That (Narayan Das) on the death of
Narayan Das, the deft as his chela was in possession
of the land in suit. That the deft & his predecessors in
interest had been in adverse proprietary possession
of the land in suit for the last 30 years. That the claim
was barred by time & plff had not right to sue. The
2837
plff applt in his replication said that the land in suit
marked red in the plan drawn by the amin appointed
for the purpose was all along parti land till the deft
made the chabutra in dispute. That the land in suit
belonged to the nazul and the plff or mahant of the
Janam Ashthan & his predecessors had all along
been in possession and in leased his title on
possession. That no lease from the nazul had been
taken. The deft denied the land in suit to have ever
belonged to the nazul department. The learned
Munsif dismissed the claim. The plff has preferred
this appeal on various grounds taken in the
memorandum of appeal. Now the main point for
determination in this appeal is whether the plff has
been in possession of the land in suit for a long time
and as such is he entitled to recover possession from
the deft.
It is admitted by the plff that the land in suit
belongs to the nazul & that no lease has been
taken from the nazul. The deft is admittedly now in
possession of the land in suit. Under these
circumstances the plff cannot sue the deft for
possession, because possession is, in general, a
good title against all but the true owner, i.e. the
nazul Department.
Again it is admitted by the plff in his
replication that the land in suit was all along parti
land till the deft made the chabutra in dispute. Now
the land in suit bring admittedly parti land, the plff
cannot acquire any right in it by placing a takht on it
2838
as he swear. The deft, therefore, who is in
possession, may not have an indefeasible right as
against the nazul, has yet a better right than the plff
& therefore he may set up the right of the nazul with
land in suit in order to disprove that of the plff.
Besides the plff evidence goes to show that his
lessee used to keep their shops just in front of the
Janam Ashthan gate (vide evidence of PW1).
Assuming that the plff was in possession of any
portion of the plot no. 163 by leasing the same to the
sellers of flowers & batashas he cannot be in
possession of the land in suit thereby, because the
front of the Janam Ashthan is a long way off the land
in suit as is shown by the amin's plan inasmuch as it
has been held that a wrong-two rights by adverse
possession must be confined to the land of which he
is in actual possession. The plff has not been proved
to be in actual possession of the land in suit. It may
be in actual possession of a portion of the plot no.
163 on portion of which is the land in suit, just in
front of the Janam Ashthan gate, but the land in suit
far off the front of the said gate. Hence his rights
be confined to the portion of the plot no. 163 just
in front of the Janam Ashthan gate & not to the
land in suit. Under these circumstances I am of
opinion that this appeal must fail. I therefore
dismissing the appeal with costs confirm the decree
of the Court below. Order 41 rule 30 C.P.C.
22/10/23 Mahmud Hussain"
3002. There are some other documents which, in our view,
2839
cannot be considered as an evidence in favour of the plaintiff
(Suit-3) i.e. Exhibit 1 (Suit-3) (Register Vol. 9, page 15-47),
being a copy of the agreement said to be executed by Panches of
Nirmohi Akhara on 19.3.1949 duly registered in Sub-Registrar's
office, Faizabad. This lays down about the constitution,
functioning etc. of Nirmohi Akhara.
3003. Whatever is stated in the above document is
something to which the defendants are not party at all and,
therefore, on the question of title or possession, the above
document, in our view, is not relevant.
3004. Some documents have been filed to show that the
land in dispute was recorded in revenue records as Nazul land
and the name of Mahant of plaintiff (Suit-3), i.e. Mahant
Raghubar Das was directed to be entered showing that he was in
possession of the entire property in dispute, which are:
(A) Exhibit 11 (Suit-3) (Register Vol. 9, page 89) is a
copy of the Nazul department's certificate dated 30.10.22
stating that the land belong to Nazul and the plaintiff as
Mahant of Janamsthan and his predecessors have all along
been in possession and he has title or possession.
(B) Exhibit 52 (Suit-4) (Register Vol. 12, page 347 to
352) is a certified copy of the Khasra abadi of Mauza
Ramkot, Ayodhya 1931 AD issued by Nazul Office,
Faizabad in February, 1990.
(C) Exhibit 49 (Suit-4) (Register Vol. 11, page 271 to
329) is the copy of the nakal khasra Abadi, Kot Ram
Chandra, pergana Haveli Awadh, Tahasil and District
Faizabad of 1931 A.D. of nazul register. At page 311, the
Hindi transliteration of the aforesaid Exhibit, original
whereof is in Urdu, the entry of plot 583 is as under :
2840
i- -r () -l- r iir|
- ii| (z,) rss
i | (z,z) sor, s lo r li | so
- il (s,) ii|
i il (s,z) / lo li | so
i- -il ii ()
i- -inrni n i; ri (r)
i- il ri (c) -l- r iir|
l-- (/) -il
i (s) s lo r li | so
l i ni (z) li ni (s)
l l-l -| z/ o c, /
in - i zc | ; o
ili iil i- -rn ii i
-rn - -ii - l n
i i- i
oio
.c.
r (o)
-n i| ()
- - ni|i (z)
i (s)
ni ()
i n -| (r)
l (c) -l- i ni r iir| r
-l- ni (-|) i -i l-
i- -ir r ni n ;-|
-l| , | , (-|)
-l- -i -i iir i iir -r -
(Note : Though the original document is horizontal,
but for the purpose of convenience, it has been typed
vertically.)
2841
On page 331, Nazul khasra map's copy has also been filed,
which is part of the Exhibit 49.
3005. It is no doubt true and also admitted by the parties
that the land in dispute commencing from the first settlement of
1861 AD has been mentioned as Nazul and there is no change in
its status. It is also evident from Exhibit-49 (Suit-4) that in plot
no. 583 and the area mentioned therein, name of Mahant
Raghubar Das was directed to be mutated in place of Ram
Charan Das by order dated 6
th
February, 1941 but this by itself,
in our view, would not be conclusive evidence to show that the
entire property possessed by plaintiff (Suit-3), particularly when
the details of property in respect whereto the mutation was
observed is also mentioned in Clause 16 which refers to the
construction in outer courtyard and even outside the premises in
dispute.
3006. There is an Auditor's report, i.e., Exhibit 32 (Suit-4)
(Register 11 Page 177) for the period 1947-48, but that
document, in our view does not help the plaintiff (Suit-3) for
adjudication of the issues in question.
3007. A copy of the F.I.R. Dated 23
rd
December 1949 has
been filed by the plaintiff which shows the placement of idols
inside the inner courtyard and it goes against the plaintiff.
Exhibit 51 (Suit-4) (Register Vol. 12, page 337 to 338) is a
copy of the FIR No. 167 dated 23
rd
December 1949 under
Sections 147, 295, 448 I.P.C. alleging the placement of idols
under the central dome of the disputed building in the night of
22/23.12.1949. The FIR was registered on the information given
by Pandit Ramdev Dubey, Sub-Inspector, In-charge Police
Station, Ayodhya, District Faizabad.
3008. Showing the system and functioning of Nirmohi
2842
Akhara, a document has been filed by the plaintiff (Suit-3)
which, in our view, is not relevant at all, i.e. Exhibit 80 (Suit-4)
(Register Vol. 16, pages 59-64) which is photocopy of the title
page, introduction and pages no. 1 to 6 of "Srimaddev Murari Ji
Ki Jeevani Tatha Sri Guru Parampara Prakash" 1994 Edn. by Sri
Ram Tahal Das Ji. Page 5 of this work shows that in Samvat
1729 (1672AD) Sri Balanand Ji established Akharas.
3009. The defendants, on the contrary, have filed certain
documents, which are also of subsequent period, i.e, post 1950
to show that plaintiff could not have been in possession of the
inner courtyard as they could enter the same with the permission
of Receiver only.
3010. Exhibit A-12 (Suit-4) (Register Vol. 16, pages 120-
123) is a copy of the statement of Sri Abhiram Das dated
18.3.1978 recorded by District Judge, Faizabad and para 3
thereof reads as under:
s.. - il- -l - i i| ni ii - i ini ii|
- i i i i- -i -n ii| l-i i r i
ri in - i r | ri i - i l i -n i- | l ln -
i| ii ll-i i| -n r l r- ini | i
- ini, -ii i | n|i | iii | in| r i l
- in r | i ini -i ir i | i
ri n| r r i i-| ,ii r| ri n|| n i| i -
-i - r ni n r| i ni r | -l
i l -| i i l i i i l i - n
i - i i i |
3011. After attachment, the Receiver took charge and
obviously thereafter none could have entered the attached
portion without permission of Receiver or the Court.
3012. Some further documents filed by the defendants,
which, in our view, not relevant, are:
2843
(A) Exhibit A-14 (Suit-4) (Register Vol. 16, pages 143-
146) is a certified copy of objection dated 16.7.1982 of Sri
Dharam Das filed before Additional District Magistrate
(Administration/Nazul Officer) Faizabad in mutation
proceeding no. 101/133/26/866. It was mentioned therein
that there is a public temple in the disputed premises
where the existing temple was constructed about 450 years
ago at the commencement of Mughal emperor and since
then, it is a subject matter of dispute between Hindus and
Muslims. Rest of the part is not relevant for our purposes.
(B) Exhibit A-15 (Suit-4) (Register Vol. 16, pages 150-
153) is a copy of affidavit dated 16.7.1982 of Dharam Das
before the Nazul Officer, Faizabad in mutation
proceeding. It is almost a true copy of Exhibit A-14.
(C) Exhibit A-3 (Suit-4) (Register Vol. 16, pages 136-
142) is a certified copy of FIR against Dharam Das under
Section 395 I.P.C. in Case Crime No. 87 dated 17.2.1982.
We, however, find no relevance of the said document with
the issue in question.
3013. There are some documents, which contain some
judgements etc. of criminal proceedings, which have been filed
to show that in the matters related to the premises in dispute,
some proceedings were initiated against Mahant of Nirmohi
Akhara showing that Nirmohi Akhara was in possession of
entire premises in dispute, i.e.:
(A) Exhibit C-2 (Register 24, Page 13-22) is a copy of the
judgment dated 03.08.1957 passed by Sri R.K.Sercar, Ist
Addl. Sessions Judge, Fyzabad in Criminal Appeal No.50
of 1951 (Bhashkar Dass Vs. State). This appeal was
preferred against the order of Shri R.B.Saxena, sentencing
2844
the appellant Bhaskar Das to one month simple
imprisonment and fine of Rs.50/-. The appeal was allowed
and the conviction order was set aside.
(B) Exhibit C3 ( (Suit-5) (Register 24 Page 23-28) is a
copy of the order dated 5
th
September, 1966 passed by Sri
B.S.Shukla, City Magistrate, Faizabad in Case No.533 of
1966 (State Vs. Prem Das & Others) under Section
107/117 Cr.P.C. The allegation pertains to the disturbance
created by the accused persons at Ram Janam Bhumi on
25
th
March, 1966 on account of a dispute regarding
Pujariship and possession of Ram Janam Bhumi Ayodhya.
(C) Exhibit C4 (Suit 5) (Register 24, Page 29-36) is a
copy of the judgment dated 22.10.1923 of Additional
Sessions Judge, Faizabad in Civil Appeal No.10 of 1923
(Mahant Narottam Das Vs. Ram Swaroop Das). The
aforesaid appeal was filed against the judgment dated 12
th
December, 1922 of Sub Judge, Fyzabad dismissing the
suit with costs. The appeal was also dismissed.
(D) Exhibit C7 (Register 24, Page 54-56) is a copy of the
judgment dated 13
th
May, 1983 of K.K.Singh, IV Addl.
Sessions Judge, Faizabad in Criminal Revision No.60 of
1982 (Dharam Das Vs. Sri Panch Rama Nandi Nirmohi
Akhara through Ram Kewal Das & 2 others). The revision
was filed against the City Magistrate, Faizabad order
dated 6
th
March, 1982 under Section 145 Cr.P.C.
(E) Exhibit C8 (Suit-5) (Register 24, Page 57-71) is a
copy of the Commissioner's report dated 13.10.1973
submitted by Sri Pareshwari Dutt Pandey, Advocate
Commissioner in Original Suit No.9 of 1973 (Nirmohi
Akhara Vs. Ram Lakhan Saran Das) in the Court of Civil
2845
Judge, Faizabad. The Commissioner has also submitted a
map which included the disputed site also.
(F) Exhibit C9 (Suit 5) (Register 24, Page 73-77) is a
copy of written statement dated 29
th
December, 1950
submitted by Baba Abhay Ram Das in the proceedings
under Section 145 Cr.P.C. before the City Magistrate,
Faizabad. In para 6 thereof Abhay Ram Das has said that
outside the disputed premises there is some land and
building which is property of Nirmohi Akahara which
they are entitled to use being in possession. In para 8 it
says that no muslim has entered the disputed premises
since 1935 and no prayer has been offered by them.
(G) Exhibit C11 (Suit-5) (Register 24, Page 99-101) is a
copy of the notice dated 22.12.1934 published by Sri
J.P.Nikalsan, District Magistrate, Faizabad with respect to
the fine imposed under Section 15A(2) of the Police Act
and for its realization from the Hindu resident of
Ayodhya.
3014. However, we do not find that the said judgements
are admissible and relevant for the issue in question in view of
the law laid down in Seth Ramdayal Jat Vs. Laxmi Prasad
AIR 2009 SC 2463, which we have already discussed above.
3015. Another set of documents, i.e. Exhibit C1, C5, C6,
C10, brief details whereof is as under, are also not much
relevant to the point in issue:
(A) Exhibit C1 (Suit-5) (Register 24 Page 11) is a
photocopy of the charge certificate dated 5
th
January 1950
by Priya Dutt Ram Receiver.
(B) Exhibit C5 (Suit 5) (Register 24, Page 37-45) is a
copy of the plaint in suit no.426 of 1989 (Mahant Ram
2846
Gopal Das & others Vs. Ashok Singhal & Others) filed in
Court of Civil Judge Fyzabad. The above suit was decided
on 04.12.1991.
(C) Exhibit C6 (Suit 5) (Register 24, Page 47-51) is a
copy of a Commissioner's report dated 08.11.1989 in O.S.
No.426 of 1989 (Mahant Gopaldas & Others Vs. Vishwa
Hindu Parishad & Others) submitted by Sri Uma Kant
Malviya, Court Amin, Civil Court, Faizabad.
(D) Exhibit C10 (Suit-5) (Register 24, Page 81-92)
claims to be a copy of the statement of expenditure from
December, 1985 to April, 1987 incurred by Sri Ram
Janmabhumi Nyas and also contains some details of the
said trust.
3016. These documents also, in our view, do not lend any
help to the plaintiff (Suit-3). Even otherwise fail to serve any
purpose for adjudication of the issue in question with respect to
possession either way.
3017. On behalf of defendants, it was pointed out that
other Hindu parties have also supported their claim that the idol
under the central dome inside the inner courtyard was placed in
the night of 22
nd
/23
rd
December, 1949, meaning thereby till then
there could not have been any occasion of possession for
Nirmohi Akhara, hence, the question of possession or loss of
possession of the premises within the inner courtyard for the last
12 years does not arise at all. In this regard, the argument of Sri
P.N. Mishra in respect to Register 3 was pointed out, which was
as under:
(A) Record of proceedings of Suit-2 (contained in Register
3) which has already been dismissed as withdrawn was
referred by Sri Mishra. He sought to rely on the written
2847
statement filed therein on behalf of the defendant No.1 to
5 i.e. Zahoor Ahmad, Haji Feku, Haji Mohd. Faiq, Mohd.
Shami and Mohd. Achhan Miya dated 18
th
January, 1951
(Page 41-46 Register Vol. 3) to show that it has
consistently been the case of the Muslim parties that
Namaz was offered in the disputed building till 16
th
December, 1949 and he strongly relied on para 22 thereof
which read as under:
i zz. r l - i r - - | i ;~- r| r l
ii - nili i| -l- i| i ; -ln r. c
l- ss ; o n - -i r ; . n n
- i; - ln i| l n i; - ln -l- l|
i i| ln| i ni|i - i li r. ni
-l- | |r| r -n| ii| - nl r. i
- i - l-ii r. i n - ; i i;
i i -l- - - -ln i i n
-l- ili ri i irni r ni r - i
- n l r. i | rin - in |i| i| -n i
il r. r ri - ; i l| n - l--
i -l- - - i ; r r| i ri ni|
"Section 22. The respondent Mujib has no knowledge
of any idol in this controversial building that is Babri
Masjid. Upto December 16, 1949 Namaj was offered
in it upto that time there was no Murti. But after that
if any person with wrong intentions, has placed one,
it would be considered as desecration and would be
treated as a criminal act and if the petitioner or any
other person enters the Masjid with the intention of
doing Puja of the idol or for Darshan, it would be
considered as a criminal act. Therefore in such
circumstances the civil court cannot provide any
2848
relief. However as a result of this the petitioner or
any non Muslims would have no right in the Masjid."
(E.T.C.)
(B) He (Sri Mishra) submitted that for the first time the
stand was changed when suit 4 was filed and that changed
stand continued thereafter, as is also evident from the
written statement filed on 11.5.1989 (Page 125-141
Register 3) on behalf of U.P.Sunni Central Wakf Board in
Suit 2 wherein in para 22 he tried to explain his earlier
stand to bring in Suit 4 within the period of limitation.
Para 22 reads as under:
That the muslims have remained regularly offering
prayers in the mosque in question upto 22.12.1949
and Friday prayers were also offered upto
16.12.1949 and as such the idols kept in the mosque
in a stealthy and mischievous manner in the night of
22
nd
/23
rd
December, 1949 will not confer any right or
title upon the plaintiff or upon anyone else to perform
Pooja in the said mosque.
3018. Referring to the above submissions, it is said that
even if it is found that Namaz was last offered in the inner
courtyard on 16
th
December, 1949, it rule out any possibility of
claim of possession of the plaintiff (suit-3). Learned counsel for
the parties submitted that the record of Suit-2 has not been
detached since the evidence was filed collectively after clubbing
all the suits.
3019. Register 4 contains Exhibit- 1 to 15 (Suit-2). The
said documents have been retained in view of the order passed
by this Court while dismissing Suit 2 as withdrawn since all the
suits were proceeding collectively and the evidence were
2849
allowed to be adduced and relied on interchangeably. It contains
exhibits 1 to 15 filed by plaintiffs (suit 2). However, none of the
party has placed reliance on any of the said documents during
the course of the argument, therefore, we refrain from referring
any of the above document of Register 4.
3020. Register 5 contains 34 exhibits filed by plaintiffs
(Suit 1). Exhibits 1 to 14 are copies of the affidavits/ statements
filed by certain Muslims before the Magistrate in proceedings
under Section 145 Cr.P.C. wherein they have admitted that since
1935 Muslims have not offered any Namaz in the disputed
building and it is continuously in possession of the Hindus and
also they have no objection in case the disputed building is
handed over to Hindus. The aforesaid documents to the extent to
prove the fact that the same were filed before the Magistrate and
constitute part of the record of 145 Cr.P.C. proceeding before
the City Magistrate is not disputed but to believe the contents
thereof, in our view, it was necessary to produce the authors of
the documents and to give an opportunity of cross-examination
to the other parties against whose interest the documents contain
certain averments. None of the author of the said documents
have produced and they are also not party to the proceedings
individually. We have no benefit of testifying the correctness of
the contents of the said documents. In the absence of any one
available to prove the contents of the said documents, in our
view, the same cannot be relied and therefore, nothing turn out
from the aforesaid documents either in favour or against any of
the parties.
3021. The question as to whether the idols were kept in the
disputed structure under the central dome on 22nd/23rd
December, 1949 or were already there, has been considered and
2850
decided above, and, therefore, in view of those findings, it
cannot be said that the plaintiff (Suit-3) possessed the premises
in dispute in the capacity as Shebait or manager or owner twelve
years prior to the date of accrual of cause of action.
3022. Some of the Hindu parties including plaintiffs (Suit-
5) have taken a categorical stand that the idols were placed
inside the building under central dome in the inner courtyard in
the night of 22/23 December, 1949. OPW 1, witness produced
by the plaintiffs (Suit-5) though has made statement to much
extent in favour of the plaintiff (Suit-3) in respect to various
other aspects, but so far as the inner courtyard is concerned,
about the idols, he has also joined stand with the plaintiffs (Suit-
5). This issue we have already decided and, therefore, need not
to discuss further hereat. But what at this stage we say is that
issue 3 (Suit-3) was the responsibility of the plaintiffs (Suit-3) to
prove, which they have miserably failed.
3023. Whatever the evidence has been produced by the
plaintiffs (Suit-3), none has said anything about the adverse
possession of the plaintiff and that too in regard to premises in
inner courtyard. Twenty witnesses have been produced but even
a single one has not uttered a word about adverse possession of
plaintiffs on the suit property. Adverse possession is a question
of fact. It has to be specifically pleaded and proved. In the
absence of proper pleading, evidence, oral or documentary, the
claim of title based on adverse possession neither can be
entertained nor can be accepted.
3024. Besides, when the plaintiffs have stated that they are
the owner of the property in dispute and the disputed structure
which according to the plaintiffs (Suit-3) was a temple, owned
by them, the question of entertaining the plea of adverse
2851
possession does not arise at all. In any case, the assertion of the
plaintiff that the defendants have never entered the premises in
dispute since 1934 pre supposes that prior to 1934 their entry in
the disputed premises is admitted. With regard to the period
subsequent to 1934, we find that the evidence placed by the
plaintiff (Suit-3) did not prove that the defendant-Muslim
parties could never enter the premises in dispute till its
attachment by the Magistrate under Section 145 Cr.P.C. This
aspect we have already considered in detail while discussing
Issue No. 12 (Suit-4) and Issue No. 3 (a) (Suit-5) and have
recorded a finding that in all probabilities Namaz in the building
in dispute i.e. inner courtyard was offered on 16
th
December,
1949. In view of the above, we have no hesitation in deciding
Issue No. 3 (Suit-3) in negative i.e. against the plaintiff.
3025. Issue No. 8 (Suit-3) is virtually a reversal of the
previous one. It is based on the plea of the defendant muslim
parties that the property in dispute is in their possession since its
very inception and, therefore, if the plaintiffs have any right
whatsoever, it has extinguished due to expiry of more than 400
years since the date when the Babari mosque was constructed
i.e. 1528 AD.
3026. At the outset we would like to mention that question
of extinction of right of plaintiff would arise only if they have
such right. On the one hand the plaintiffs have miserably failed
to prove any title or ownership in respect to the property in
dispute and secondly they themselves have pleaded acquisition
of title by adverse possession on account whereof issue no. 3
(Suit-3) has been framed but having failed therein, in our view,
the question of conferring a right upon the defendants, as a
result of extinction of such illusory right of the plaintiff, would
2852
not arise. This issue in effect is in reference to Section 27 of LA
1908 which is not attracted.
3027. Besides others, two documents are heavily relied by
the defendant-Muslim parties on this issue i.e. the judgments in
Suit-1885 as well as dated 30.3.1946 of Civil Judge, Faizabad in
Regular Suit No. 29 of 1945, Shia Central Board of Wakf Vs.
Sunni Central Board of Wakf (Exhibit A-42, Suit-1) (Register 8,
Pages 431-432). It is contended that Mahant Raghubar Das in
Suit-1885 had not disputed that on the west side of Chabutara,
there was a Mosque and the District Judge, Faizabad on his spot
inspection found that the said mosque was constructed more
than 300 years ago by Babar, the said observation is nothing but
his finding which had not been disturbed in the Second Appeal
by the Judicial Commissioner and, hence, the claim of the
defendant-Muslims parties on the said Mosque since 1528 is
duly proved. The plaintiffs cannot wriggle of the said judgment
and findings recorded therein, to stress upon their claim
otherwise. Referring to the judgment dated 30.3.1946 it is
contended that there also the Civil Judge has recorded a finding
that the Mosque was constructed by Babar and not by Mir Baki
in 1528 and that being a finding recorded in a judgment, which
is judgment in rem, the issue stands closed for all purposes. The
defendants' claim on the Mosque since 1528, therefore, is duly
proved.
3028. The effect of the judgment in Suit-1885 we have
already discussed in detail while considering the issues relating
to res judicata, estoppel etc. Without going in details and
repeating all the things again, suffice is to mention that Mahant
Raghubar Das sought permission to make a temple on Ram
Chabutara, which existed in the outer courtyard measuring
2853
21"X17" and for the said permission filed the aforesaid Suit.
There was no dispute about the nature of any structure in the
vicinity and other connected issues as to who constructed it,
when it was constructed etc. Whatever has been observed by the
District Judge in his judgment, cannot be said to be a finding on
an issue since there was no such issue at all and, hence, the same
would not help the defendant-Muslim parties in the present
suits.
3029. Various authorities on the question of res judicata
we have already referred to above, but since for the purpose of
the issue in question again those very documents have been
relied, we propose to give more authorities on the subject which
make the things further clear as to how such observation cannot
be treated to be an adjudication of an issue creating a right in the
party.
3030. In Prosunno Kumari Debya Vs. Golab Chand
(supra), the Judicial Committee said that to attract the principle
of res judicata one has to see that necessary and proper issues
were raised, tried and decided in suit and the decree is untainted
by fraud or collusion.
3031. In Profulla Chandra Vs. Prabartak Trust AIR
1954 Cal. 8, in para 15, 16, 18, 19 and 20, the Court observed:
"Res judicata or as it is also sometimes called Res
Adjudicata literally means "the thing adjudged", and the
doctrine known by that name rests on the principle that a
matter, once adjudged cannot be reopend. In its practical
application the doctrine or the rule of res judicata bars the
trial of an issue, previously decided. In essence, therefore,
the rule postulates a previous decision or adjudication & a
recurrence of the matter of issue, there or then adjudiced
2854
or decided. It is the decision or adjudication which
operates as res judicata ..... In the application, therefore, of
the rule as res judicata, what matters is the decision and
not the reasoning of the Court and one requirement of the
rule is the identity of the issue or eadem questio. ...... As
pointed out by Bankes L. J. in the case of --'Jones v. Lewis
(1919) 1 KB 328 (A), it is the "decision and not the reason
of the decision"- which operates as res judicata. This is
clearly supported by the pronouncement of the Judicial
Committee in the case of -'Broken Hill Proprietary Co. Ltd.
v. Municipal Council of Broken Hill, (1926) AC 94 (B)
.....the plea of res judicata succeeded because in each of
them the 'res' in the later proceeding had already been
adjudged in the earlier and the issue in either was eadem
questio. .... what mattered was the decision and not the
reasoning of the Court on the former occasion. .... The
principle enunciated by Bankes L. J. as set out above, and
affirmed or recognised in the other cases cited, as shown in
the preceding paragraph, was accepted by the Full Bench
of this Court in -- 'Santosh Kumar v. Nripendra Kumar',
AIR 1949 Cal 430 (FB) (F) and also by our earlier Full
Bench in the well-known and oft-quoted case of - 'Tarini
Charan v. Kedar Nath AIR 1928 Cal 777 (FB) (G) where
Rankin, C. J. observed at pages 782 of the Report that
"what is conclusive between the parties is the
decision of the Court and that reasoning of the Court
is not necessarily the same thing as its decision. The
object of the doctrine of res judicata is not to fasten
upon parties special principles of law as applicable
to them inter se, but to ascertain their rights and the
2855
facts upon which those rights directly and
substantially depend, and to prevent this
ascertainment from becoming nugatory by
precluding the parties from reopening or
recontesting that which has been finally decided.
The first part of this observation clearly restates the above
principle and in the lines that follow, read in the light of
the later Full Bench case, above cited, there appears to be
nothing which detracts from the correctness or efficacy of
the said principle or whittles down its scope. That this is so
becomes abundantly clear when we turn to the submission
which was accepted by the Full Bench in this latter case of
AIR 1949 Cal 430 (FB) (F)'. That submission appears at
page 431 of the Report and is in these terms:
"What is res judicata is the point directly decided or
the order passed & not the reason thereof."
The language shows a full and complete acceptance
of the principle, quoted above, from (1919) 1 KB 328 (A)
and the Full Bench must be taken to have put upon it the
seal of its own authority. .... The position is thus well
established that I what is res judicata is the decision and
not the reason thereof."
3032. This decision very succinctly elaborate as to when
the principle of res judicata would be attracted and, in our view,
apply with full force in this case.
3033. Now coming to the judgment dated 30.3.1946, we
propose to consider it in a bit detail though we are satisfied that
even this judgment cannot be relied for the purpose for which
defendant-Muslim parties have referred the same. It has been
relied on by the defendants-Muslim parties to show that the
2856
building in dispute has already been held to be a Sunni mosque
and that judgment of the Civil Judge, Faizabad has attained
finality. Our attention was drawn to the following finding of the
Civil Judge, namely, "My conclusion therefore is that the
mosque in suit was founded by Babar Shah and not by Abdul
Baqi. I answer the issue accordingly." Having gone through the
above judgment, firstly we find that it was an inter se dispute
between Shia Central Board of Waqf and Sunni Central Board
of Waqf. In the present case the judgment is relevant only to
show that such a suit was filed and decided by the concerned
Court as also its result. The findings are recorded on various
issues inter parties, i.e. those who were before the Civil Judge
Faizabad in the above case are binding but the learned counsel
for the defendants Muslim parties could not show as to how the
same would bind the plaintiffs Suit-1 or other Hindu parties in
rest of the suits since none was impleaded in the aforesaid suit.
Besides a careful reading of the said judgment shows the
following facts:
1. It was an admitted case by both the parties that the
mosque in dispute known as Babri mosque was
constructed during the reign of Babar four centuries ago.
2. The said mosque was included in the list of Sunni
Waqfs prepared by Chief Commissioner of Waqfs under
section of U.P. Act 13 of 1936 i.e. U.P. Muslim Waqf Act
and notified on 26
th
February 1944. The claim of Shia
Waqf Board was that the said mosque is a Shia Waqf
together with Idgah attached to it at Jalpa Nala, Ajodhia
and village Bahranpur Pargana Haveli and 20 Bighas
additional land known as Sholapur grove in Mohal
Bahoranpur Tahsil and District Faizabad.
2857
3. Five issues were framed therein and for our
purposes issues no. 1, 2 and 3 are relevant which are
reproduced as under:
"1(a) Was the mosque in suit built by Abdul Baqi as
alleged by the plff ? If so, was he a Shia as alleged ?
or
(b) Whether the mosque was constructed by Babar
Shah as alleged by deft ?
2. Is the suit within time ?
3. Has the mosque in suit being used by the
members of the Sunni sect as alleged by the deft for
over 12 years ? If so, its effect ?"
4. In respect of issue no. 1 the Court has taken note of
pedigree of Abdul Baqi which was pleaded by the
defendant Sunni Waqf Board and says as under:
S.A. Baqi
/
S. Hizabi Ali
/
Hussain Ali
/
Sukoowat Bibi=Rajab Ali
___________ /___________
/ / /
Ali Naqi M. Afzal M. Asghar
/
T.M. Razi
______/_________
/ /
Kalab Husain M. Zaki
5. In March 1945 when the suit was filed Kalab
Husain came to be represent Mutwalli and a year
ago, M. Zaki was Mutwalli.
6. Referring to Babur Digest part II, page 1 (2
nd
Edition), the Civil Judge has quoted an Arabian
2858
adage that "All people follow the religion of their
kings". He further noted:
"It is said that the saying was exemplified to
the fullest extent in Persia where whole of the
people have become Shias since the occasion
of the Safee (Safavi) dynasty in AD 1499. The
process of assimilation was less rapid in India,
where though several of Nawabs or local
Governors were Shias (Shias.........). This was
eminently the case in Oude (Oudh), the
Nawabs of which were predictory Viziers
(Wazirs) of the empire."
7. The mosque in suit was admittedly built
during the time of Babar who ruled from 1526-1530
and it is clear from the passage quoted above that
the Persians have become Shias before that period.
8. The Civil Judge besides oral evidence
considered the following two documentary
evidence:
(i) Documents pertaining to grant of cash
Nankar; and
(ii) Documents relating to grant received
from the Government.
9. A gazetteer making reference of disputed
mosque at page 173 and 174 was considered by the
Civil Judge and in regard to the disputed mosque the
Civil Judge observed as under:
"It shows that according to local
affirmations Babar came to Ajodhia in 1528
AD and halted there for a week during which
2859
he destroyed the Janamasthan temple and on
its site built a mosque using largely the
materials of the old structure. The author then
goes on to remark that no record of the visit is
to be found in Musalman historians but it must
have occurred about the time of Babar's
expedition to Bihar. The first Settlement
Report also gives the same history of this
mosque and adds that according to Leyden's
Memoirs of Babar, the Emperor encamped
about 5 or 6 miles from Ajodhia and stayed
for a week settling the surrounding country
through it was remarkable that his doings at
Ajodhia were wanting in his own memoirs
(Baburnama)."
10. Serious arguments advanced raised against the
authenticity and admissibility of the facts stated in the
gazetteer aforesaid in respect whereof the Civil Judge held
as under:
"The history of the mosque in the Gazetteer & the
Settlement Report was also sought to be impugned on
the ground that Babar's visit to Ajodhia was not
mentioned in any historical work & the Settlement
Officer was not required to make any such
investigation. I am unable to accept these contentions
also as the works are works of reference and
admissible u/s 57 of the Evidence Act. Moreover, in
dealing with the matters like the present when no
direct evidence is available, such works based on
investigations on the spot and local tradition assume
2860
great importance & unless disproved by superior
evidence must be accepted as containing a correct
history of the subjects mentioned therein."
11. The Civil Judge thereafter referred to two
inscriptions which were also referred in gazetteer and
discussed in the same as under:
"Lastly, there are the two inscriptions in the mosque
which have been reproduced in my inspection notes.
These are also referred to in the Gazetteer &
according to the date in the inscription on the
pulpit it was built in 923 hijri while according to
the other it was in 935 H. corresponding with 1528
A.D. These inscriptions were the sheet-anchor of the
plff's case but I am of the opinion that they are
inconclusive.
The first inscription contains three couplets in
Persian & when translated runs as follows;
"By the order ( ) of Shah Babar, whose
justice went up to the skies (i.e. was well known)
Amir (Noble) Mir Baqi of lofty grandson built this
resting place for angels in 923 hijri".
The second inscription is more elaborate and
contains in the usual high-flown language an eulogy
of Babar and describes Mir Baqi of Sophahian as his
admirer & the builder of the mosque. This inscription
no doubt supports the plffs' case, because it does not
say that it was by the order of Babar Shah & it only
refers to the reign of Babar but 1
st
couplet in the 1
st
inscription near the pulpit clearly supports the
theory that Babar had ordered the building of the
2861
mosque as stated in the Gazetteer & the settlement
report."
3034. The above judgment shows that on the question that
the building in dispute was constructed in 1528 there was no
dispute between the parties since it was a lis inter se between
two Wakfs Board. The nature of building that it was a Mosque
was also not in dispute. The only question was whether it is a
Shia Wakf or a Sunni Wakf. The entire matter had proceeded in
this context. We have no hesitation to say that this judgment is
neither binding upon the plaintiffs before us nor can be relied on
to contend that a particular finding recorded therein is final and
that it should be treated to be a judgment in rem.
3035. One more aspect. The judgment shows that in the
year 1928, Syed Abdul Baki, claimed to be the first Mutwalli
appointed by Babar itself, and in genealogy Mohammad Zaki
was seventh in generation. It is apparently unbelievable that
commencing from 1528 till 1945, i.e. more than 400 years, there
could be only seven generations in the entire genealogy. We
have no hesitation in not accepting the same.
3036. Before us, the case set up and argued by the
defendants is that Babar never entered Ayodhya and, hence,
there did not arise any occasion for him either to get the alleged
temple demolished or direct for construction of a Mosque, but it
was Mir Baki who had been there and got it constructed. In the
judgment relied on by the defendants, an issue was raised,
whether Mosque was built by Abdul Baki or Babar. A finding
was recorded that it was constructed by Babar as pleaded by
Sunni Board. Evidently, the case set up before this Court is
wholly different and inconsistent to what was pleaded and
ultimately decided in the above judgment.
2862
3037. Further, there is nothing on record to show that
name of the Mir Baki was Syed Abdul Baki or that Syed Abdul
Baki was the same person as Mir Baki. In "Babarnama" no
person is named as Mir Baki or Syed Abdul Baki. No document
showing that there existed person in the name of Mir Baki or
Abdul Baki in 1528 has been placed before us. When Babar
himself never entered Ayodhya, the question of appointment by
him of a Mutwalli would not have arisen. Even otherwise, on
the question as to who constructed the disputed structure and
when, we have already recorded a finding that the plaintiffs
(Suit-4) or the Muslim parties have failed to prove that the
disputed structure was constructed in 1528 either by Babar or
any of his agent on his command.
3038. Moreover, a judgment by itself is not a piece of
evidence except to the extent it is provided under Section 41 to
43 of the Evidence Act.
3039. In the context of Section 43 of Evidence Act, it is no
doubt true that a judgment is admissible provided it is a relevant
fact in issue as held in Seth Ramdayal Jat Vs. Laxmi Prasad
(Supra). In a civil case, the judgment of a Criminal Court may
be relevant where the fact in issue is about the existence of such
a judgment or not, but not more than that. The evidence
discussed in the judgment of a Criminal Court or the fact that a
person has confessed his guilt in his statement is not admissible
in evidence in a civil suit. This is what was held in Perumal Vs.
Devarajan & others AIR 1974 Mad. 14 and was quoted with
approval in Seth Ramdayal Jat (supra). The Apex Court also
approved a Patna High Court decision in Lalmani Devi &
others Vs. Jagdish Tiwary & others AIR 2005 Pat. 51. The
Court said that acquittal or conviction in a criminal case has no
2863
evidentiary value in a subsequent civil litigation except for the
limited purposes of showing that there was a trial resulting in
acquittal or conviction, as the case may be. The findings of the
Criminal Court are inadmissible. The Apex Court also followed
its earlier decision in Anil Behari Ghosh Vs. Smt. Latika Bala
Dassi & others AIR 1955 SC 566 taking the same view. There
appears to be a somewhat different authority in Shanti Kumar
panda (supra) where an observation was made that an order
passed by the Executive Magistrate in proceedings under
Section 145/146 Cr.P.C. is an order by a Criminal Court based
on a summary inquiry. The order is entitled to respect and
weight before the competent Court at the interlocutory stage. In
Ramdayal Jat (supra), the Apex Court observed that this
observation in Shanti Kumar Panda (supra) is per incurrium
being in conflict of a three-Judges decision in K.G.
Premshanker Vs. Inspector of Police & another JT 2002 (8)
SCC 87. The argument of possibility of conflict in decisions
was rejected in Seth Ramdayal Jat (supra) stating:
"27. In regard to the possibility of conflict in
decisions, it was held that the law envisages such an
eventuality when it expressly refrains from making the
decision of one Court binding on the other, or even
relevant, except for certain limited purposes, such as
sentence or damages. It was held that the only relevant
consideration was the likelihood of embarrassment."
3040. The Court further held that the Civil Court must
decide a suit on its own keeping in view the evidence which
have been brought on record before it and not in the light of the
evidence brought on record in the criminal proceedings. The
Court also observed that an earlier decision in M/s Karam
2864
Chand Ganga Prasad & another Vs. Union of India & others
1970 (3) SCC 694 holding that the decision of the Civil Court
will be binding on the Criminal Courts but the converse is not
true was overruled in K.G. Premshanker (supra) and this fact
has been noticed also in Syed Askari Hadi Ali Augustine
Imam & another Vs. State (Delhi Administration) & another
JT 2009 (4) SC 522.
3041. Then it considered the question of admissibility of
an admission made by a party in a previous civil proceeding. It
was held that admission in the civil suit is admissible. With
respect to an admission made in a pleading, the Court relied on
Gautam Sarup Vs. Leela Jetly (supra) where it was held that
an admission made in a pleading is not to be treated in the same
manner as an admission in a document. An admission made by a
party to the lis is admissible against him proprio vigore. The
same thing was reiterated in Ranganayakamma & another Vs.
K.S. Prakash JT 2008 (8) SC 510.
3042. Here the admission in Suit 29/1945 was that of
Sunni Board that the disputed structure was constructed by
Babar and therefore this admission may operate against it but
the findings of civil court shall not bind the plaintiffs.
3043. Yet another angle, the plaintiffs set up the case of
being owner of the property in dispute, i.e., the land and
building both having constructed the building also. However, no
evidence whatsoever has been put forth to support the
ownership or title over the property in dispute. In the entire
plaint there is no averment as to how the plaintiff claim to own
the property in dispute. In para 2 they have asserted that
Janamsthan, i.e., Janambhumi is the birthplace of Lord Rama
situate in Ayodhya and always belong to the plaintiff no.1. How
2865
and in what manner it belong to plaintiff no. 1 is not stated.
Then in para 3 of the plaint it is said that a temple building of
Janambhumi existed on the disputed land and the said temple
ever since is in possession of the plaintiff no. 1 (para 4). But
here also it is not said as to how and when they came into
possession of the property in dispute. In the statement under
Order X Rule 2 CPC the plaintiffs have said that the temple was
made by the plaintiff and the land which is the birthplace of
Lord Rama is owned by the plaintiff. But in support of the
above two statements no evidence has been placed at all. Sri
Verma sought to rely on a registered deed of the bye-laws of
Nirmohi Akhara wherein Janamsthan is also mentioned amongst
the properties of Nirmohi Akhara and submits that this
document clearly shows that the place in dispute is owned by
the plaintiffs (Suit-1). We fail to understand as to how a
document sought to be prepared by plaintiff himself can create a
right or title on a property and in any case can be used as an
evidence against a third party. Merely because they got it
registered and have placed on record a certified copy thereof,
that does not mean that the contents thereof and their truth stand
proved. The only effect of filing a certified copy of a document
after obtaining from the authority in whose possession legally it
ought to be is that a formal proof stands dispensed with but that
does not mean that the correctness of the contents thereof also
will stand proved unless it is proved by producing cogent
evidence. When a certified copy is filed or when an old
document of thirty years is produced from proper custody, what
shall be deemed to stand proved has been considered time and
again.
3044. In V. Seethaya & Ors. Vs. P. Subramanya
2866
Somayajulu & Anr. A.I.R. 1929 Privy Council 115, it was
held:
Their Lordships agree with the learned Chief Justice and
his coleagues in the High Court that the document was
admissible as evidence of the terms of the lost original. The
document is over 30 years old and is produced from
proper custody. By S. 90, Evidence Act of 1872, the Court
may therefore presume the signatures authenticating the
copy to be genuine.
3045. In the context of Sections 65 and 90 of the Evidence
Act, a Single Judge of Calcutta High Court in Khetter Chunder
Mookerjee Vs. Khetter Paul Sreeterutno 1880 ILR 5
(Calcutta) 886 observed that Section 90 provides where any
document, purporting or proved to be thirty years old is
produced from any custody which the Court in the particular
case considers proper, the Court may presume that the signature
and every other part of such document, which purports to be in
the handwriting of any particular person, is in that person's
handwriting; and, in the case of a document executed or
attested, that it was duly executed and attested by the persons by
whom it purports to be executed and attested. The Court said
that the execution of a document produced from proper custody,
and more than thirty years old, need not be proved, if the
document is produced.
3046. In Land Acquisition Officer and Mandal Revenue
Officer Vs. V. Narasaiah (2001) 3 SCC 530 it was held that the
certified copy of a registered sale deed would be admissible in
evidence. The above decision was approved by the Constitution
Bench of the Apex Court in Cement Corpn. Of India Ltd. Vs.
Purya (2004) 8 SCC 270.
2867
3047. In Sarabjit Rick Singh Vs. Union of India (2008) 2
SCC 417 the Court in para 39 said :
It may be true that a document does not prove itself. Its
contents, unless admitted, should be proved in terms of the
provisions of the Evidence Act, unless the contents of the
documents are said to be admissible by reason of a
provision of a statute, as for example, Section 90 of the
Evidence Act. But what misses the aforementioned
submission/contention is that whereas the contents of the
document is to be proved for the purpose of trial but not for
the purpose of arriving at an opinion in regard to existence
of a prima facie case in an enquiry.
3048. Sri Verma, relying on the work of Sri A. Ghosh in
the "Law of Endowment (Hindu & Mahomedan)" by A.
Ghosh, Second Edn. published by Eastern Law House, Calcutta
(page 148-149) submitted that even hearse statements are
admissible in suit for recovery of possession filed by Shebait
who is wrongly ousted and reads as under:
"In a suit to recover property claimed by the plaintiffs as
shebaits lately in possession and wrongfully ousted
therefrom, it was held that the statements made by the
ancestors of plaintiffs and defendants were receivable as
evidence. It is enough to say that possibly, possession and
user in the apparent capacity of shebaits might, if
unrebutted by any other evidence at all, be sufficient as
evidence of title (so far as it goes) to make out a prima
facie case in favour of the plaintiffs. In Srish Chandra v.
Rakhalananda 41 C.W.N. 1103 Guha and Mitter, JJ.
discussing the question whether hearsay statements in
regard to instalation and sheba of a deity are admissible or
2868
not, held that "the evidence given on the side of the
plaintiffs, so far as it consisted of the statements by the
plaintiffs in their evidence given in Court in support of the
position that the deities Radha Gobinda and Lakshmi
Narain Jiu were worshipped by them and maintained by
the Kashimbazar Estate from generation to generation, that
the plaintiffs' family had been doing the worship at the cost
of the said Estate; that one of the plaintiffs, 65 years of age,
heard about the origin of vritti from his father and the
tradition descended from father to son, and the worship of
the deities continued on the expenses paid, Rs. 4000 as
vritti or annual grant, by the Kashimbazar Estate: that the
vritti was received from the last five generations and the
history of its origin came down as tradition in the family
from father to son, as deposed by another plaintiff aged 63
years, was subjected to the comment that it was altogether
inadmissible inasmuch as it was hearsay evidence. It was
also contended on the 'authority' of the decisions in Lekraj
Kuer v. Baboo Mahpal Singh 7 I.A. 63 : 5 C. 744 that
regard being had to the provisions of Sec. 2 of the Indian
Evidence Act, which has repealed all rules of evidence, not
contained in any of the statutes or regulations, it was for
the plaintiffs to make out that the evidence given by them
was admissible under some provisions of the Indian
Evidence Act. It is to be noticed in this connection that Sec.
2 (1) of the Indian Evidence Act repeals the whole of the
English Common Law on Evidence so far as it was in force
in British India before the passing of the Indian Evidence
Act, and that provisions of the law, in effect, prohibits the
employment of any kind of evidence not specifically
2869
authorised by the Act itself. It must be recognised, however,
that the principle of exclusion adopted by the Indian
Evidence Act, should not be applied so as to exclude
matters which may be essential for the ascertainment of
truth. Applying this principle to the case before us, the
evidence of tradition in the family of the plaintiffs, can not
be characterised and placed in the category of mere
hearsay evidence inadmissible under the law .... The
evidence coming from the plaintiffs' side, consisted of a
tradition handed from time immemorial; and the evidence
given by some of the plaintiffs was admissible as statement
of opinion as to a family tradition, which was founded upon
information derived from deceased persons. The relaxation
of the rule as to reception of hearsay evidence must be held
to be permissible where such a course tends to the due
investigation of truth, and the attainment of justice."
3049. In a title suit, complete evidence showing ownership
has to be placed on record. In Karnataka Board of Wakf Vs.
Government of India & others (2004) 10 SCC 779, the Apex
Court said that in a title suit, concrete evidence showing
ownership must be placed on record. In para 8, the Court said:
"The contention of appellants that one Arabian saint
Mahabari Khandayat came to India and built the Mosque
and his lineal descendents possessed the property, cannot
be accepted if it is not substantiated by evidence and
records. As far as a title suit of civil nature is concerned,
there is no room for historical facts and claims. Reliance
on borderline historical facts will lead to erroneous
conclusions. The question for resolution herein is the
factum of ownership, possession and title over the suit
2870
property. Only admissible evidence and records could be
of assistance to prove this."
3050. Further, with respect to Section 4 of Wakf Act,
1954, it observed that the Wakf Board could exercise its rights
only over existing wakf properties since the suit property itself
is not an existing wakf property. The appellant cannot exercise
any right over the same. It further observed in para 12 that a
plaintiff filing a title suit should be very clear about the origin of
title over the property. He must specifically plead it.
3051. The defendants muslim parties have set up a claim
that the building in dispute got constructed by Babar through his
Commander Mir Baqi in 1528 AD and was given as public waqf
to muslims resulting in a right vested in muslims in general. It is
also said that the muslims have continued to keep possession in
the shape of waqf over the Babari mosque from 1528 AD up to
the present. It is further said that in case it is found that any
temple existing on the site of the disputed structure in that case
also the possession of the defendant muslim parties over the
property in dispute for the last 400 years which is in the
knowledge of the plaintiff to the suit or other Hindus and,
therefore, they have lost any right over the property in dispute. It
is not the case of the defendants that the Hindus in general or the
plaintiffs are the owner of the property in question.
3052. In order to decide issue 8 (Suit-3), whether the rights
of plaintiff have extinguished for want of possession over 12
years prior to the suit it has to be seen as to in which capacity
the plaintiffs are claiming possession, what they have proved
and only then the question of extinction will arise. A right
extinguished, if somebody is deprived of possession of a
property for more than 12 years under Section 28 of the LA
2871
1963 and Section 27 of LA 1908 which are pari materia. The
question of extinction of right would arise if somebody has right
over the property and that too in the capacity as owner. If one is
not owner of the property in question the occasion of loss of
right or extinction of such right does not arise. In the case in
hand since the plaintiffs have completely failed to show that
they have right as owner over the property in dispute, or a title
vested in the plaintiffs regarding the property in question, the
occasion of loss of such right or extinction of such right does
not arise at all. It is also not the case where the defendants have
admitted title or ownership of the plaintiffs and hence they have
no occasion to lead any evidence to prove such title. Had it been
so, something could have been said and there could have been
an occasion for this Court to consider whether the plaintiffs had
the possession in the property in dispute for preceding 12 years
prior to the date of filing of the suit or not.
3053. In Mohammad Shah Vs. Fasihuddin Ansari &
others AIR 1956 SC 713 is the case where the plaintiffs admit
that the defendant is in possession of certain property but they
(plaintiffs) assert that the possession of the defendant is on
behalf of Sunni Mohammad community. For this reason, the
plaintiffs say that a declaratory suit will lie and no need to sue
for possession. It is also contented that no question of limitation
or adverse possession can arise because firstly the possession is
and always has been that of the community through the
defendant and secondly because the defendant is a trustee under
a trust for a specific purpose and so cannot set up a title hostile
to the trust. In that case neither of the side possessed any
document of title. It was held that the burden lies upon the
plaintiffs. Defendant is admittedly in possession and except for
2872
the fact that he (defendant) is in possession on their (plaintiffs')
behalf (a fact which the defendant denies), the plaintiffs are out
of possession. Hence, the plaintiffs must prove that the
defendant is in possession on their behalf. It also held that a
stranger to the trust could have encroached on the trust estate
and would in course of time have acquired a title by adverse
possession. But a Mutwalli cannot take up such a position.
3054. Sri Verma, however, submitted that before the
Magistrate, in the proceedings under Section 145 Cr.P.C., a
number of evidences were filed by the Muslim parties admitting
that the possession of the property in dispute is with the Hindus.
Muslims have never visited since 1934 the said building and the
same may be handed over to Hindus. It is contended that the
said documents are admissible in evidence having been filed in
statutory proceedings and that would show that the defendants'
claim for adverse possession has no basis at all.
3055. We may clarify at this stage since we are referring
and mentioning at many places the register number and page
number in respect to the documentary evidence filed by the
parties that the documents (exhibits) are running in a few
thousand pages. Condition of most of the documents is also
precarious being quite old. Many were already in torn
conditions and it was difficult to preserve so as to be used by the
Court during arguments. In the circumstances, various
documents filed by the parties in these cases marked 'exhibits',
for the convenience of the parties, were directed to be scanned
and bound in the form of registers, which have been prepared
and are 42 in numbers. We, therefore, while discussing the
exhibits and other documents filed by the parties, for
convenience, refer the register number and page number thereof
2873
for tracing it out smoothly.
3056. Register Nos.1 and 2 contain documents and papers
relating to the proceedings conducted under Section 145 Cr.P.C.
and have in all, 322 pages (Register 1 page 1-132 and Register 2
pages 133-322).
3057. Our attention is drawn to written statement dated
17
th
January, 1950 (Page 69-75 Register 1) of one Srivastava
Narayan Prasad Sinha raising the question of ownership/
proprietorship of the disputed premises stating that he is
representative of Raja Ram Narain, who enter into a treaty on
22
nd
August, 1757 and 23
rd
February, 1758 claiming possession
including Faizabad Nazul area. He submitted that under the
orders of Emperor Babur, a temple of Lord Ram Chandra Ji and
Vishnu, situated at the place, was dismantled and using the
material including pillars affixed there, the disputed building
was constructed. He also refers to the existence of two places of
worship within the enclosure of the disputed premises and
continued worship by Hindus in the said two places. He gave
some other facts showing how Raja Ram Narain came into
picture, who own and possess the disputed premises Sri Sinha,
however, neither has come up in the Civil Court to raise such a
claim nor is represented before us. The version contained in his
written statement filed before the Magistrate in the proceedings
under Section 145 Cr.P.C. remain his ex parte version having
not been proved as per the prescribed procedure in law.
Therefore, we find it difficult to look into those aspects, as said
by him in the aforesaid written statement.
3058. Our attention was also drawn to the affidavit filed by
Sri Anisur Rahman, S/o Maulvi Vaziruddin along with his
criminal transfer application No.208 of 1950 (Page 87-94
2874
Register 1) wherein para 2 he said the courtyard of the
mosque is separated by a wall from a small temple which is
situated to its East. It also says Hindus and muslims of
Ajodhya have been peacefully and calmly carrying on their
worship in the temple and prayers in the mosque respectively
from times immemorial.
3059. Sri P.N. Mishra, and Sri Verma, learned counsels
drew our attention to paragraphs 4 and 5 of the affidavit which
reads as under:
4. That on the 9
th
of November, 1949 it was found that
two tombs and about 25 graves which lay outside the
compound of the Babari mosque had been levelled down
and the mosque in the cemetery known as the Qanati
mosque had been dug up and a new platform adjacent to
the aforesaid mosque was constructed and an idol placed
on that platform.
5. That from 22.11.1949 the Hindus of the place started
their 'Jap' (worship) on that place in which a large number
of Hindus were collected and for that reason the police
advised the muslims not to say their prayers in the
surviving Babari mosque all the 5 times while the 'Jap'
continued but confine it to Fridays only. In order to avoid a
communal clash the muslims acted on the advice and
continued to say their prayer every Friday upto
December 16, 1949. Except for the Friday prayers the
mosque used to be kept locked and guarded by the
Police.
3060. It is contended that though the above affidavit is a
part of the transfer application filed before this Court, which has
already been rejected vide judgment dated 30
th
May, 1950 by
2875
Honble B. Bhargava as His Lordship then was, but the facts
asserted therein amounts to admission on the part of the
Muslims and therefore, facts contrary to what have been pleaded
by them subsequently can validly be ignored. They are
estopped from changing their statement. It is said that it is an
admission and therefore, is binding on the Muslim parties. They
cannot take a stand which has been taken by them through their
representative Anisur Rahman in the above matter.
3061. Then also drew our attention to certain affidavits
filed by Sri Hasnu, S/o Aladin and Wali Mohammad S/o Hasnu
dated 8
th
February, 1950 (Register 1, Page 95) stating that the
disputed building was constructed by demolition of Janam
Bhumi temple. Hindu and Muslim both were offering worship.
After 1857, Muslims were offering Namaz on Friday inside the
mosque. In the outer enclosure, Hindus were worshipping Lord
Ram Chandra Ji and except of Friday they were also worshiping
inside the mosque. There has been consistent agitation between
Hindu and Muslim. In 1934 some part of the mosque was
damaged but all Hindus were acquitted. Thereafter Muslims
stopped offering Namaz and Hindus are continuously
worshipping since then and till date. The deponents have no
objection if the said mosque is handed over to Hindus. Copies of
affidavits filed by Sri Peeru S/o Varati dated 11.02.1950 (Page
101 Register 1); Mohd. Umar S/o Wazir dated 11.02.1950 (Page
105 Register 1); Azimullah S/o Razab dated 13.02.1950 (Page
109 Register 1); Latif S/o Abdul Aziz dated 13.02.1950 (Page
113 Register 1); Mohd. Hussain S/o Wasau dated 14
th
February,
1950 (Page 119 Register 1); and Abdul Jalil S/o Abdul Wahid
dated 14
th
February, 1950 (Page 121 Register 1) were also
placed before us. Besides the affidavits, the aforesaid persons
2876
also filed their separate written statements before the concerned
Magistrate in the proceeding initiated under Section 145
Cr.P.C., which are also part of the record i.e. Register 1. All
these affidavits have similar contents.
3062. Register 2 also contain copies of affidavits worded
in the similar languages, as noticed above, which have been
filed by the following:
1. Jaan Mohammad S/o Husaini dated 14.02.1950
(Page 137)
2. Abdul Sattar S/o Shamsher Khan dated 16.02.1950
(Page 141)
3. Abdul Ganni S/o Allah Bux dated 16.02.1950 (Page
143)
4. Rozeed S/o Tunnu Dated 16.02.1950 (Page 147)
5. Hosaldar S/o Ghirau dated 16.02.1950 (Page 151)
6. Ramzan S/o Jumman dated 16.02.1950 (Page 153)
7. Gulley Khan S/o Nawab Ali dated 16.02.1950 (Page
157)
8. Mohd. Ismail dated 16.02.1950 (Page 161)
9. Abdul Shakur S/o Eedan dated 16.02.1950 (Page
165)
10. Abdul Razzak S/o Wazir dated 16.02.1950 (Page
171)
11. Naseebdar S/o Jahan dated 24.02.1950 (Page 177)
3063. The above affidavits in Register 2 are also
accompanied with the written statement of the said persons. It is
mentioned on the back of the written statement that the same
were received by the Magistrate, verified by the persons claims
to have filed the same and thereafter were taken on record.
3064. The admissibility of the aforesaid affidavits and the
2877
contents thereof was disputed by Sri Jilani, and other counsels
who have adopted his arguments, stating that said documents
were filed before the Magistrate but the averments therein, at the
best, are ex parte version and those deponents have neither been
examined as witnesses nor the Muslim parties had any occasion
to cross examine them. Therefore, the aforesaid documents are
inadmissible.
3065. On the contrary, Sri P.N.Mishra and Sri R.L.Verma,
learned counsels submitted that the documents filed in statutory
proceedings are admissible in evidence to the extent that the
facts stated therein amounts to an admission and the same can
be relied on by the other party in subsequent judicial
proceedings. No authority in support of the above submission
covering the issue directly cited by the learned counsels. We
are, however, of the view that in the absence of the authors
being available for cross-examination by the other side their ex
parte version, if any, contained in the documents filed even
before a statutory authority, cannot be relied on and cannot
partake the nature of an admission binding on a party in the
subsequent judicial proceedings.
3066. We may notice at this stage the reply dated
05.04.1950 (Page 195 Register 2) submitted by the then City
Magistrate, Faizabad i.e. Sri Markandeya Singh before this
Court in the criminal transfer application filed by Sri Annisur
Rahman wherein para 3 he said :
Regarding allegations contained in para 8, I beg to say
that on being satisfied from credible sources that a dispute
likely to lead to a breach of the peace between Hindus &
Muslims in Ayodhya over the question of rights of
proprietorship & worship in the buildings claimed
2878
variously as Babri Masjid & Janam Bhumi Mandir, I
passed an order u/s 145 Cr.P.C. and attached the said
building. The parties were called upon to put in written
statement of their respective claims with regard to the fact
of actual possession of the subject of the dispute. As a
matter of fact the order u/s 145 Cr.P.C. was meant to check
an imminent breach of the peace.
3067. So far as the District Magistrate is concerned, on
page 199 Register Vol.2 is a letter dated 6
th
April, 1950 by Sri
J.N.Ugra, while forwarding explanation of Sri Markandeya
Singh, City Magistrate, Faizabad wherein he has said that he
himself (Sri Ugra) has taken charge as District Magistrate,
Faizabad on the afternoon of 14
th
March, 1950 and had nothing
to do with the case at any stage. At the cost of repetition we may
place on record hereat these two documents which were taken
into consideration by this Court and thereafter the transfer
application was rejected. There are two written statements filed
by Sri Baba Abhayram Das dated 29
th
December 1950 (Page
203 Register 2) and Baba Baldev Das dated
27.09.1950/29.12.1950 (page 207 Register 2) wherein it has
been said that the property in dispute for the last more than 12
years is in possession of Nirmohi Akhara and also owned by it.
From 1935, no Muslim person has ever enter the disputed
premises and has also not offered any prayer (Namaz) therein.
3068. On Page 211 Register 2 is a statement of Sri Sattar
Mohammed S/o Barsani dated 21.04 (year is illegible) stating
that the building in dispute was constructed by Babur in 1528
A.D. and was made a public wakf for the benefit of Muslims in
general and since then for several hundreds years
uninterruptedly Muslims are offering Namaz therein till
2879
December, 1949.
3069. Sri Anisur Rahman also filed his separate written
statement dated 08.07.1950/29.12.1950 (Page 215-219 Register
2) and with respect to the nature of the disputed property, period
of construction/possession and worship etc. from para 1 to 9 it
says as under:
i . r l ;-in - nili i -i r~i i-i - ir ii
iriir lr i iir | ni-| i -l- -i - i| -l-
r. l i iriir - i n ri| lri-ni ii i-
ii rzs ; o - ni-| ii. i n--| n-i-
- -ii l i- li. l - i- - -ii i
r ;in r.
i z. r l i ni-| -l- - iriir i -l-
- | linin |n iiin l - lni
iii iii iir| -i li. i i i nn
- n li - i i l-ni ri. i i i nn
- nli i| i ; lni i i- ii. i i
i i i ri -ii r -n - - lni - i
;ii - ln soz o s ii c i; iii ni i -
li. i - i ;ni nn i l l-i n -- i| i|
ii. i -ii i -n - n -- nil
- -nl~i i i lni - -ilin ii i |
ri - -nl ii ni -i| li -il -l- i|
ni li.
i s. r l i- - -ii i | i- i i ni
i- ;-in - nili i| -l- i| rzs ; o i n
- i ini r.
i . r l | i - i- - -ii i oo i
;~- inir| | i- r lr ;-in - nili -
ni -l- i- li l| i -i | ;in n
i -i n i r.
i r. r l | i i- r lr i i; r ;-in
2880
- nili i| -l- i| - ii i r. i i i
i| ; ri r i r.
i c. r l ;-in - nili i| -l- i| i| -l
- i l- i| i r. i i| | i- | i -l ri.
i /. r l | i- |n - -ii ;-in -
i| -l- i| - c l- s ; o n -i -i -in
i |.
i s. r l s iili r lr l - s - i-|
| i| iil- i|. z - ss ; o i ;-in
- nili i| -l- i| | -n . . . . -l- ir
- i i li. l - -i r | r lr i -i r i
l l s i in| -l- | r -n| |. |
i - ; | i r i- li i | ni ri | ni
; - i- nin li l i;i ; l-- | rn
ri .
i s. r l zz - s ; o i r -i r
r i l ;-i n - ni l i i | -l - s i i l i
- l r-i i i rn r . ni | ;- ni
r i - l i i | n; . ni ri | ni -
;i i l i i r -i i -l - - -
ni i ni i i ni .
"Section 1. That the controversial building situated in
Mohalla Ram Kot Ayodhya city was built by the king of
Hind Shah Babar and is a Masjid known as Babri Masjid.
This Masjid was built by the said king Babar after he won
Hindustan in 1528 A.D. in Ayodhya and made it a general
Waqf for all the Muslims who have a right to offer prayers
there.
Section 2. That after getting the Masjid constructed
Shahanshah Babar, for khitabat and other expenses in
respect of the Masjid sanctioned an amount as a recurring
gift fund from the Royal Treasury which continued to be
2881
given during the royal regime of Moghuls. After the down
fall of this royal kingdom, Nawabeen of Oudh continued
the tradition and the recurring grant for the Masjid was
regularly paid. Not only this Nawab Asifuddaula of Oudh,
increased this amount of grant for the Masjid to Rs. 302-
3annas and 6pies. This amount of recurring gift later
continued in the British regime after the down fall of Oudh.
During Bandobast first the British Govt. did not paid cash
to the Mutawallis, instead they allotted two Mawaziat of
Sholapuri and Bahoranpur adjacent to Ayodhya as moafi
for the expenditure of Babari Masjid.
Section 3. That the possession of the general Muslim as
well as the party number2 as Waqf Aam over the
controversial building that is Babri since 1528 continues
till date.
Section 4. That the party number2 and general Muslim
possess the controversial premises as Masjid offer prayers
and recite Namaz in it for more than 400 years, without
any hindrance what soever and this fact is well in the
knowledge of party number 1 and the Hindus.
Section 5. That neither the party number 1 nor the Hindus
had any right over the controversial building that is Babri
Masjid. They never had nor have any possession over it.
Section 6. That the controversial building that is Babri
Masjid was never or is Mandir Janam Bhoomi. It has never
been a Mandir of Ram Chandraji :
Section 7. That party number 2 and general Muslims
offered Namaz Juma till December 16, 1949.
Section 8. That some mischievous Hindus including the
party number1, On November 12, 1949 began Jaap near
2882
the controversial building that is Babri Masjid in which
large number of Hindus gathered and they damaged some
of the graves and outer wall of the Masjid. That the party
number 2 informed the district officers and they simply
posted a guard there so that this act might not be repeated
again.
Section 9. That on November 22,1949 when a word was
around that some unlawful elements would attack the
controversial building that is Babri Masjid, the district
officers were informed who increased the number of
guards on the spot who began locking the Masjid after
every namaz."(E.T.C.)
3070. In para 13 thereof Sri Anisur Rahman also said that
Sunni Central Board of Wakf U.P. is a necessary party and that
he has right to offer worship in the said building hence the idols
placed therein be immediately removed and his right of worship
be restored.
3071. Since all these persons have neither been examined
nor cross examined before this Court, therefore, these
documents can not be read in evidence. Be that as it may, what
we find is a piquant situation in this case. The plaintiffs have set
up a case claiming ownership of the property in dispute but have
failed to discharge their burden particularly when the defendants
have not admitted their title. The defendants at the first stance
have set up a case based on their title and possession but,
thereafter, have pleaded that in any case their possession having
continued for hundred years, the title, if any, of the plaintiff
stands extinguished. The plea of extinction of title will depend
on a proven fact that the other person has a title, only then the
question of extinction will arise. If the title has not extinguished
2883
of that person, and no one else is pleaded by the defendant as
owner against whom he claims to have matured a title by
prescription, the defendants' plea of adverse possession would
also fail. We have already referred to various authorities
showing necessary ingredients of adverse possession, how and
in what manner it has to be pleaded and proved. All these legal
mandatory requirements are apparently missing not only in the
pleading but parties have also failed to prove their case so far as
the question of adverse possession is concerned. We have
considered witnesses of Muslim parties i.e. PW 1 to 9 and few
others. Many of them have categorically stated that in the
entrance gate of dividing wall, no lock ever put till 22
nd
December 1949. It is also not the case that there was some other
arrangement made to check entry of the members of one
community and it was confined to another community. It
appears to us, that, no person was restricted from entering the
premises in dispute (inner courtyard) and in fact there was no
restriction at all whatsoever to any one's visit to the premises in
dispute (inner courtyard) for the purpose of worship. The mere
entry of Muslims in the premises in dispute in such manner, by
no mean can be termed as 'possession' what to say of "exclusive
possession" so as to meet the requirement of plea of adverse
possession.
3072. The documents or orders under Section 145 Cr.P.C.,
since do not decide the matter of title, only to a limited extent
can been seen. On a question as to who is entitled for
possession, it was held in Dinomoni Chowdhrani Vs. Brojo
Mohini Chowdharani (supra) that the Police orders referable to
Criminal Procedure Act applicable in 1867 and 1876 for
preventing breaches of peace are admissible in evidence on
2884
general principles as well as under Section 13 of the Evidence
Act to show that such orders were made. They decide no
question of title. Under Section 145 Cr.P.C., the Magistrate, if
possible, is to decide which of the parties is in possession of the
land in dispute and once he take such a decision, he would pass
an order declaring such party entitled to retain possession until
evicted in due course of law. The Judicial Committee held:
"This necessarily makes them evidence of the following
facts, all of which appear from the orders themselves,
namely, who the parties to the dispute were; what the land
in dispute was; and who was declared entitled to retain
possession. For this purpose, and to this extent, such
orders are admissible in evidence for and against every
one when the fact of possession at the date of the order has
to be ascertained."
3073. Even otherwise it cannot be said that the plaintiffs
had "possession" of the property in dispute i.e. inner courtyard.
They never entered the premises exclusively, prior to
22.12.1949, for the purpose of managing, maintaining or
worshipping in the capacity of priest, Pujari or Mahant and,
therefore, the question of extinction of their right even otherwise
does not arise. OPW 1 a witness produced on behalf of plaintiffs
(Suit-5) has stated that in the night of 22
nd
/23
rd
December, 1949
idols from Ram Chabutara in the outer courtyard were shifted to
the building in the inner courtyard and placed under the central
dome of three domed structure. He has also said that from 23
rd
December, 1949 and onwards Pooja etc. of the idols were
observed by the Mahants and priests of Nirmohi Akhara till the
property was attached under Section 145 Cr.P.C. vide order
dated 29
th
December, 1949 of Magistrate. On this aspect neither
2885
any evidence contradicting the said statement has been placed
by the defendants muslim parties nor OPW 1 has been cross-
examined on this aspect but this is not admitted by plaintiffs and
hence cannot be read in their favour.
3074. However, as we have already said, the Hindus
continue to visit inner courtyard for the purpose of worship. It
may be said that the members or people of Nirmohi Akhara
were not included in those persons, i.e., Hindus. The nature of
worship has also been clarified by some of the witnesses that
they used to worship the place which they believe as birthplace
of Lord Rama in inner courtyard as also images of Gods and
Goddesses carved on the black Kasauti stone pillars which were
there in the disputed building in the inner courtyard. Therefore,
entry of plaintiffs in the inner courtyard as a mere worshipper
atleast till the date when the property was attached may not be
doubted but the issue in question is about extinction of their
rights which means the right in the capacity of the owner or title
as contemplated under Section 27 of LA 1908. In this context
we find that the plaintiffs have failed to prove any such right,
and the question of extinction thereof does not arise.
3075. The suit having been filed in 1959. It cannot be said
that in the preceding 12 years the plaintiffs never had possession
over the property in dispute (inner courtyard). Neither the
plaintiffs could discharge burden of proof that they own the
property in dispute nor the defendants could prove by leading
trustworthy evidence that the plaintiffs were the owner but
remain dispossessed from the property in dispute for over 12
years and that prior or upto the date of the suit, defendants
fulfilled all the requirement to clear the plea of adverse
possession. Issue no. 8 (Suit-3) is decided accordingly in
2886
negative.
3076. Issue 2 (Suit-4) relates to the possession of the
property in dispute of the plaintiffs upto 1949. The burden to
prove this issue lie upon the plaintiffs. The concept of property
in Suit is different then what it was in Suits-1 and 3. Suits-1 and
3 were confined to the premises covered by the inner courtyard
of the disputed site. Suit-4, however, relates to the entire
premises, i.e., inner and outer courtyard both excluding a small
area in the southern side. The plaintiffs, therefore, have to prove
first that they were in possession of the entire property, i.e.,
inner and outer courtyard both upto 1949 and only then the
question of their dispossession from the same in 1949 would
arise.
3077. Besides, we may also mention at this stage and shall
discuss it later in detail that there is no factual averment in the
plaint that the plaintiffs were dispossessed at any point of time
in 1949. On the contrary their case is that in the night of
22
nd
/23
rd
December, 1949 idols were kept in the building in
dispute, i.e., the premises marked as A B C D in the map
appended to the plaint which means the inner and outer
courtyard both. This placement of idols resulted in obstructing
the right of worship of plaintiffs, as well as defiled and
desecrated the mosque. These are three different things and their
ingredients are also different. However, we shall discuss it in
detail later on.
3078 At this stage, we are concentrating on the question
whether the plaintiffs have discharged burden of proof about
their possession of property in suit as a whole, i.e., inner and
outer courtyard, up to 1949.
3079. In para 5 of the plaint (Suit-4) itself the plaintiffs
2887
have averred:
"5. That in the mosque, but outside the main
building of the mosque, there was Chabutara 17' x 21' on
which there was a small wooden structure in the form of a
tent which is still there."
3080. Regarding this Chabutara they have read certain
averments pertaining to an earlier litigation between Mahant
Raghubar Das and the State in 1885 in which one Mohd. Asghar
claiming himself Mutwalli of Babari Mosque also appeared as
defendant no. 2. Paragraphs no. 6, 6A, 6B, 6C, 6D, 6E, 6F and 7
relate to the said litigation and various judgements passed
therein. It read:
"6. That in 1885, one Mahant Raghubar Dass alleging
himself to be the Mahant of Janam Asthan instituted a suit
(Original Suit No. 61/280 of 1885) against the Secretary of
State for India in Council and Mohd. Asghar, Mutawalli of
the Babri mosque, for permission to build a temple on the
Chabutra 17' x21' mentioned in para 5 above, in the court
of the learned Civil Judge, Faizabad which was dismissed,
and an appeal from the said decree was also dismissed.
By the learned District Judge, Faizabad (Civil
Appeal No. 27 of 1885). In the sketch map filed alongwith
the plaint in Suit No. 61/280 of 1885 the entire building,
with the exception of the Chabutra 17' x 21' was
admitted to be mosque and was shown as such.
6A. That the cause of action for the suit in Suit No.
61/280 of 1885 in the Court of the Civil Judge, Faizabad,
arose on the refusal of the Dy. Commissioner of Faizabad
on the representation of some Muslims to grant permission
to Mahant Raghubar Dass, Mahant of Janam Asthan for
2888
the construction of a temple on the ground that a temple
could not be permitted to be built on land adjoiing the
mosque (meaning thereby the Babri Masjid).
6B. "In that suit Regular Suit No. 61/280 of 1885 of the
Court of Civil Judge, Faizabad Mahant Raghubar Dass
was suing on behalf of Himself, on behalf of Janam Asthan,
and on behalf of the whole body of persons interested in
Janam Asthan and Mohd. Asghar, Mutawalli of the Babir
Masjid was made a defendant."
6C. Mohammad Asghar Defendant Mutawalli of Babir
Masjid contested the suit inter-alia on the ground that the
land on which the temple is sought to be built is not the
property of the plaintiff or of the Asthan, that the said
land lies within the Ahata of Babari Masjid and is the
property of the Masjid.
6D. That in the suit mentioned above the matter directly
and substantially in issue was:-
(i) the existence of the Babari Masjid.
(ii) the right of Hindus to construct a temple on land
adjoining the Masjid.
The existence of the mosque was admitted by the plaintiff in
that suit and the Suit of the plaintiff was dismissed on the
further ground of public policy.
6E. If the building was not a masjid but a temple as
alleged in the present suit the matter might and ought to
have been pleaded by Mahant Raghubar Dass in the
former suit (suit No. 61/280 of 1885 mentioned above) and
shall be deemed to have been a matter directly and
substantially in issue in that Suit and the plea that the
building is not a Masjid but a temple cannot be raised in
2889
the present suit. For the reasons mentioned above the
decision in the former suit operates as resjudicate in the
present Suit.
6F. That on the admission contained in the plaint of
Regular Suit No. 61/280 of 1885 mentioned in the
preceding paragraphs it must be taken an established fact
that the building now claimed by the Hindus as the temple
of Janam Asthan was and is a mosque and not a temple.
7. That the suit mentioned above was a sensational
case, in which the entire Hindu public and more specially
all the Mahants of Ajodhiya and other respectable Hindus
of Ajodhiya and Faizabad were deeply interested."
3081. The sketch map filed alongwith the plaint in Suit-
1885 has been relied upon by plaintiffs as is evident from para 6
of the plaint stating that the said Chabutara was shown therein in
the mosque premises. In para 6 referring to the order of the
Deputy Commissioner, the plaintiffs said, "a temple could not be
permitted to be built on land adjoining the mosque (meaning
thereby Babari masjid)." It shows that the plaintiffs also
believed that the actual building structure only constitute
mosque and rest of the area between the outer wall and the
building was land adjoining the mosque and not the mosque
itself or part of the mosque itself. The written statement filed by
Mohd. Asghar in 1885 suit has been referred to in para 6(C) and
copy thereof has also been placed on record as Exhibit A-23,
Suit-1, Register 7, page 255, Admitting that the said Chabutara
was constructed in 1857, he, however, submitted that the said
action was unauthorised. In para 5 he admits that Sita Rasoi and
a Kuti has also been constructed and despite of the orders
having been issued the same are not removed.
2890
3082. The map appended to the plaint in Suit-1885 is also
on record as Exhibit A 22 (Suit-1), (Register 7 page 239) and it
would be appropriate to reproduce the said map (only disputed
site):
Note: The rectangular area covered by letters W B W1 W2
on the extreme southern side is not the part of property in
dispute in Suit-4.
3083. There is an endorsement at the bottom of the said
map as under:
"A B C D E is in the possession of the Hindus. W E F G H
is in possession of Mohammedans."
3084. It also shows that the partition wall 'F G' has one
entrance gate and on its northern side there was a barbed
window. In the outer courtyard three structures are shown, i.e.,
Chabutara, Chappar and Sita Chulha. (also called Sita Rasoi and
Chhatti Pujan Sthal)
3085. The correctness of the map was not disputed in 1885
2891
Suit. The Court in 1885 appointed Gopal Sahai Amin's
Commission to prepare the map by spot inspection and submit
report. This map was submitted alongwith report dated 6
th
December 1885. The report is Exhibit A 24 (Suit-1) (Register 7,
page 275) and the Gopal Sahai Amin Commissioner's map is
Exhibit A 25, (Suit-1) (Register 7, page 277). There is nothing
on record to show that this map was ever disputed by defendant
no. 2, i.e., Mohd. Asghar in the said suit. Therefore, as long
back in 1885 in the outer courtyard three non Islamic structures
existed and the premises of the outer courtyard was claimed to
be possessed by Hindus which by itself was not disputed. Only
this much was contested that this possession is unauthorised.
Issue no. 5 (Suit-1885) pertains to the correctness of the
measurement of Chabutara and in the judgement dated
24.12.1885 of the trial court, i.e., Sri Hari Kishan, Sub-Judge
Faizabad, he said:
l-n n|r - -i -i;i | i -i ;i
i i r| r i - ni l - i i i r l - r- -
n i i | ni i - i | i i - s
ri l~ r s nii s ; - - r nii |-
r| r |
"Regarding Issue no. 5 I took the measurement on-
the-spot and found the map to be correct which is in
consonance with the plaint. Mohd. Asghar also does not
have any objection whatsoever with regard to the figure
mentioned in the plaint, rather the measurement is a few
inches less but number of feet is correct."
3086. For Chabutara and other things, the finding recorded
by trial court, not disputed in appeal, and also before us by the
plaintiffs (Suit-4), who in fact, rely on the said judgement, are as
follow:
2892
l-n n |r ii - - ilri -ii ilr r l
i | i i i r l l | l ni ri n| r li
; n -l i n -n -i | i| r ; r
l| l-ni ri n| r| ni - i - ; r l i s
ii ni r r - ; ni r l ; in i| ii i ;
n - r-- n - ir i| n|- n r| niri - ;
i - ; i i | iln r l ; r |i -r i r
lr - -i ri i- r ; r li l i;i -i
ri ni| niri - i r i ni - ; i l n ilr
n r | l-i -l- n ni |i -r i r
l ii - l-ni -| ;ir ii - ilri i | ln
-i i - li ri n| r i i ilr r l r l-i
-l- n | i- | n; r i ;| ni; i|
n l- i - niii ri - l-n r i i | ril r
l in lr - -i ii ; - i- l-ni n i
srr - i i; l-i lr - -i |i -r |
i-n l i i | n; l - -i ir lr
i n l-ni |
"Regarding Issue no. 6 it is clear from the spot inspection
that 'Charanpaduka' is placed there which is being
worshipped. Besides this Chabutra, an idol of Thakur Ji
is also placed there which is also being worshipped. The
Chabutra is occupied by the plaintiff and whatever
offerings are offered are taken by the plaintiff. The
respondent Mohd. Asghar also accepts this fact
concerning offerings and its acceptance by the plaintiff.
From the statements of the witnesses of the plaintiff his
possession is well established and, therefore, barbed wire
wall exists since long separating Hindus from Muslims
which will be mentioned at the appropriate stage. The
witnesses of the respondent express ignorance about the
2893
possession of the plaintiff over the Chabutra. There is a
barbed wire wall between the Masjid and the Chabutra
which may be evident from a perusal of the map prepared
by Amin and the situation becomes clear from it that limit
has been created between Masjid and the Chabutra which
is verified by Government Gazetteer which was prepared
prior to the dispute in question. Earlier, both Hindus and
Muslims used to worship at this place. In 1855, after the
riot between Hindus and Muslims, a barbed wire fencing
was erected to avoid any clash between Hindus and
Muslims so that Muslims may offer prayers inside and
Hindus outside.
3087. In appeal, the District Judge, with respect to the
existence of the structures at the premises in dispute, in
judgment dated 18.03.1886, Exhibit A 27 (Suit-1), Register 7,
page 319/320, observed:
"The entrance to the enclosure is under a gateway
which pears the superscription "Allah" ---- immediately on
the left is the platform a chabutara of masonry occupied
by the Hindus. On this is a small superstructure of wood
in the form of a tent.
This chabutara is said to indicate the birthplace of
Ramchandra. In from of the gateway is the entry to the
masonry platform of the masjid. A wall pierced here and
there with railings divides the platform of the masjid from
the enclosure on which stands the "Chabutara"."
3088. This position of the outer courtyard had continued
thereafter inasmuch as when Suit-1 was filed on 16
th
January,
1950 the Civil Judge appointed an Advocate Commission of Sri
Shiv Shankar Lal who also prepared a map wherein the three
2894
structures, i.e., Chabutara, Bhandar and Sita Rasoi have been
shown to exist in the outer courtyard in same way. The plaintiffs
have not placed any evidence to show that so far as the premises
in outer courtyard, and these three structures are concerned,
possession of Hindus was ever disturbed or denied or they were
ever dispossessed. It is also not said that Muslims ever entered
and visited premises in outer courtyard with animus possidendi,
On the contrary it appears that during the fairs held at Ayodhya,
i.e., Ramnavami fair etc., the rush of Hindu public used to swell
so much so that the executive authorities found it necessary to
have another gate for safety purposes and sometimes in 1873-74
this gate was constructed and opened in the northern wall which
the defendants Hindu parties called "Singh Dwar".
3089. So far as the premises in the inner courtyard is
concerned, it appears to be true that the Britishers divided the
premises with the intention that the Muslims shall worship in
the inner courtyard and Hindus in the outer courtyard but
immediately since thereafter, i.e., from 1858 and onwards we
find a lot of documents on record demonstrating that the Hindus
continued to enter the premises in the inner courtyard also and
offered worship thereat. There was no restriction in the entry
inside the inner courtyard in any manner. The entrance door in
the dividing grilled wall was never locked. It is difficult to hold
that the possession of the premises inside the inner courtyard
remain only with the plaintiffs. Here the "possession" means
right possession, uninterfered possession by the unwanted
person and capacity to control others interference.
3090. There is no evidence that the Muslims had the
possession of the property in dispute after its construction in the
form of mosque by a Muslim Ruler before Tieffenthaler' visit
2895
but on the contrary, Hindus continued to enter the disputed
premises and worship thereat as we find mention, as long back
as in 18
th
century, in the Travellers Account of Joseph
Tieffinthaller who visited Oudh area between 1766-1771 and his
write up was published in 1786. We have already quoted the
relevant extract above. This fact was also reiterated in the
subsequent Gazetteers of Edward Thornton which was
published in 1858.
3091. The plaintiffs (Suit-4), however, have filed certain
Statements of Account and Auditor's Report, orders under
Section 92 CPC, waqf related documents etc. to claim that the
maintenance of the building in dispute was entrusted to
Mutawalli who was looking after the mosque and, therefore,
symbolic possession of the building in dispute had to be with
Muslims. We may have a bird eye view of these documents
also.
3092. These documents can be placed in five categories,
(i) copies of revenue records; (ii) income-expenditure accounts;
(iii) the documents relating to repair of the damaged building in
1934 riot; (iv) the orders under Section 92 C.P.C.; and (v)
correspondence with the Sunni Board regarding wakf and its
registration etc.
3093. In the first category, i.e. copies of revenue records,
comes the following:
(A) Exhibit A-30 (Suit-1) (Register 7, page 333-335) is a
copy of the Khewat Patwari Mauza Bahoranpur of the
period 1332 Fasli (1929 A.D.). In respect of certain plot
number, it mentions the name of Mir Mohammad Zaki as
Numberdar and in the column of partners it mentions the
name of Mohd. Zaki, Amzad Ali and Mir Nazim.
2896
This document relates to Mauza Bahoranpur's
property wherein Mir Mohammad Zaki is shown as
Numberdar. His successor, in his reply dated 20
th
November 1945 (Exhibit A-66, Suit-1), in para 9 has
claimed that his property is not wakf but Nankar Maafi.
We are not concerned with the said property of Mauza
Bahoranpur and, therefore, do not propose to make any
comment on the said document. Suffice is to say that this
document does not help Muslim parties in any manner.
(B) Exhibit A-37 (Suit-1) (Register 7, page 417) is a copy
of Khasara Abadi Mashmoola Misil bandobast Sabik
relating to Mauza Ramkot Pargana Haweli Awadh Tehsil
and District Faizabad dated 20.03.1950.
(C) Exhibit A-38 (Suit-1) (Register 7, page 419) is a copy
of the Naqual Khasara Mashmoola Misil bandobast Sabik
Mauza Ramkot Pargana Haweli Oudh Tehsil and District
Faizabad.
(D) Exhibits A-39 and A-40 (Suit-1) (Register 7, pages
421 and 423) are the copies of the map Kishtwar Misil
Bandobast Sabik Mauza Ramkot Pargana Haweli Tehsil
and District Faizabad dated 09.03.1950 and Intekhab
Naksha Abadi Mauza Ramkot Pargana Haweli Tehsil and
District Faizabad.
(E) Exhibit A-41 (Suit-1) (Register 7, page 425) is a copy
of the Khewat Mauza Bahoranpur.
3094. These revenue documents have been placed to show
that there is mention of existence of a mosque in the area in
dispute by referring plot area. The revenue entries do not create
any right. When contested, particularly in a title suit, the facts
have to be proved on their own. Even otherwise what is
2897
contained in the revenue entries would not show that a particular
party was in possession. As we have already discussed above,
the possession of the plaintiffs (Suit-4) even if we assume what
they claim to be correct, is not of a continuous nature. The
alleged Mutawalli of the disputed structure or the disputed waqf
is not before the Court. Even the so called Pesh-Emam or
Moazzim have not appeared even as a witness in this case. On
the one hand the plaintiffs claim that till 1949 there was a
Mutawalli, a Pesh-Emam and a Moazzim for maintaining the
mosque as also taking care of regular Namaj by muslims but
strangely none of them have taken any step as a result of the
incident of 22/23 December 1949. There is not even a complaint
by any of them what to say of their deposition as witness in
these cases. It is contended that an affidavit of Pesh-Emam,
Abdul Gaffar was filed in a writ petition pending before this
Court against the order dated 01.02.1986 passed by the District
Judge for opening of locks. We cannot take notice of such
affidavit since the deponent has not appeared in the witness box
offering himself for testifying creditworthiness of his averments.
These revenue records, therefore, to our mind do not help the
plaintiffs in any manner on the issue with which at present we
are confronted with.
3095. The legal status of entry in revenue record was
considered and the Court held that it does not confer ownership
or title. Relying on an earlier decision in Jattu Ram Vs. Hakam
Singh, 1993 (4) SCC 403, in Suraj Bhan Vs. Financial
Commissioner, 2007 (6) SCC 186 the Apex Court said:
"9. ....It is well settled that an entry in revenue
records does not confer title on a person whose name
appears in record-of-rights. It is settled law that entries in
2898
the revenue records or jamabandi have only "fiscal
purpose" i.e. payment of land revenue, and no ownership is
conferred on the basis of such entries. So far as title to the
property is concerned, it can only be decided by a
competent civil court (vide Jattu Ram v. Hakam Singh 1993
(4) SCC 403)."
3096. In the second category, i.e, income-expenditure
accounts comes:
(A) Exhibit A-72 (Suit-1) (Register 7, page 337-355) is a
copy of the accounts alleged to be submitted by Syed
Mohd. Zaki in Case No. 64 in the Court of Tahsildar
Faizabad on 9
th
July 1925 for the period 18.04.1923 to
06.04.1924 with respect to the income from the grant of
Mauza Bahoranpur and Sholapur.
(B) Exhibit A-31 (Suit-1) (Register 7, page 357-377) is a
copy of the accounts alleged to be submitted by Syed
Mohd. Zaki in Case No. 64 in the Court of Tahsildar
Faizabad on 31.03.1926 for the period 07.04.1924 to
28.03.1925 with respect to the income from the grant of
Mauza Bahoranpur and Sholapur.
(C) Exhibit A-32 (Suit-1) (Register 7, page 379-399) is a
copy of the accounts alleged to be submitted by Syed
Mohd. Zaki in Case No. 64 in the Court of Tahsildar
Faizabad on 23.08.1927 for the period 29.03.1925 to
24.04.1926 with respect to the income from the grant of
Mauza Bahoranpur and Sholapur.
(D) Exhibit A-33 (Suit-1) (Register 7, page 401-407) is a
copy of the accounts alleged to be submitted by Syed
Mohd. Zaki in Case No. 64 in the Court of Tahsildar
Faizabad for the period 25.09.1941 to 12.09.1945 with
2899
respect to the income from the grant of Mauza
Bahoranpur and Sholapur.
(E) Exhibit A-35 (Suit-1) (Register 7, page 413) is a copy
of accounts of income and expenditure relating to 1.4.1947
to 31.03.1948 as per Section 57 of U.P. Muslim Waqf Act,
1936.
(F) Exhibit A-36 (Suit-1) (Register 7, page 415-
416)=Exhibit A-54 (Suit-1) (Register 8, page 501) is said
to be a copy of the auditor's report for the period 1947-
1948 finalized on 27.07.1948 and contains following
noting on page 416:











27.8.48



"Inspected the accounts of Imam Waqf number 26. He told
that the previous Mutwalli did not possess any documents
and as such it could not be ascertained as to how much
amount is due and how much is in arrears. The income of
2900
the Waqf is more than Rs. 500/- which is realized by
Jawad Husain Saheb from October 17, as a result of which
only Rs. 82/- could be realized and it is also not known as
to whether previous dues or arrears are being recovered or
not. Demand notice be issued by the office so that Mutwalli
Jawad Husain may know as to the amount in arrears. He
has desired that earlier accounts be demanded from the
previous Mutwalli. Appropriate steps be taken by the office
in this behalf. I have instructed him to maintain proper
accounts.
Concerned clerk in the office while issuing demand
notice should write separately that the amount of demand
fixed by the Board is Rs.500/- so that no incorrect entry is
incorporated in the demand register." (E.T.C.)
(G) Exhibit A-60 (Suit-1) (Register 8, page 513) is a copy
of the statement in Form 38 U.P. Muslim Waqf Act NO.
13 of 1936 with respect to annual income of the waqf
property from rural property, Hajjam (Barbars), houses
and shops etc containing the note dated 27.9.1943 of
Inspector Wakfs that amount realized under a particular
head has not been shown. It reads:








/
2901
/
/






/
/

240/00









2902

Office of the Sunni Central Board of Waqf, U.P., Lucknow.
Register under Section 38 of U.P. Muslim Waqf Act No.13
of 1936.
1. Serial No. 26
2.Name of the
District and Tehsil,
village and property
Mauqoofa
Village Bahoranpur and Arazi
Sholapuri Bahal, Pargana Havei,
Oud, District Faizabad.
3. Name of the
Waqf, parentage
and the place of its
existence
There is no waqf, Atiya Emperor
Babar and Nawab Saadat Ali Khan
4. Name of
Mutwallis and other
persons related to
management of
Waqf with complete
address
Mohd. Zaki, Kalbe Husain
Rs. 4/5
(Numberdar Moazzin Kalbe
Hussain)
Javvad Hussain. Mohammad
Hussain and Abid Hussain
Sheikh........ Rs.4/5
Nurul Hasan, Abu Mohammad and
Ghulam
Asghar......................Rs.4/5
5. Documents of
Waqf or the method
of selection for the
office of Mutwallis
as per custom.
Numberdar Bahal Mafi makes
arrangement and there is no
other special rule.
6.Details of scheme
of Waqf
Arrangement of whitewash and
repairs of the aforesaid Mosque,
lighting, salary of Moazzin and
2903
Pesh Imam, expenditure on
Ramzan Sharif and Masjid
Eidgah and other necessary
works are done, which are entered
in the account sheet.
7. Details of various
documents relating
to Waqf as well as
other documents
Mauza Bahoranpur... 351/6/-
Arazi Sholapuri .. 177/8
8.Details of
Maukufa property
which is adequate
for identification
There is no waqfnama. Only
certificate of Nankar issued by the
Government is there.
9.Annual income of
Maukoofa property
From Aarazi village
From shops etc.
Total:
152/-
14/- (Hazam Murattab)
-
Rs.305/-
10. Govt.
Malguzari, Abwab,
Lagaan and Taxes
which is to be paid
annually regarding
maukoofa property
and was paid to the
Government
annually.
Illegible
Details of annual expenditure according to documents
or customs.
11. Expenditure on
Tehsil and
recovered Rs..........
as right of
Numbardari,
Numberdar Malik
Hasan
(a) Salary to
Mutwalli
(b) For donation
purposes
Mohd. Zaki and Nikhat
Hasan.................74/50
Javvad Hussain etc..84/50
Nurul Hasan etc.. 84/50
...........................Rs.240/-
Towards wages: Rs. 265
For special religious work and
other work........(illegible)
11.Total remaining No amount is in balance with the
2904
balance with the
Mutawalli.
Mutawalli.
12. Other details There are a number of Khewatdaar
in the Waqf property aforesaid who
are being PAID their share out of
the remaining amount after annual
expenditure of the Masjid and the
Numberdars gets their right of
Numberdari.
13. Date in
application for
registration was
moved
26
th
September 1943
Note: At present all the Khewatdaars do not recognize it
as waqf, instead they call it Nankar Maafi. Therefore we
are intending to file a suit in the Court for our rights for
which permission be granted.
I state on oath that the above information are correct
to the best of my knowledge and belief and nothing has
been concealed from the Waqf Board."
(H) Exhibit A-55 (Suit-1) (Register 8, page 503) is a copy
of the account of income and expenditure with respect to
the year 1947-48 and reads as under:.


.....








)
2905


/
/





)

27 4 -

---------------- 82 - -

12 8 -

16 - -

------------------- - -
56 ------------------- - -
------------------- - -
------------------- - -

2906

95
2
12
4
-




98 - -

(

98 - - 98 - -







Sunni Central Waqf Board U.P. Lucknow
Statement of income and expenditure from 1st October
1947 to March 31, 1948 under section 57 U.P. Muslim
Waqf Act 1936, included in File no. 26 Masjid Babri.
Name of District : Faizabad
Number of Waqf. : 26.
Name of the Waqf or Waqif ..Badshah Babar.
Name of Mutawalli- Jawad Husain.
1(Alif) Outstanding amount of the previous year in respect
of Waqf property. Agricultural and residential plots.
(Bay)..............
2 (Alif) Rent in respect of agricultural land of previous
year which is yet to be realized Rs. 98/-.
(Bay) Income from seer and self cultivation Rs. 16=98
(Jeem) Income (Sair orchards, ponds, forests etc) with
details..
2907
(Dal) Rent from houses and shops and residential plots..
(Rey) other income. .
3 Malguzari of the Govt. and taxes to be paid Rs.27/4/-
4 Net income after deducting Malguzari and taxes...Rs.
70/12
5 (Alif) Amount to be paid to the relations of the Waqif, or
reserved for some other personal as per waqfnama....
(Bey) Amount which is to be spent on charitable purposes.
6 Any debt or encumbrances outstanding in the beginning
of the year, e.g. Rent, Malguzari Abwab, Tax and Salaries
or Pension or Degrees etc.
7 Any loans or outstanding debt on the waqf property e.g.
rent at the end of the year.(e.g.Rent, Malguzari Abwab, Tax
and Salaries or Pension or Degrees etc.
8 Amount given as loan and the amount deposited in the
bank, in the beginning of the year.
9 Amount of loan or deposited in the bank at the end of the
year.
Total Net
Income of
the Waqf
during the
year
Rs.
As.
Ps.
Total expenditure during
the year
Rs.
As.Ps.
1.(A)
Receipt of
arrears of
the previous
year in
respect of
agricultural
land and
residential
plots.
(Bey)
1. Govt. Malguzari Abwab
Tax
2.Demand of the Board
with reference no. and date
of the receipt.
3.Expenditure on Tehsil
wasool and management of
property.
4. Expenditure on repair of
waqf property.
27-4-0
12-8-0
2908
Receipt
from the
degrees of
the previous
year.
2.(Alif)
Lagan
(Bey) Seer
and self
cultivation
(Jeem) Sair,
orchards,
forest,
ponds etc.
(give
details)
(Dal) , Rent
of houses,
shops and
residential
plots.
(Rey) other
income with
details
1.(Alif)
Amount with
drawan
from the
bank
(Bey)
Amount of
loan
received.
Total
Balance as
per note no.
2
82-0-0
16-0-0
98-0-0
5. Expenditure on litigation
6. Litigation on mosque
7. Madrasa litigation
8. Nazro, Niyaj and Fateha
9. Charity and help to the
poor.
10. Other charities as per
Waqf Names
11. Salary of Mutawalli, if
any.
12. Amount paid to the
Waqif or his family as per
Waqf nama.
13. Miscellaneous
expenditure
14. Amount deposited in the
bank.
15. Amount given as loan.
Total amount
Previous balance
Total expenditure Balance
with details where it is
deposited as per note no. 2
Total expenditure Balance
with details where it is
deposited as per note no. 2
56-0
95-12
02-4-0
98-0-0
98-0-0
Grand 98-0-0 Grand Total 98-0-0
2909
Total
Total amount of the demand of the Board which is yet to be
realized.
I verify on oath that I have checked the entries and
receipts there of which are correct to the best of knowledge
and belief and nothing has been concealed.
Signature and Address of the Mutawalli.
Sd/- Jawad Husain S/o Noorul Hasan R/o Sahanwa.
(I) Exhibit A-57 (Suit-1) (Register 8, page 507) is a copy
of account of income and expenditure with respect to the
period from 1.4.1948 to 31.3.1949 and reads as under:

531/2/-

39/9/6

70/12

2910
39 9 6

---------------- 400 - -

12 - -

- -

------------------- - -
202 - -

------------------- - -

------------------- - -

------------------- - -

253
156
9
6
6
6





400 - -

(

400 - - 400 - -
/







Sunni Central Waqf Board U.P. Lucknow
Statement of income and expenditure from 1
st
April 1948 to
2911
31
st
March, 1949 under section 57 U.P. Muslim Waqf Act
1936, included in File no. 26 Masjid Babri
Name of the District: Faizabad
Waqf no. : 26.
Name of the Waqf and Waqif ..Badshah Babar.
Name of Mutawalli- Jawad Husain.
1. (Alif) Outstanding amount of the previous year in respect of
Waqf property, agricultural and residential plots.
(B).......
2. (Alif) Rent in respect of agricultural land of previous year
which is yet to be realized Rs. 531/-20
(Bay) Income from seer and self cultivation .
(Jeem) Income (Sair orchards, ponds, forests etc) with
details..
(Dal) Rent from houses and shops and residential plots..
(Rey) other income. .
3. Malguzari of the Govt. and taxes to be paid Rs.39/9/6
4. Net income after deducting Malguzari and taxes...
5. (Alif) Amount to be paid to the relations of the Waqif, or
reserved for some other personal as per waqfnama....
(Bey) Amount which is to be spent on charitable purposes.
6. Any debt or encumbrances outstanding in the beginning of
the year, e.g. Rent, Malguzari Abwab, Tax and Salaries or
Pension or Degrees etc.
7. Any loans or outstanding debt on the waqf property e.g.
rent at the end of the year.(e.g.Rent, Malguzari Abwab, Tax
and Salaries or Pension or Degrees etc.
8.Amount given as loan and the amount deposited in the bank,
in the beginning of the year.
9. Amount of loan or deposited in the bank at the end of the
2912
year.
Total Net
Income of
the Waqf
during the
year
Rs. As.
Ps.
Total expenditure during
the year
Rs.
As.Ps.
1.(A)
Receipt of
arrears of
the
previous
year in
respect of
agricultural
land and
residential
plots.
(Bey)
Receipt
from the
degrees of
the
previous
year.
2.(Alif)
Lagan
(Bey) Seer
and self
cultivation
(Jeem)
Sair,
orchards,
forest,
ponds etc.
(give
details)
400/-
1. Govt. Malguzari Abwab
Tax
2.Demand of the Board
with reference no. and date
of the receipt.
3.Expenditure on Tehsil
wasool and management of
property.
4. Expenditure on repair of
waqf property.
5. Expenditure on litigation
6. Litigation on mosque
7. Madrasa litigation
8. Nazro, Niyaj and Fateha
9. Charity and help to the
poor.
10. Other charities as per
Waqf Names
11. Salary of Mutawalli, if
any.
12. Amount paid to the
Waqif or his family as per
Waqf nama.
13. Miscellaneous
expenditure
14. Amount deposited in
the bank.
15. Amount given as loan.
Total amount
Previous balance
Total expenditure
Balance with details
39-9-6
12/-
202-0
253-9-6
2913
(Dal) , Rent
of houses,
shops and
residential
plots.
(Rey) other
income with
details
2.(Alif)
Amount
withdrawn
from the
bank
(Bey)
Amount of
loan
received.
where it is deposited as
per note no. 2
156-6-6
Total 400/-0 Total 400-0
Total amount of the demand of the Board which is yet to be
realized. Rs.131-2 Anna
I verify on oath that I have checked the entries and
receipts there of which are correct to the best of knowledge
and belief and nothing has been concealed.
Signature and Address of the Mutawalli.
Sd/- Jawad Husain S/o Noorul Hasan R/0 Sahanwa,
Darshan Nagar, district Faizabad.
(J) Exhibit A-59 (Suit-1) (Register 8, page 511) is a copy
of the Statement of income and expenditure for the period
from 1.4.1949 to 31.3.1950 under section 57 U.P. Muslim
Waqf Act 1936, included in 26 Masjid Babri District
Faizabad. It reads:
2914

//

//

//

- -

- ---------------- -
- -

- -
- -

------------------- - -

- -

------------------- - -
2915

------------------- - -

------------------- - -

- -

(

-








Sunni Central Waqf Board U.P. Lucknow
Statement of income and expenditure from 1
st
April 1949 to
31
st
March, 1950 under section 57 U.P. Muslim Waqf Act
1936, included in File no. 26 Masjid Babri
Name of the District: Faizabad
Waqf no. : 26.
Name of the Waqf and Waqif ..Masjid Babri.
Name of Mutawalli- Jawad Husain.
1. (Alif) Outstanding amount of the previous year in respect of
2916
Waqf property, agricultural and residential plots.
Rs.100/-
(B).......
2. (Alif) Rent in respect of agricultural land of previous year
which is yet to be realized Rs. 531/-10-1
(Bay) Income from seer and self cultivation .
(Jeem) Income (Sair orchards, ponds, forests etc) with
details.. Rs. 531-1--1
(Dal) Rent from houses and shops and residential plots..
(Rey) other income. .
3. Malguzari of the Govt. and taxes to be paid Rs.41-3-4
4. Net income after deducting Malguzari and taxes...
5. (Alif) Amount to be paid to the relations of the Waqif, or
reserved for some other personal as per waqfnama....
(Bey) Amount which is to be spent on charitable purposes.
6. Any debt or encumbrances outstanding in the beginning of
the year, e.g. Rent, Malguzari Abwab, Tax and Salaries or
Pension or Degrees etc.
7. Any loans or outstanding debt on the waqf property e.g.
rent at the end of the year.(e.g.Rent, Malguzari Abwab, Tax
and Salaries or Pension or Degrees etc.
8.Amount given as loan and the amount deposited in the bank,
in the beginning of the year.
9. Amount of loan or deposited in the bank at the end of the
year.
Total Net
Income of
the Waqf
during the
year
Rs. As.
Ps.
Total expenditure during
the year
Rs.
As.Ps.
1.(A)
Receipt of
100/- 1. Govt. Malguzari Abwab
Tax
41-3-4
2917
arrears of
the
previous
year in
respect of
agricultural
land and
residential
plots.
(Bey)
Receipt
from the
degrees of
the
previous
year.
2.(Alif)
Lagan
(Bey) Seer
and self
cultivation
(Jeem)
Sair,
orchards,
forest,
ponds etc.
(give
details)
(Dal) , Rent
of houses,
shops and
residential
plots.
(Rey) other
income with
details
3.(Alif)
Amount
531-
10-1
2.Demand of the Board
with reference no. and date
of the receipt.
3.Expenditure on Tehsil
wasool and management of
property.
4. Expenditure on repair of
waqf property.
5. Expenditure on litigation
6. Litigation on mosque
7. Madrasa litigation
8. Nazro, Niyaj and Fateha
9. Charity and help to the
poor.
10. Other charities as per
Waqf Names
11. Salary of Mutawalli, if
any.
12. Amount paid to the
Waqif or his family as per
Waqf nama.
13. Miscellaneous
expenditure
14. Amount deposited in
the bank.
15. Amount given as loan.
Total amount
Previous balance
Total expenditure
Balance with details
where it is deposited as
per note no. 2
Grand Total
49-6-
12/-
56/-
180-0
240/-
578-9-4
53-0-8
631-10
2918
with
drawan
from the
bank
(Bey)
Amount of
loan
received.

Grand
Total
631-
10-1
Total 631-10
Total amount of the demand of the Board which is yet to be
realized.
I verify on oath that I have checked the entries and
receipts there of which are correct to the best of knowledge
and belief and nothing has been concealed.
Signature and Address of the Mutawalli.
Sd/- Jawad Husain S/o Noorul Hasan R/0 Sahanwa,
Darshan Nagar, district Faizabad.
(K) Exhibit A-56 (Suit-1) (Register 8, page 505) is a copy
of another Auditor's report for 1948-49 signed by the
Auditor on 23.2.1950.
(L) Exhibit A-58 (Suit-1) (Register 8, page 509) is a copy
of another Auditor's report for 1948-49 signed by the
Auditor on 23.12.1950. The observations of the Auditor
read as under:
REPORT OF AUDITOR FOR 1949-50 included in Waqf
File no. 26 of
Babri Masjid, Distt. Faizabad
1. No.of Waqf 26. (b) Name of Waqf or Waqif Masjid Babri
Faizabad
2. Name of Mutavalli and his address . Jamad Hussain
Sahab village Shahnawan P.O. Darshan Nagar ,Distt
2919
Faizabad.
3.Gross Annual income which should have been realized
during the year 1949-50 Rs.531/10/1
4. Land Revenue and taxes which should have been paid
during the year Rs.41/3/4
5. Net income for the year Rs.490/6/9
6. Amount applied for the benefit of the waqif or his
descendants or family or any other private purpose under
the terms of the deed of waqf. Rs. X
7. Contribution to the board u/s 54 :Rs. 24/8/3
8.Arrears on the opening date of the year :Rs.100/-/-
9. Amount actually realized by the Muttwali during the
year 1949-50 Rs.631/10/1
10. Unrealized amount on the closing date: Rs..x
(col. No. 3+8-9)
11.A. Balance in he hands of the Mutwalli at the close of
year Rs.53/-/8
Total Rs.53/-/8
B. Balance with the Bank at the close of the year: Rs.x
Name of Bank .....x...
12. The amount of liabilities on waqf at the close of the
year Rs......
13. A. Certified that the entries as above have been
reported by me on the basis of the original or
certified copies of documents and records by the
Mutwalli.
B. Certified that the expenditure of Rs.....x......as
detailed overleaf incurred by the mutwalli is illegal
and improper or due to failure to recover money or
other property or loss or waste of money or other
2920
property caused by the neglect or misconduct of the
Mutwalli (section 41 of Muslim Waqf Act, 1936).
C. Certified that the list of waqf property appended
to the statement of accounts submitted by the
mutwalli is verified by me from records produced by
the mutawalli.
(Sd) M. Husain 23.12.50
Signature of Auditor
14. Main defects of the administration of the waqf with
suggestion, if any:-
..Please see overleaf..................
(Sd) M. Husain
(Please fill in the form with care and add a page if necessary)
Waqf No. 26 (Masjid Babri) Faizabad.
"Mutwalli's nephew Hamid Husain presented the
accounts, as Mutwalli was not feeling well.
(i) As regards the property of this Waqf it consists of
(Maukoof
Zamindar, r/o Bahoranpur, Sholapuri, District Faizabad)
according to a Royal grant by Shahehnshah Babar.
(ii) The income of this Waqf is Rs. 531/10/1, in proof of
his income the Mutwalli sent his (Khatauni)
which was not a certified copy. He should be asked to
keep a certified copy of (Khatauni).
1. As regards the expenditure no receipts were
genuine except the receipt of land revenue and the
Waqf contribution. They have shown an amount of
Rs. 240/- for ( Family of Waqf) In proof of
this amount they show no paper to me therefore I
assess this amount (Khandan Waqf) also
2921
therefore they should be asked that how they take this
amount.
(iv) In Dec. 1949 the mosque has been taken by the
Govt. due to disturbances therefore they (Mutwalli Javad
Hussain) should be asked to keep this amount in Bank,
because there is no expenditure on the mosque at present.
(v) The (Mutwalli) should be given instructions
that he should keep his accounts properly and at present
there is no need of expenditure therefore from Dec. 1949
all the income should be deposited in Bank.
At present a case is going on and the expenditure is met by
contribution. In my opinion the income of the property
should be deposited in Bank through office."
3097. These documents said to have been submitted by the
so called Mutawalli Javvad Hussain or Syed Mohd. Zaki.
Except of the Exhibit A72, A31 and A33 all other documents
claimed to be submitted with the Sunni Board and true copies
received therefrom have been filed. These documents cannot be
termed to be "public documents" under Section 74 of the
Evidence Act. Nobody has proved the truth of the contents of
the said documents. One of the document which is said to be
duly audited, i.e., Exhibit A58, for our benefit, the auditor's
comments are also on record and it says, "as regards the
expenditure no receipts were genuine."
3098. So far as the Exhibits A72, A31, A32 and A33 are
concerned, the same contains the details of the income earned
from Mauja Bahoranpur and Sholapur. The purpose for which
these documents are sought to be relied, therefore, remain
untouched qua the property in dispute.
3099. In the third category i.e. documents relating to repair
2922
of damaged building in 1934 riot, comes:
(A) Exhibit A-49 (Suit-1) (Register Vol. 8, page 477) is a
copy of order dated 12
th
May 1934 showing that Muslims
were permitted to start the work of cleaning and repairs of
the disputed building from 14
th
May 1934 onwards. It
reads as under:
"The Mohammadans have been permitted to start the work
of cleaning of the Babri mosque from Monday 14
th
May. I
have also asked them to get estimates needed for the repair
of the mosque. For the purpose their contracting I would
be allowed access to the mosque when necessary.
Once the mosque is cleaned up, it will be possible to
use it for religious services. This can be allowed but
processions & demonstrations should not be allowed.
The guard should be returned on it.
S.P. to be informed."
(B) Exhibit A-43 (Suit-1) (Register 8, page 459) is a copy
of order dated 6
th
October 1934 passed by Deputy
Commissioner/District Magistrate Faizabad for payment
of compensation. It reads as under:
"These amounts for payment of compensation are approved
subject to any orders that may be passed on objections."
(C) Exhibit A-51 (Suit-1) (Register Vol. 8, page 483) is
claimed to be an application dated 25.2.1935 submitted by
the contractor concerned complaining about non-payment
of his claim despite repair work having been performed.
This also reads as under:



2923




















) ) ( ) ( (
) ) ( ) ( (
) ) ( ) ( ) (
) ( ) ( (
) (


n| i-n, i i|,
n ili r l ni i i i| -l- i - i li ni ii
;i i- i r i n i li ;- i i i i
2924
i- i| r ni r i ni i i r n r| n n|
r l r i i i i i i- i| r ;i - --
- r i i ; i ii i i| n r| ni l
i| | | i | n| ; ii l n
i- l r - li ni ii n ii r| r r - r i
ii l i rini r| i r-i li i ni
-i - r i l i| ri r| r i i| i ri
i i r i i| r n| i li ii ; l-i
ni i | nln s| r| i| ; r r iii |
- i|n i r| i| i- -iin i l r
n i li ni-| l ni i i r - li ni ii
l- s -i | i nr il -n li
s i nr i i- i| r ni r l- s ni i
ni n r r - i l-| l- ir ri ii
l i nr|i ir ri ii ni i i
ni r i ii i r ri ni ii l n -i i l- ni
n n -ri l i |-n li i ni ii i -i
i-- -- i| r - nil i| i-i ;- -i ii r
-n r - | i ri | r ; ri lrii l
i-n rii n -i --|i r l ni i | ; - i|n
r ii i i r - il -i n il i
li iri -il r |
n| i -iin i n r - --in - , r| ~i (z) s.
ri| - r-- . i in r - r~i - n i r. rin | c.
r-n | - r~i n- i /. il | s. -| ~i s.
i ~i o. - r-- |- - r~i i-r-| . -i i z.
- r-- i - r~i lii s. r l-i |
| l| nr ii - i il iin ii -nin
nr ii
zr.z.sr
Most Respected Sir,
I beg to say that I was granted contract of Babri
2925
Masjid. The work has already been completed about a year
before, barring certain small piece of work for a value of
Rs. 100/- or 200/-. The applicant is in dire need of money
and only little work to the extent of Rs. 200/- is remaining,
which I cannot carry out. The applicant has no other
business. Kindly provide relief to me and my family.
Besides, at the time of contract, it was agreed upon that
part payments will be made according to Vasoolyabi. I
have come to know that the enough revenue has been
collected. I have already told orally to you that I was in
trouble and needed money. During this time the applicant
was not feeling well, so, he could not convey his grievance
again. Secondly, the applicant was required to construct
the houses which were burnt during the riot, out of
which 13 houses of Khaprail have been repaired before
the rains commenced. A small piece of work in relation to
doors etc is remaining. Further under the orders of the
Deputy Commissioner Faizabad through Tehsildar (Nuzul)
Faizabad, certain trees and shrubs were allotted to the
applicant with the assurance that whenever the applicant
gets money the price of the aforesaid would be deducted
from the bill. The applicant has already collected material
for repairs of the remaining houses. But due to paucity of
of required money the applicant remained idle. So, I would
request you to kindly consider my grief sympathetically and
provide money to me and for this purpose. kindly issue
necessary orders. Deemed necessary, so prayed.
Malik Hujoor.
Details of the houses constructed : (1) Mst. Maqsudan, (2)
Habibullah, (3) Haji Noor Mohammad (4) Khairat
2926
Hussain, Mohalla Mughalpura, (5) Sahadat Ali 6. Rahmat
Ali, Mohalla Begumpura (7) Abid Ali (8) Aminullah (9)
Afzalullah (10) Mohd. Karim Mohalla Sothati (11) Maula
Bux (12) Mohd. Bux Mohalla Kaziana (13) Zahoor Miyan.
Applicant Tahavvar Khan Contractor, r/o Lal Bagh
Faizabad
25.2.35."
(D) Exhibit A-45 (Suit-1) (Register 8, page 467) is the
copy of the order dated 26
th
February 1935 of the Deputy
Commissioner Faizabad for payment of Rs. 7000/- to the
contractor for the work he had discharged at the disputed
mosque.
(E) Exhibit A-44 (Suit-1) (Register 8, page 461-465) is
copy of the estimate submitted by Zahoor Khan,
contractor, Lal Bagh Faizabad on 15
th
April 1935 for
repairs of the building in dispute.
(F) Exhibit A-48 (Suit-1) (Register 8, page 473-476) is a
copy of inspection report dated 21
st
November 1935 of Sri
Zorawar Sharma, Assistant Engineer Faizabad verifying
the work performed by contractor and recommending for
payment as claimed by him but after making some
alternation therein.
(G) Exhibit A-46 (Suit-1) (Register Vol. 8, page 469) is a
copy of report of Mubarak Ali, Bill Clerk dated 27
th
January 1936 which reads as under:
"The bill of the contractor regarding the construction of
the mosque is herewith put up as ordered. As regards the
bill for the burnt houses, the estimates of which have been
lost, has recently been sent to the Nazul Naib Tahsildar
under the orders of D.C. for checking the work done by the
2927
contractor on the spot."
(H) Exhibit A-47 (Suit-1) (Register 8, page 471) is a copy
of report dated 29
th
January 1936 of checking/verification
submitted by A.D. Dixon which reads as under:
"The repairs to the Babri mosque has been checked by
the P.W.D. The payment for this work, amounting to Rs.
6825/12/-, should, I think, be paid now."
(I) Exhibit A-52 (Suit-1) (Register Vol. 8, page 489) is
another copy of the complaint made by Tahavvar Khan,
contractor on 30
th
April 1936 complaining about certain
claims disallowed by the PWD authorities and reads as
under:


3287















2928





n| i-n,
n ili r l i i l in ---n -iin i
i i - ln sco i s ii i ii l- i i l
szs/ i ii c i; li ni r| -| | r r -i - ri n|
r l i i nr|i ir ii ii iiln
i- ---n r n| li l i n| i | -i -i;
; ii | |-n -iln| zs i z ii, c i ii
s i; - ln c i, i | i i lili |
|-n i - ln / - ln | i i|ri
n i -- -- - s ii | -i-i; ; i li li |
|-n - - ni |o o|o zs i z ii, c i
ii s i; , / i - | i| i ;| - nil~ i
ii li li ii r nii ii i i il
; i li i r ; rin - r| l-| ni ; r r
-| n| | n; r rii l ii lili n| i i
- - rln n i r| ri n| | rin ii i --|i
r l s i i i ; lili - | i |o o
|o iii i | i i i i li i -r-n
-ii i i i l in -l i| /zzs o i ii
l- i i cszr o z io li ni r| i| os o
io - i- li ni rii l --|- - i - r i ii r
/szs o i ii i i --|- - - l li ni lrii
i i -nii i l i i | - i | r| i-
| n; l- r i ; - nil~ |
l| nr ii - i
nio so sc
" Gharib Parwar Salamat. I beg to state that my bill for the
2929
repair work of the houses was to the tune of Rs. 3604/- out
of which the applicant has been paid 3287/1/6 only the
reason for the officer under payment seems to be that the
officer Nazul and Naib Tahsildar Faizabad at the time of
inspection during repairs, proposed that the thickness of
the two doors of 1-1/2 inch, valued at Rs 23/12 and Rs
16/11/3 be reduced to Rs 16/- and Rs 11/- respectively, the
price of the windows was reduced to Rs. 4/ instead of Rs 7/.
Sir, at the time of inspection of the after reducing the
thickness of the three doors to 1-1/2 inches and that of
windows the P.W.D. after revision of the price, approved
Rs 23/12/-, Rs 16/11/3 and Rs 7/- respectively, and
accordingly fixed the doors and windows years back. At the
time of inspection of the officer incharge, those were found
not in new condition, that is why deduction was proposed
although the new doors and windows could certainly not be
prepared at the proposed price. Therefore it is requested
that inspection and revaluation of 3 doors- 1-1/4 inches
and rates of the windows may be made by the P.W.D. and
the applicant may kindly be paid his remaining amount.
Applicant's bill in respect of Masjid Babri was of Rs.
7229/- out of which he has been paid Rs, 6825/12/- i.e.
short by Rs 403/41- though the estimate was approved for
Rs. 7329/- and the applicant has been paid lesser amount.
Therefore the applicant may kindly be furnished details as
to which amount has been deducted so that the applicant
may move your honour. Applicant: Tahauwar Khan the
Thekedar dated April 30, 1936."
(J) Exhibit A-50 (Suit-1) (Register Vol. 8, page 479) is a
letter of Tahawar Khan Thekedar regarding repair work in
2930
the disputed structure and reads as under:












i-n nr ii - i -iii c , ssr ; o
-i- i l- i| -l- i i, ii
r i ril- nr| ir ri ii i- ir
n| i-n
i i| n ili r l i| -l- l - ;
r r ; r l i - i i - n i ri ri r| i| n
ii r| -n l r - r i ili ri r | -i
n-- i| l- ~i lii i ni - -- r| li r ii
i- i l r n - ri i ni -iin l s ;
r n ili ni| i s i- i| ii ri ri r |
il r|
| l| nr ii - i il iin, ii
ro nr ii
c..sr
"Copy of the application of Tahawar Khan Thekedar dated
16.4.1935 included in the file of Babri Masjid, Ayodhya,
Faizabad.
To the Tehsildar Saheb Bahadur, Faizabad
2931
Gharib Parwar Salamat.
I beg to say that delay in submitting the bill for Babri
Masjid occurred because Kalsa (pitcher) of the Dome is
being prepared in Banaras and has not yet been
received. But under your orders I am submitting the same
now. The piece of marble stone on which "Allah" will be
engraved, has not yet been got ready. I hope both the said
jobs would be done within a week. The bills in respect of
houses will be submitted within this week. The remaining
work is in progress. Yours sincerely, Tahauwar Khan
Thekedar resident of Faizabad 16-04-35." (ETC)
(K) Exhibit A-53 (Suit-1) (Register Vol. 8, page 493) is a
copy of the application dated 2.1.1936 of Tahavvar Khan,
Contractor for early payment of his dues and reads as
under:

2932


n| i-n i i| n ili r l -iin ii i
l - n i| li ni i i - -- l r r n
i r i i ni i i i i| n r| l-i i i n
-i - r i l --|- - -iin i ni ri ni ; r i
;|l |o o|o i| -l- i l l-- i
i li| -iin i l n --|- - r ni i| ir
; --|- - i i i nr|i ir - |o o|o
i i ii ni i --|- - li ni| l| i| -
i -i r n r - ri ni i ;i i ;| i| i
ni r -ri| - i -ii i l i ;|l ir
i ii li i nil l ri i ni i i i
l- i i l | n n r il r |
|
l| nr ii - i il iin ii|
z..sc ro nr ii|
"Garib Parvar Salamat,
Janabe Ali, Respectfully it is submitted that certain houses
in Ayodhya were burnt in the riots, which were constructed
by the contractor long back but the contractor could not
get the money so far. The query in this behalf revealed that
estimate concerning those houses had been lost somewhere
and due to which the Engineer of PWD after perusing the
bill returned the file. The payment of bill could not be made
in absence of estimate. Respected Tehsildar Saheb,
Estimate of Nazul rate was obtained from the contractor
again, Urdu copy whereof is available with the applicant.
If ordered, the applicant can produce the same or copy of
the said, My bills in respect of houses may very kindly be
sent to Engineer Saheb so that the bills may be checked
2933
and contractor may get money because he is in dire need of
money.
Applicant Tahavvar Khan, Contractor, R/o Lal Bagh
2.1.36."
3100. All these documents pertaining to repairing etc. of
the building in dispute pursuant to its damage in 1934 riot and
show that there was a substantial damage to building including
its domes, stones inscriptions etc., which were repaired by
Muslim contractors. However, no order has been placed before
us to show that as a matter of fact, premises in dispute was ever
handed over to Muslims or they were allowed to offer Namaz in
the building in dispute. At least their documents do not help the
Muslim parties so far as this aspect of the matter is concerned.
3101. In the fourth category, i.e. orders under Section 92
C.P.C., comes:
(A) Exhibit A-29 (Suit-1) (Register 7, page 331)=Exhibit
28 (Suit-5) (Register 23, page 667) is a copy of the order
dated 18.12.1929 of Legal Remembrancer of Government
of U.P. communicating sanction for institution of a suit
under Section 92 C.P.C. The subject matter is mentioned
as under:
"The mosque built by Emperor Babar and known as
Babar's mosque in village Ramkot, Ajodhya city, and the
proceeds and profits of village Bahuranpur and of about
12 Bighas of village Sholapur pergana Haveli, set apart for
the upkeep of the said mosque."
It is addressed to the following:
"1. Hafiz Mumtaz Hosain, son of S.Tafazzul Hasain,
resident of Bazar Salarganj
2. Haji Agha Mirza, son of Mirza Azam Beg, resident of
2934
Mohalla Sabzimandi,
3.Haji Mohammed Yasin, son of S.Mohammed Hafeez
resident of Mohalla Rakabganj, Fyzabad.
4. Hakim Abdul Wahab son of Dr. Khuda Bux, resident
of Singarhat.
5. Zahoor Ahmad, son of Noor Mohammad, resident of
Mohalla Naugazi and
6. Mohammad Shafi, son of Ghorey, Mohalla Sotahti,
Ajodhya."
(B) Exhibit A-68 (Suit-1) (Register 8, page 559) is a copy
of the order dated 19.01.1929 passed by Deputy
Commissioner Faizabad directing the applicant to file
application seeking sanction for filing a suit u/s 92 C.P.C.
in respect of Bahoranpur Sahnawa.
(C) Exhibit 27 (Suit-5) (Register 23, Page 665)(the
document appear to be incomplete. Neither the date of the
order is legible nor to whom it was addressed is mentioned
therein and therefore cannot be relied on. However, it is
claimed to be is a copy of the Government order according
sanction under Section 92 C.P.C. for institution of a suit.
The subject matter is mention as under:
"The mosque built by Emperor Babar and known as
Babar's mosque in village Ramkot, Ajodhia city, and the
proceeds and profits of village Bahuranpur and of about 12
bighas of village Sholapur pergana Haveli Oudh, set
apart for the upkeep of the said mosque."
3102. These documents on the one hand show that some
muslim persons obtained permission from the Government
under Section 92 for institution of the suit but it is an admitted
fact that no record is available to show that any suit actually
2935
filed by anyone. In fact what we find is that sanction was
granted under Section 92 CPC but further details as to how and
why the said sanction was granted and what thereafter happened
is not known to us. Due to lack of attending information we are
not in a position to take these documents into consideration for
forming opinion either way in the context of the issue in
question.
3103. In the fifth category, there is correspondence with
Sunni Board with regard to Wakf, its registration etc.:
(A) Exhibit A-67 (Suit-1) (Register 8, page 547-558) is a
copy of the reply dated 19/20 July 1938 filed by Mohd.
Zaki to Waqf Commissioner pursuant to notice u/s 4 of
U.P. Waqf Act 1936.












:

:

:

:
: : :

: : :
2936







:





:



:


:



:




:

:
2937







:



:
()

//
"Before the Court of the Commissioner Faizabad. Syed
Mohd.Zaki S/o Syed Mohd.Razi R/o Mauza Shahnawan
Pargana Haweli Oudh Tehsil and District Faizabad.
Objection
Gharib Parwar Salamat.
In the matter of the above subject, it is submitted that
a notice under Section 4 of the Muslim Waqf Act 1936 has
been issued by the Court and served upon me. Therefore in
reply to the same, the applicant submits the following
objections:
2938
(1) That the necessary pedigree of the applicant belonging
to the Shia Sect case is as under:
Syed Abdul Baqi
:
Hajbar Ali
:
Syed Hussain Ali
:
Mst. Sakunat Bibi
:
: : :
Mohd. Asghar Mohd. Afzal Ali Taqi
: : :
Mohd. Razi Amzad Ali Nazim Ali
: : :
:: : : :
Mohd. Zaki Kalbe Hussain : :
(Applicant) (alive) : :
: :
: : : :
Munir Husain Javvad Hussain Mohd.Hussain :
:
: : : :
Nurul Hasan Syed Abu Mohd. Syed Ghulam Syed
Asghar Hasnain
Asghar
Section 2. That the King Babar, Delhi, got constructed a
Masjid at Janam Sthan, City Ayodhya and named it as
Masjid Babri. He nominated Syed Abdul Baqi ancestor
of the applicant as indicated in the above pedigree and
Rs. 40/- cash annually and gifted 13 Bighas Arazi Pucca
on contract which continued to received by his successor
generation by generation.
Section 3. That from the era of Saltanant Oudh, Nawab
Saadat Ali Khan Bahadur Wazir Oudh instead of the
aforesaid grant began to give Rs, Three hundred and two,
Annas three and six pie as Nankar which was being
regularly received.
2939
Section 4. That from the era of Sultanate Britania after
annexation of province of Oudh a certificate of cash grant
Nankar of Rs. 302/- 3 Annas and 6 Pie annually was being
received by the ancestor of the applicant till 1862 from the
Government Treasury.
Section 5: In pursuance of the decision of the
Government the property of Arazi Sholapuri and Mauza
Bahoranpur was declared Nazul and the same were given
as Maafi to Mohd. Asghar and Mohd. Afzal, ancestors of
the applicant the Government Mauza Bahoranpur and
Arazi Sholapur, Nazul property.
Section 6: That from First Settlement ownership right of
the property aforesaid was entered in favour of Mohd.
Asghar and Mohd. Afzal, ancestors of the applicant vide
order dated 3
rd
February 1870 passed by the Settlement
Officer and the applicant and their ancestors have been in
continuous possession over the said property.
Section 7: That the ancestors and the applicant have been
incurring required expenditure for the protection and
upkeep of the mosque.
Section 8: That in view of the fact that after annexation of
Oudh the British Government granted cash Nankar to the
ancestors of the applicant as compensation and thereafter
a decree of right over the property in dispute in favour of
the ancestors of the applicant was passed; therefore, the
property cannot vest in Waqfs and the same is not covered
under Muslim Waqf Act since the property has been
granted by the British Government, i.e. Non-Muslim.
Section 9: That in any case the property in dispute is out of
2940
the purview of the restriction imposed by Section 2 of
Muslim Waqfs Act 1936 because a considerable portion of
income is spent by the applicant towards persona
requirement.
Section 10: That the applicant is filing this objection in
compliance of the order of the Hon'ble Court which may
kindly be accepted and taken on record . In case the
objections are not found sufficient or satisfactory, the
applicant be afforded opportunity to plead his case through
counsel before the Hon'ble Court.
Applicant Syed Mohd. Zaki
19/20/7/1938
(B) Exhibit A-65 (Suit-1) (Register 8, page 537) is a
copy of the notice dated 11.04.1945 given by the
Secretary Shia Waqf Board to Sunni Central Waqf Board.
(C) Exhibit A-66 (Suit-1) (Register 8, page 539-545) is a
copy of the letter/reply dated 20.11.1943 of Kalbe Husain
Mutwalli of the disputed building which reads as under:

527






:



2941

:




:


:




:


:




:




:

:
2942


:



:










- ilri i- - | ir | i , i+ i- l- -|
-| rz/ -i l ii z/ - , s ; o
o r l nn r l lr ii -l- - i ; in|
ri r -l - | ri n ri r i n l |
i n i i n r ri l r s i i
-i | l r-i l n ni r i | nr i r i r | - -l r
l s - i ri i ln i s ii -i - ri ni r | l n
r sli i nn | -i; r - -ni ni|
s -l - i i ; n-~ r| r |
oz r l -i; i i-i n r l i -i | n i
i -i rni r | i| i i-i n r i l ri -i |
n i ;-i - ri i i rni r l i
- l r - i i ni r i i -i -i l
r| i l i i ni r i l n r -l -
2943
i | ri ni r | r i rn r|
rni |
os | i ---n - r ; i|| - i | |
| - | iii li-n r| i r ri;
| ni-| ; - i -ii r| l-ni ii| ; r |
r| ri || l |i ir r i ii| ;-i n | i
---n | n r l| - l ri r |
o i ;-i- | ni r -i r n-n s i l i
i i i ri n l / o i | r i i ; i i r|
r | | ;-i- ri li-n r|
i r -l- - nil i; r r i i ; n
n i ; - n~| - r i r | ii - nili ir|
- i| r i - li i l-| i| i i i - i
- i r l n - -i ri ;ni- iii
---n n r li ni r | ; nr i | c | ,
- i - r i r i -l - i i - i - ni
r |
icr l -i l r - zc - s ; o | i
i r-n r ir , i - i n i lriin ni
ii| i|- ir z - i - ;ni i i l ii
r|
i / r- ini i ;| l i r| r l l-
ir r i li ii l i ii |
i - iil- | n; r | ; r - ri-in |
i| ri r | ; - nil in |i| - ii ;
i r | li - iil-n i n- i rin| li - nl r |
i s r - i ; ii -i ri | ilr l . . .
l| i-| r - i | in|r r r| r l~
-ilii - i| r l| i- iri i.. ni
i i in i i ir - lriin i i
ii ni n s -| r i n| ni l ii ni|
i s r i i r| r l ~ i i -i | r
2944
l| ir - ii ni|
i o lriin i l~ r| r l| n-| ril- nr|
ir ri r| r nn r l | -l- r| r ;
lri | r| r| ;-i | r| r ; r ;ni- ri r|
i i ;-i- | nir -ir i i | zs o i|
i| i ri | o o i| i ; i i | n; | ; nr
- l | nir i| r n; i| li lri - lii
in - i| lii i r | | i ;-i- ii r|
i z r -| | liin l~ nn r| i | i ri r
-l - -i i r l ri r
i r i . . . ii - i rni r | ; r
nri i in r . . ;ni- li ini r | | r
liin | -r - lii ri -i| i ;-i- nr n r
i i i i| -ii n r| i i r| r lrii
n il r l r-i i r - ilri -i n i; i
n -nii| . . . .-i -i n | n s -| r n; ri ni . . . .
-- zo - ss ; o
Before Secretary, Sunni Waqf Board, Lucknow, letter no.
5607 dated 27.10.43, reply letter no. 527 dated 27.10.43.
1. That it is totally wrong that Hindu Sadhus are
exceeding their limits in the mosque. The northern portion
of the thatch over the land over which they own right
conferred by the Court, has fallen down and is lying as it
was. It is possible that on account of being bent or fallen it
appears to be bigger in size. When they will start erecting
the thatch, your honour will be informed after
measurement. That cottage has no concern with the
mosque.
10.That floor mats (used for sitting at the time of offering
Namaz) are available only to the extent of routine use.
Remaining floor mattress etc. are separately kept with
2945
Maulvi Abdul Gaffar, Pesh Imam, which are brought by the
Moazzin on Fridays and are kept back at the same place
after Namaz because most of the mattresses have been
stolen from the mosque and for that reason the entire
mattresses are not available at all times.
3. Whitewashing and repairs were carried out in
October 1941. Copy of the contractor's receipt of
whitewash with respect to wages to labourers is filed. The
following year due to construction of aerodrome there was
paucity of bricks and sticking material. For this reasons
whitewashing could not be carried out. Only the outer
stairs was whitewashed. This year, there is requirement of
whitewashing and repairs for which I am concerned.
4. Salary of Pesh Imam from August 43 till the month of
Shaban to the tune of Rs. 7/- is in arrears and there is no
other dues except it. Copy of a receipt of payment of salary
to Pesh Imam is filed.
5. There is neither any waqf in respect of the mosque
nor any Mutwalli has been appointed till date. The
property is Nankar Shahi Maafi which was granted to the
ancestors of the applicant on account of being a
Mussalman and Numberdar and they looked after the
management and repairs etc. Likewise, from 17.2.1941 I
have been appointed Numberdar and performs the work of
mosque.
6. That order dated 27.10.1943 of Sunni Waqf Board
was sent to Sri Syed Rahmat Hussain, Advocate for
purposes of audit of accounts. Wadekar Saheb called for
scrutiny on 21 November , Sunday.
7. We are not aware as to what decision had been taken
2946
by the Waqf Commissioner since Waqf Board. Since the
property in question has been included in the Sunni Waqf
Board, for this reason, being helpless I am abiding by this
order. For this purpose, being left with no option I intend
to approach the Civil Court since cause of action will arise
after gazette publication for which I am waiting.
8. This amount of subscription should be deposited with
the stipulation that the property from which this amount is
fetched, is not a waqf rather it is Malikana Maafi, copy of
which would be submitted after procuring the same. The
amount which is available will be submitted after complete
accounting and in case there is any defect, that would be
again sent.
9. This property is not Waqf rather it is Nankar
Maafi, copy of which will be sent after procuring it .
10. Account of expenditure is totally correct which has
been verified by the Tehsildar. It is wrong that the mosque
was not whitewashed. Account of whitewashing is correct.
This year no whitewash was carried out and I am
managing for the same.
11. Salary of Pesh Imam was in arrears of Rs. 35/-of the
previous year and for the current year Rs. 40/- which has
been paid to him. In this way, the salary of Moazzin stands
due and the account regarding it has been given to the
Court. Copy of receipt of Pesh Imam is filed.
12. That the complaint of mismanagement is wholly
wrong. Sir, this mosque has been built on such a place
where often riots took place and every year there is
apprehension of breach of peace. Therefore, seeing the
situation, arrangement is made. The second reason of
2947
compliant is since I am a Shia, Maulvi, Pesh Imam are
against me and also provoke others too. Otherwise, it is
not so. Therefore, it is respectfully prayed that my reply
may kindly be considered and in case it contains anything
mischievous I may be pardoned and if any defects has crept
in, the same may kindly be communicated to me.
Syed Kalabe Husain, s/o Mohd. Razi, r/o Bahoranpur, P.O.
Darshan Nagar, Fyzabad. 20.11.1943."
This document shows that the movable items
necessary for namaz were not kept in the building in
dispute and were brought every time on Friday by
Muazzin and after namaz, the same were taken away. This
also shows an admission of the author that there was only
Friday namaz in the building in dispute and the outer
courtyard has nothing to do with mosque.
(D) Exhibit A-62 (Suit-1) (Register 8, page 519) is a copy
of the notice dated 25.11.1948 from Secretary Sunni Waqf
Board Lucknow to Munshi Javvad Husain to the following
effect:


26








2948

"Copy of Murasla 5007/26/7 dated 25.11.1948 from
Secretary Sunni Central Waqf Board U.P. Lucknow.
Munshi Jawad Husain Saheb included in the Waqf No. 26,
Masjid Babri, District Faizabad.
To,
Munshi Jawad Husain, Masjid Babri, Oudh, Faizabad.
I have come to know from a letter from Noorul Hasan that
on November 26 Mutawalli Syed Kalbe-Husain of
Faizabad expired and since June 27 you are working as
Mutawalli. But you have not informed the Board about this
so far. Please inform us as to how you inherit right of
Tauliat through Syed Kalbe Husain. More over the also
sent Rs. 1/- as fees along with application for Tauliat . Sd/-
Secretary ( English ) 25/11/48."
It appears that earlier Mutwalli Syed Kalbe Husain
died in June 1948 and, thereafter, Jawad Husain took over
charge to function as mutwalli on 27.6.1948.
(E) Exhibit A-61 (Suit-1) (Register 8, page 515) is a copy
of the application filed by Abdul Gaffar Pesh Imam sent to
the Waqf Commissioner Faizabad complaining about non
payment of salary by the Mutwalli Syed Mohd. Zaki of
the disputed building.






)
2949
(













"Copy of the application of Abdul Ghaffar Pesh Imam
Babri Masjid situated at Ram Kot, Ayodhya City dated
August 20, 1938 submitted Before the Waqf Commissioner,
District Faizabad in respect of Waqf No.26.
Before the Waqf Commissioner, District Faizabad
Sir,
That the applicant was appointed as Pesh Imam on
monthly salary of Rs. 5/- by Mahammad Syed Zaki
Mutawalli Babri Masjid Situated at Mohalla Ram Kot,
Ayodhya city. The Mohtamim (Manager/Mutwalli) never
pays his salary regularly. As such upto December 31, 1935.
Rs 274/- fell due against the said Mohtamim, regarding
which the said Mohtamim executed an agreement on July
25, 1936 according to which, the entire amount due was to
be paid by October 31, 1938. But till now only Rs 40/-
could be paid and Rs.234/- without interest is still due.
2950
Besides, a sum of Rs. 155/- towards salary from 1.1.1936 to
31.7.1938 @ Rs.5/ per month is also due. As such, total Rs.
389/- is still due. Therefore with all the due respect, it is
prayed that the arrears of my salary may kindly be ordered
to be paid. Sd/-August 20, 1938.
The document of agreement as referred to above is
enclosed. It may be returned after perusal. Applicant:
Abdul Ghaffar, Pesh Imam Masjid Babri Situated at
RamKot, Ayodhya City, R/o Mohalla Kaziana,Ayodhya
City."
(F) Exhibit A-63 (Suit-1) (Register 8, page 523-527) is a
copy of the report dated 10.12.1949 of Mohd. Ibrahim in
respect of Waqf No. 26 Masjid Babri. It reads as under:

26















2951















//
"Copy of the report Mr. Mohammad Ibrahim Saheb waqf
Inspector, dated 10-12-1949 with regard to Babri Masjid
included in the file 26 Waqf Masjid Babri, District
Faizabad.
Masjid Babri Ayodhya.
To the secretary.
The previous Mutawallis of Masjid Babri, were
Mir Asghar Saheb, Mohammad Razi Saheb, Mohd Zaki
Saheb and Kalbe Husain. Kalbe Hussain the previous
Mutwalli has expired. Therefore, the question of successor
Mutwalli has arisen. Village Sahanwa is Waqf for the
aforesaid Masjid. Numberdar of village Sahanwa has been
continuously appointed as Mutwalli of the aforesaid
mosque. The person who is numberdar becomes Mutwalli
2952
of the mosque in question. From query in the village it
came to light that the present Numberdar of Mauza
Sahanwa is Sri Javvad Hussain and he recovers Tehsil
and is also Mutawalli of the Waqf Masjid. Statement of
Janab Javvad Hussain Saheb was recorded. He admitted
that he was Numberdar as well as Mutwalli. He also stated
that he would discharge duties of Tauliyat sincerely, would
not embezzle even a single pie of the mosque and would
maintain regular account and will comply each and every
order of the Board. Under these circumstances, it seems
proper that the name of Mr. Jawad Husain may be entered
as Mutawalli. On investigation in Faizabad city it was
revealed that because of the fear of Hindus and Sikhs no
one goes into the Masjid to pray Namaz Isha. If by
chance any passenger stays in the Masjid he is being put
in trouble by the Hindus. Out of the Sahan of Masjid there
is a temple where many Pandas reside and they harass the
Muslims whosoever visit inside the mosque. I went at the
spot and from inquiries it was revealed that the said
allegations are correct. Local went on saying to the extent
that there is great danger to mosque from Hindus that they
may harm its wall etc. Seems proper that a written
complaint be sent to the Deputy Commissioner Faizabad so
that nobody harasses the Muslims, going into the Masjid to
offer Namaz. The Masjid is a Shahi monument and it
should be preserved . Sd/- Mr. Mohd. Ibrahim. 10.12.1949"
(G) Exhibit A-64 (Suit-1) (Register 8, page 529-535) is a
copy of the report dated 23.12.1949 of Mohd. Ibrahim,
Waqf Inspector in respect of Waqf No. 26 Masjid Babri
regarding its present condition. It reads as under:
2953






























2954




















"Copy of the report of Mohd. Ibrahim Saheb, Waqf
Inspector Abul Bakra dated 23-12-1949 included in the
Waqf file no. 26.
Present condition of Babri Mosque , Ayodhya.
To the secretary,
On December 22, 1949 I visited Ayodhya to inquire
into current state of affairs of the Masjid Babri and
Qabristan and continued throughout the day. It revealed
the following facts:
Three months back Baba Raghu Das came to
2955
Ayodhya to see Janamasthan and said emphatically to
Bairagis and priests that recitation of Ramayan should
be organized at Janamasthan. This news spread all
around the nearby areas. After one month of departure of
Baba Raghu thousands of Hindus, Pujaris and Pandits
assembled there. The path (recitation) continued for
weeks. During this period the Bairagis dug and levelled the
most of the land in front of the Masjid and southern

Qabristan and pitched flag over there and placed stones on
certain graves. Sufficient police force was deployed at the
time of Ramayan recitation, even then certain graves were
dug. The police arrested four persons who were later on
bailed out. The Mazar of Khwaja Hati Rahamatullah which
is situated on a mound near the Qabristan, has been
demolished and a Bairagi after pitching a Jhanda (flag)
stayed there. On the door of the lawn of the Masjid there
was a pucca grave which has been levelled and the
Bairagis are sitting after placing stones thereon. Near the
well of the Masjid a Bairagi is living under a thatched
2956
roof. Before the path was held, the earthen pot and lota of
the masjid were broken. The Moazzin was beaten up.
They tried to destroy the inscription of the Masjid. Two
Muslim pilgrims were beaten up and as such they
sustained severe injuries. Now there are two tents outside
the Masjid. One of them is occupied by police personnel. In
other tent, sepoy of Batallion are living. Total number of
these sepoys would be 8 to 9. Now the door of the Masjid
remains locked. That is to say, except for Fridays, there
held no Namaz or Azaan. The keys of the Masjid are
with the Muslims, but the police does not allow to open
the lock, which is opened only on Friday for 3-4 hours.
During this period cleaning of the place is done and
then Namaz is held. After this is over, the Masjid is
again locked. During Friday prayer the Bairagis make
hue and cry and when the Namazi pass through the stairs,
shoes and rubbish is thrown on them from the adjoining
houses. The Muslims are so scared that they do not
protest. After Raghu Das, Mr. Lohia also visited Ayodhya
and delivered a lecture in which he urged the people to
grow flower trees in place of graves. However, some
officer from Lucknow visited this place. The Bairagis told
him that the Masjid was the Janam Sthan which should
be handed over to them. He warned them against any
violence. On this, Bairagis became angry with him, so he
returned back to Faizabad under police protection.
Meanwhile Mahant of Kanak Bhawan, Ayodhya, Raghubar
Das, Vedanti Ji, Deo Narain Darsi, Acharyaji Ashrmi,
attempted to invite Muslims for a talk. But no Muslim
except for Zahoor Ahmad, turned up. The Hindus told him
2957
that the Masjid should be handed over to them, only then
the two communities would be brothers otherwise enemies.
I did stayed at Ayodhya in the night. In the morning, I came
to know that Bairagis are trying to take possession over the
Masjid forcefully. Today is Friday I visited the spot when I
saw that 10-15 Bairagis armed Dandas and spears had
assembled in front of the door of the mosque. Many of the
Hindus of nearby localities were also asssembled there.
City Magistrate, Kotwal city and police force were posted
there. I do not know as to what will happen to the Muslims
who would certainly come here for offering Friday prayers.
Now I am proceeding to Lakad Mandi, Gonda. Sd/-
23.12.49" (ETC)
3104. These documents show at the best that, Namaj, only
on Friday, used to be offered in the disputed structure in the
inner courtyard and for rest of the period the building remain
unattended by muslim. So far as the report of Waqf Inspector
dated 10.12.1949 and 23.12.1949 are concerned almost all the
witnesses of plaintiffs (Suit-4) who have been examined on this
aspect have expressed their ignorance about his visit on the
dates on which Mohammad Ibrahim claimed to have prepared
the said reports. Neither the author has been examined nor even
otherwise the two documents have been proved. The documents
cannot be termed to be "public document" merely because the
copy thereof has been issued by the Sunni Board since they do
not answer the description of "public document" under Section
74 of the Evidence Act. Even otherwise the truth of the contents
of these two documents, in accordance with law, was necessary
to be proved. Mere filing of a document or marking as 'exhibit'
does not mean, that the truth of the facts mentioned therein shall
2958
be deemed correct unless proved otherwise. We have already
referred to the relevant law on this aspect and need not to repeat
hereat.
3105. Besides above, there is a copy of the notification
dated 26
th
February, 1944 under U.P. Act of 1936 (Exhibit A-34
(Suit-1) (Register 7, page 409-411) but this document is no
more relevant since it has already been held invalid so far as the
property in dispute is concerned vide the Civil Judge, Faizabad's
order dated 21.04.1966. The plaintiffs have sought to mention
that it is a Government Gazette but a perusal of the document
shows that it is a document of the Sunni Board titled as a
notification and not a copy of the Government Gazette.
3106. Exhibit A-71 (Suit-1) (Register 8, page 577) is a
copy of Shajra Nasab (family tree) of owners of Mauza
Bahooranpur, Pargana Haweli Oudh, Tahsil and district
Faizabad Haqqiat Maafi in the form of Zammdari. A major
portion of the document is illegible and could not be read or
transliterated in Hindi and as such the portion which could be
read is being quoted hereunder along with English translation.



:

:

:

:

/ / /
"Shajra Nasab (family tree) of owners of Mauza
Bahooranpur, Pargana Haweli Oudh, Tahsil and district
Faizabad Haqqiat Maafi in the form of Zammdari
2959
Mooris Ali Caste: Syed.
:
Syed Abdul Baqi
:
Syed Zuber Ali
:
: :
Syed Husain Mohd. Gaus
:
Bibi Sakaran
:
: : :
Mohd. Afzal Ali Taqi (Sic)
4/5 4/5 4/5
3107. Considering the entirety of the above evidence and
discussion and in the absence of anything contrary, we are
satisfied that prior to 1855, there is no evidence of possession by
Muslims of the property in suit. They did not have possession of
the premises in outer Courtyard atleast since 1856-57 when the
dividing wall was raised by the Britishers. They at the best
might have enjoyed only the right of passage so as to enter the
inner courtyard. The entry in the outer courtyard using part of
the premises as passage would not constitute 'possession'. As we
have already discussed in detail, the possession means power of
control over the matter of subject. If it is a physical control, it
should be either actual or a possession of a nature which is so
treated in the eyes of law. Possession is a polymorphous term. It
has different meanings in different contexts. One of the simple
definition is a visible possibility of exercising physical control
over a thing compelled with the intention of doing so either
against all the world or against all the world except some
persons. All these things are missing so far as the premises
within the outer courtyard is concerned wherein there existed
non Islamic structures which were visited and worshipped by
2960
Hindus continuously since as long as back as noticed by
Tieffenthaler in 18
th
century i.e. between 1766 to 1771 when he
visited Avadh area. The possession in the outer courtyard was
open and to the knowledge of Muslim parties, inasmuch, a
person, claimed himself to be the Mutwalli of the Mosque in
dispute, made several complaints, as is evident from the
documents of 1858 and onwards, but the fact remains that those
structures continued in the said premises and the entry of
Hindus and their worship also continued. In this context, the
claim of the plaintiffs that the entire property in dispute i.e. the
outer and inner courtyard had been in their possession upto 1949
cannot be accepted.
3108. However, so far as the inner courtyard is concerned,
though it cannot be said that the muslims never visited the
premises in the inner courtyard or no Namaj ever was offered
therein till 1949, but that by itself would not constitute
possession of the property in dispute in the manner the term
'possession' is known in law. This is a beneficiary enjoyment by
the plaintiffs muslim parties shouldering with their Hindu
brethren and visiting premises within the inner courtyard for the
purpose of worshipping in their own way. On this aspect various
angles we have already noticed above. An additional factor is
that on the one hand it is the claim of plaintiffs that since regular
Namaj used to be held in the disputed building and the requisite
material like Farsh, pitchers, broom etc. was also present and in
the custody of Moazzim, but, no such material was found by the
Receiver when he took charge of the premises in the inner
courtyard pursuant to Magistrate's order dated 29.12.1949. The
inventory which he had prepared, nowhere mention any item
which relates to muslim use for Namaj and instead all the items
2961
relates to worship by Hindus. None has made any complaint that
the goods meant for Namaj have been damaged, looted or stolen
by anybody. There is a complete silence on this aspect of the
matter. In 1934 when there was a riot and there was substantial
damage to the building, in respect to the goods allegedly kept in
the disputed building a claim was made by Syed Mohd. Zaki
giving details of those items but nothing of that sort has
happened in December, 1949 or thereafter. Meaning thereby we
have no option but to draw an inference that no such material
existed thereat. This also weaken claim of the muslim with
regard to exclusive possession, in the form of continuous
worship.
3109. This is not the end. The documents referred above
may not prove the claim of possession of the property in suit as
such, but cumulative effect thereof is explicit that there was no
abandonment by Muslims of the property in dispute. They
continued to exercise their claim over it, got its recognition from
Britishers in the form of grant. The maintenance of building by
Muslims to the extent of disputed structure and partition wall is
also evident. The defendants have not shown anything
otherwise. The entry of Muslims in inner courtyard for Friday
Prayer is also evident. The status of Hindus and Muslims both,
in visiting the place in dispute is common i.e. worshippers. The
only difference is that Hindus visit entire property while for
Muslims it was confined to inner courtyard. Once the
possession, may be a part of the premises, is proved, it relates
back unless proved otherwise.
3110. Subject to what we have said above, the plaintiffs
have failed to prove that the property in suit, i.e., premises
marked as A B C D in the map appended to the plaint was in
2962
possession of the plaintiffs up to 1949. However, we may
clarify that so far as the premises constituting inner courtyard is
concerned this much can be said that Muslims and Hindus alike
used to go therein and, therefore, possession of premises in the
inner courtyard, if technically it can be said, remained with the
members of both the communities. But so far as the outer
courtyard is concerned, the plaintiffs lost possession thereof
atleast from 1856-57 and onwards.
3111. So far as dispossession from the property in suit in
1949 is concerned, we are of the view that the question of
dispossession of plaintiffs from outer courtyard does not arise
since it was not in their possession in 1949 and prior thereto, as
we have already discussed. So far as the inner courtyard is
concerned they have discontinued with the possession atleast
from 23
rd
December, 1949 and onwards while possession of
Hindus which was earlier enjoyed by them alongwith members
of Muslim communities is continue. So far as dispossession is
concerned, neither the plaintiffs have alleged that they were
dispossessed at any point of time nor have proved the same.
Issue no. 2 (Suit-4) is, therefore, answered in negative and
against the plaintiffs.
3112. Issue No. 10 and 15 (Suit-4) are covered by our
findings already recorded in relation to issues 7 (Suit-1), 3 and
8 (Suit-3) and 2 (Suit-4) and, therefore, for the reasons stated
therein, both these issues are answered in negative and against
the plaintiffs and Muslims in general.
3113. So far as Issue No. 28 (Suit-4) is concerned, in view
of our discussion and findings qua Issues No. 3 and 8 (Suit-3), it
is evident that the disputed site has to be understood bifurcated
in outer courtyard and inner courtyard. So far as outer courtyard
2963
is concerned, it is evident that the Hindu religious structures
existed therein since last more than 150 years i.e. sometimes
after 1856-57 and they are being managed and administered by
the Priest of Nirmohi Akhara, defendant no. 3, Therefore, to that
extent, i.e. to the extent only upto outer courtyard, the disputed
site can be said to be possessed by defendant no. 3 and the
plaintiff ceased to have possession of outer courtyard
accordingly. So far as the inner courtyard, which is another part
of the disputed site, it does not appear that the same remain in
possession of any of the parties exclusively. This aspect also we
have already considered above. The premises within inner
courtyard remained to be visited by the members of both the
communities meaning thereby there was no obstruction to any
one to enter the same. This continued till 22
nd
December, 1949
and since thereafter the plaintiffs are ousted even therefrom but
this ouster is immaterial since it was under the orders of District
authorities initially and Court's order subsequently. Hence, not
being voluntary, it would not make any difference.
3114. However, the defendants no. 3 is not able to prove
that it was in possession of the disputed site, which for the
purpose of the present suit, means the premises shown by letters
A B C D in the map appended to the plaint, i.e., the inner
courtyard and outer courtyard including the disputed structure.
In the same manner plaintiffs have also failed to prove the same.
These aspects we have already discussed in detail while
considering issues no. 7 (Suit-1), 3 and 8 (Suit-3) and 2 (Suit-4).
For the reasons and discussions therein, we answer issue 28
(Suit-4) holding that since the plaintiffs have already failed to
prove their possession of the disputed premises as we have said
while considering issue no. 2 (Suit-4), the further question
2964
whether the plaintiffs were never in possession does not arise. It
is covered by our above discussions, reasons and findings. The
defendant no. 3, however, has also failed to prove its possession
of the disputed site (i.e., outer and inner courtyard including the
disputed building) in its entirety ever. This we have discussed
above. Issue 28 (Suit-4) is answered accordingly.
3115. So far as Issue No. 4 (Suit-4) is concerned, it is
again based on the plea of adverse possession. None of the
defendants in the suit in question has pleaded the ingredients as
are necessary to encompass a claim of adverse possession. On
the contrary, pleadings are that the place in dispute itself is a
deity being birthplace of Lord Rama, has continuously been
visited by Hindus for worship. In any case exclusive possession
by Hindus of the premises in dispute has not been proved for the
entire land in dispute, i.e., the disputed site. It is only the
premises covered by the outer courtyard, as we have already
discussed, since 1856-57, i.e., after the erection of dividing wall
by the Britishers, muslims people have not used the same for
any purposes, but so far as inner courtyard is concerned, the
premises therein has not remained confined to be used only by
Hindus. At times muslims have also visited to offer Namaj
thereat. Therefore, so far as the outer courtyard is concerned, it
may be said that the right of prayer by Hindus had perfected
having continued exclusively for more than a century but the
same would not apply so far as the premises within the inner
courtyard is concerned, which has been used by both the sides
may be more frequently by Hindus and occasionally or
intermittently by muslims. Issue 4 (Suit-4) is answered
accordingly.
3116. Issue 16 (Suit-5) at the first instance is covered by
2965
what we have discussed and held in regard to issues no. 7 (Suit-
1), 3 and 8 (Suit-3) and 2, 4, 10, 15 and 28 (Suit-4). Only one
more aspect need be considered hereat. We have already
answered the issues regarding plaintiffs 1 and 2 that they are
juridical persons. The premises in dispute insofar as held to be
the birthplace, if any, having been held to be a juridical person,
question of its possession and the application of doctrine of
adverse possession would not be attracted. Therefore, the
question of loss of title would not arise. Consequently, the
question of reacquisition of title also would not arise.
3117. The issue in question (latter part) has been framed
based on the pleadings in para 29 of the plaint. It says that the
idols were kept in the building in dispute in the night of 22/23
December, 1949. They remain thereat continuously. The
attachment of the premises within inner courtyard by Magistrate
and giving charge to Receiver did not affect the position of idol
since they continued to stay where they were and continued to
remain in possession of the property in dispute thereat. For their
ejectment from the premises in question a suit could have been
filed within 12 years. Suit-4 was filed on 18
th
December, 1961.
Though it is true that the plaintiffs 1 and 2 were not party to the
said suit and, therefore, an order of ejectment in their absence
may not be passed against them but this is also true that their
continuance in the inner courtyard is not on account of a total
inaction on the part of muslim parties but due to the interim
injunction order passed by the trial court directing the parties to
maintain status quo. Later on similar orders were passed by this
Court and Apex Court also. It is well settled that act of the Court
shall prejudice none. Irrespective of whether the plaintiffs 1 and
2 are party in any suit or not but the order of injunction benefits
2966
them and restrain muslim parties from taking any action
otherwise. The injunction order was passed on 16
th
January 1950
in one or the other manner is continuing till date. Later on
similar orders were passed by others including this Court also.
Therefore, the plaintiffs 1 and 2 in effect are the beneficiaries of
judicial orders for retaining their position in the inner courtyard
of the disputed site. It is well established that actus curae
neminem gravabit.
3118. In Kerala State Electricity Board and another Vs.
M.R.F. Limited and others, 1996 (1) SCC 597 the Court said:
"......it has been held by the Privy Council that one of the
first and highest duties of all the Court is to take care that
act of the Court does not cause injury to any of the
suitors."
"There is no manner of doubt it is an imperative duty
of the court to ensure that the party to the lis does not
suffer any unmerited hardship on account of an order
passed by the Court. The principle of restitution as
enunciated by the Privy Council in rodger's case (Supra)
has been followed by the Privy Council in later decisions
and such principle being in conformity to justice and fair
play be followed."
3119. In Gursharan Singh and others Vs. New Delhi
Municipal Committee and others, AIR 1996 SC 1175, it has
been held:
"In view of the legal maxim "acts curiae neminem
gravidity" which means that an act of court shall prejudice
no man, N.D.M.C. is justified in making a claim for interest
over the arrears which have remained unpaid for more
than 12 years because of the interim orders passed by this
2967
Court. This aspect of the matter has been examined by this
Court in the case of Raj Kumar Dey and Ors. v. Tarapada
Dey and Ors. [1988]1SCR118 . Although in the interim
orders it has not been stated that in event of dismissal of
the appeals and the writ petition, the appellants and the
writ petitioner shall be liable to pay interest over the
arrears of the licence fee, but that shall not debar this
Court from passing any order in respect of payment of
reasonable interest over the said amount."
3120. In Kanoria Chemicals and Industries Ltd and
others Vs. U.P. State Electricity Board and others, JT 1997(2)
SC 545 the Court said:
"It is equally well settled that an order of stay granted
pending disposal of a writ petition/suit or other proceeding
comes to an end with the dismissal of the substantive
proceeding and that it is the duty of the court in such a
case to put the parties in the same position they would have
been but for the interim orders of the court. Any other view
would result in the act or order of the court prejudicing a
party (Board in this case) for no fault of its and would also
mean rewarding a writ petitioner inspite of his failure. We
do not think that any such unjust consequence can be
countenanced by the courts."
3121. In South Eastern Coalfields Ltd. Vs. State of M.P.
and others 2003 (8) SCC 648, the Court recognized the
principle that wrong order should not be perpetuated by keeping
it alive. Recognizing the maxim auctus curiae neminem
gravabit, it was held that no one shall suffer by an act of the
Court and such a rule is not confined to an erroneous act of the
Court but act of the Court embraces within its purview all such
2968
acts as to which the Court may form an opinion in any legal
proceedings that the Court would not have so acted had it been
correctly apprised of the facts and law. It is duty of the Court to
apply the restitution putting the parties in the same position as
they would have been, had the order, subsequently found to be
erroneous by the Court, would not have been passed. In para 28
of the judgment, it was held-
The injury, if any, caused by the act of the court
shall be undone and the gain which the parties would have
earned unless it was interdicted by the order of the court
would be restored to or conferred on the party by suitably
commanding the party liable to do so. Any opinion to the
contrary would lead to unjust if not disastrous
consequences. Litigation may turn into a fruitful industry.
Though litigation is not gambling yet there is an element of
chance in every litigation. Unscrupulous litigants may feel
encouraged to approach the Courts, persuading the Court
to pass interlocutory orders favourable to them by making
out a prima facie case when the issues are yet to be heard
and determined on merits and if the concept of restitution is
excluded from application to interim orders, then the
litigant would stand to gain by swallowing the benefits
yielding out of the interim order even though the battle
has been lost at the end. This cannot be cannot be
countenanced. (emphasis added)
3122. The decision in South Eastern Coalfields Ltd.
(supra) taking note of the above principle has also been
followed by this Court in Civil Misc. Writ Petition No. 41872
of 1992, Shesh Mani Tiwari Vs. District Inspector of Schools,
Jaunpur and another, decided on 17.12.2009.
2969
3123. In this context we are not inclined to admit the claim
of the plaintiffs 1 and 2 which is based on the situation which
has arisen, amongst other also, due to the judicial orders. We,
therefore, answer issue no. 16 (Suit-5) by observing that in this
case plea of adverse possession is not attracted either for the
plaintiffs 1 or 2 or as claimed by defendant no. 4 and, therefore,
relying on the plea of adverse possession neither there was any
occasion of extinction of title, if any, of plaintiffs 1 and 2 nor
reacquisition thereof. Issue no. 16 (Suit-5) is answered
accordingly.
(K) Issues relating to characteristics of Mosque, dedication by
Babur and whether a valid waqf was created.
3124. Issues no. 6 (Suit 3), 1, 1(B)(b), 1(B)(c), 19(d),
19(e), 19(f) (Suit 4) and 9 (Suit 5) fall in this category.
3125. Issue no.6 (Suit 3) is:
Was this alleged mosque dedicated by Emperor Babar for
worship by Muslims in general and made a public waqf
property?
3126. The necessary pleadings relevant for the above issue
are in para 15 of the written statement of defendants no.6 to 8
and in para 15 of the replication filed by plaintiffs (Suit 3),
which are as under:
iii r r l l ii i - i ii li r r
iriir lr i iiir | ni-| i -i| -i - i|
-l r li riir - | rn-i-
ni-| ii| i - -ii l i- li l-
n-i- - -ii i r ;in r| (Written Statement)
Para 15- That the property which has been claimed by
the plaintiffs is the Babri Mosque built by Emperor Babar
of India in his name, who got it built through his
Minister . . . . and thereafter he made a waqf and
2970
consecrated to Muslims wherein Muslims have right of
worship." (E.T.C.)
"Para 15.- The allegations contained in para 15 of the
written statement are totally incorrect and are denied. The
property in suit is neither a mosque nor is it known as
Babri Mosque, nor was it built by Emperor Babar through
Mir Abdul Baqi. Nor was it made wakf. The property in suit
is the temple of Janma Bhumi." (Replication)
3127. Issues No. 1, 1-B(b), 1-B(c), 19(d), 19(e) and 19(f)
(suit 4) are:
Issue No.1 Whether the building in question described as
mosque in the sketch map attached to the plaint
(hereinafter referred to as the building) was a mosque as
claimed by the plaintiffs?
Issue No.1-B(b) Whether the building stood dedicated to
almighty God as alleged by the plaintiffs ?
Issue No.1-B(c) "Whether the building had been used by
the members of the Muslim community for offering prayers
from times immemorial? If so, its effect?"
Issue No. 19(d) Whether the building in question could
not be a mosque under the Islamic Law in view of the
admitted position that it did not have minarets?
Issue No. 19(e) Whether the building in question could
not legally be a mosque as on plaintiffs' own showing it
was surrounded by a graveyard on three sides?
Issue No. 19(f) Whether the pillars inside and outside the
building in question contain images of Hindu Gods and
Goddesses? If the finding is in the affirmative, whether on
that account the building in question cannot have the
character of Mosque under the tenets of Islam?
2971
3128. In the plaint (Suit 4), the relevant pleadings are in
paras 1, 2 and 21-B. Defendants no.1 and 2 in para 2 of their
written statement hence denied that the alleged mosque was
built as dictated by Babar. Similar is the denial by defendant
no.3 in his written statement.
3129. In the written statement of defendant no.13, the
relevant pleadings are in paras 11-A , 25 and 28 in which it is
said:
"11-A....The attempt to raise a mosque-like structure did
not succeed; and no 'mosque', deemed to be Waqf
according to Muslim Law, ever came into existence. The
act of Mir Baqi was a fleeting act of trespass . . . ., and no
Muslim could by any such act of trespass or its repetition,
confer any right, title or interest in the nature of a Waqf in
favour of ALLAH for the purposes of a 'mosque'.
25. That the building in suit was no mosque and its
surrounding area was not a grave-yard. . . . . ALLAH
DOES NOT accept Namaz offered at a place taken by
force, or in a mosque built on land obtained by Gasba or
forcibly without title. It seems, therefore, that the three-
domed structure raised at Sri Rama Janma Bhumi . . . .,
was not intended to be used as a mosque, and it was
never used as mosque. . . . . The alleged existence of a
grave-yard all round it, also shows that the Muslims could
not have gone to offer Namaz in the building, which was
abandoned and never used as a mosque by the
Muslims.
28. That the following facts would show that the three-
domes structure so raised by Mir Baqi was not a mosque
at all, namely---
2972
(A) ALLAH does not accept a dedication of property for
purposes recognised as pious and charitable, that is, as
waqf under the Muslim Law, from a person who is not its
rightful owner, for instance, ALLAH would not accept the
dedication of stolen property from a thief. By his act of
trespass supported by violence, for erecting a mosque
..
(B) Inspite of all that Mir Baqi tried to do with the
Temple, the space always continued to best in possession
with the Deities of BHAGWAN SRI RAMA VIRAJMAN and
the ASTHAN SRI RAMA JANMA BHUMI. THEIR
worshippers continued to worship THEM through such
symbols as the CHARAN and the SITA RASOI, and the
idol of BHAGWAN SRI RAMA LALA VIRAJMAN on the
Chabutra, called the Rama Chabutra. No one could enter
the three domed structure except after passing through
these places of Hindu worship. According to the tenets of
Islam there can be no Idol worship within the precincts
of a mosque, and the passage to a mosque must be free
and unobstructed and open to the Faithful at all times. It
can never be land-locked by a Hindu place of worship;
and there can be no co-sharing in title or possession with
ALLAH, particularly in the case of a mosque. His
possession must be exclusive.
(C) A mosque, which is a public place of worship for
all the Muslims, must have a minaret for calling the
AZAN. According to Baillie-
When an assembly of worshippers pray in a masjid with
permission, that is delivery. But it is a condition that the
prayers be with izan, or the regular call, and be public not
2973
private, for though there should be an assembly yet if it is
without izan, and the prayers are private instead of public,
the place is no masjid, according to the two disciples.
(Pt. 1, BK. IX, Ch. VII, Sec. I, p. 605)
Indeed, according to P.R. Ganpathi Iyers Law Relating
to Hindu and Mahomedan Endowments, (2
nd
Edition,
1918, Chap. XVII, at p. 388) there has been no mosque
without a minaret after the first half century from the
Flight.
(D) There was no arrangement for storage of water for
Vazoo, and there were the Kasauti pillars with the figure
of Hindu Gods inscribed on them and the Sandalwood
beam. Such a place could never be a mosque.
(E) There is mention in the Fyzabad Gazetteer of the
burial of 75 Muslims at the gate of the Janmasthan and the
place being known as Ganj Shahidan, after the battle of
1855 between the Hindus and the Muslims in which the
Hindus succeeded in resuming control over the premises,
including the three-domed structure. There have been no
graves anywhere near the building or its precincts or the
area appurtenant thereto, or surrounding it, for the last
more than 50 years at least, but if the building was
surrounded by a grave-yard soon after the annexation of
Avadh by the British, the building could not be a Mosque
and could not be used as a mosque, for the offering of
prayers or Namaz, except the funeral prayers on the death
of a person buried therein, that is, the Namaz-Janaz, is
prohibited in a grave-yard according to the Muslim
authorities.
3130. The defendant no.17 in his additional written
2974
statement has denied para 21-B and further says:
"....Muslim cannot use any open piece of land in question
for offering prayers and they also cannot encroach upon
the land of religious places of Hindus."
3131. Defendant no.20 has replied the relevant averments
of the plaintiffs in respect to the above issues in para 2 and 41 of
its written statement:
"2. That the contents of paragraph 2 of the plaint are
absolutely wrong and denied. There has never been any
battle between Emperor Babar and the previous Ruler of
Ayodhya nor any grave yard or mosque as alleged has
been built or dedicated by Emperor Babar."
41. That the following facts also establish that the
mosque in dispute has not been built by Babur at all in
1528 nor is a mosque at all:-
(1) The tomb of this disputed Masjid if it is to be
looked from behind would show that it is not in the style
developed by Turkis during fifteenth century, nor the
Mehrab of the Masjid in that style is to be found. Thus
there is no tomb in the disputed Masjid as is to be
found in other mosques generally.
(2) On the north door in the front facing each other
there are two tigers. They are in the style of taking
leaps and their tails are just in the same style when a
tiger takes the leap. Between these two tigers there is a
peacock. This is not a characteristic of a mosque.
(3) The various Hindu idols are painted or their
scriptions are to be found in the disputed mosque.
(4) In the disputed mosque there is no provision for
reciting Namaz. To this day it has no minerettes, no
2975
place for storage of water for Vazoo.
(5) The Muslim Faith as adumbrated in Holy Koran
does not permit the construction of a mosque on the
site of temple after demolishing the temple.
(6) Babur never dedicated the property of disputed
mosque to ALLAH. Even supposing without admitting
that Babur constructed the disputed mosque, yet as it
has been done by committing trespass, demolishing the
Temple, the abode of God, either by Babur or at his
instance by Mir Baqi, the Governor of Oudh, the
dedication is wholly invalid and void. The material of
the old temple was largely employed in building the
mosque and a few if the original columns are still in
good preservation. They are of closed grained black
stone (Kasauti) bearing various Hindi Bas-reliefs. The
outer beam of the main structure being of sandal wood,
the height of the columns is 7 to 8 ft., the shape of the
base, the middle section and the capital is square, the
rest being round or octagonal . . . . . Subsequently,
Aurangjeb also desecrated the shrines of Ayodhya
which led to prolonged bitterness between Hindus and
Musalmans. Latter also occupied Janmasthan by force
and also made an assault on Hanumangarhi. Attacks
and counter attacks continued under the leadership of
Maulvi Amir Ali (See page 352 of Faizabad Gazetteer
1960).
(7) A mosque must be built in a place of peace and
quiet and near a place where there is a sizeable and
large number of Muslim population. According to the
Tenets of Islam, a mosque cannot be built at place which
2976
is surrounded on all sides by temples where the sound
of music, of Conch shells or Ghanta Ghariyalis must
always disturb the peace and quiet of the place.
(8) A mosque must have minerette for calling the
Ajan. According to Baille When an assembly of
worshippers pray in Masjid with permission, i.e.
delivery. But it is a condition that prayers be with Ajan
or the regular call and be public and not private, for
though there should be an assembly yet if it is without
Izah and the prayers are private instead of public, the
place is no Masjid according to the true desciples.
Indeed there has been no mosque without a minerette
after the first half century fight. (See P.R. Ganapati
Iyers law relating to Hindu and Muhammadan
Endowments 2
nd
Edition 1918 Chapter XVII, page
388).
(9) According to the claim laid by the Muslims in the
present suit, the building is surrounded on sides by a
grave yard known as Ganj Shahidan. There is a mention
in the Faizabad Gazetteer also of the burial of seventy
five Muslims at the gate of Janmasthan and the place
being known as Ganj Shahidan after the battle of 1855.
Although there are no graves anywhere near the
building at Sri Rama Janma Bhumi or in its precincts or
the area appurtenant thereto for the last more than 50
years and if the building was surrounded by a graveyard
during the British times soon after the annexation of
Audh by them the building could not be mosque and
could not be used as a mosque for offering of prayers
except the funeral prayers.
2977
3132. In the additional written statement, the defendant
no.20 while denying para 21-B of the plaint, in para 2, has
further said in para 5:
"That by destruction of the structure, the pillars were also
destroyed which were evidence of Hindu Temple. It is not
the destruction of Babri Mosque but a Hindu temple. The
answering defendant No. 20 is entitled to claim the land in
dispute for constructing a temple of Bhagwan Ram on the
disputed land."
3133. Issue No.9 (suit 5) is as under:
Was the disputed structure a mosque known as Babri
Masjid?
3134. The necessary pleadings relevant for the above issue
are in para 24 of the plaint which are:
"That such a structure raised by the force of arms on land
belongings to the Plaintiffs Deities, after destroying the
ancient Temple situate thereat, with its materials including
the Kasauti pillars with figures of Hindu gods carved
thereon, could not be mosque and did not become one in
spite of the attempts to treat it as a mosque during the
British rule after the annexation of Avadh. Some salient
points with regard thereto are noted below.
(A) According to the Koran, ALLAH spoke to the Prophet
thus--
And fight for the religion of GOD against those
who fight against you; but transgress not by attacking them
first, for GOD loveth not the transgressors. And kill them
wherever ye find them; and turn them out of that whereof
they have dispossessed you; for temptation to idolatry is
more grievous than slaughter, yet fight not against them in
2978
the holy temple, until they attack you therein; . . . . . . . .
(B) According to all the Muslim authority and precedents
and the decided cases also. ALLAH never accepts a
dedication of property which does not belong to the Waqf
that is, the person who purports to dedicate property to
ALLAH for purposes recognised as pious or charitable, as
waqf under the Muslim law. By his acts of trespass and
violence for raising a mosque on the site of the Temple
after destroying it by force, Mir Baqi committed a highly
un-Islamic act. His attempts to convert the Temple into a
mosque did not, therefore, create a valid dedication of
property to ALLAH, whether in fact or in law, and it never
became a mosque.
(C) That in spite of all that Mir Baqi tried to do with the
Temple, the land always continued to vest in the Plaintiff
Deities, and they never surrendered their possession over
it. Their possession continued in fact and in law. The
Asthan never went out of the possession of the Deity and
HIS worshippers. They continued to worship HIM through
such symbols as the CHARAN and Sita Rasoi, and the idol
of BHAGWAN SRI RAMA LALA VIRAJMAN on the
Chabutra, called the Rama Chabutra, within the enclosed
courtyard of the building directly in front of the arched
opening of its Southern dome. No one could enter the
building except after passing through these places of
Hindus worship. According to the Muslim religion and law
there can be no Idol worship within the courtyard of a
mosque and the passage to a mosque must be free and
unobstructed and open at all times to the 'Faithful'. It can
never be through a Hindu place of worship. There can be
2979
no co-sharing of title or possession with ALLAH in the
case of a mosque. His possession must be exclusive.
(D) A mosque must be built in a place of peace and quiet,
but not to a place where there is a sizeable Muslim
population, according to the tenets of Islam, and as
insisted upon by it, a mosque cannot be built in a place
which is surrounded on all sided by Temples, where the
sound of music or conch shells or Ghanta Ghariyals must
always disturb the peace and quiet of the place.
(E) A mosque must have minaret for calling the Azan.
According to Baillie. When an assembly of worshippers
pray in a masjid with permission, that is delivery. But it is
a condition that the prayers be with izan. or the regular
call, and be public not private, for though there should be
an assembly yet if it is without izan. and the prayers are
private instead of public, the place is no masjid. According
to the two disciples. (Pt. I. BK. IX, Ch, VII Sec. i.p.
605). Indeed, there has been no mosque without a minaret
after the first half century from the Flight. (See-P.R.
Ganapati Iyer's Law relating to Hindu and Mahomedan
Endowments, 2
nd
Edition, 1918. Chap. XVII, P. 388.)
(F) According to the claim laid by the Muslims in their suit
No. 12 of 1961, the building is surrounded on all sides by
grave-yard known as 'Ganj Shahidan'. There is a mention
in the Fyzabad Gazetteer also, quoted herein above, of the
burial of 75 Muslims at the gate of the Janmasthan, and
the place being known as Ganj Shahidan. After the battle
of 1855. Although there are no graves anywhere near the
building at Sri Rama Janma Bhumi, or in its precincts, or
the area appurtenant thereto, for the last more than 50
2980
years, if the building was surrounded by a grave-yard
during the British times soon after the annexation of Avadh
by them, the building could not be a mosque, and could not
be used as a mosque, for the offering of prayers, except the
funeral prayers on the death of a person buried therein, is
prohibited in a grave-yard according to the Muslim
authorities.
(G) As already stated, there is no arrangements for
storage of water for Vazoo and there are the Kasauti
pillars with the figures of Hindu Gods and Godesses
inscribed thereon in the building."
3135. The defendant no.4 in para 24 has replied as under:
"That the contents of para 24 of the Plaint are also
incorrect and hence denied as stated. At no point of time
there ever existed any temple at the site of the Babri
Masjid and it is absolutely incorrect to say that the said
mosque was constructed, after destroying any ancient
temple, with the material of the alleged temple. The
mosque in question has always been used as a mosque
since its construction during the regime of Emperor
Babar.
The contents of the sub-paras (A) to (G) of the para
under reply are also incorrect and the same are also
denied as stated:
(A) : That the contents of para 24(A) of the plaint are also
denied as stated. The quotation of Quran is totally out of
context and the same is not even correct and complete.
(B) That the contents of para 24(B) of the Plaint are also
incorrect and hence denied as stated. The land in
question undoubtedly belonged to the State when the
2981
mosque in question was constructed on behalf of the
State and as such it cannot be said that it could not be
dedicated for the purposes of the mosque. Emperor
Babar was a Sunni Muslim and the vacant land on which
the Babari Masjid was built lay in his territory and did not
belong to anyone and it could very well be used by his
officers for the purposes of the mosque and specially so
when the Emperor Babar himself consented and gave
approval for the construction of the said mosque. . . . . .
(C) That the contents of para 24(C) of the Plaint are also
absolutely false and incorrect and hence denied as stated. .
. . . . The alleged Ram Chabutra has also not remained
in existence since the time of Babar but rather the same
is the creation of around 1857 period.
It is also incorrect to say that the entry of the mosque
could not be possible except after passing through any
place of Hindu worship. The concept of the mosque has
also been wrongly and incorrectly described in the para
under reply.
(D) That the contents of para 24(D) of the Plaint are also
incorrect and hence denied as stated. There is no such
requirement for the construction of any mosque that the
same should be built in a place of peace and quiet and
near to a place where there is a sizeable Muslim
population. It is also incorrect to say that the mosque
cannot be built in a place which is surrounded by temples,
where the sound of music and Konch shell, Ghante
Gharyal disturbs the peace and quiet of the place.
(E) That the contents of para 24 (E) of the Plaint are also
incorrect and hence denied as stated and in reply thereto it
2982
is submitted that there is no specific shape of building a
mosque and there is no requirement of existence of any
minarets for calling the Azan. The quotations given in the
para under reply are also irrelevant and out of the context
and the same do not even present a correct law.
(F) That the contents of para 24 (F) of the Plaint are also
incorrect and hence denied as stated. Whatever was
mentioned in the Plaint of Suit No. 12 of 1961 would
appear from the copy of the same and the averments of the
Faizabad Gazetteer referred to in the para under reply are
neither authentic and nor correct. It is also incorrect to say
that there were no graves near the building of the said
mosque. The fact is that many graves existing in the
Ganj-Shaheedan have now been mostly demolished by
the Bairagis and that is why they are not now visible. It
is reiterated that the mosque is question has been offering
regular 5 times prayers upto 22
nd
December, 1949 and
even Friday prayers have been offered in the same till 16
th
December, 1949 and the Imam of the said mosque who
used to lead the prayers even in 1949 namely Maulvi Abdul
Ghaffar son of late Mohd Abdul Qadir. He had even filed
his affidavit in writ No. 746 of 1986 : Mohd Hashim Vs.
District Judge, Faizabad and others, which is still pending
in this Court.
(G) That the contents of para 24 (G) of the Plaint are also
incorrect and hence denied as stated and in reply thereto it
is submitted that there is a pucca well also outside the
mosque in question for taking water for the purpose of
Vazoo."
3136. Defendant no.5 has denied para 24 of the plaint in
2983
para 24 of his written statement.
3137. In brief, the case of the plaintiffs (Suit 4) or the pro-
mosque parties is that the building in dispute was constructed in
1528 AD at the command of Emperor Babar by his commander
Mir Baqi, when Babar had conquered Hindustan. He dedicated
the said building to Almighty and made it a public wakf. Since
then it is being used for offering namaz by muslims in general.
It is a public wakf and cannot be treated a Hindu temple.
3138. It is also said that the matter being almost 500 years
old, one cannot be expected to adduce evidence to show the
facts as to what occurred at that time or what actually existed or
happened in 1528 AD, to demonstrate the manner in which waqf
of disputed property was created. If the property in dispute has
been used as mosque and Namaz has been offered therein, this
itself is sufficient evidence to prove the building in dispute as
mosque i.e. a waqf validly created. It is the evidence by "user"
which must be taken into account by the Court to find out
whether there existed waqf or not and whether the building in
dispute was dedicated as waqf to God or not. Once there is a
waqf, the building and site both belong to God and cannot be
treated otherwise so as to change its nature, whether by placing
idols or by offering worship etc.
3139. On the contrary, all the learned counsels for pro-
temple parties (Hindus) supporting the case of Hindu temple
contended that the disputed site itself is a place of specific
significance for Hindus being the "birth place of Lord Rama",
"an incarnation of Lord Vishnu". This place whether was
occupied by Hindus or not but on its own is a "Deity" having
been worshipped by Hindus for time immemorial and much
earlier from the period when it is said that the disputed building
2984
was constructed. The site in dispute was not owned by any
private individual but it belong to a Deity. Neither Babar nor
Mir Baqi was owner of the property. There is nothing to show
that they obtained or acquired this property by valid means i.e.
gift, purchase, etc. In order to constitute a waqf in accordance
with Shariyat law one of the crucial factor is that the land must
belong to the Waqif. Neither Babar nor Mir Baqi were owner of
the property in dispute therefore, had no occasion or right to
create a waqf in accordance with Shariyat Law. Construction of
a Muslim religious place on the place of another religion is not
permitted and that too by demolishing a religious structure of
another religion. There was not and cannot be a valid dedication
to God. No question arose to create a valid waqf in accordance
with Shariyat Law. Once a valid waqf was never created, the
claim of the disputed building as a mosque, existing since 1528
AD, is wholly baseless and imaginary. In the absence of
existence of a valid waqf, the mere fact that Muslims at some
point of time offered Namaz in the disputed building, assuming
though not admitting, would not make the same a waqf i.e.
mosque (The factum that Namaz was offered in the disputed
building is seriously disputed but the argument has been
advanced in the alternative).
3140. Besides the documentary and oral evidence, a lot of
precedents, judicial and religious literature and history books on
the subject have been cited.
3141. In view of our findings recorded on the issues,
whether the building in dispute was constructed in 1528 AD by
Emperor Babar or any of his agent in negative, the issues in
question immediately would also stand negatived. When the
building in dispute itself was not constructed in 1528 AD by
2985
Babar or any of his agent, the question of creation of a waqf by
dedication to Almighty by any of them would not arise. All
these issues without any further discussion thus deserve to be
answered against the pro-mosque parties. However, we shall
consider these issues further on merits, presuming for the
purpose of these issues only, at this stage, that the building in
dispute, if constructed in 1528 AD by Babar or any of his officer
under his dictates, whether it satisfy the requirement of a waqf,
as is known in Sharii i.e. according to tenets of Islamic law or
otherwise and other aspects involved in these issues.
3142. The first question, as would crop up immediately, is
what is a waqf in law of Shariyat, how it can be created or could
be created and what the religious sanctions are in this regard, as
also the relevant judicial precedents, if any.
3143. Some aspects of the matter pertaining to waqf have
already been discussed while considering the issues relating to
U.P. Act 1936 and 1960 but there it was confined only to the
extent, it was necessary for adjudication of those issues. Here
the issues are simply related with Islamic law on waqf as also
the power, privileges, obligations etc. of conqueror or a king or
a emperor or an invader, as the case may be.
3144. The Islamic religious scriptures in this regard,
relevant for our purposes, have been referred in sufficiently
great detail by Sri P.N.Mishra, Advocate assisted by Ms.
Ranjana Agnihotri counsel for defendant no.20 (Suit 4) and that
itself give enough idea on this subject.
3145. Firstly, he submits that Islam guarantees religious
freedom and tolerance. It does not permit usurpation of sacred
religious places of others. There does not arise any question of a
valid construction of a mosque at a place where a Hindu temple
2986
existed or a place which, for its peculiar nature and specific
religious importance, very pious to the persons of another
religion, i.e., Hindu. In this regard he referred Holy Quran,
Hadith & several other books on islamic laws.
3146. The Holy Quran and the Holy prophet has
commanded that no one should be compelled to change religion.
Idolater should be allowed to worship in their own way. The
Holy prophets have appeared in every community and they
should not be compared but respected and a Muslim can
maintain good relation with his Pagan (i.e. worshipper of multi-
deities) relative.
3147. The Noble Qur'an, Surah-2 Al-Baqarah, Ayat 256 at
P. 42 reads as follows:
"256. There is no compulsion in religion. Verily, the
Right Path has become distinct from the wrong path.
Whoever disbelieves in Taghut and believes in Allah, then
he has grasped the most trustworthy handhold that will
never break. And Allah is All-Hearer, All-Knower.
3148. The Holy Quran (The Noble Qur'an, Surah 109
Al-Kafirun, Ayat 1-6, page 603) permits people of other
religion to carry out their religious practices according to their
own religion. English translation of the said Ayat reads as
follows:
"1. Say (O Muhammad .. .. .. to these Mushrikun and
Kafirun): "O Al-Kafirun (disbelievers in Allh, in His
Oneness, in His Angels, in His Books, in His Messengers,
in the Day of Resurrection, and in Al-Qadar)!
2. I worship not that which you worship,
3. Nor will you worship that which I worship.
4. And I shall not worship
2987
that which you are worshipping.
5. Nor will you worship that which I worship.
6.To you be your religion, and to me my religion
(Islmic Monotheism).
3149. The Holy Quran (The Noble Qur'an, Surah-10
Yunus, Ayat 47 at page 214) recognizes birth of Messengers of
the Almighty in every community or nation. English translation
of the said Ayat reads as follows:
"47. And for every Ummah (a community or a nation) there
is a Messenger; when their Messenger comes, the matter
will be judged between them with justice, and they will not
be wronged."
3150. Sacred Compilation Hadith Sahih Bukhari 3.595 p.
610-611 reveals that Holy Prophet commanded not to give a
Prophet superiority over another. Relevant portion of the said
Hadith reads as follows:
"The Prophet said, "Do not give a prophet
superiority over another, for on the Day of Resurrection
all the people will fall unconscious and I will be the first to
emerge from the earth, and will see Moses standing and
holding one of the legs of the Throne. I will not know
whether Moses has fallen unconscious or the first
unconsciousness was sufficient for him."
3151. The Sacred Compilation Hadith Sahih Bukhari
4.407 reveals that Holy Prophet allowed a Muslim to keep good
relation with his mother who was pagan i.e. idolater. The said
Hadith reads as follows:
"Narrated Asma 'bint Abi Bakr: During the period of the
peace treaty of Quraish with Allah's Apostle, my mother,
accompanied by her father, came to visit me, and she was a
2988
pagan. I consulted Allah's Apostle, "O Allah's Apostle! My
mother has come to me and she desires to receive a reward
from me, shall I keep good relation with her?" He said,
"Yes, keep good relation with her."
3152. Sri Mishra contended that freedom of religion and
religious practices to Hindus during Islamic Rule was granted to
the Hindus and they were not forced to be governed by Islamic
Law.
3153. Law of Shar as interpreted by Great Imam Abu
Haneef recognized right of freedom of religion & religious
practices of the Hindus of India under Islamic Rulers. Sultan
Sikandar Lodi was dissuaded by the Greatest Alim of that age
Miyan Abdullah Ajodhani from demolishing a Hindu Temple &
putting ban on religious practices of the Hindus. Even Emperor
Aurangzeb who later on caused demolition of several Temples
of the Hindus throughout his Empire, in his Firman dated 1659
admitted that Shariyat do not permit to demolish old Temples
and impose restriction on performance of customary and other
religious rituals of the Hindus.
3154. Ibn Battuta tells that Muhammad bin Tughlaq had
granted permission to rebuild demolished Idol Temples to the
King of China. During the reign of Caliphs, the people of
other faith i.e. Zimmis were allowed to carry out processions,
observe festivals, beat drums, erect places of worship &
maintain images therein.
3155. In Waqiyat-i-Mutaqi written by Rizkulah Mutaqi
(b. 1491-92 & d. 1581 A.D.), Tabkats I Akbari by Khwaja
Nizamuddin Ahmad (completed in 1592-93 A.D.) and Tarikh-
i-Shahi (completed in the beginning of Emperor Jahangir's
reign) it has been narrated that once upon a time when Sultan
2989
Sikandar Lodi (1488-1517 A.D.) was the Crown prince and
known as Nizam Khan, he sought opinion of Alims for the
purpose of demolishing an ancient temple of Hindus at
Thaneshwar and putting ban on Hindus from taking holy dip in
the Sacred pond at Thaneshwar. Alims unanimously made a
request to him for putting that question to Greatest Alim of the
age Miyan Abdullah Ajodhani who was available at that place.
On being asked, the Great Alim Abdullah Ajodhani replied that
Shar does not permit destruction of ancient temple and
prohibition of customary rites of the Hindus. From said answer
Sikandar Lodi became very much annoyed and drew his sword
inter alia stating that 'first I will kill you and thereafter attack
Thaneshwar'. Then Alim fearlessly answered that 'everyone has
to die on one day and when anyone goes near a tyrant then he
does it knowing fully well that his death is certain. I am not
worried about my life but I say that if you had nothing to do
with Shar then there was no need to put this question to me but
since you asked me that question of Shar I replied it in
accordance with Shar'. In "Uttar Taimoorkalin Bharat
Bhag.1" (History of the Part-Taimoor Sultans of Delhi, Part
1) pages 104, 228 and 322 narrates it as follows:
i i -i | i i
i~i-ii - i r i l i i i -i
i l li| ; li il-i i -n nin l
r li| n il- (l-i ~ir
i i| i| l-in i| i| | i n li l, ;|
l-iln - r- s i| r| r n | l-i li- l-i
~i ; li - si| ri si, ri i ri ni r ` l-i
li- ri l, -ii - i il ri
-i n r| l-i ~ir si l, r ii r|
r` iri ri l, r | i| ii r | l-i ~ir
2990
si l, i - -i iiiri ; -i - i li`
iri ri l, ; l| iiir s i| r| li|
- ~i ri l, ;i -nil- i ni r | i |
- l i - i l n r| | l-i li- - ri,
-i li | i ri l, i- - n -ri| r-i ni
n in ri i -i ni| ri ri l, i| l -i
li r | li ; i i i; i| r| -ni| i; i|
ln l| -ii| i ini r ni l - - l
ini r| i s rii r r ri ni ln i - n ii | --i
li - li ni - i -n li| l ii ii |
lni r| r ni s | i ; ini r| | ~ni ii
i i i i ri l, l -ln i n ni ; ri
ili i r i ni i liii - -i iiiln
ri n | l-i ~ir ri l, - n i s ri ii - r
li, i i | r i - ii r i| il- i n
ii l | -l -i -ii i r | l-i
li- l| i i li i ri, l-i ~ir i
i|i| - n i - n r | r r r li li|
i~i-ii - | r ii i||
i i -i l i i i -
| i~i-ii - l r irii ii r i l
ii - r , ri lr ri -i n r |
il-i si l ; li - ii i i i i r` ri
-n li l i| - li i - | -ln r| r|
l - i| i -i | ii | i r| r,
- -i i li i i l ln r| | iri -i
li | i il- | r-i i ~ n r ri l, n
ili i iiin| r | n -n li l, i s ii -
lii r - rni r i - in r - i; i r||
irii n - ri ni|
i -i i ni
l ii li l ii i i
2991
( i) i l-- -| i- li i i r il- ri i- l-
lni i r -ii - i | i| i i
-l -i -ii l-in ii| iri si, ri
i r` -n li, ri r ri ooo, zooo i
lr in -i rn in r| si, r i i-i
r i` iri ri, ii r ln r| r | -l
-i si, i iiir ; li - i n i`
-n li, s r| | -l -i ri, r n -rii
-nil- r| ii l n -ri - -i iiiri ; li
- s r| li` irii ; in i n- r i| ri,
; i(s) il- ll i r| ii - , i-ii -
r ;-i- i ;ni i iiin| ii|
3156. In his Farman/Manshur of Emperor Aurangzeb of
15
th
March, 1659 AD. has said that in accordance with the
Sharia the ancient temples, are not to be destroyed as such there
should be no interference in offering prayers in temples of the
Hindus. In spite of the fact that subsequently this ruler himself
caused demolition of several temples, in his Firman dated 1659
he has accepted that sharia neither permit to interfere with the
worship of the Hindus nor allows to destroy their temples.
3157. Ibn Battuta who held the office of the Kazi of Delhi
as also functioned as Mutawalli of the Mausoleum of Sultan
Kutubuddin during the reign of Sultan Mahommed Bin Tughlaq
has noted down that Sultan Mahommed Bin Tughlaq had
granted permission to the King of China to rebuild the idol
temples that were demolished by his army in Himalayan region
subject to payment of Jizya. Page 214 of the book 'IBN
BATTUTA Travels in Asia and Africa 1325-1354' translated
and selected by H.A.R. Gibb (first published in 1929 reprinted
in 2007 by Low Price Publications, Delhi) reads as follows:
The king of China had sent valuable gifts to the sultan,
2992
including a hundred slaves of both sexes, five hundred
pieces of velvet and silk cloth, musk, jewelled garments and
weapons, with a request that the sultan would permit him
to rebuild the idol-temple which is near the mountains
called Qarajil (Himalaya). It is in a place known as
Samhal, to which the Chinese go on pilgrimage; the
Muslim army in India had captured it, laid it in ruins and
sacked it.' The sultan, on receiving this gift, wrote to the
king saying that the request could not be granted by
Islamic law, as permission to build a temple in the
territories of the Muslims was granted only to those who
paid a poll-tax; to which he added "If thou wilt pay the
jizya we shall empower thee to build it. And peace be on
those who follow the True Guidance."
3158. Syed Amir Ali in his book "The Spirit of Islam"
(at p. 272) substantiate that the Islam itself has ever maintained
the most complete tolerance in respect of religion and if any
excesses was done, it was by the passions of the ruler, using
religious element as a pretext. Relevant extract thereof is as
under:
"If we separate the political necessity which has often
spoken and acted in the name of religion, no faith is more
tolerant than Islam to the followers of other creeds.
"Reasons of State" have led a sovereign here and there to
display a certain degree of intolerance, or to insist upon a
certain uniformity of faith; but the system itself has ever
maintained the most complete tolerance. Christians and
Jews, as a rule, have never been molested in the exercise of
their religion, or constrained to change their faith. If they
are required to pay a special tax, it is in lieu of military
2993
service, and it is but right that those who enjoy the
protection of the State should contribute in some shape to
the public burdens. Towards the idolaters there was
greater strictness in theory, but in practice the law was
equally liberal. If at any time they were treated with
harshness, the cause is to be found in the passions of the
ruler or the population. The religious element was used
only as a pretext."
3159. The 'Spirit of Islam' (at p. 273) records the facts
that the Holy Prophet gave guarantee of freedom of religion to
the Christians of Najran and the neighbouring territories, inter
alia, stating that there would be no interference with the practice
of their faith, monks would not be removed from their
Monastery and no image would be destroyed. It says:
"Has any conquering race or Faith given to its subject
nationalities a better guarantee than is to be found in the
following words of the Prophet? "To (the Christians of)
Najran and the neighbouring territories, the security of
God and the pledge of His Prophet are extended for their
lives, their religion, and their propertyto the present as
well as the absent and others besides; there shall be no
interference with (the practice of) their faith or their
observances; nor any change in their rights or privileges;
no bishop, shall be removed from his bishopric; nor any
monk from his monastery, nor any priest from his
priesthood, and they shall continue to enjoy every thing
great and small as heretofore; no image or cross shall be
destroyed; they shall not oppress or be oppressed; they
shall not practise the rights of blood-vengeance as in the
Days of Ignorance; no tithes shall be levied from them nor
2994
shall they be required to furnish provisions for the troops."
3160. The 'Spirit of Islam' (at p. 273-274) records the
facts that during the reign of Caliphs, the people of other faith
i.e. Zimmis were allowed to carry out processions, observe
festivals, beat drums, erect places of worship. Relevant extract
of the said book reads as follows:
"After the subjugation of Hira, and as soon as the
people had taken the oath of allegiance, Khalid bin-Walid
issued a proclamation by which he guaranteed the lives,
liberty and property of the Christians, and declared that
"they shall not be prevented from beating their nakus and
taking out their crosses on occasions of festivals." "And
this declaration," says Imam Abu-Yusuf, "was approved of
and sanctioned by the Caliph and his council."
The non-Moslem subjects were not precluded from
building new churches or temples. Only in places
exclusively inhabited by Moslems a rule of this kind existed
in theory. "No new Church or temple," said Abdullah bin
Abbas, "can be erected in a town solely inhabited by
Moslems: but in other places where there are already
Zimmis inhabiting from before, we must abide by our
contract with them."
. . .
The best testimony to the toleration of the early
Moslem government is furnished by the Christians
themselves. In the reign of Osman (the third Caliph), the
Christian Patriarch of Merv addressed the Bishop of Fars,
named Simeon, in the following terms: "The Arabs who
have been given by God the kingdom (of the earth) do not
attack the Christian faith; on the contrary they help us in
2995
our religion; they respect our God and our Saints, and
bestow gifts on our churches and monasteries."
3161. Sri Mishra submitted that idolater Hindus were
recognised as Zimmis by the Great Imam Abu Haneef. Since
Empeor Babar was follower of Imam Abu Hanif's school, had
no right to erect mosque over a Hindu shrine. Hindus were
recognized as Jimmis in 712 AD by the Great Imam Abu
Haneef by virtue of authorities conferred upon the Doctors of
Islam by Hadiths for the purpose of showing the people right
path on the basis of correct interpretation of Law of Shar.
Mahomed Kasim Feristha in his book "Tarikhe Feristha"
records that in reply to a question of Sultan Allaooddeen Khiljy,
Kaji Mugdis answered him that the Hindus were granted status
of Jimmi by the Great Imam Abu Huneef. Sri Mishra quoted
page 198 of the English Translation of "History of the rise of
the Mahomedan Power in India till the year AD 1612"
translated by John Briggs (first published in 1829 reprinted in
2006 by Low Price Publications, Delhi) which reads as follows:
"First question. "From what description of Hindoos
is it lawful to exact obedience and tribute?"--Answer. "It is
lawful to exact obedience and tribute from all infidels, and
they can only be considered as obedient who pay the poll-
tax and tribute without demur, even should it be obtained
by force; for, according to the law of the Prophet, it is
written, regarding infidels, 'Tax them to the extent that they
can pay, or utterly destroy them.' The learned of the faith
have also enjoined the followers of Islam. 'To slay them, or
to convert them to the faith;' a maxim conveyed in the
words of the Prophet himself. The Imam Huneef, however,
subsequently considers that the poll-tax, or as heavy a
2996
tribute imposed upon them as they can bear, may be
substituted for death, and he has accordingly forbidden
that their blood should be heedlessly spilt. So that it is
commanded that the Juzeea (poll-tax) and Khiraj (tribute)
should be exacted to the uttermost farthing from them, in
order that the punishment may approximate as nearly as
possible to death."
3162. In 712 AD Imam Abu Hanifah recognised the
Hindus of Sind and Multan as Jimmis. 'The Mughal Empire'
edited by Sri R.C. Majumdar (3
rd
Edn. 1990 published by
Bharatiya Vidya Bhavan, Bombay) at page 538 reads as
follows:
In 712 A.D. Muhammad bin Qasim, the conqueror of Sind,
accorded the Hindus of Sind and Multan the status of
zimmis which was the special privilege of Christians and
Jews, the famous Muslim Jurist, Abu Hanifah, recognised
this enactment as legal.
3163. It is contended that the Sacred Compilation Jami'
At-Tirmidhi (Vol.-5) Hadith 2681, 2682 & 2685 reveal that a
learned jurist is greater than a thousand worshippers.
Commentator explains that as a learned jurist does not only
correct himself and is safe from the illusion of the Saitan, but
also he protects others against the plots, conspiracies and errors
of the devil and he guides them correctly by teaching the issues
of religion. He is superior than a dedicated worshipper who
lacks firm knowledge, the benefit of his worship is restricted to
his own self, and also it is easy for the Satan to misguide him.
From the said Hadith it can be inferred that superiority to the
learned jurist has been given only for the purpose to tell the
people what is right or wrong according to religion. Said
2997
Hadiths read as follows:
"2681. Ibn Abbas narrated that the Messenger of Allah
said: "The Faqih is harder on Ash-Shaitan than a thousand
worshippers." (Da'if)
Comments:
A dedicated worshipper who does not have firm knowledge,
the benefit of his worship is restricted to his own self, and
also it is easy for the Satan to misguide him; while a
learned jurist does not only correct himself and is safe for
the illusion of the Satan, but also he protects others against
the plots, conspiracy and errors of the devil and he guides
them correctly by teaching the issues of religion.
2682. Qais bin Kathir said: "A man from Al-Madhinah
came to Abu Ad-Darda when he was in Dimashq. So he
said: "What brings you O my nephew? he replied: 'A
Hadith has reached me which you have narrated from the
Messenger of Allah'. he said: 'You did not come for some
need?' He said: 'No'. He said: 'Did you come for trade?'
He said: 'No, I did not come except seeking this Hadith'. So
he said: 'Indeed, I heard the Messenger of Allah saying:
'Whoever takes a path upon which he seeks knowledge,
then Allah makes a path to Paradise easy for him. And
indeed the angels lower their wings in approval of the one
seeking knowledge. Indeed forgiveness is sought for the
knowledgeable one by whomever is in the heavens and
whomever is in the earth, even the fish in the waters. And
superiority of the scholar over the worshipper is like the
superiority of the moon over the rest of the celestial bodies.
Indeed the scholars are the heirs of the Prophets, and the
Prophets do not leave behind Dinar or Dirham. The only
2998
legacy of the scholars is knowledge, so whoever takes from
it, then he has indeed taken the most able share. (Da'if)
2685. Abu Umamah Al-Bahili narrated: "Two men were
mentioned before the Messenger of Allah. One of them a
worshipper, and the other a scholar. So, the messenger of
Allah said: "The superiority of the scholar over the
worshipper is like my superiority over the least of you.'
Then the Messenger of Allah said: 'Indeed Allah, His
angels, the inhabitants of the heavens and the earths even
the ant in his hole, even the fish say Sulat upon the one
who teaches the people to do good." (Hasan)"
3164. Sri Mishra explained the concept of "Jeziyah" and
contended that freedom of religion was subject to payment of
Jeziyah. As the Hindus were paying the said tax which was in
the nature of a protection tax, it was the duty of Islamic Rulers
and army of Islam to protect religious Hindu shrine and life of
Hindus. he elaborated the above submission in multifold ways.
3165. The Divine Law of Shar contained in Holy Quran
and Hadiths guarantees freedom of religion and religious
practices to the Jimmis/ Dhimmiz (protectees) who pay jizya (a
tax taken from the non-Muslims who are in the protection of the
Muslim government). There were 20 conditions of Jeziyah one
of which permits Muslim traveller to stay in Jimmis' temple
while other permits them to stay in Jimmis' home for three days.
These terms and condition were in practice which is very much
apparent from the disclosure of Ibn Battuta that he stayed in the
house of an old lady who was a Jimmy as in the city there was
only one House of the Governor. Riyazu-S-Salatin, A History
of Bengal on its page 67 has recorded the fact that Bakhtiyar
Khilaji stayed in a temple within the territory of Kamrup
2999
Kingdom during his retreat from Tibbat campaign without
harming the Temple.
3166. Sacred Compilation Hadith Sahih Bukhari 4.386 p.
836-837 reveals that the Holy Prophet's command was for the
Muslim army to fight against the persons of other faith till they
worship Allah alone or agree to pay jizya. It say:
"Our Prophet, the Messenger of our Lord, has ordered us
to fight you till you worship Allah Alone or give Jizya
(i.e. tribute); and our Prophet has informed us that our
Lord says:-"Whoever amongst us is killed (i.e. martyred),
shall go to Paradise to lead such a luxurious life as he has
never seen, and whoever amongst us remain alive, shall
become your master."
3167. The Sacred Compilation Hadith Sahih Bukhari
4.404 p. 843-844 reveals that asylum to non-Muslims living in
Muslim territory was granted by Allah and His Holy Apostle.
Relevant extract of the said Hadith reads as follows:
". . . Narrated said: Abu Huraira once said (to the people),
"What will your state be when you can get no Dinar or
Dirhan (i.e. taxes from the Dhimmis)?" on that someone
asked him, "What makes you know that this state will take
place, O Abu- Huraira?" He said, "By Him in Whose
Hands Abu Huraira's life is, I know it through the
statement of the true and truly inspired one (i.e. the
Prophet). "The people asked, "What does the Statement
say?" He replied, "Allah and His Apostle's asylum granted
to Dhimis, i.e non-Muslims living in a Muslim territory)
will be outraged, and so Allah will make the hearts of those
Dhimmis so daring that they will refuse to pay the Jizya
they will be supposed to pay."
3000
3168. Sacred Compilation Hadith Sahih Muslim (Vol.
III) Hadith 1731R1 p. 180-181 reveals that when Holy Prophet
appointed anyone as commander of an army he specially
commanded them to invite the enemies who are polytheists to
three course of action and if they respond anyone of these the
commander must accept it and keep from doing them any harm.
Out of three options one was to demand Jizya from the people
who refused to accept Islam and if they agree to pay no harm
should be done to them. The said Hadith reads as follows:
(1731R1) It has been reported from Sulaiman b. Buraid
through his father that when the Messenger of Allah (may
peace be upon him) appointed anyone as leader of an army
or detachment he would especially exhort him to fear Allah
and to be good to the Muslims who were with him. He
would say: Fight in the name of Allah and in the way of
Allah. Fight against those who disbelieve in Allah. Make
a holy war; do not embezzle the spoils; do not break your
pledge; and do not mutilate (the dead) bodies; do not kill
the children. When you meet your enemies who are
polytheists, invite them to three courses of action. If they
respond to any one of these, you also accept it and keep
from doing them any harm. Invite them to (accept) Islam;
if they respond to you, accept it from them and desist from
fighting against them. Then invite them to migrate from
their lands to the land of Muhajirs and inform them that,
if they do so, they shall have all the privileges and
obligations of the Muhajirs. If they refuse to migrate, tell
them that they will have the status of Bedouin Muslims and
will be subjected to the Commands of Allah like other
Muslims, but they will not get any share from the spoils of
1
3001
war or fai' except when they actually fight with the Muslims
(against the disbelievers). If they refuse to accept Islam,
demand from them the Jizya. If they agree to pay, accept
it form them and hold off your hands. If they refuse to pay
the tax, seek Allah's help and fight them. When you lay
siege to a fort and the besieged appeal to you for protection
in the name of Allah and His Prophet, do not accord to
them the guarantee of Allah and his Prophet, but accord to
them your own guarantee and the guarantee of your
companions for it is a lesser sin that the security given by
you or your companions be disregarded than that the
security granted in the name of Allah and His Prophet be
violated. When you besiege a fort and the besieged want
you to let them out in accordance with Allah's Command,
do not let them come out in accordance with His
Command, but do so at your (own) command, for you do
not know whether or not you will be able to carry out
Allah's behest with regard to them.
3169. Sacred Compilation Hadith Sahih Muslim (Vol. III)
Hadith 1732 and 1733 p. 182 reveal that when Holy Prophet
deputed anyone of his Companions on a mission he always
directed him to show leniency and not to create aversion
towards religion. The said Hadiths says:
(1732) It is narrated on the authority of Abu Musa that
when the Messenger of Allah (may peace be upon him)
deputed any of his Companions on a mission, he would
say: Give tiding (to the people); do not create (in their
minds) aversion (towards religion); show them leniency
and do not be hard upon them.
3002
(1733) It has also been narrated by Sa'id b. Abu Burda
through his father through his grandfather that the Prophet
of Allah (may peace be upon him) sent him and Mu'ath (on
a mission) to the Yeman, and said (by way of advising
them): Show leniency (to the people); don't be hard upon
them; give them glad tidings (of Divine favours in this
world and the hereafter); and do not create aversion. Work
in collaboration and don't be divided.
3170. Sacred Compilation Hadith Sahih Bukhari 2.559 p.
381, 4.387 p. 837, and 5.351 p. 1103-1104 reveal that Holy
Prophet allowed the King of Aila as well as Bahrain who were
non-Muslims to remain and rule over their respective countries
subject to payment of Jizya. Relevant extract from the Hadith
2.559 and 5.351 as well as full text of hadith 4.387 is as under:
".A strong wind blew at night and a man stood up and he
was blown away to a mountain called Taiy, The King of
Aila sent a white mule and a sheet for wearing to the
Prophet as a present, and wrote to the Prophet that his
people would stay in their place (and will pay Jizya
taxation.)"
(Hadith Sahih Bukhari 2.559 at p. 381)
Narrated Abu Humaid As-Saidi: We accompanied the
Prophet in the Ghazwa of Tabuk and the king of 'Aila
presented a white mule and a cloak as a gift to the Prophet.
And the Prophet wrote to him a peace treaty allowing him
to keep authority over his country.
(Hadith Sahih Bukhari 4.387 at p. 837)
"Allah's Apostle sent Abu 'Ubaida bin Al-Jarrah to
Bahrain to bring the Jizya taxation from its people, for
3003
Allah's Apostle had made a peace treaty with the people of
Bahrain and appointed Al-'Ala' bin Al-Hadrami as their
ruler. So, Abu 'Ubaida arrived with the money from
Bahrain."
(Hadith Sahih Bukhari 5.351 at p. 1104)
3171. Sacred Compilation of Jami' At-Tirmidhi (Vol. 3)
Hadith 1587 and 1588 p. 355 reveal that Holy Prophet took
Jizya from the Zoroastrians of Hazar & Bahrain, Caliph Umar
and Caliph Uthman took it in Persia from Persians. The said
Hadiths read as follows:
1587. Bajalah narrated that 'Umar would not take the
Jizyah from the Zoroastrians until 'Abdur-Rahman bin 'Awf
informed him that the Prophet took the Jizyah from the
Zoroastrians of Hajar." (Sahih) There is no more dialogue
in the Hadith than this. And this Hadith is Hasan Sahih.
1588. Malik narrated from Az-Zuhri, that Saib bin Yazid
said: "The Messenger of Allah took the Jizyah from the
Zoroastrians of Bahrain, and 'Umar took it in Persia, and
'Uthman took it from the Persians."
(Jami' At-Tirmidhi (Vol. 3) Hadith 1587 and 1588 at
p. 355)
3172. Sacred Compilation Hadith Sahih Bukhari 2.475,
4.287, 4.388 and 5.50 reveal the recommendation of Caliph
Umar to his successor to abide by the rules and regulations
concerning the Jimmis/Dhimmis (protectees). Relevant portion
of the said Hadiths read as follows:
". . . I recommend him to abide by the rules and regulations
concerning the Dhimmis (protectees) of Allah and His
Apostle, to fulfill their contracts completely and fight for
3004
them and not to tax (overburden) them beyond their
capabilities."
(Hadith Sahih Bukhari 2.475 at p. 355)
"Narrated 'Amr bin Maimum: 'Umar (after he was
stabbed), instructed (his would-be-successor) saying, "I
urge him (i.e. the new Caliph) to take care of those non-
Muslims who are under the protection of Allah and His
Apostle in that he should observe the convention agreed
upon with them, and fight on their behalf (to secure their
safety) and he should not over-tax them beyond their
capability."
(Hadith Sahih Bukhari 4.287 at p. 798)
Narrated Juwairiya bin Qudama at-Tamimi: We said to
'Umar bin Al-Khattab, O Chief of the believers! Advise us.
"He said, "I advise you to fulfill Alla's Convention (made
with the Dhimmis) as it is the convention of your Prophet
and the source of the livelihood of your dependents (i.e. the
taxes from the Dhimmis.)"
(Hadith Sahih Bukhari 4.388 at p. 837)
". . . I also recommend him concerning Allah's and His
Apostle's protectives (i.e Dhimmis) to fulfill their contracts
and to fight for them and not overburden them with what is
beyond their ability."
(Hadith Sahih Bukhari 5.50 at p. 1004)
3173. The Sacred Compilation Hadith Sahih Bukhari
4.657 reveals that the Holy Prophet said that incarnation of
Jesus would abolish Jizyah from non-Muslims. The said Hadith
reads as follows:
"Narrated Abu Huraira: Allah's Apostle said, "By Him in
3005
Whose Hands my soul is, surely (Jesus), the son of Mery
will soon descend amongst you and will judge mankind
justly (as a Just Ruler); he will break the Cross and kill the
pigs and there will be no Jizya (i.e. taxation taken from non
Muslims). Money will be in abundance so that nobody will
accept it, and single prostration to Allah (in prayer) will be
better than the whole world and whatever is in it." Abu
Huraira added "If you wish, you can recite (this verse of
the Holy Book):--'And there is none Of the people of the
Scriptures (Jews and Christians) But must believe in him
(i.e. Jesus as an Apostle of Allah and a human being)
Before his death. And on the day of Judgment He will be a
witness Against them."
3174. The Sacred Compilation Hadith Sahih Bukhari
8.809 and 8.825 reveal that the Holy Prophet administered
justice to a Jew according to his scripture Torah. The said
Hadith reads as follows:
Narrated Ibn 'Umar : A Jew and a Jewess were brought to
Allah's Apostle on a charge of committing an illegal sexual
intercourse. The Prophet asked them. "What is the legal
punishment (for this sin) in your Book (Torah) ?" They
replied, "Our priests have innovated the punishment of
blackening the faces with charcoal and Tajbiya." 'Abdullah
bin Salam said, "O Allah's Apostle, tell them to bring the
Torah." The Torah was brought, and then one of the Jews
put his hand over the Divine Verse of the Rajam (stoning to
death) and started reading what preceded and what
followed it. On that, Ibn Salam said to the Jew, "Lift up
your hand." Behold ! The Divine Verse of the Rajam was
3006
under his hand. So Allah's Apostle ordered that the two
(sinners) be stoned to death, and so they were stoned. Ibn
'Umar added : So both of them were stoned at the Balat
and I saw the Jew sheltering the Jewess."
"Narrated 'Abdullah bin 'Umar: The jews came to Allah's
Apostle and mentioned to him that a man and a lady among
them had committed illegal sexual intercourse. Allah's
Apostle said to them, "What do you find in the Torah
regarding the Rajam?" they replied, "We only disgrace and
flog them with stripes." 'Abdullah bin Salam said to them,
'You have told a lie the penalty of Rajam is in the Torah.'
They brought the Torah and opened it. One of them put his
hand over the verse of the Rajam and read what was before
and after it. 'Abdullah bin Salam said to him, "Lift up you
hand." where he lifted it there appeared the verse of the
Rajam. So they said, "O Muhammad! He has said the truth,
the verse of the Rajam is in it (Torah)." then Allah's Apostle
ordered that the two persons (guilty of illegal sexual
intercourse) be stoned to death, and so they were stoned,
and I saw the man bending over the woman so as to protect
her from the stones."
3175. Sri Misra argued that according to the Holy Prophet,
in one land there cannot be two Qibalahs and/or Idgah and
Mosque as such Sri Ramjanmasthan temple and a mosque
cannot and could not have co-exist in the disputed site.
3176. The Holy Prophet hascommanded that there must
not be two sacred buildings of worship of two different religions
in one land, in other words there cannot be a Masjid and an
Idol Temple in one land. The Holy Prophet has said that as
3007
Jizyah cannot be imposed upon Muslim, two Qiblas cannot be in
one land, coexistence of two Qiblas one of Hindus and other of
Muslims in one land is mandatorily forbidden according to
Shar. The Holy Prophet also says that neither prayer can be
offered by forming rows between two columns nor funeral
prayer can be offered in a mosque. An Idgah is a place where
funeral prayers or the prayers of the two Ids are usually offered,
as such same site cannot be a Masjid from very first day must be
laid on piety not on hypocrisy and it must be always maintained
by the Muslims. The Holy Prophet says that a Masjid must not
be used as a home and place of gossiping. Imam Aboo Yoosuf
and Imam Moohummud the disciples of the Great Imam Abu
Haneef say that if at least two times prayer is not offered
followed by Adhan/Ajan then the place is not a Public Mosque.
The Mosque retained columns of Hindu Temple. Presence of
Chulha, found during the ASI's excavation, indicates that said
building was being used as home of Deities and Sevayats &
Pujaris; it never acquired the status of a Masjid according to
Muslim Law and belief.
3177. The Sacred Compilation Jami' At-Tirmidhi (Vol. 2)
Hadith 633 reveals that in one land there must not be two
Religious buildings of two different religions. Said Hadith reads
as follows:
633. Ibn Abbas narrated that the Messenger of Allah said:
"Two Qiblahs in one land are of no benefit, and there is
no Jizyah upon the Muslims." (Da'if)
3178. Neil B.E. Baillie in his Book 'A Digest of
Mahommedan Law' Part-First (Second Edition 1875) at its
page 616 records that Imam Aboo Yoosuf and Imam
3008
Moohummud, the disciples of the Great Imam Abu Haneef say
that if at least two times prayer is not offered followed by
Adhan/Ajan then the place is not a Public Mosque. Relevant
extract from the above referred pages reads as follows:
"When an assembly of worshippers pray in a musjid
with permission, that is delivery. But it is a condition that
the prayers be with izan, or the regular call, two times or
more, and be public, not private. For though there should
be an assembly, yet if it is without izan, and the prayers are
private instead of public, the place is no musjid according
to the two disciples. But if one person were appointed to
officiate both as mooezzin and imam, and he should make
the call, and then stand up and pray alone, the place would
become a musjid by general agreement."
3179. Divine "The Holy Quran Surah 9 At-Taubah Ayat
107-110" commands that foundation of a Mosque must be laid
from the first day on piety not hypocrisy otherwise a mosque
built by hypocrite is destined to crumble down. The said Holy
Ayat reads as follows:
"107. And as for those who put up a mosque by way of
harm and disbelief and to disunite the believers and as an
outpost for those who warred against Allah and His
Messenger (Muhammad) aforetime, they will indeed swear
that their intention is nothing but good. Allah bears witness
that they are certainly liars.
108. Never stand you therein. Verily, the mosque
whose foundation was laid from the first day on piety
is more worthy that you stand therein (to pray). In it are
men who love to clean and to purify themselves. And
3009
Allah loves those who make themselves clean and
pure [i.e. who clean their private parts with dust (which
has the properties of soap) and water from urine and
stools, after answering the call of nature.]
109. Is it then he who laid the foundation of his
building on piety to Allah and His Good Pleasure better,
or he who laid the foundation of his building on the
brink of an undetermined precipice ready to crumble
down, so that it crumbled to pieces with him into the Fire
of Hell. And Allah guides not the people who are the
Zalimun (cruel, violent, proud, polytheist and wrong-
doer).
110. The building which they built will never cease to
be a cause of hypocrisy and doubt in their hearts unless
their hearts are cut to pieces. (i.e till they die). And
Allah is All-Knowing, All-Wise.
(Be it mentioned herein that this Holy Ayat came down in
respect of Masjid-i-Jarar built in Madina by the hypocrites
with ulterior motive. Ultimately this Masjid was burnt and
destroyed on command of the Holy Prophet.)
3180. The Sacred Compilation Hadith Sahih Bukhari
4.403 reveals that the Holy Prophet has termed such a person
hypocrite who breaks promise, did not honour covenant, tells lie
and behave in a very imprudent and misleading manner. The
said Hadith reads as follows:
"Narrated 'Abdullah bin 'Amr : Allah's Apostle said,
"Whoever has (the following) four characteristics will be a
pure hypocrite: "If he speaks, he tells a lie; if he gives a
promise, he breaks it, if he makes a covenant he proves
3010
treacherous ; and if he quarrels, he behaves in a very
imprudent evil insulting manner (unjust). And whoever has
one of these characteristics, has one characteristic of a
hypocrite, unless he gives it us."
3181. The Sacred Compilation Jami' At-Tirmidhi (Vol. 5)
Hadith 2684 reveals that two things will not be together in a
hypocrite that is to say good manners and fiqh in the religion.
Said Hadiths and comments thereto read as follows:
"2684. Abu Hurairah narrated that the Messenger of Allah
said: "Two things will not be together in a hypocrite: Good
manners, and Fiqh in the religion." (Da'if)
3182. The Sacred Compilation Jami' At-Tirmidhi (Vol 1)
Hadith 321 reveals that Masjid cannot be used as a home nor a
place for gossiping. Relevant portion of said Hadith reads as
follows:
"Ibn Abbas said, "It is not to be used as a home nor a
place for talking about this or that."
3183. In view of the fact that during the ASI's excavation
at suit premises a Chulha (an oven) has been found. It leaves no
doubt that said structure was being used as home of Hindu deity
and Chulha was being used for preparing food for the deity as
such said structure cannot be inferred to be a Masjid.
3184. Sacred Compilation Jami' At-Tirmidhi (Vol. 1)
Hadith 229 reveals that the Holy Prophet had commanded the
Muslims not to pray between two columns. Said Hadith reads as
follows:
"229. Abdul-Hamid bin Mahmud said: "We prayed behind
one of the Amirs, the people compelled us such that we
prayed between two columns. When we had prayed, Anas
3011
bin Malik said: 'We would be prevented from this during
the time of Allah's Messenger." (Sahih)
3185. In the disputed structure there were several columns
and in course of forming rows for offering prayer those columns
were unavoidable, the said structure thus was not fit for offering
prayer.
3186. Sacred Compilation Hadith Sahih Muslim (Vol. II)
973 as interpreted by Imam Abu Hanifa on the basis of a Hadith
recorded in Abu Dawud reveal that funeral prayer in the Mosque
was prohibited.
(973) 'Abbad b. 'Abdullah b. Zubair reported that A'isha
ordered that the bier of Sa'd b. Abu Waqqas be brought into
the mosque, so she can pray for him. The people
disapproved this (act) of hers. She said: How soon the
people have forgotten that the Messenger of Allah (SAW)
had offered the funeral prayer of Suhail b. Al-Baida but
in a mosque.
3187. There is a difference of opinion among the jurists
whether a funeral prayer can be offered in a mosque or not. It is
on the basis of this hadith that Imam Shafi'i of the view that it
can be offered in a mosque. Imam Abu Hanifa and Imam Malik
on the basis of a hadith recorded in Abu Dawud (viz. The
Messenger of Allah said: He who offers funeral prayer in the
mosque has nothing for him) disapprove saying the funeral
prayer in the mosque. The scholars of Hadith.
3188. In Idgahs/Musallas funeral prayers can be offered. In
his book "Mahommedan Law", Syed Ameer Ali, describes
Mosques and Idghas or Musalla as follows:
"The word masjid is derived from sijda, devotion, and
3012
means a place of devotion or a place where prayers are
offered to the Almighty.
A very fair description of an ordinary mosque is given by
Herklot in his Qanoon-i-Islam. Musallas are prayer-
grounds, and the word is derived from the word salat or
prayers. In India, they are generally called Idgahs or
namaz-gahs, and consist of a plot of ground set apart for
the performance of the daily prayers or the Id prayers."
"Every ground set apart for prayers is not necessarily a
musallah and subject to the rules governing a mosque. A
musalla is a place where funeral prayers or the prayers of
the two Ids are usually offered. In such cases only the place
where the congregation gather and the worship is
performed that is governed by the rules governing a
mosque."
(Mahommedan Law by Syed Ameer Ali, 5
th
Edn. Reprint
2009, published by Hind Publishing House, Allahabad, p.
418, 419 and 420)
3189. The next submission is that structure having
images/idols and designed cannot be a Masjid under Law of
Shar as such the disputed structure as it was cannot be termed
"mosque". This argument was elaborated and supported as
under:
A. The holy prophet has said that angles do not enter
in a house which has images, portraits, pictures, idols
etc. and even the designed garments detract attention
from prayer and, for that reason prohibited to decorate a
mosque with pictures. As the disputed structure on its
columns and other parts had engraved/chiseled
3013
images/idols of Load-bearing Yakshas, Devis, Divine
couples, Kalash, Lotus, Leaves, Varah, Swastikas,
Srivatsa, Kapot-pallis, etc. it does not comes withing the
definition of Masjid according to Muslim Religious Law
ans belief but it comes within the definition of a Hindu
Temple according to Hindu Personal Religious Law and
belief.
B. The sacred Compilation Hadith Sahih Muslim
(Vol.-I) 528 reveals that the Holy Prophet prohibited to
decorate Mosques with pictures. Said Hadith reads as
follows:
(528) A'isha reported: Umm Habiba and Umm Salama
mentioned before the messenger of Allah (may peace be
upon him) a church which they had seen in Abyssinia
and which had pictures in it. The Messenger of Allah
(may peace be upon him) said: When a pious man
amongst them (among the religious group) dies they
build a place of worship on his grave, and then
decorate it with such pictures. They would be the
worst of creatures on the Day of Judgement in the
sight of Allah.
From the aforesaid Hadith it is crystal clear that there is
forbiddance in Islam to decorate the Mosque with
pictures. As such a building decorated with pictures can't
be declares as a Masjid.
C. The sacred Compilations Hadith Sahih Muslim
(Vol.-III) 2104, 2105, 2106, 2107, 2108, 2109, 2110,
2111and 2112 as well as Jami' At Tirmidhi (Vol.-V)
Hadith 2804 reveal that the Holy Prophet has
3014
acknowledged that the Angles do not enter a house in
which there is an object of images or a dog. Said Jami' At
Tirmidhi read as follows:
"2804. Ibn Abbas narrated: "I heard Abu Talhah saying:
'I heard the Messenger of Allah saying: "The angels do
not enter a house in which there is a dog or an object
of images." (Sahih)
Comments:
The taking or drawing of a picture is not allowed,
keeping it is also not permissible, and whoever does so
is deprived of the blessed and merciful supplications of
the angels; while a person is in need of mercy and
blessing at every moment. Likewise, a dog is an impure
animal and some are of a satanic nature and the angels
despise the devil."
(Jami' At Tirmidhi (Vol.-V) Hadith 2804)
From the aforesaid Hadiths it is crystal clear that a
building which contains images or dogs does not come
within the definition of an "Abode of Angels" for the
reasons of such building being hated by the angels.
D. The sacred Compilation Hadith Sahih Muslim
(Vol.-I) 556 reveals that the Holy Prophet prohibited to
use designed garment at the time of prayer. Said Hadith
reads as follows:
"(556) A'isha reported: The Apostle of Allah (may peace
be upon him) prayed in a garment which had designs
over it, so he (the Holy Prophet) said: Take it to Abu
Jahm and bring me a plain blanket from him, because its
designs have distracted me."
3015
From the aforesaid Hadiths it is known that designs
detract attention from prayer wherefrom it can be
necessarily inferred that a Masjid wherein prayer is
offered to Almighty must not have design in it otherwise it
will detract the attention of the worshippers from prayer
and lose its status of being a Masjid.
E. The Muwatta' Imam Malik (para 1743) reveal that
the Holy Prophet declined to use a pillow (mattress)
painted with pictures and said that no angles enter the
house that contains a picture as also that the makers of
pictures will suffer punishment on the day of judgment
said Muwatta 1743 reads as follows:
"(1743) 'A'ishah reported that she bought a pillow
(mattress) on which were painted pictures. When the
Messengers of Allah (may peace be upon him) saw it, he
kept standing at the door of her apartment and did not
enter and his face showed signs of displeasure. She
said : Messenger of Allah, I repent and ask forgiveness
of Allah and His Messenger ; what fault is mine? He
asked : What pillow (mattress) is this? She said : I
bought it, so that you may sit on it, recline on it. The
Messenger of Allah (may peace be upon him) said : The
makers of pictures will suffer punishment on the Day of
Judgment. They will be told to give life to what they had
painted in the world. Then he added : No angels enter
the house that contains pictures."
3190. There cannot be a mosque in a place surrounded by
graves as facing towards graves Namaz cannot be offered. This
according to Sri P.N.Mishra, Advocate, is another reason for not
3016
treating the disputed building a mosque. Elaborating the above
submission, Sri Misra said:
A. In the schedule of the plaint the suit premises has
been shown to be surrounded on all four sides by the
graves, and sacred Hadiths prohibit from offering
prayers towards graves, visiting the graces of strangers,
sitting on graves and erecting tent over a grave as such
according to Islamic Law and tenets the scheduled
Premises was never appropriate place for offering prayers
to Merciful Almighty Allah. As such no deceleration of
Mosque as prayed for can be granted.
B. The Sacred Compilation Jami' At-Tirmidhi (Vol.-2)
Hadith 1050 reveals that the Holy Prophet has
commanded not to sit on the graves nor perform Salat i.e.
prayer towards graves.
1050. Abu Marthad Al-Ghanawi narrated that the
Prophet said: "Do not sit on the graves not perform
Salat towards them." (Sahih)
(He said:) There are narrations on this topic from Abu
Hurairah,' Amr bin Hazm, and Bashir bin Al-
Khasasiyyah.
(Another route) with this chain, and it is similar.
C. The Sacred Compilation Jami' At-Tirmidhi (Vol.-2)
Hadith 1054 and ibid (Vol.1) Hadith 230 reveal that the
Holy Prophet had prohibited Muslims from visiting the
graves except the grave of their mothers. The said Hadith
reads as follows:
"1054. Sulaiman bin Buraidah narrated from his father
that the Messenger of Allah said: "I had prohibited you
3017
from visiting the graves. But Muhammad was permitted
to visit the grave of his mother: so visit them, for they
will remind you of the Hereafter."
Jami' At-Tirmidhi (Vol.-2) Hadith 1054
"320. Ibn 'Abbas narrated: "Allah's Messenger cursed
the women who visit the graves, and those who use them
as Masajid and put torches on them." (Da'if)
Jami' At-Tirmidhi (Vol.-1) Hadith 230
As such to go an alleged Mosque surrounded on all four
sides by graveyards means to visit the graves of strangers
every day which act has been prohibited in Islam
wherefrom it can be safely inferred that the Muslims are
forbidden from offering prayers in a graveyard-locked
place/building.
D. The Sacred Compilation Jami' At-Tirmidhi (Vol.-5)
Hadith 2890 reveals that even a tent cannot be erected
over the grave as it incites sin.
"2890. Ibn Abbas narrated: "One of the Companions of
the Prophet put up a tent upon a grave without knowing
that it was a grave. When he realized that it was a
person's grave, he recited Surat Al-Mulk until its
completion. Then he went to the Prophet and said, 'O
Messenger of Allah (Indeed) I erected my tent without
realizing that it was upon a grave. So when I realized
there was a person in it I recited Surat Al-Mulk until its
completion.' So the Prophet said: 'It is a prevention, it is
a salvation delivering from the punishment of the
grave." (Da'if)
E. Neil B.E. Ballie in his Book 'A Digest of
3018
Mohommedan Law' Part- First (Second Edition 1875)
containing the doctrines of the Hanifeea Code of
Jurisprudence at page 621-22 records that the bodies
buried in the ground can be exhumed by the rightful
owner if the land was usurped. Relevant extract from the
above referred paged reads as follows:
"When a body has been buried in the ground,
whether for a long or short time, it cannot be exhumed
without some excuse. But it may be lawfully exhumed
when it appears that the land was usurped, or another is
entitled to it under a right of pre-emption."
Be it mentioned herein that the Plaintiff' witnesses have
admitted that the graves were dug up by the Hindus after
purchasing the lands wherein graves were located. It is
settled law that public Graveyard can not be sold
wherefrom it becomes crystal that it was not a public
Graveyard meant for the Muslims.
F. The Sacred Compilation Jami' At-Tirmidhi (Vol.-2)
Hadith 1052 reveals that the Holy Prophet had prohibited
plastering graves, writing on them, building over them and
treading on them.
"1052. Jabir narrated:" The Messenger of Allah
prohibited plastering graves, writing on them, building
over them and treading on them."(Sahih)
As such it cannot be inferred that the plasterd graves
mentioned in Commissioner's report in 1950 were built by
Emperor Babur of his soldiers who died in alleged was
between him and the then ruler of Ajodhya because the
Emperor Babur was a scholar of Hanafi School of Islamic
3019
Law which does not permit to built plastered graves of
soldiers.
3191. Sri Mishra pointed out certain other prohibitions in
Islamic Law which according to him amounts to a 'command'
against construction of a mosque in violation thereof and said:
A. In vicinity of bells there cannot be a mosque because
it is revelation of the holy Prophet that bell is abode of
saitan, contrary to it bell is integral part of 16 organs of
religious customs of worship of the hindus as such as all
along bells remained in the disputed site it can't be a
mosque.
B. In a Hindu Temple ringing of bell is integral part of
worship while according to Shar bell is considered to be
an instrument of Satan and angels do not enter in such a
house where bell is as such. A place where angels do not
enter can't be a Masjid. The Gazetteer of 1877-78 and
Millet's Settlement Report say that till 1855 Hindus were
worshipping in the same and one building which was
allegedly known as Mosque-temple said to be erected by
Moghul Emperor Babur over the sacred site of Sri
Ramajanamsthan by demolishing Hindu temple of that
shrine and on annexation of Oudh to British India (on 13
th
February, 1856 and Lord Canning's proclamation on 15
th
March, 1859, confiscating all proprietary rights in the soil
of the Oudh Province) the Administration made an
enclosure bifurcating the Temple compound and thereby
ordered Hindus not to enter inside the said building
inconsequence whereof Hindus erected a platform in the
Temple compound just after enclosure and started
3020
worshiping thereon. From the several applications of the
persons claiming to be Mutvallis/ Muezzins/ Khattibs, it
however is apparent that even after 1855 and onwards
Hindus were continuously worshipping in the said temple
and, from their application of 1883 it becomes crystal
clear that in addition to performing Idol worship in the
said disputed Temple-Mosque building Hindus were
celebrating their festivals as such for all practical purposes
said building was a Hindu temple and according to
Musalman Law due to presence of Idols & Bells it was not
at all a Masjid.
C. The Sacred Compilation Hadith Sahih Muslim
(Vol.-III) 2113 and 2114 reveal that the Holy Prophet had
said that Angels do not accompany the person who has
with him a bell because the bell is the musical instrument
of the Satan. The said Hadiths read as follows:
(2113) Abu Huraira reported Allah's Messenger (may
peace be upon him) had said: Angels do not accompany
the travellers who have with them a dog and a bell.
(2114) Abu Huraira reported that Allah's messenger
(may peace be upon him) had said: The bell is the
musical instrument of the Satan.
D. The Sacred Compilation Hadith Sahih Muslim
(Vol.-I) 377 as well as Jami' At-Tirmidhi (Vol.-1) 190
reveal that the Holy Prophet did not approve the method
of giving Ajan/ Adhan by ringing the bell like the persons
of other faith; of course, reason behind this was that it was
an instrument of Satan. Said Hadiths read as follows:
(377) Ibn Umar reported: When the Muslims came to
3021
Medina, they gathered and sought to know the time of
prayer but no one summoned them. One day they
discussed the matter, and some of them said: Use
something like the bell of the Christians and some of
them said: Use horn like that of the Jews. Umar said:
Why may not a man be appointed who should call
(people) to prayer ? The Messenger of Allah (may peace
be upon him) said: O Bilal, get up and summon (the
people) to prayer.
( Hadith Sahih Muslim (Vol.-I) 377 at page 256)
190. Ibn ' Umar narrated. "When the Muslims arrived
in Al-Madinah, they used to assemble for the Salat, and
guess the time for it. There was no one who called for it
(the prayer). One day they discussed that and some of
them said that they should use a bell like the bell the
Christians use. Others said they should use a trumpet
like the horn the Jews use. But 'Umar [bin Al-Khattab]
said: 'Wouldn't it be better if we had a man call for the
prayer?" He said: "So Allah's Messenger said: 'O Bilal
Stand up and call for the Salat."
(Jami' At-Tirmidhi (Vol.-1) 190 at page 215)
E. In 'Ibn Battuta' Travels in Asia and Africa' (1325-
1354) on page 142, Ibn Battuta writes that he became
surprised when he heard bells ringing on all sides of the
mosque wherein he was staying. In his note on page 357
of the said book the editor/translator explains that the
Muslim hold the ringing of bells in the greatest abhorrence
and believe that the angles will not enter in the house
wherein bells are rung. As the suit premises was
3022
surrounded by all sides from the temples and even in the
alleged Temple Mosque building Hindus were
worshipping by Ringing bells, according to Shar it cannot
be termed as mosque. Relevant extracts from the said
book read as follows:
"We stayed as Kafa in the mosque of the
Muslims. As hour after our arrival we heard bells
ringing on all sides. As I had never heard bells before, I
was alarmed and bade my companions ascend the
minaret and read the Koran and issue the call to prayer.
They did so, when suddenly a man entered wearing
armour and weapons and greeted us. He told us that he
was the qadi of the Muslims there, and said "When I
heard the reading and the call to prayer, i feared for
your safety and came as you see.
Muslim hold the ringing of bells in the greatest
abhorrence, and attribute to the Prophet the saying :
"The angels will not enter any house wherein bells are
rung."
F. The Sacred Compilation Hadith Sahih Muslim
(Vol.-II) 851 & 851R3 reveal that it was commanded by
the Holy Prophet that Muslims must observe silence during
sermon on Friday. The said Hadiths read as follows:
(851) Abu Huraira reported what Allah's Messenger
(SAW) had said: If you ask your companion to be quiet
on Friday while the Imam is delivering the sermon, you
have in fact chattered.
(851R3) On the authority of Abu Huraira that the Holy
Prophet said: "If you said to your companion: Be quiet,
3023
on Friday, and the Imam is delivering the sermon, you
have in fact chattered.
From the aforesaid Hadith it becomes clear that in the
noisiest place where bells were/are being rung and Conch
Shells were/are being blown prayer could not be offered.
As it is admitted by the then alleged Mutawalli that Conch
Shell was being blown by the Pujari Neehang Singh even
in 1861 said Structure can't be a Masjid but for all
practical purposes it was/is only Temple.
G. As there was no provision of water for Wadu in the
disputed structure it can't be a mosque it was all along a
Hindu temple. Without performing wadu by pure water in
a mosque cannot offer prayer. One Hadith says that for
Friday's prayer one should take a bath in his house and
thereafter perform wadu (Vazu) in a Mosque and then he
should offer prayer from which it becomes crystal clear
that performing wadu in a mosque is mandatory pre
condition for offering one's prayer to Almighty Merciful
Allah. As Friday's prayer is offered in congregation at
least on that day huge quantity of water is required but in
the alleged Temple-Mosque premises there was no such
provision of water for Muslims for performing wadu from
which it can be safely inferred that said structure was
neither meant for offering Salat nor was a Masjid at all but
all along it was a temple as such the same cannot be
declared Baburi Masjid.
H. The Sacred Compilation Hadith Sahih Muslim
(Vol.-II) 844 & 855 reveal that before offering Friday's
prayer one should take a bath in his house and thereafter
3024
perform Wadu in a Mosque. Said Hadiths read as follows:
(844) 'Abdullah reported that he heard Allah's
Messenger (SAW) who said: When any one of you
intends to come for Friday prayer, he should take a bath.
(845) 'Abdullah (b. 'Umar) reported from this father, that
while he was addressing the people on Friday (sermon),
a person, one of the Companions of the Messenger of
Allah (SAW), entered (the mosque). 'Umar said to him
loudly: What is the time hour (for attending the prayer)?
He said: I was busy today and I did not return to my
house when I heard the call (to Friday prayer), but I
performed ablution (only). Upon this 'Umar said: Just
ablution! You know that the Messenger of Allah (SAW)
commanded (us) to take a bath (on Friday).
I. The Sacred Compilation Hadith Sahih Muslim
(Vol.-I) 225; (Vol.-II) 844-847R1 and Jami' At-Tirmidhi
(Vol.-1) Hadith 1-5, 90, 200-201, 497-498 say that prior to
offering prayer performance of Wadu by pure water is
necessary and for Friday's prayer it is must to take bath in
one's house then visit the Masjid and perform Wadu in it
by water prior to offering prayer.
(225) Hammam b. Munabbih, who is the brother of
Wahb. Munabbih, said : This is what has been
transmitted to us by Abu Huraira from Muhammad, the
Messenger of Allah (SAW), and then narrated a hadith
out of them and observed that the Messenger of Allah
(SAW) said: The prayer of no one amongst you would be
accepted in a state of impurity till he performs ablution
(844) 'Abdullah reported that he heard Allah's
3025
Messenger (SAW) who said: When any one of you
intends to come for Friday prayer, he should take a bath.
(844R1) 'Abdullah b. 'Umar reported that the Messenger
of Allah (SAW) said when he was standing on the pulpit:
He who comes for Friday prayer he should take a bath.
(844R2) This Hadith has been narrated by Ibn 'Umar by
another chain of transmitters.
(844R3) 'Abdullah (b. 'Umar) reported on the authority
of his father that he heard the same thing from the
Messenger of Allah (SAW).
(845) 'Abdullah (b. 'Umar) reported from this father, that
while he was addressing the people on Friday (sermon),
a person, one of the Companions of the Messenger of
Allah (SAW), entered (the mosque). 'Umar said to him
loudly: What is the time hour (for attending the prayer)?
He said: I was busy today and I did not return to my
house when I heard the call (to Friday prayer), but I
performed ablution (only). Upon this 'Umar said: Just
ablution! You know that the Messenger of Allah (SAW)
commanded (us) to take a bath (on Friday).
(845R1) Abu Huraira reported: 'Umar b. Khattab was
delivering a sermon to the people on Friday when
'Uthman b. Affan came there. 'Umar insinuated to him
and said: What would become of those person who come
after the call to prayer ? Upon this 'Uthman said:
Commander of the faithful, I did no more than this, that
after listening to the call, I performed ablution and came
(to the mosque). 'Umar said: Just ablution! Did not you
hear the Messenger of Allah (SAW) saying: When any
3026
one of you comes for Friday prayer he should take a
bath.
(846) Abu said Al-Khudri reported what Allah's
Messenger (SAW) had said: Taking a bath on Friday is
essential for every adult person.
(847) A'isha reported: The people came for Friday
prayer from their houses in the neighbouring villages
dressed in woollen garment full of dust which emitted a
foul smell. A person among them (those who were
dressed so) came to the Messenger of Allah (SAW) while
he was in house. The Messenger of Allah (SAW) said to
him: Were you to cleanse yourselves on this day.
(847R1) A'isha reported: The people (mostly) were
workers and they had no servants. Bad-smell thus
emitted out of them. It was said to them: If you were to
take bath on Friday.
'Jami' At-Tirmidhi'
1. Ibn Umar narrated that the Prophet said: "Salat will
not be accepted without purification, nor charity from
Ghulul" (Sahih) Hannad said in his narration, "except
with purification" (Sahih)
2. Abu Hurairah narrated that Allah's Messenger said:
"When a Muslim, or believer, performs Wudu, washing
his face, every evil that he looked at with his eyes leaves
with the water-or with the last drop of water, or an
expression similar to that-and when he washes his
hands, every evil he did with his hands leaves with the
water-or with the last drop of water- until he becomes
free of sin." (Sahih).
3027
3. 'Ali narrated that the prophet said: "The key to Salat
is the purification, its Tahrim is the Takbir, and its Tahlil
is the Taslim. (Hasan)
4. Jabir bin 'Abdullah, may Allah be pleased with them,
narrated that Allah's Messenger said: "The key to
Paradise is Salat and the key to Salat is Wudu.
(Hasan)
5. Anas bin Malik said: "When the Prophet entered the
toilet he would say: 'O Allah! Indeed I seek refuge in
You."'
Shu'bah (one of the narrators) said: "Another time he
said: 'I seek refuge in You from Al-Khubthi and Al-
Khabith.' Or: 'Al-Khubthi and Al-Khaba'ith.'" (Sahih)
90. Ibn 'Umar narrated: "A man greeted the Prophet
(with Salam), and he was urinating, so he did not
respond to him." (Sahih)
200. Abu Hurairah narrated that Allah's Messenger
said: "None should call the Adhan except for one with
Wudu." (Da'if)
201. Ibn Shihab narrated than Abu Hurairah said: None
should call for the prayer except for one with Wudu."
497. Samurah bin Jundab narrated that Allah's
Messenger said:"Whoever performs Wudu on Friday,
then he will receive the blessing, and whoever performs
Ghusl then Ghusl is more virtuous." (Hasan)
498. Abu Hurairah narrated that Allah's Messenger
said "Whoever performs Wudu', performing his Wudu'
well, then he comes to the Friday (prayer), and gets
close, listens and is silent, then whatever (sin) was
3028
between that and (the last) Friday are forgiven for him,
in addition to three days. And whoever touches the
pebbles, he has committed Lagha (useless activity)."
(Sahih)
J. The Holy Quran Surah 5 Al-Maidah Ayat 6 and
the Sacred Compilation Hadith Sahih Muslim (Vol.I)
367-370 provides that Tayammum i.e. purification by
clean earth can be done only in extreme exigency at the
time of travelling or war campaign when water is not
available otherwise Wadu must be performed by water.
"6. O you who believe! When you intend to offer As-
Salat (the prayer), wash your faces and your hands
(forearms) up to the elbows, rub (by passing wet hands
over) your heads, and (wash) your feet up to the ankles.
If you are in a state of Janaba (i.e. after a sexual
discharge), purify yourselves (bathe your whole body).
But if you are ill or on a journey, or any of you comes
from the Gha'it (toilet), or you have been in contact with
women (i.e. sexual intercourse), and you find no water,
then perform Tayammum with clean earth and rub
therewith your faces and hands. Allah does not want to
place you in difficulty, but He wants to purify you, and to
complete His Favour to you that you may be thankful.
(367) A'isha reported: We went with the Apostle of
Allah (may peace be upon him) on one of his journeys
and when we reached the place Baida or That Al-Jaish,
my necklace was broken (and fell some where). The
Messenger of Allah (may peace be upon him) along with
other people stayed there looking for it. There was
3029
neither any water at that place nor was there any water
with them (the Companions of the Holy Prophet). Some
people came to my father Abu Bakr and said: Do you see
what' Aisha has done? She has detained the Messenger
of Allah (may peace be upon him) and the people
accompanying him, and there is neither any water here
or with them. So Aby Bakr came there and the
Messenger of Allah (may peace be upon him) was
sleeping with his head on my thigh. He (Abu Bakr) said:
You have detained the Messenger of Allah (may peace be
upon him) and the people and there is neither water here
for with them. She (Aisha) said: Aby Bakr scolded me
and uttered what Allah wanted him to utter and nudged
my hips with his hand. And there was nothing to prevent
me from stirring but the fact that the Messenger of Allah
(may peace be upon him) was lying upon my thigh. The
Messenger of Allah (may peace be upon him) slept till it
was dawn at a waterless place. So Allah revealed the
verses pertaining to Tayammum and they (the Holy
Prophet and his Companions) performed Taymmum.
Usaid b. Al- Hudair who was one of the leaders said:
This is not the first of your blessings, O Family of Abu
Bakr. Aisha said: We made the camel stand which was
my mount and found the necklace under it.
(368) Shaqiq reported: I was sitting in the
company of Abdulla and Aby Musa, when Abu Musa
said: O' Abdel Rahman (kunya of Abdullah b. Masud),
what would you like a man to do about the prayer if he
experiences a seminal emission or has sexual
3030
intercourse but does not find water for a month?
Abdullah said: He should not perform Tayammum even
if he does not find water for a month. Abdullah said:
Then what about the verse in Sura Maida: If you do not
find water betake yourself to clean with dust ? Abdullah
said: If they were granted concession of the basis of this
verse, there is a possibility that they would perform
Tayammum with dust on finding water very cold for
themselves. Abu Musa said to Abdullah: You have not
heard the words of Ammar: The Messenger of Allah
(may peace be upon him) sent me on an errand and I
had a seminal emission, but could find no water, and
rolled myself in dust just as a beast rolls itself. I came to
the Messenger of Allah (may peace be upon him) and
mentioned that to him and he (the Holy Prophet) said: It
would have been enough for you to do this. Then he
struck the ground with his hands once and wiped his
right hand with the help of his left hand and the exterior
of his palms and his face. Abdullah said: Didn't you see
that Umar was not fully satisfied with the words of
Ammar only ?
(369) Umair, the freed slave of Ibn' Abbas,
reported: I and Abdel-Rahman b. Yasir, the freed slave of
Maimuna, the wife of the Apostle (may peace be upon
him) came to the house of Abu'l -Jahm b. Al- Harith Al-
Simma Ansari and he said: The Messenger of Allah (may
peace be upon him) came from the direction of A-Jamal
well and a man met him; he saluted him but the
Messenger of Allah (may peace be upon him) made no
3031
response, till the Holy Prophet came to the wall, wiped
his face and hands and then returned his salutations.
(370) Ibn Ymar reported: A man happened to pass
by the Messenger of Allah (may peace be upon him)
when he was making water and saluted him, but he did
not respond to his salutation.
Since there was no provision of water reservoir in the
disputed premises the question of performing wadu by
huge crowd for Friday's prayer did not arise at all in other
words the said structure was never used as Masjid for
offering congregational prayer on Friday but all along
remained as Hindus' Shrine.
3192. Besides above, there are some more references from
Holy Quran relied and referred by Sri Mishra during the course
of his arguments i.e.
Surah 9 Part 10
"18. The Mosques of Allah shall be maintained only by
those who believe in Allah and the Last Day; perform As-
Salat (Iqamat-as-Salat), and give Zakat and fear none but
Allah. It is they who are on true guidance.
19. Do you consider the providing of drinking water for
the pilgrims and the maintenance of Al-Masjid Al-Haram
(at Makkah) as equal to the one who believes in Allah and
the Last Day, and strives hard and fights in the Cause of
Allah? They are not equal before Allah. And Allah guides
not those people who are the Zalimun (polytheists and
wrong-doers)." (Page 189)
Surah 9 Part 11
111. Verily, Allah has purchased of the believers their
3032
lives and their properties for (the price) that theirs shall be
the Paradise. They fight in Allah's Cause, so they kill
(others) and are killed. It is a promise in truth which is
binding on Him in the Taurat (Torah) and the Injil
(Gospel) and the Qur'an. And who is truer to his covenant
than Allah? Then rejoice in the bargain which you have
concluded. That is the supreme success. (Page 204)
3193. Sri Mishra referred to Hadith, Volume 1, Bk. 23:
Funerals (Al-Janaa'iz) Paras 2.475, 2.476, 2.477, 2.478
(extract) and 2.559 (extract), which read as under:
Narrated 'Amr bin Maimun Al-Audi: I saw 'Umar
bin Al-Khattab (when he was stabbed) saying, "O
'Abdullah bin 'Umar! Go to the mother of the believers
Aisha and say, 'Umar bin Al-Khattab sends his greetings to
you, 'and request her to allow me to be buried with my
companions." (So, Ibn 'Umar conveyed the message to
'Aisha.) She said, "I had the idea of having this place for
myself but today I prefer him ('Umar) to myself (and allow
him to be buried there). "When 'Abdullah bin 'Umar
returned, 'Umar asked him, "What (news) do you have? "
He replied, "O chief of the believers She has allowed you
(to be buried there)." On that 'Umar said, "Nothing was
more important to me than to be buried in that (sacred)
place. So, when I expire, carry me there and pay my
greetings to her ('Aisha) and say, 'Umar bind Al-Khattab
asks permission; and if she gives permission, then bury me
(there) and if she does not, then take me to the graveyard of
the Muslims. I do not think any person has more right for
the caliphate than those with whom Allah's Apostle (p. b. u.
3033
h) was always pleased till his death. And whoever is chosen
by the people after me will be the caliph, and you people
must listen to him and obey him," and then he mentioned
the name of "Uthman, 'Ali, Talha, Az-Zubair, 'Abadur-
Rahman bin 'Auf and sad bin Abi Waqqas.By this time a
young man from Ansar came and said, "O chief of the
believers! Be happy with Allah's glad tidings. The grade
which you have in Islam is known to you, then you became
the caliph and you ruled with justice and then you have
been awarded martyrdom after all this." 'Umar replied, "O
son of my brother! Would that all that privileges will
counterbalance (my short comings), so that I neither lose
nor gain anything. I recommend my successor to be good to
the early emigrants and realize their rights and to protect
their honor and sacred things. And I also recommend him
to be good to the Ansar who before them, had homes (in
Medina) and had adopted the Faith. He should accept the
good of the righteous among them and should excuse their
wrongdoers. I recommend him to abide by the rules and
regulations concerning the Dhimmis (protectees) of Allah
and His Apostle, to fulfill their contracts completely and
fight for them and not to tax (overburden) them beyond
their capabilities." (Page 354/355)
"Narrated 'Aisha :
The Prophet (p.b.u.h) said, "Don't abuse the dead, because
they have reached the result of what they forwarded."
(Page 355)
Narrated Ibn 'Abbas.: Abu Lahab, may Allah curse him,
once said to the Prophet (p.b.u.h), "Perish you all the day."
3034
Then the Divine Inspiration came: "Perish the hands of Abi
Lahab! And perish he!" (Page 355)
"Narrated Ibn 'Abbas: Thy Prophet sent Mu'adh to Yemen
and said, "Invite the people to testify that none has the
right to be worshipped but Allah and I am Alla's Apostle,
and if they obey you to do so, then teach them that Allah
has enjoined on them five prayers in every day and night
(in twenty-four hours)...." (Page 355)
".A strong wind blew at night and a man stood up and he
was blown away to a mountain called Taiy, The King of
Aila sent a white mule and a sheet for wearing to the
Prophet as a present, and wrote to the Prophet that his
people would stay in their place (and will pay Jizya
taxation.) (1) When the Prophet reached Wadi-al-Qura he
asked that woman how much her garden had yielded. She
said, "Ten Awsuq," and that was what Allah's Apostle had
estimated." (page 381)
3194. Next, he cited from Sahih Bukhari: Hadith Bk.30:
Virtues of Madinah paras 3.92, 3.425, 3.528, 3.529, 3.599,
3.627, 3.629, 3.632, 3.633, 3.634, 3.890 and 3.895 as under:
"Narrated Anas:
The Prophet came to Medina and ordered a mosque to be
built and said, "O Bani Najjar! Suggest to me the price (of
your land)". They said, "We do not want its price except
from Allah" (i.e they wished for a reward from Allah for
giving up their land freely). So, the Prophet ordered the
graves of the pagans to be dug out and the land to be
leveled, and the date-palm trees to be cut down. The cut
date-palms were fixed in the direction of the Qibla of the
3035
mosque. (Pages 476)
"Narrated Abu Huraira: Allah's Apostle said, "By Him in
Whose Hands my soul is, son of Mary (Jesus) will shortly
descend amongst you people (Muslims) as a just ruler and
will break the cross and kill the pig and abolish the Jizya
(a tax taken from the non-Muslims, who are in the
protection, of the Muslim government). Then there will be
abundance of money and nobody will accept charitable
gifts. (Page 557)
"Narrated 'Aisha:
The Prophet said, "He who cultivates land that does not
belong to anybody is more rightful (to own it)." 'Urwa said,
"Umar gave the same verdict in his Caliphate." (Page 591)
"Narrated 'Abdullah bin 'Umar: While the Prophet was
passing the night at his place of rest in dhul-Hulaifa in the
bottom of the valley (of Aqiq), he saw a dream and it was
said to him, "You are in a blessed valley. "Musa said,
"Salim let our camels kneel at the place where 'abdullah
used to make his camel kneel, seeking the place where
Allah's Apostle used to take a rest, which is situated below
the mosque which is in the bottom of the valley; it is
midway between the mosque and the road." (Page 591)
"Narrated 'Abdullah bin Mas'ud: Allah's Apostle said,
"Whoever takes a false oath so as to take the property of a
Muslim (illegally ) will meet Allah while He will be angry
with him." Al-Ash'ath said: By Allah, that saying concerned
me. I had common land with a Jew, and the Jew later on
denied my ownership, so I took him to the Prophet who
asked me whether I had a proof of my ownership. When I
3036
replied in the negative, the Prophet asked the Jew to take
an oath. I said, "O Allah's Apostle! He will take an oath
and deprive me of my property." So, Allah revealed the
following verse: "Verily ! Those who purchase a little gain
at the cost of Allah's covenant and their oaths." (Page
611/612)
"Narrated Ibn 'Umar: The Prophet said, "Oppression will
be a darkness on the Day of Resurrection." (Page 621)
Narrated Abu Huraira: Allah's Apostle said, "Whoever
has oppressed another person concerning his reputation or
anything else, he should beg him to forgive him before the
Day of Resurrection when there will be no money (to
compensate for wrong deeds), but if he has good deeds,
those good deeds will be taken from him according to his
oppression which he has done, and if he has no good deeds,
the sins of the oppressed person will be loaded on
him."(Page 621)
Narrated Sa'id bin Zaid : Allah's Apostle said, "Whoever,
usurps the land of somebody unjustly, his neck will be
encircled with it down the seven earths (on the Day of
Resurrection)." (Page 622)
"Narrated Abu Salama: That there was a dispute between
him and some people (about a piece of land). When he told
'Aisha about it, she said, "O Abu Salama! Avoid taking the
land unjustly for the Prophet said, 'Whoever usurps even
one span of the land of somebody, his neck will be
encircled with it down the seven earths." (Page 622)
Narrated Salim's father (i.e 'Abdullah): The Prophet said,
"Whoever takes a piece of the land of others unjustly, he
3037
will sink down the seven earths on the Day of
Resurrection. (Page 622)
Narrated Ibn 'Umar: When the people of Khaibar
dislocated 'Abdullah bin "Umar's hands and feet, 'Umar
got up delivering a sermon saying, "No doubt, Allah's
Apostle made a contract with the Jews concerning their
properties, and said to them, 'We allow you ( to stand in
your land) as long as Allah allows you.' Now 'Abdullah bin
'Umar went to his land and was attacked at night, and his
hands and feet were dislocated, and as we have no enemies
there except those Jaws, they are out enemies and the only
people whom we suspect, I have made up my mind to exile
them." When Umar decided to carry our his decision, a son
of Abu Al-Haqiq's came and addressed 'Umar, "O chief of
the believers, will you exile us although Muhammad
allowed us to stay at our places, and made a contract with
us about out properties, and accepted the condition of our
residence in our land?" Umar said, "Do you think that I
have forgotten the statement of Allah's Apostle, i.e ; what
will your condition be when you are expelled from Khabar
and your camel will be carrying you night after night ?"
The Jew replied, "That was joke from Abul-Qasim." 'Umar
said,"O the enemy of Allah! You are telling a lie." 'Umar
then drove them out and paid them the price of their
properties in the form of fruits, money, camel saddles and
ropes, etc." (Page 704/705)
Narrated Ibn 'Umar: bin Khattab got some land in
Khaibar and he went to the Prophet to consult him about it
saying, "O Allah's Apostle I got some land in Khaibar
3038
better than which I have never had, what do you suggest
that I do with it? The Prophet said, If you like you can
give the land as endowment and give its fruits in charity.
So Umar gave it in charity as an endowment on the
condition that would not be sold nor given to anybody as a
present and not to be inherited, but its yield would be given
in charity tot he poor people, to the Kith and kin, for
freeing slaves, for Allah's Cause, to the travelers and
guests; and that there would be no harm if the guardian of
the endowment ate from it according to his need with good
intention, and fed others without storing it for the
future.(Page 714)
3195. Sahih Bukhari: Hadith Bk. 52: Fighting for the
Cause of Allah (Jihaad) para 4.287:
"Narrated 'Amr bin Maimum: 'Umar (after he was
stabbed), instructed (his would-be-successor) saying, "I
urge him (i.e. the new Caliph) to take care of those non-
Muslims who are under the protection of Allah and His
Apostle in that he should observe the convention agreed
upon with them, and fight on their behalf (to secure their
safety) and he should not over-tax them beyond their
capability." (Page 798)
3196. Sahih Bukhari: Hadith Bk. 53: One-fifth of Booty
to the Cause of Allah (Khumus) paras 4.354, 4.386, 4.387,
4.388, 4.403, 4.404, 4.407, 4.417 and 4.418:
Narrated Aslam:
'Umar said, "Were it not for those Muslims who have not
come to existence yet, I would have distributed (the land
of) every town I conquer among the fighters as the Prophet
3039
distributed the land of Khaibar." (Page 821)
"Narrated Jubair bin Haiya: 'Umar sent the Muslims to the
great countries to fight the pagans. When Al-Hurmuzan
embraced Islam, 'Umar said to him, "I would like to
consult you regarding these countries which I intend to
invade." Al-Hurmuzan said, "Yes, the example of these
countries and their inhabitants who are the enemies of the
Muslims, is like a bird with a head, two wings and two
legs; if one of its wings got broken, it would get up over its
two legs, with one wing and the head; and if the other wing
got broken, it would get up with two legs and a head, but if
its head got destroyed, then the two legs, two wings and the
head would become useless. The head stands for Khosrau,
and one wing stands for Caesar and the other wing stands
for Faris. So, order the Muslims to go towards Khosrau."
So, 'Umar sent us (to Khosrau) appointing An-Nu'man bin
Muqrin as our commander. When we reached the land of
the enemy, the representative of Khosrau came out with
forty-thousand warriors, and an interpreter got up saying,
"Let one of you talk to me!" Al-Mughira replied, "Ask
whatever you wish." The other asked, "Who are you?" Al-
Mughira replied, "We are some people from the Arabs; we
led a hard, miserable, disastrous life: we used to suck the
hides and the date stones from hunger; we used to wear
clothes made up of fur of camels and hair of goats, and to
worship trees and stones. While we were in this state, the
Lord of the Heavens and he Earths, Elevated is His
Remembrance and Majestic is His Highness, sent to us
from among ourselves a Prophet whose father and mother
3040
are known to us. Our Prophet, the Messenger of our Lord,
has ordered us to fight you till you worship Allah Alone or
give Juizya (i.e. tribute) ; and our prophet has informed us
that our Lord says:--- "Whoever amongst us is killed (i.e
martyred), shall go to Paradise to lead such a luxurious life
as he has never seen, and whoever amongst us remain
alive, shall become your master." (Al-Mughira, then
blamed An-Nu'man for delaying the attack and) An-Nu'man
said to Al-Mughira, "If you had participated in a similar
battle, in the company of Allah's Apostle he would not have
blamed you for waiting, nor would he have disgraced you.
But I accompanied Alla's Apostle in many battles and it
was his custom that if he did not fight early by daytime, he
would wait till the wind had started blowing and the time
for the prayer was due (i.e. after midday)." (Page 836/837)
Narrated Abu Humaid As-Saidi: We accompanied the
Prophet in the Ghazwa of Tabuk and the king of 'Aila
presented a white mule and a cloak as a gift to the Prophet.
And the Prophet wrote to him a peace treaty allowing him
to keep authority over his country. (Page 837)
Narrated Juwairiya bin Qudama at-Tamimi: We said to
'Umar bin Al-Khattab, Jo Chief of the believers! Advise us.
"He said, "I advise you to fulfill Alla's Convention (made
with the Dhimmis) as it is the convention of your Prophet
and the source of the livelihood of your dependents (i.e. the
taxes from the Dhimmis.)" (Page 837)
Narrated 'Abdullah bin 'Amr : Allah's Apostle said,
"Whoever has (the following) four characteristics will be a
pure hypocrite: "If he speaks, he tells a lie; if he gives a
3041
promise, he breaks it, if he makes a covenant he proves
treacherous ; and if he quarrels, he behaves in a very
imprudent evil insulting manner (unjust). And whoever has
one of these characteristics, has one characteristic of a
hypocrite, unless he gives it us." (Page 843)
Narrated 'Ali:
We did not, write anything from the Prophet except the
Qur'an and what is written in this paper, (wherein) the
Prophet said, "Medina is a sanctuary from (the mountain
of) Air to so and-so, therefore, whoever innovates (in it) an
heresy or commits a sin, or gives shelter to such an
innovator, will incur the Curse of Allah, the angels and all
the people; and none of his compulsory or optional good
deeds of worship will be accepted And the asylum granted
by any Muslim Is to be secured by all the Muslims even if it
is granted by one of the lowest social status among them.
And whoever betrays a Muslim in this respect will incur the
Curse of Allah, the angels and all the people, and his
compulsory and optional good deeds of worship will not be
accepted. And any freed slave will take as masters
(befriends) people other than his own real masters who
freed him without taking the permission of the latter, will
incur the Curse of Allah, the angels and all the people, and
his compulsory and optional good deeds of worship will
not be accepted." Narrated sa'id: Abu Huraira once said
(to the people), "What will your state be when you can get
no dinar or dirhan (i.e. taxes from the Dhimmis)?" on that
someone asked him, "What makes you know that this state
will take place, O Abu- Hu raira?" He said, "By Him in
3042
Whose Hands Abu Huraira's life is, I know it through the
statement of the true and truly inspired one (i.e. the
Prophet). "The people asked, "What does the Statement
say?" He replied, "Allah and His Apostle's asylum granted
to Dhimis, i.e non-Muslims living in a Muslim territory)
will be outraged, and so Allah will make the hearts of these
Dhimmis so daring that they will refuse to pay the Jizya
they will be supposed to pay." (Page 843/844)
Narrated Asma 'bint Abi Bakr: During the period of the
peace treaty of Quraish with Alla's Apostle, my mother,
accompanied by her father, came to visit me, and she was a
pagan. I consulted Allah's Apostle! My mother has come to
me and she desires to receive a reward from me, shall I
keep good relation with her? He said, :"Yes, keep good
relation with her." (Page 845)
Narrated Muhammad bin Ibrahim bin Al-Harith : from
Abu Salama bin 'Abdur-Rahman who had a dispute with
some people on a piece of land, and so he went to 'Aisha
and told her about it. She said, "O Abu Salama, avoid the
land, for Alla's Apostle said, 'Any person who takes even a
span of land unjustly, his neck shall be encircled with it
down seven earths." (Page 849)
Narrated Salim's father : The Prophet said, "Any person
who takes a piece of land unjustly will sink down the seven
earths on the Day of Resurrection." (Page 849)
3197. Para 5.50 from Volume 5 of Sahih Bukhari: Hadith
(supra):
Narrated 'Amr bin Maimun : I saw 'Umar bin Al-Khattab
a few days before he was stabbed in Medina. He was
3043
standing with Hudhaifa bin Al-Yaman and 'Uthman bin
Hunaif to whom he said, "What have you done ? Do you
think that you have imposed more taxation on the land (of
As-Swad i.e. 'Iraq) than it can bear ? " They replied, "We
have imposed on it what it can bear because of its great
yield. 'Umar again said, "check whether you have imposed
on the land what it can not bear. " They said, "No, (we
haven't )." 'Umar added, "If Allah should keep me alive I
will let the widows of Iraq need no men to support them
after me." But only four days had elapsed when he was
stabbed (to death)..... I also recommend him concerning
Allah's and His Apostle's protectives (i.e.Dhimmis) to fulfill
their contracts and to fight for them and not overburden
them with what is beyond their ability." (Page 1000/1004)
3198. Bk.59: Military Expeditions led by the Prophet
(pbuh) (Al-Maghaazi) of Sahih Bukhari: Hadith paras 5.351,
5.542 and 5.543 is as under:
Narrated Al-Miswar bin Makhrama : That 'Amr bin 'Auf,
who was an ally of Bani 'Amir bin Luai and one of those
who fought at Badr in the company of the Prophet, said,
"Allah's Apostle sent Abu 'Ubaida bin Al-Jarrah to Bahrain
to bring the Jizya taxation from its people, for Allah's
Apostle had made a peace treaty with the people of
Bahrain and appointed Al-'Ala' bin Al-Hadrami as their
ruler. So, Abu 'Ubaida arrived with the money from
Bahrain. When the Ansar heard of the arrival of Abu
'Ubaida (on the next day) they offered the morning prayer
with the prophet and when the morning prayer had
finished, they presented themselves before him. On seeing
3044
the Ansar, Allah's Apostle smiled and said, "I think you
have heard that Abu 'Ubaida has brought something?"
They replied, "Indeed, it is so, O Allah's Apostle !" He
said, "Be happy, and hope for what will please you. By
Allah, I am not afraid that you will be poor, but I fear that
worldly wealth will be bestowed upon you as it was
bestowed upon those who lived before you. So you will
compete amongst yourselves for it, as they competed for it
and it will destroy you as it did them." (page 1103/1104)
Narrated 'Umar bin Al-Khattab: By Him in Whose Hand
my soul is, were I not afraid that the other Muslims might
be left in poverty, I would divide (the land of) whatever
village I may conquer (among the fighters), as the Prophet
divided the land of Khaibar. But I prefer to leave it as a
(source of) a common treasury for them to distribute it
revenue amongst themselves. (page 1183)
Narrated 'Umar:
But for the other Muslims (i.e. coming generations) I
would divide (the land of) whatever villages the Muslims
might conquer (among the fighters), as the Prophet divided
(the land of ) Khaibar. (page 1183)
3199. Bk.65: Food, Meals of Sahih Bukhari: Hadith
paras 7.354:
Narrated Jabir bin "Abdullah : There was a Jew in
Medina who used to lend me money up to the season of
plucking dates. (Jabir had a piece of land which was on the
way of to Ruma). That year the land was not promising, so
the payment of the debt was delayed one year. The Jew
came to me at the time of plucking, but gathered nothing
3045
from my land. I asked him to give me one year respite, but
he refused. This news reached the Prophet whereupon he
said to his companions, "Let us go and ask the Jew for
respite for Jabir." All of them came to me in my garden, and
the Prophet started speaking to the Jew, but he Jew said,
"O Abu Qasim ! I will not grant him respite." When the
Prophet saw the Jew's attitude, he stood up and walked all
around the garden and came again and talked to the Jew,
but the Jew refused his request. I got up and brought some
ripe fresh dates and put it in front of the Prophet. He ate
and then said to me, "Where is your hut, O Jabir? " I
informed him, and he said, "Spread out a bed for me in it."
I spread out a bed, and he entered and slept. When he woke
up, I brought some dates to him again and he ate of it and
then got up and talked to the Jew again, but the Jew again
refused his request. Then the Prophet got up for the second
time amidst the palm trees loaded with fresh dates, and
said, "O Jabir! Pluck dates to repay your debt." The Jew
remained with me while I was plucking the dates, till I paid
him all his right, yet there remained extra quantity of dates.
So I went out and proceeded till I reached the Prophet and
informed him of the good news, whereupon he said, "I
testify that I am Allah's Apostle." (Page 1575/1576)
3200. Bk.80: Laws of Inheritance (Al-Faraa'id) of Sahih
Bukhari: Hadith paras 8.755, 8.756 and 8.760 is as under:
Narrated Abu Huraira: The Prophet said, "If somebody
dies (among the Muslims) leaving some property, the
property will go to his heirs; and if he leaves a debt or
dependants, we will take care of them." (page 1903)
3046
Narrated Usama bin Zaid: the Prophet said, "A Muslim
cannot be the heir of a disbeliever, nor can a disbeliever
be the heir of a Muslim." (page 1903/1904)
Narrated Abu Huraira: Allah's Apostle said, "There were
two women with whom there were their two sons. A wolf
came and took away the son of one of them. That lady said
to her companion, 'The wolf has taken your son.' The other
said, 'But it has taken your son. ' So both of them sought
the judgment of (the Prophet ) David who judged that the
boy should be given to the older lady. Then both of them
went to (the Prophet) Solomon, son of David and informed
him of the case. Solomon said, 'Give me a knife so that I
may cut the child into two portions and give one half to
each of you.' The younger lady said, 'Do not do so; may
Allah bless you ! He is her child.' On that, he gave the child
to the younger lady." Abu Huraira added : By Allah ! I had
never heard the word 'Sakkin' as meaning knife, except on
that day, for we used to call it "Mudya." (page 1904/1905)
3201. Next comes Bk. 81: Limits and Punishments set by
Allah (Hudood) from which paras 8.763 and 8.809 are as under:
"Narrated Abu Huraira : Allah's Apostle said, "When an
adulterer commits illegal sexual intercourse, then he is not
a believer at the time he is doing it; and when somebody
drinks an alcoholic drink, then he is not believer at the
time of drinking, and when a thief steals, he is not a
believer at the time when he is stealing: and when a robber
robs and the people look at him, then he is not a believer at
the time of doing it." Abu Huraira in another narration,
narrated the same from the Prophet with the exclusion of
3047
robbery."(Page 1905/1906)
"Narrated Ibn 'Umar : A Jew and a Jewess were brought to
Allah's Apostle on a charge of committing an illegal sexual
intercourse. The Prophet asked them. "What is the legal
punishment (for this sin) in your Book (Torah)?" They
replied, "Our priests have innovated the punishment of
blackening the faces with charcoal and Tajbiya." 'Abdullah
bin Salam said, "O Allah's Apostle, tell them to bring the
Torah." The Torah was brought, and then one of the Jews
put his hand over the Divine Verse of the Rajam (stoning to
death) and started reading what preceded and what
followed it. On that, Ibn Salam said to the Jew, "Lift up
your hand." Behold ! The Divine Verse of the Rajam was
under his hand. So Allah's Apostle ordered that the two
(sinners) be stoned to death, and so they were stoned. Ibn
'Umar added : So both of them were stoned at the Balat
and I saw the Jew sheltering the Jewess."(Page 1916/1917)
3202. Para 9.447 of Bk. 92: Holding Fast to the Qur'an
and Sunnah is as under:
"Narrated Abu Huraira : While we were in the mosque,
Allah's Apostle came out and said, "Let us proceed to the
Jews." So we went out with him till we came to Bait-al-
Midras. The Prophet stood up there and called them,
saying, "O assembly of Jews ! Surrender to Allah (embrace
Islam) and you will be safe !" They said, "You have
conveyed Allah's message, O Aba-al-Qasim" Allah's
Apostle then said to them, "That is what I want: embrace
Islam and you will be safe." They said, "You have
conveyed the message, O Aba-al-Qasim." Allah's Apostle
3048
then said to them, "That is what I want,'' and repeated his
words for the third time and added, "know that the earth is
for Allah and I want to exile you from this land, so whoever
among you has property he should sell it, otherwise, know
that the land is for Allah and His Apostle." (Page
2069/2070)
3203. Referring to the above, it is contended by Sri
Mishra, that what emerges from the above is that the Prophet
never intended to get a mosque constructed at a place which has
not been acquired validly and in this regard he set up very high
principles which have to be treated the law of Sharii binding
on all the Muslims and cannot be ignored at all.
3204. The next authority in this regard he placed is Sahih
Muslim by Imam Muslim (1
st
Edition 2001, fourth edition 2005)
(published by Islamic Book Service, New Delhi). He cited paras
142 and 142R1 (Chapter 63), paras 226 and 226R1 (Chapter 3),
paras 227, 227R1, 227R2, 228, 229, 230, 231, 231R1, 232,
232R1 (Chapter 4), paras 240, 240R1, 240R2, 240R3, 241,
241R1, 241R2, 242, 242R1, 242R2 (Chapter 9), para 244 and
245 ((Chapter 11)) which are as under:
(142) Hasan reported; Ubaidullah b. Ziyad paid a visit to
Ma'qil b. Yasir Muzani in his illness which caused his
death. Ma'qil said : I am going to narrate to you a hadith
which I have heard from the Messenger of Allah (SAW) and
which I would not have transmitted if I knew that I would
survive. Verily I have heard the Messenger of Allah (SAW)
saying : There is no one amongst the bondsmen who was
entrusted with the affairs of his subjects and he died in
such a state that he was dishonest in his dealing with those
3049
over whom he ruled that the Paradise is not forbidden for
him.
(142R1) Hasan reported : 'Ubaidullah b. Ziyad went to
see Ma'qil b. Yasir and he was in agony. He ('Ubaidullah)
inquired (about his health) to which he (Ma'qil) replied : I
am narrating to you a hadith which I avoided narrating to
your before. Verily the Messenger of Allah (SAW) said :
Allah does not entrust to his bondsman the responsibility of
managing the affairs of his subjects and he dies as a
cheater (ruler) but Paradise is forbidden but Allah for such
a (ruler). He ((Ibn Ziyad) said : Why did you not narrate it
to me before this day? He replied : I (in fact) did not
narrate it to you as it was not (fit) for me to narrate that to
you.
(226) Humran, the freed slave of 'Uthman, b. 'Affan
called for ablution. He performed ablution: He washed his
hands thrice. He then rinsed his mouth and cleaned his
nose with water (three times). He then washed his face
three times, then washed his right arm up to the elbow
three times, then washed his left arm like that, then wiped
his head: then washed his right foot upto ankle three times,
then washed his left foot like that, and then said: I saw the
Messenger of Allah (SAW) perform ablution like his
ablution of mine. Then the Messenger of Allah (SAW) said :
He who performs ablution like this ablution and then stood
up (for prayer) and offered two bows of prayer without his
thoughts to be being distracted, all his pervious sins are
expiated. Ibn Shihab said : Our scholars remarked: This is
the most complete of the ablution performed for prayer.
3050
(226R1) Humran, the freed slave of 'Uthman, said : I saw
'Uthman invoking in a vessel (of water) and poured water
over his hands three times and then washed them. Then he
put his right hand in the vessel and rinsed his mouth and
cleaned his nose. Then he washed his face three times and
his hands up to the elbow three times; then wiped his head,
then washed his feet three times. Then he said that the
Messenger of Allah (SAW) had said : He who performed
ablution like this ablution and offered two bows of prayer
without allowing his thoughts to be being distracted, all his
pervious sins would be expiated.
(227) Humran, the freed slave of 'Uthman, said : I heard
from "Uthman b.'Affan and he was in the courtyard of the
mosque, when the Muaththin (announcer of the prayer)
came to him at the time of afternoon prayer. So then
(Uthman) called for the ablution and performed it. He then
said : By Allah, I am narrating to you a hadith. If there
were not a verse in the Book of Allah, I would have never
narrated it to you. I heard Allah's Messenger (SAW)
saying: If a Muslim performs ablution and does it well
and offers prayer, all his (sins) during the period from
one prayer to another would be pardoned by Allah.
(227R1) This hadith is also narrated on the authority with
the same chain of transmitters. And in the hadith of Abu
Usama the words are: He who performed the ablution well
and then offered the obligatory prayer.
(227R2) Humran reported when 'Uthman performed
ablution he said : By Allah, I am narrating to you a hadith.
Had it not been thise verse in the Book of Allah. I would
3051
not have narrated it to you. Verily I heard the Messenger of
Allah (SAW) saying : There is no man who performed
ablution, and did it well, then offered prayer, but his sins
(which he committed) were not pardoned between the
prayer that he offered and the next one. "Urwa said : The
verse is this : Those who suppress the clear proofs and the
guidance which we have sent down.. to his words: The
cursers. (ii.15).
(228) 'Amr b. Said b. Al-As reported: I was with Uthman
that he called for ablution. He said: I heard Allah's
Messenger (SAW) saying : When the time for a prescribed
prayer comes, and any muslim perform ablution well and
offers his prayer) with humility and bowing, it will be an
expiation for his past sins, as long as he has not committed
a major sin; and this applied on all times.
(229) Humran, the freed slave of 'Uthman, reported : I
brought for 'Uthman b. 'Affan the ablution. He performed it
and then said: Verily the people narrate from the
Messenger of Allah (SAW) a hadith. I do not know what
these are, but ( I know this fact) that I saw the Messenger
of Allah (SAW) perform ablution like this ablution and then
said: He who performed ablution like this, all his pervious
sins would be expiated and his prayer and going towards
the mosque would have an extra reward. In the tradition
narrated by Ibn 'Abda ( the words are )" I came to 'Uthman
and he performed ablution.
(230) Abu Anas reported that 'Uthman performed
ablution at Maqaid and said: Should not I show you the
ablution performed by Allah's Messenger (SAW)? He then
3052
washed (the different parts of the body) three times.
Qutaiba has added in his narration the words: There were
with him (with Uthman) some of the companions of Allah's
Messenger (SAW).
(231) Humran b. Aban reported: I used to fetch water for
'Uthman for his purification. No day came but he took a
bath with a small quantity of water. And "Uthman said: The
Messenger of Allah (SAW) all the time of returning from
our prayer told us (certain things pertaining to
purification). Mis'ar said I find that it was afternoon
prayer. He said: I do not know whether I should tell you a
things or keep quiet. We said: Messenger of Allah, tell us if
it is good and if it is other wise, Allah and his Apostle know
better. Upon this he said : A muslim who purifies (himself)
and completes purification as enjoined upon him by Allah
and then prayer, that will expiate (his sins, he committed)
between these (prayers).
(231R1) Jami'b. Shaddad reported: I heard Huimran b.
Aban narrating to Abu Burda in this very mosque during
the governorship of Bishr that 'Uthman b. 'Affan said : The
Messenger of Allah (SAW) said: He who completed
ablution as Allah, the Exalted, enjoined upon him, his
obligatory prayers would be expiatious (for his minor sins
that he would commit) during (the interval) between them.
This hadith is transmitted by Ibn Muath, and in the hadith
narrated by Ghundar, the words "during the governorship
of Bishr" are ommitted and he did not mention the
obligatory prayers.
(232) Humran, the freed slave of 'Uhtman, reported: One
3053
day "Uthman b. 'Affan performed the ablution well, and
then said : I saw Allah's Messenger (SAW) performing
ablution, the best ablution and then observed: He who
performed ablution like this and then went towards the
mosque and nothing (but the love of ) prayer urged him (to
do so), all his previous (minor) sins would be expiated.
(232R1) Humrran, the freed slave of 'Uthman b. 'Affan,
reported on the authority of 'Uthman b. Affan that he
heard Allah's Messenger (SAW) saying : He who performed
ablution for prayer, and performed it properly, and then
went (to observe obligatory prayer and offered it along
with people or with the congregation or in the mosque,
Allah would pardon his sins.
Chapter 9
The Washing of feet Properly is an integral part of
Wudu
(240) Salim, the freed slave of Shaddad said: I came to
Aisha, the wife of the Holy Prophet (SAW), on the day when
sa'd b. abi Waqqas died. 'Abdel-rahman b. Abu Bakr also
came there and he performed ablution in her presence. She
(Hadrat A'isha) said: 'Abdel-Rahman, complete the
ablution as I heard the Allah's Messenger (SAW) say: Woe
to the heels because of Hell-fire.
(240R1) 'Abdullah, the freed slave of Shaddad, came to
A'isha and transmitted from her a hadith like this (which
she narrated) from the Holy Prophet (SAW).
(240R2) Salim, the freed slave of Mahri, reported I and
'Abdel-Rahman b. abu Bakr went out (in order to join) the
funeral procession of Sa'd b.Abi waqqas and passed by the
3054
door of the residence if 'Aisha, and then transmitted a
hadith like this from her who (narrated it) from the Holy
Prophet (SAW).
(240R3) Salim, the freed slave of Shaddad b. Al-Had said:
I was in the presence of 'A'isha, and then narrated on her
authority a hadith like this from the Holy Prophet (SAW).
(241) 'Abdullah b. 'Amr reported: We returned from
Mecca to Medina with the Messenger of Allah (SAW), and
when we came by water on the way, some of the people
were in the hurry at the time of the afternoon prayer and
performed ablution hurriedly; and when we reached them,
their heels were dry, no water had touched them. The
Prophet (SAW) said: Woe to (dry) heels, because of Hell-
fire. Make complete ablution.
(241R1) In the hadith transmitted by Shu'ba these words
are not there: Complete the Wudu, and there is the name of
Abu Yahya Al-A'raj (a narrator).
(241R2) 'Abdullah b. Amr reported: The Messenger of
Allah (SAW) lagged behind us on a journey. We traveled
(back) and he took him; and then came the time of the
afternoon prayer, and as we were going to wipe our feet he
(the Holy Prophet) called out: Woe to the heels because of
Hell-fire.
(242) Abu Huraira reported: Allah's Apostle (SAW) saw a
man who did not wash his heels and he remarked: Woe to
the heels because of Hell-fire.
(242R1) Abu Huraira reported: He saw people perform
ablution from a water jar. He said: Complete the ablution
for I heard Abu al-Qasim (SAW) saying: Woe to the
3055
hamstrings because of Hell-fire.
(242R2) Abu Huraira reported: The Messenger of Allah
(SAW) said: Woe to the heels because of Hell-fire.
(244) Abu Huraira reported: Allah's Messenger (SAW)
said: When a bondsman (a Muslim or a believer) washes
his face (in course of ablution), every sin he contemplated
with his eyes will be washed away from his face along with
water, or with the last drop of water; when he washes his
hands, every sin they committed will be effacted from his
hands by water, or with the last drop of water; and when he
washes his feet, every sin towards which his feet have
walked will be washed away with the water, or with the last
drop of water, with the result that he comes out pure from
all sins.
(245) 'Uthman b. 'Affan reported: The Messenger of
Allah (SAW) said He who performed ablution well, his sins
would come out from his body even coming out from under
his nails.
3205. He placed before us Book 4 Kitab Al-Salat and
placed reliance on para 377 (Chapter 1) paras 524, 524R1,
524R2 (Chapter 1), para 525, 525R1, 526, 526R1, 527 (Chapter
2), paras 528R1, 528R2, 529, 530, 530R1, 531, 532 (Chapter 3)
as under:
(377) Ibn Umar reported: When the Muslims came to
Medina, they gathered and sought to know the time of
prayer but no one summoned them. One day they discussed
the matter, and some of them said: Use something like the
bell of the Christians and some of them said: Use horn like
that of the Jews. Umar said: Why may not a man be
3056
appointed who should call (people) to prayer ? The
Messenger of Allah (may peace be upon him) said: O Bilal,
get up and summon (the people) to prayer.
(524) Anas b. Malik reported: The Messenger of Allah
(may peace be upon him) came to Medina and stayed in the
upper part of Medina for fourteen nights with a tribe called
Bani Amr b Auf. He then sent for the chiefs of Bani Al-
Najjar, and they came with swords around their necks. He
(the narrator) said: I percieve as if I am seeing the
Messenger of Allah (may peace be upon him) on his ride
with Abu Bakr behind him and the chiefs of Banu Al-Najjar
around him till he alighted in the courtyard of Abu Ayyub.
He (the narrator ) said: The Messenger of Allah (may
peace be upon him) said prayer when the time came for
prayer, and he prayed in the fold of goats and sheep. He
then ordered mosques to be built and sent for the cheifs of
Banu Al-Najjar, and they came (to him). He (the Holy
Prophet) said to them: O Banu Al-Najjar, sell me your
hands. They said: No, by Allah, we would not demand their
price, but (reward) from the Lord. Anas said: There (in
these lands) were trees and graves of the polytheists, and
ruins. The Messenger of Allah (may peace be upon him)
ordered that the trees should be cut, and the graves should
be dug out, and the ruins should be levelled. The trees
(were thus) placed in rows towards the Qibla and the
stones were set on both sides of the door, and (while
building the mosque) they (the Companions) sang rajaz
verses along with the Messenger of Allah (may peace be
upon him):
3057
O Allah: there is no good but the good of the next world,
So help the Ansar and the Muhajirin (emigrants).
(524R1) Anas reported: The Messenger of Allah (may
peace be upon him) used to pray in the folds of the sheep
and goats before the mosque was built.
(524R2) Abu Al Tiyyah reported: I heard from Anas a
narration like this from the Messenger of Allah (may peace
be upon him).
(525) Al Bara' b. Azib reported: I said prayer with the
Apostle (may peace be upon him) turning towards Bait ul
Maqdis for sixteen months till this verse of Surah Baqara
was revealed: And wherever you are turn your faces
towards it (ii. 144). This verse was revealed when the
Apostle (may peace be upon him) had said prayer. A man
amongst his people passes by the people of Ansar as they
were engaged in prayer. He narrated to them (this
command of Allah) and they turned their faces towards the
Ka'ba.
(525R1) Abu Ishaq reported: I heard Al-Bara saying: We
prayed with the Messenger of Allah (may peace be upon
him) (with our faces) towards Bait -ul-Maqdis for sixteen
months or seventeen months. Them we were made to
change (our direction) towards the Ka'ba.
(526) Ibn Umar reported: As the people were praying at
Quba'a man came to them and said: it has been revelaed to
the Messenger of Allah (may peace be upon him) during
the night and he has been directed to turn towards the
Ka'ba. So turn towards it. Their faces were towards Syria
and they turned round towards Ka'ba.
3058
(526R1) Ibn Umar reported: As the people were engaged
in the morning prayer a man came to them. The rest of the
hadith is the same.
(527) Anas reported: The Messenger of Allah (may peace
be upon him) used to pray towards Bait-ul-Maqdis, that it
was revealed (to him): Indeed We see the turning of the
face to heaven, where of we shall assurely cause thee to
turn towards Qibla which shall please thee. So turn thy
face towards the sacred Mosque (Ka'ba) (ii. 144). A man
from Bani Salama was going; (he found the people) in
prostration (while) praying the dawn prayer and they had
said one bow. He said in a loud voice : Listen ! The Qibla
has been changed and they turned towards (the new) Qibla
(Ka'ba) in that very state.
(528R1) A'isha reported: They (some Companions of the
Holy Prophet) were conversing with one another in the
presence of the Messenger of Allah (may peace be upon
him) during his last illness. Umm Salama and Umm
Habiba mentioned the church, and then (the hadith was)
narrated.
(528R2) A'isha reported: The wives of the Apostle of
Allah (may peace be upon him) mentioned the church
which they had seen in Abyssinia which was called Marya,
and the rest of the hadith is the same.
(529) A'isha reported: The Messenger of Allah (may
peace be upon him) said during his illness from which he
never recovered: Allah cursed the Jews and the Christians
that they took the graves of their prophets as mosques. She
(A'isha) reported: Had it not been so, his (the Prophet's)
3059
grave would have been in an open place, but it could not be
because it may be taken as a mosque.
(530) Abu Huaira reported: The Messenger of Allah (may
peace be upon him) said: Let Allah destroy the Jews for
they have taken the graves of their apostles as places of
worship.
(530R1) Abu Huraira reported: The Messenger of Allah
(may peace be upon him) said: Let there be curse of Allah
upon the Jews and the Christians for they have taken the
graves of their apostles as places of worship.
(531) A'isha and Abdulla reported: As the Messenger of
Allah (may peace be upon him) was about to breathe his
last, he drew his sheet upon his face and when he felt
useasy, he uncovered his face and said in this very state:
Let there be curse upon the Jew and the Christians who
have taken the graves of their apostles as places of
worship. He in fact warned (his men) against what they
(the Jews and the Christians) did.
(532) Jundub reported: I heard from the Apostle of Allah
(may peace be upon him) five days before his death and he
said: I stand acquitted before Allah that I took any one of
you as a friend, for Allah has taken me as His friend, as he
took Ibrahim as His friend. Had I taken any one of my
nation as a friend, I would have taken Abu Bakr as a
friend. Beware of those who preceded you and used to take
the graves of their prophets and righteous men as places of
worship, but you must not take graves as mosque; I forbid
you to do that.
3206. He also referred to footnote 1, 2 and 3 at page 332:
3060
(1) The Holy Prophet has explained now polytheism
gradually develops. Is strats from the pious intention, i.e.
building of a temple by the grave of a pious man so that
there should be assocition of a religious piety to a place of
worship. But steadily the people begin to look upon the
religious man as a demigod and then elevate him to a
higher status of Godhood. This undermines the belief in the
oneness of Allah.
The pictures of the pious men are displayed in the temples
in order to keep alive their sacred memories, but with the
march of time the people begin to worship them.
(2) Perhaps this church was named after Mary, the mother
of Jesus.
(3) The Holy Prophet was buried in the small room of
Hadrat A'isha (Allah be pleased with her) where he died. It
is a coferred place with walls built on all sides of it.
3207. Next he placed reliance on paras 556 and 556R1
(Chapter 15) and its footnote 1, which say:
(556) A'isha reported: The Apostle of Allah (may peace be
upon him) prayed in a garment which had designs over it,
so he (the Holy Prophet) said: Take it to Abu Jahm and
bring me a plain blanket from him, because its designs
have distracted me.
(556R1) A'isha reported: The Messenger of Allah (may
peace be upon him) stood for prayer with a garment which
had designs over it. He looked at these designs and after
competing the prayer said: Take this garment to Abu Jahm
b. Huthaifa and bring me a blanket for it has distracted me
just now.
3061
Footnote (1) It is permissible to say prayer with shoes on
one's feet provided these are not soiled with impurities.
Before saying prayer it is essential to remove the impurities
by rubbing them against dust or on sand.
3208. Reliance was also placed on "Sahih Muslim" by
Imam Muslim Vol. II Book 7, the relevant paras are as under:
(847R2) 'Abdel-'Rahman son of Abu Said Al-Khudri
reported on the authority of his father that the Messenger
of Allah (SAW) said: Bathing on Friday for every adult,
using of Miswak and applying some perfume, that is
available, are essential. As far as perfume is concerned, it
may be used by a lady.
(851) Abu Huraira reported what Allah's Messenger
(SAW) had said: If you ask your companion to be quiet on
friday whiel the Imam is delivering the sermon, you have in
fact chattered.
(973) Abbad b. Abdullah b. Zubair reported that A'isha
ordered that the bier of Sa'd b. Abu Waqqas be brought into
the mosque, so she can pray for him. The people
disapproved this (act) of hers. She said: How soon the
people have forgotten that the Messenger of Allah (SAW)
had offered the funeral prayer of Suhail b. Al-Baida but in
a mosque.
(973R1) 'Abbad b. 'Abdullah b. Zubair reported on the
authority of A'isha that when Sa'd b. Abu Waqqas died, the
wives of the Apostle of Allah (SAW) sent a message to bring
his bier into the mosque so that they can pray for him. They
(the participants of the funeral) did accordingly. It was
placed in front of their apartments and they prayed for him.
3062
It was brought out of the door (known as) Bab al-Jana'iz
which was towards the side of Maqa'id (seats). The news
reached them (the wives of the Holy Prophet) that the
people had criticised this (i.e offering of funeral prayer in
the mosque) that it was not desirable to take the bier inside
the mosque. This was conveyed to A'isha. She said: How
quickly the people criticise about what they know little.
They criticise us for carrying the bier in the mosque. The
Messenger of Allah (SAW) did not offer the funeral prayer
of Suhail b. Baida' but in the innermost part of the
mosque.
(973R2) Abu Salama b. 'Abdel-Rahman reported on the
authority of A'isha that when Sa'd b. Abu Waqqas died she
said: Bring it (the bier) into the mosque so that I pray foe
him. But this act was disapproved. She said: By Allah, the
Messenger of Allah (SAW) prayed in the mosque for the
two sons of Baida', viz, for Suhail and his brother.
Footnote: (1) There is a difference of opinion among the
jurists whether a funeral prayer can be offered in a mosque
or not. It is on the basis of this hadith that Imam Shafi'i of
the view that it can be offered in a mosque. Imam Abu
Hanifa and Imam Malik on the basis of a hadith recorded
in Abu Dawud (viz. The Messenger of Allah said: He who
offers funeral prayer in the mosque has nothing for him)
disapprove saying the funeral prayer in the mosque. The
scholars of Hadith.
3209. Next is "Sahih Muslim" by Imam Muslim Vol. III,
Chapter 30 paras 1610 and 1610R1 (Page 83) as under:
(1610) Sa'id b. Zaid b. 'Amr b. Nufail (Allah be pleased
3063
with them) reported that Allah's Messenger (SAW) had
said: He who wrongly took a span of land, Allah shall
make him carry around his neck seven earths.
(1610R1) Said b.Zaid b. 'Amr b. Nufail (Allah be pleased
with them) reported that Arwa (bint Uwais) disputed with
him (about a part of the land) of his house. He said: Leave
it and take off your claim from it, for I heard Allah's
Messenger (SAW) saying: he who took a span of land
without his right would be made to wear around his neck
seven earths on the day of Resurrection. He (Sa'id b. Zaid)
said: O Allah, make her blind if she has told a lie and make
her grave, in her house. He (the narrator) said: I saw her
blind groping (her way) by touching the walls and saying:
The curse of Sa'id b. Zaid ha hit me. And if so happened
that as she was walking in her house, she passed by a well
in her house and fell therein and that became her grave.
3210. Next is "book of the Holy Struggle-32", paras 1731,
1731R1(Chapter 2), paras 1732 and 1733 (Chapter 3), paras
1827, 1828 and footnote 2, para 1828 R1, 1829 and footnote 2
(Chapter 5), para 1839, 1839R1, 1840, 1840R1:
(1731) On the authority of Sufyan that the Holy Prophet
(SAW) said: He dictated it one us.
(1731R1) It has been reported from Sulaiman b. Buraid
through his father that when the Messenger of Allah (may
peace be upon him) appointed anyone as leader of an army
or detachment he would especially exhort him to fear Allah
and to be good to the Muslims who were with him. He
would say: Fight in the name of Allah and in the way of
Allah. Fight against those who disbelieve in Allah. Make
3064
a holy war; do not embezzle the spoils; do not break your
pledge; and do not mutilate (the dead) bodies; do not kill
the children. When you meet your enemies who are
polytheists, invite them to three courses of action. If they
respond to any one of these, you also accept it and keep
from doing them any harm. Invite them to (accept) Islam;
if they respond to you, accept it from them and desist from
fighting against them. Then invite them to migrate from
their lands to the land of Muhajirs and inform them that,
if they do so, they shall have all the privileges and
obligations of the Muhajirs. If they refuse to migrate, tell
them that they will have the status of Bedouin Muslims and
will be subjected to the Commands of Allah like other
Muslims, but they will not get any share from the spoils of
war or fai' except when they actually fight with the Muslims
(against the disbelievers). If they refuse to accept Islam,
demand from them the Jizya. If they agree to pay, accept
it form them and hold off you hands. If they refuse to pay
the tax, seek Allah's help and fight them. When you lay
seige to a fort and the beseiged appeal to you for protection
in the name of Allah and His Prophet, do not accord to
them the guarantee of Allah and his Prophet, but accord to
them your own guarantee and the guarantee of your
companions for it is a lesser sin that the security given by
you or your companions be disregarded than that the
security granted in the name of Allah and His Prophet be
violated. When you beseige a fort and the beseiged want
you to let them out in accordance with Allah's Command,
do not let them come out in accordance with His
3065
Command, but do so at your (own) command, for you do
not know whether or not you will be able to carry out
Allah's behest with regard to them.
(1732) It is narrated on the authority of Abu Musa that
when the Messenger of Allah (may peace be upon him)
deputed any of his Companions on a mission, he would
say: Give tiding (to the people); do not create (in their
minds) aversion (towards religion); show them leniency
and do not be hard upon them.
(1733) It has also been narrated by Sa'id b. Abu Burda
through his father through his grandfather that the Prophet
of Allah (may peace be upon him) sent him and Mu'ath (on
a mission) to the Yeman, and said (by way of advising
them): Show leniency (to the people); don't be hard upon
them; give them glad tidings (of Divine favours in this
world and the hereafter); and do not create aversion. Work
in collaboration and don't be divided.
(1827) It has been narrated on the authority of Abdullah
b. 'Umar that the Messenger of Allah (may peace be upon
him) said: Behold ! The Dispensers of Justice will be
seated on the pulpits of light beside God, on the right side
of the Merciful, Exalted and Glorious. Either side of the
Being is the right side both being equally meritorious. (The
Dispensers of Justice are) those who do justice in their
rules, in matter relating to their families and in all that they
undertake to do.
(1828) It has been reported on the authority of Abdel-
Rahman b. Shumasa who said: I came to A'isha to inquire
something from them. She said: From which people art
3066
thou? I said: I am from the people of Egypt. She said What
was the behaviour of your governor towards you in this
war of yours ? I said: We did not experience anything bad
from him. If the camel of a man from us died, he would
bestow on him a camel. If any one of us lost his slave, he
would give him a slave. If anybody was in need of the basic
necessities of life, he would provide them with provisions.
She said: Behold! The treatment that was meeted out to my
brother, Muhammad b. Abu Bakr, does not prevent me from
telling you what I heard from the Messenger of Allah (may
peace be upon him). He said in this house of mine: O God,
who (happens to) acquire some kind of control over the
affairs of my people and is hard upon them be Thou hard
upon him, and who (happens to) acquire some kind of
control over the affairs of my people and is kind to them
be Thou kind to him.
(1828R1) This hadith has been narrated on the authority
of Abdel-Rahman b. Shumasa with another chain of
transmitters.
(1829) It has been narrated on the authority of Ibn 'Umar
that the Holy Prophet (may peace be upon him) said:
Beware, every one of you is a shepherd and every one is
answerable with regard to his flock. The Caliph is a
shepherd over the people and shall be questioned about his
subjects (as to how he conducted their affairs). A man is a
guardian over the members of his family and shall be
questioned about them (as to how he looked after their
physical and moral well being). A woman is a guardian
over the household of her husband and his children and
3067
shall be questioned about them (as to how she managed the
household and brought up the children). A slave is a
guardian over the property of his master and shall be
questioned about it (as to how he safeguarded his trust).
Beware, every one of you is a guardian and everyone of
you is a guardian and every one of you shall be questioned
with regard to his trust.
Footnote (2): In this tradition, the government's
responsibility towards the citizens has been put on a par
with father's or a mother's responsibility towards their
children. Just as the father is a shepherd that is, a
guardian morally and legally bound to ensure the
maintenance and well being of his family, the government
is morally and legally bound to endure the moral, spiritual,
social and economic well-being of its citizens, whose
affairs it has under-taken to as minister.
The simile of a shepherd is highly significant in this
connection. It recalls to one's mind the sympathetic tale of
The Prophet as a guide of mankind going astray. The idea
behind it is that the shepherd is more careful of the well-
being of his flock then even the flock itself. He is always on
the alert with regard to his flock and takes full care of the
animals so that these may not go astray and fall victims to
the beasts of prey. The Prophet is shepherd of humanity,
always thinkings of their welfare, of their sufferings and
always exhorting them to move along the path of
righteousness and religious piety. There is a deep love in
the hearts of The Prophet for the ailing humanity and a
strong will to cure it. It is with a spirit of deep love,
3068
affection and self-sacrifice that the father serves his family
and it should be with the same emotions of love and spirit
of sacrifice that the rulers should serve the people of the
State.
(1839) It has been narrated on the authority of Ibn 'Umar
that the Holy Prophet (may peace be upon him) said: It is
obligatory on a Muslim that he should listen (to the ruler
appointed over him) and obey him whether he likes it or
not, except that he is ordered to do a sin. If he is ordered to
so a sinful act, a Muslim should neither listen to him nor
should he obey his orders.
(1839R1) This hadith has been transmitted on the
authority of 'Ubaidullah.
(1840) It has been narrated on the authority of Abu
'Abdel-Rahman from Ali that the Messenger of Allah (may
peace be upon him) sent a force (on a mission) and
appointed over them a man. He kindled a fire and said:
Enter it. Some people made up their minds to enter it (the
fire), (carrying out the order of their commander), but the
others said: We fled from the fire (that's why we have some
into the fold of Islam). The matter was reported to the
Messenger of Allah (may peace be upon him). He said to
those who contemplated entering (the fire at the order of
their commander): If you had entered it, you would have
remained there until the Day of Judgement. He commended
the act of the latter group and said: There is no submission
in matters involving God's disobedience or displeasure,
submission is obligatory only in what is good (and
reasonable).
3069
(1840R1) It has been narrated on the authority of 'Ali
who said: The Messenger of Allah (may peace be upon
him) sent an expedition and appointed over the Mujahids a
man from the Ansar. (While making the appointment), he
ordered that his word should be listened to and obeyed.
They made him angry in a matter. He said: Collect for me
dry wood. They collected it for him. Then he said: Kindle a
fire. They kindled (the fire). Then he said: Didn't the
Messenger of Allah (may peace be upon him) order you to
listen to me and obey (my orders) ? They said: Yes. He
said: Enter the fire. The narrator says: (At this), they began
to look at one another and said: We fled from the fire to
(find refuge with) the Messenger of Allah (may peace be
upon him) (and now you order us to enter it). They stood
quiet until his anger cooled down and the fire went out.
When they returned, they related the incident to the
Messenger of Allah (may peace be upon him). He said: if
they had entered it, they would not have come out.
Obedience (to the commander) is obligatory only in what is
good.
(1854R2) Another version of the tradition narrated on
the same authority attributes the same words to the
messenger of Allah (may peace be upon him). But he said:
That who denied got free, and that who hated is saved.
Footnote (1) This hadith gives a clear idea for how long
and to what extent should the citizen exercise patience with
an unjust government. Upholding and establishing of
prayer on the part of a ruler is his main qualification for
which he deserves obedience from the citizen in Ma'ruf and
3070
which does not permit them to overthrow his government
by violent means. The upholding of prayer says
Muhammad Asad has a far wider meaning than the mere
holding of congregational prayers, it denotes as it does at
the beginning of the second chapter of the Qur'an a
positive upholding of the faith.
The Holy Qur'an in Surat xxvv, verse 41, lays down
in clear terms the main functions of the Head of an Islamic
State: Muslim are those who, if We give them power in the
land, establish prayer and Zakat (popor-due) and enjoin
virtue and forbid evils.
(2104) 'A'isha reported that Gabriel (peace be upon him)
promised Allah's Messenger (may peace be upon him) to
come at a definite hour. That hour came but he did not visit
him. And there was in his hand (in the hand of Allah's
Apostle) a staff. He threw it from this hand and said: Never
has Allah or His Messengers (angles) ever broken their
promise. Then he case a glance (and by chance) found a
puupy under his cot and said: 'A'isha, when did this dog
enter here? She said: By Allah, I don't know. He then
commended and it was turned out. Then Gabriel came and
Allah's Messenger (may peace be upon him)said to him :
You promised me and I wanted for you, but you did not
come, whereupon he sad: It was the dog in your house
which prevented me (to come), for we (angels) do not enter
a house in which there is a dog or a picture.
(2104R1) This hadith has been narrated on the authority
of Abi Hazim with the same chain of transmitters that
Gabriel had promised Allah's Messenger (may peace be
3071
upon him) that he would come; the rest of the hadith is the
same, but it is not so lengthy as the other one.
(2105) Maimuna reported that one morning Allah's
Messenger (may peace be upon him) was silent with grief.
Maimuna said: Allah's Messenger. I find a change in you
mood today. Allah's Messenger (may peace be upon him)
said : Gabriel had promised me that he would meet me
tonight, but he did not meet me. By Allah, he never broke
his promises, and Allah's Messenger (may peace be upon
him) spent the day in this sad (mood). Then it occurred to
him that there had been a puupy under their cot. He
commanded and it was turned out. He then took some
water in his hand and sprinkled it at that place. When it
was evening Gabriel met him and he said to him: You
promised me that you would meet me the previous night.
He said: Yes, but we do not enter a house in which there
is a dog or a picture. Then on that very morning he
commanded the killing of the dogs until he announced that
the dog kept for the orchards should also be killed, but he
spared the dog meant for the protection of extensive fields
(or big gardens).
(2106) Abu Talha reported that Allah's Apostle (may
peace be upon him) had said: Angels do not enter a house
in which there is a dog or a picture.
(2106R1) Abu hadith reported: I heard Allah's Messenger
(may peace be upon him) saying: Angles do not enter the
house in which there is a dog or a statue.
(2106R2) This hadith has been reported on the authority
of Zuhri with the same chain of transmitters.
3072
(2106R3) Abu Talha, the companion of Allah's Messenger
(may peace be upon him), reported that Allah's Messenger
(may peace be upon him) had said: Verily, angles do not
enter the house in which there is a picture. Busr
reported: Zaid fell ill and we went to inquire after his
health and (found) that there was hanging at his door a
curtain with a picture on it. I said to 'Ubaidullah Khaulani
who had been under the patronage of Maimuna, the wife of
Allah's Apostle (may peace be upon him): Did not Zadi
himself inform us before about (the Holy Prophet's
command pertaining to the pictures), whereupon
'Ubaidullah said: Did not you hear when he said: Except
the prints on the cloth?
(2106R4) Abu Talha reported that Allah's Messenger
(may peace be upon him) said: Angles do not enter a house
in which there is a picture. Busr said: Zaid b. Khalid fell
sick and we visited him to inquire after his health. As we
were in his house (we saw) a curtain having a picture on it.
I said to 'Ubaidullah Kahulam: Did not he narrate to us
(the Holy Prophet's command pertaining to pictures) ?
Thereupon he said: He in fact did that (but he also said):
Except the prints upon the cloth. Did not you hear this? I
said: No, whereupon he said: He had a mentioned this.
(2106R5) Abu Talha Ansari reported that Allah's
Messenger (may peace be upon him) had said: Angles do
not enter the house in which there is a picture or
portraits.
(2107) I came to 'A'isha and said to her: This tells me
what I have received from Allah's Apostle (may peace be
3073
upon him) had said: Angles of not enter the house in which
there is a picture or a dog, (and further added) whether she
had heard Allah's Messenger (may peace be upon him)
mentioning it. She said: No (I did not hear this myself), but
I narrate to you what I saw him doing. I testify that he (the
Holy Prophet) set out for an expedition. I took a carpet and
screened the door with it. When he (the Holy Prophet)
came back he saw that carpet and I perceived signs of
disapproval on his face. He pulled it until it was torn or it
was cut (into pieces) and he said: God has not commanded
us to clothe stones and clay. We cut it (the curtain) and he
(the Holy Prophet) did not find fault with it.
(2107R1) 'A'isha reported: We has a curtain with us
which had portraits of birds upon it. Whenever a visitor
came he found then in front of him. Thereupon Allah's
Messenger (may peace be upon him) said to me: Change
them for whenever I enter the room I see them and it brings
to my mind (the pleasures) of worldly life. She said: We had
with us a sheet which had silk badges upon it and we used
to wear it.
(2107R2) This hadith has been transmitted on the
authority of Ibn Muthanna. But he added: Allah's
Messenger (may peace be upon him) did not command us
to tear that.
(2107R10) This hadi'th has been narrated on the
authority of Shu'ba with the same chain of transmitters.
(2107R11) 'A'isha reported : Allah's Apostle (may
peace be upon him) visited me when I had screened (my
door) with a carpet having pictures on it. He removed it
3074
and we made cushions out of that.
(2107R12) 'A'isha, the wife of Allah's Messenger
(may peace be upon him), reported that she had hung a
curtain which had pictures upon it. Allah's Messenger (may
peace be upon him) entered (the room) and he pulled it,
'A'isha said: I then tore it and prepared two cushions out of
that. A person who was then in that company and whose
name was Rabi'a b. 'Ata the freed slave of Banu Zahr,
asked Did you hear Abu Muhammad mentioning what
'A'isha has ..... that Allah's Messenger (may peace be
upon him) used to recline upon them? Ibn Al-Qaa'sim said:
No, but I heard Qa'sim b. Muhammad saying so.
(2107R13) 'A'isha reported that she bought a carpet
which had pictures on it. When Allah's Messenger (may
peace be upon him) saw that, he stayed at the door and did
not get in. I perceived or I was made to perceive upon his
face signs of disgust. She said: Allah's Messenger, I offer
repentance to Allah and His Messenger, (but tell me) what
is the sin that I have committed. Thereupon Allah's
Messenger (may peace be upon him) said: What is this
carpet? She said: I bought it for you so that you might sit
on it and take rest. Thereupon Allah's Messenger (may
peace be upon him) said: 'The owners of these pictures
would be tormented and they would be asked to bring to
life what they tried to create. He then said: Angels do not
enter the house in which there is a picture."
"(2108) Ibn 'Umar reported that Allah's Messenger (may
peace be upon him) had said: Those who paint pictures
would be punished on the Day of Resurrection and it would
3075
be said to them: Breathe soul into what you have created."
Footnote 1: "...What is idolatry? It is nothing but the
worship of someone else besides Allah. In old days pictures
were employed as a means to propagate the worship of
saints and apostles, but now in our days these pictures are
used as a means to propagate hero-worship which is
another name of idolatry. The idea of "personality cult" has
been popularised mainly with the help of pictures and
statues the idea which has gone a long way in the
defication of national horoes and leaders. This is nothing
exterminated root and branch and there is no fear of its
beings revived and hence no harm in painting of pictures,
is not sound. The form of idolatry has in fact changed in
the sense that now the idols of saints and apostles are not
worshipped, but the pictures, but the pictures and statues of
heroes are today revered with the same devotion and
passion with which the demigods were worshipped in the
past."
(2110) Muslem said: I read this before Nasrb, 'Ali Al-
Jahdami and he read it before other narrators, the last one
being Ibn Sa'id b. Abi Al-Hasan that a person came to Ibn
'Abbas and said: I am the person who paints pictures; give
me a religious verdict about them. He (Ibn 'Abbas) said to
him: Come near me (still further). He came near him so
much so that he placed his hand upon his head and said: I
am going to narrate to you what I heard from Allah's
Messenger (may peace be upon him). I heard him saying:
all the painters who make pictures would be in the fire of
Hell. The soul will be breathed in every picture prepared by
3076
him and it shall punish him in the Hell, and he (Ibn 'Abbas)
said: If you have to do it at all, then paint the pictures of
trees and lifeless things; and Nasrb. 'Ali confirmed it.
Footnote (2) These words of Ibn 'Abbas implied a
sanction for the painting of lifeless things, for example,
tress, flowers, landscpae, mountains and rivers, etc. But the
style in which the eminent Companion of The Holy Prophet
(may peace be upon him) expressed this sanction clearly
indicated that it is not something very much desirable. It
should not, however, lead on to conclude that Islam is
opposed to art. Art is the expression of spiritual values in
terms of beauty, arts is thus a response to the glory of God,
to the beauty of god, and to Divine goodness also which it
interprets in terms of beauty. Thus, as long as the sense of
ideal beauty exists in the world, love for art cannot be
banished from the human souls. Islam is not opposed to
art; it is rather in one sense akin to religion as both art and
religion are an expression of man's sense of spiritual
significance of the universe. Both are an attempt to
perceive, not the things which are temporal, but the things
which are unseen and eternal. It is, however, wrong to
conceive that the expressions of art should necessarily be
the same as the so-called Lovers of art have suggested.
These expressions differ with the fundamental attitude that
the people adopt in regard to the unseen realities of the
universe and to the ideals of beauty. The painting of
pictures and the carving of statues are not, therefore, the
only channels of artistic expressions. There are hundred
and one other ways of giving captivating forms to one's
3077
sense of beauty and to one's perception of unseen Reality.
Islam has no doubt prohibited the paiting of living and the
carving of human statues, but Muslim artists have
expressed their artistic genius in so many other forms. The
essense, almost the symbol, of that tradition was the
arabesque: That rather involved arrangement of
geometrical forms stylized plan-elements and lettering that
has become the hail-mark of Islamic art, and on which so
much of Islam's artistic genius has been expended.
(2111) Abu Zura' reported: I visited the house of Marwan
in the company of Abu Huraira and he found pictures there,
whereupon he said: I heard Allah's Messenger (may peace
be upon him) saying : Allah, the Glorious and Exalted,
said: Who is a wrongdoer than one who tries to create
creation like My creation. Let him create an atom or a
grain of wheat or that of barley.
(2111R1) This hadith has been transmitted on the
authority of Abu Zura and he said: Abu Huraira went to the
house of Sa'id or Marwan which they had built in Madina
and he (Abu Huraira) saw a painter who had been paiting
pictures in his house, whereupon he told that Allah's
Messenger (may peace be upon him) had said like this, but
he mentioned the words: "Let him create the grain of
barley."
(2112) Abu Huraira reported that: Allah's Messenger
(may peace be upon him) had said: Angels do not enter the
house in which there are portrays or pictures.
(2113) Abu Huraira reported Allah's Messenger (may
peace be upon him) had said: Angels do not accompany the
3078
travellers who have with them a dog and a bell.
(2113R4) This hadith has been reported on the authority
of Suhail with the same chain of transmitters.
(2114) Abu Huraira reported that Allah's messenger (may
peace be upon him) had said: The bell is the musical
intrument of the Satan.
3211. Sri Mishra placed before us English translation of
Jami' At-Tirmidhi Volume 1 to 5 compiled by Imam Hafiz Abu
Eisa Mohammad Ibn Eisa At-Tirmidhi translated by Abu
Khaliyl (USA), Ahadith edited and referenced by Hafiz Abu
Tahir Zubair 'Ali Za'i, final review by Islamic Research Section
Darussalam published by Maktaba Dar-us-Salam, 2007. The
relevant paras are as under:
190. Ibn ' Umar narrated. "When the Muslims arrived in
Al-Madinah, they used to assemble for the Salat, and guess
the time for it. There was no one who called for it (the
prayer). One day they discussed that and some of them
said that they should use a bell like the bell the Christians
use. Others said they should use a trumpet like the horn the
Jews use. But 'Umar [bin Al-Khattab] said: 'Wouldn't it be
better if we had a man call for the prayer?" He said: "So
Allah's Messenger said: 'O Bilal Stand up and call for the
Salat." (Sahih) Abu 'Eisa said: This Hadith is Hasan Sahih
Gharib as a narration of Ibn 'Umar.
Comments:
The prophet told 'Abdullah bin Zaid to teach Bilal these
words, because he had a sweet and loud voice. Some said.
Anda (In Hadith no 189) means 'beautiful and some said:
'loud'
3079
Adhan, he calls the Iqamah, (Da'if)
[He said:] There is something on this topic from Ibn Umar.
Abu Eisa said: We only know of the Hadith of Ziyad from
the narration of Al-Ifriqi, and Al-Ifriqi is weak according to
the people of Hadith Yahya bin Sa'eed Al-Qattan and
others graded him weak. Ahmad said: 'I do not write the
narrations of Al-Ifriqi."
He said: I saw Muhammad bin Isma'il strengthening his
case, and he was saying: "He is Muqarab (average) in
Hadith."
Most of the people of knowledge act according to this:
(They say) [that] whoever calls the Adhan, he calls the
Iqamah.
Comments:
This Hadith is Weak. (for more details see: Ad-Daifah,
Hadith: 35]. Therefore it is incorrect to prove the right of
calling Iqamah by the Caller of Adhan only.
Chapter-55. What Has Been Related About The Dislike
For Forming Rows Between Columns
229. 'Abdul-Hamid bin Mahmud said: "We prayed behind
one of the Amirs, the people compelled us such that we
prayed between two columns. When we had prayed, Anas
bin Malik said: 'We would be prevented from his during the
time of Allah's Iyas Messenger" (Sahih)
There is something on this topic from Qurrah bin Al-
Muzani.
Abd Eisa said: The Hadith of Anas is a Hasan Sahih
Hadith
There are those among the people of knowledge who
3080
disliked lines being formed between columns. This is the
opinion of Ahmad and Ishaq.
And there are those among the people of knowledge who
permitted it.
Qutaibah bin Saeed narrated that to us (saying): "Nuh
bin Qais narrated that to us: from 'Abdur Rahman the freed
slave of Qais, from Ziyad Al-Numairi, from Anas, from the
prophet.
Mahmud bin Labid (One of the narrators in no. 318) saw
the prophet and Mahmud bin Ar-Rabi saw the prophet.
They were both small boys in Al-Madinah.
Comments:
The mosques in the world are the houses of Allah, the
centre of the spread of His religion and of preaching, an
explicit place for His remembrance and every need will be
compensated in the Hereafter accordingly: therefore the
construction of a mosque is a deed of great fortune: the
more sincerity there is in a deed the more marvellous the
house will be in Paradise. Participating in the construction
of a mosque is also a form of it.
Chapter 121. Undesirability Of Taking The Grave As A
Masjid
320. Ibn 'Abbas narrated: "Allah's Messenger cursed the
women who visit the graves, and those who use them as
Masajid and put torches on them." (Da'if)
He said: There are narrations on this topic from Abu
Hurairah and Aishah.
Abu Eisa said: The Hadith of Ibn Abbas is a Hasan Hadith.
Comments:
3081
Women's wailing and crying over the graves,
demonstrating indecency in dress or committing acts
contrary to the Shari'ah is impermissible, but if they visit
the graves merely for learning a lesson for the Hereafter
and to take heed, which will decrease the interest of
worldly life and increase the concerns about the Hereafter,
then they are allowed. Likewise constructing a building
over a grave or to kindle a lamp or candle over it is also
prohibited.
Chapter 122. What Has Been Related About Sleeping
In The Masjid
321. Ibn 'Umar narrated: "We would sleep in the Masjid
during the time of Allah's Messenger and we were young
men." (Sahih)
Abu 'Eisa said: The Hadith of Ibn Umar is a Hasan
Sahih Hadith.
There are those among the people of knowledge who
allowed sleeping in the Masjid.
Ibn Abbas said: "It is not to be used as a home nor
a place for talking about this or that."
There are those among the people of knowledge who
agreed with the saying of Ibn 'Abbas.
Comments:
If the sleeping of a person in a mosque is for
religious purposes, that it makes easy Congregational
prayer. Night prayer, recitation and remembrances etc. then
doubtlessly it is allowed, but using it habitually as a
relaxing place is not allowed; yet it is allowed if there is
an emergency and difficult circumstance.
3082
It has been reported that (Abdullah) bin al-Mubarak said
about this Hadith: "Whoever bathes completely and
'Whoever performs Ghusl' means washes his head and
performs Ghusl.
(He said:) There are narrations on this topic from Abu
Bakr, 'Imran bin Husain, Salman, Abu Dharr, abu Sa'eed,
Ibn 'Umar, and abu Ayyub.
Abu 'Eisa said: The Hadith of Aws bin Aws is a Hasan
Hadith, and Abu Al-Ash'ath As-San'ani's name is Sharahil
bin Adah.
(And Abu Janab is Yahya bin Habib Al-Qassab Al-Kufi).
Comments:
It is evident from this Hadith that if a person takes a
bath with great care and sets out early for Friday
prayers and he listens to the sermon attentively, this will
yield him a great reward and recompense. The reward of
each step is equal to the standiing in prayer and observing
fast for a whole year.
Chapter 6. What Has Been Related About Going
Ear'y To The Friday Prayer
499. Abu Hurairah narrated that Allah's Messenger said:
"Whoever performs Ghusl on Friday the Ghusl for
Janabah then he goes, he is like one who gave a camel in
charity. Whoever goes in the second hour, then he is like
one who gave a cow in charity.
624. Muhammad bin Bash-shar (Al-'Abdi) narrated to us,
Muhammad bin Jafar narrated to us, from Shu'bah, from
'Amr bin Murrah who said: "I asked Abu 'Ubaidah bin
Abdullah: 'Did yo remember anything from 'Abdullah?' He
3083
said, 'No.''
Comments:
Some of the scholars divided Jizyah into two
categories. A): Jizyah which is levied on the non-Muslims
with their consent. It has no fixed amount. The ruler will
decide the appropriate and affordable amount according to
the circumstances. B): The second category of Jizyah is
levied on non-Muslims after gaining victory and authority
overthem; its due amount is fixed. Four Dirham monthly
which will make forty-eight Dirham annually are due from
a well off person, two Dirham monthly which will make
twenty-four Dirham annually are due from a middle class,
and one Dirham monthly which will make twelve Dirham
annually are due from the poor.
Chapter 11. What Has Been Related About: There is
No Jizyah Required From The Muslims
633. Ibn Abbas narrated that the Messenger of Allah said:
"Two Qiblahs in one land are of no benefit, and there is no
Jizyah upon the Muslims." (Da'if)
Comments:
Allamah Taur Bishti said, two religions cannot
function together equally in the same land. No Muslim
should be disgraced and humiliated in the country of
disbelievers, and a disbeliever cannot live in an Islamic
country without paying the Jizyah and neither is he allowed
to preach and propagate his religion openly.
Chapter 57. What Has Been Related About It Being
Disliked to Tread On Graves, Sit On Them, (And Pray
Towards Them)
3084
1050. Abu Marthad Al-Ghanawi narrated that the Prophet
said: "Do not sit on the graves not perform Salat towards
them."
(He said:) There are narrations on this topic from
Abu Hurairah,' Amr bin Hazm, and Bashir bin Al-
Khasasiyyah.
(Another route) with this chain, and it is similar.
1051. (Another chain) from Abu Marthad Al-ghanawl from
the Prophet, similar (to no. 1050), but it does not contain
"from Abu Idris" and this is what is correct.
Abu Eisa said: Muhammad said: "The narration of
Ibn Al-Mubarak is mistaken, Ibn Al-Mubarak is the one
who made the mistake, he added from Abu Idris Al-
Khawlani which it is Busr bin Ubaidullah, from Wathilah.'''
This is how it was reported by more than one from
'Abdur-Rahman bin Yazid bin Jabir, it does not contain Abu
Idris Al-Khawlani. And Busr bin 'Ubaidullah heard from
Wathilah bin Al-Asqa'.
Comments:
It is not proper to destroy the graves. Sitting of
walking over the graves is also not allowed. Praying or
performing prayers facing the graves is unlawful.
Chapter 58. What Has Been Related About It Being
Disliked To Plaster Graves And Write On Them
1052. Jabir narrated:" The Messenger of Allah prohibited
plastering graves, writing on them, building over them and
treading on them."
Abu 'Eisa said: This Hadith is Hasan Sahih, it has been
reported through other routes from Jabir.
3085
Some of the people of knowledge, among them Al-
Hasan Al-Basri, permitted covering it with clay.
Ash-Shafi said: "There is no harm if the grave is
covered with clay."
Chapter 60. What Has Been Related About The
Permission To Visit the Graves
1054. Sulaiman bin Buraidah narrated from his father that
the Messenger of Allah said: "I had prohibited you from
visiting the graves. But Muhammad was permitted to visit
the grave of his mother: so visit them, for they will remind
you of the Hereafter."
(He said:) There are narrations on this topic from Abu
Saeed. Ibn Mas'ud, anas, Abu Hurairah, and Umm
Salamah.
Abu Eisa said: The Hadith of Buraidah is a Hasan
Sahih Hadith. This is acted upon according to the people of
knowledge. They did not see any harm in visiting the
graves. This is the view of Ibn Al Mubarak, Ash-Shafi'i.
Ahmad and Ishaq.
Chapter 65. What Has Been Related About Who The
Martyrs Are
1063. Abu Hurairah narrated that the Messenger of Allah
said: "the martyrs are five: Those who die of the plague,
stomach illness, drowning, being crushed, and the martyr
in the cause of Allah." (Sahih)
Chapter 31. About Taking The Jizyah From The
Zoroastrians
1586. Bajalah bin 'Abdah narrated: "I was a scribe for Jaz
bin Mu'awiyah at Manadhir when 'Umar's letter came to us
3086
(saying): 'Inspect the Zoroastrians around you to take the
Jizyah from them. For indeed 'Abdur-Rahman bin 'Awf
informed me that the Messenger of Allah took the Jizyah
from the Zoroastrians of Hajar.'''
(Abu 'Eisa said:) This Hadith is Hasan.
1587. Bajalah narrated that 'Umar would not take
the Jizyah from the Zoroastrians until 'Abdur-Rahman bin
'Awf informed him that the Prophet took the Jizyah from the
Zoroastrians of Hajar." (Sahih)
There is more dialogue in the Hadith than this. And
this Hadith is Hasan Sahih.
1588. Malik narrated from Az-Zuhri, that Saib bin Yazid
said: "The Messenger of Allah took the Jizyah from the
Zoroastrians of Bahrain, and 'Umar took it in Persia, and
'Uthman took it from the Persians." (Hasan)
I asked Muhammad about this, so he said: "It is:
Malik from Az-Zuhri from the Prophet.'''
Comments:
A tax (Jizyah) is imposed on non-Muslims living in a
Muslim country against the security and protction provided
to them to live in peace. They are supposed to help the
Muslims in defense of the country as well as paying the
tax.
Chapter 32. What Has Been Related About What Is
Lawful From The Wealth Of Ahl Adh-Dhimmah
1589. 'Uqbah bin 'Amir narrated: "I said: 'O Messenger of
Allah! We come across a people and they do not host us,
and they do not give us our rights, and we do not take
anything from them. So the Messenger of Allah said: 'If
3087
they refuse such that you can only take by force, then take.''
(Sahih)
(Abu Eisa said:) This Hadith is Hasan. It has been
reported by Al Laith bin Sa'd from Yazid bin Abi Habib as
well.
This Hadith only means that they would go out for
battles and they would pass a people amount whom they
would not find any food to buy for a price. So the Prophet
told them: If they refuse to sell to you, such that you have to
take it forcefully, then take it. This is how the explanation
has been related in some of the Ahadith. And it has been
related that Umar bin Al-Khatab, may Allah be pleased
with him, would order similarly.
Comments:
Hospitality of Arabs was an exemplary tradition, but
the conduct of non-Muslims was extraordinarily biased
against the Muslims. They not only neglected their
traditional hospitality, but also refused to sell food to
Muslims to show their hatred against them. There was no
way out against their harsh behaviour, so the Muslims were
allowed to use force for obtaining food, as it is impossible
to continue a journey without foodstuff.
Chapter 33. What Has Been Related About Hijrah
1590. Ibn Abbas narrated that on the day of the Conquest
of Makkah, the Messenger of Allah said: There is no Hijrah
after the conquest, there is only Jihad and intention, and
when you are called to go forth (for battle), then go."
(Sahih)
(He said:) There are narrations on this topic from Abu
3088
Sa'eed, Abdullah bin Amr. And Abdullah bin Habshi.
(Abu Eisa said:) This Hadith is Hasan Sahih. Sufyan
Ath-Thawri reported it similarly from Mansur bin Al-
Mutamir.
Comments:
After the conquest of Makkah, the people started
entering the religion of Islam, and there was no problem
with manifesting one's Islam in the land. People made
homes where ever they wanted, and lived in different towns.
Now there was no need for emigration. (from Makkah to
Al-Madi'ah) but people moved from one place to another
place for Hajj 'Umrah, Jihad and .................
Then he passed the kettles and ordered that they be
weighted, then he distributed it between them and equated
a camel tp tem sheep." (Sahih)
(Abu 'Eisa said:) Sufyan Ath Thawri reported it from
his father, from 'Abayah, from his grandfather Rafi' bin
Khadij, and he did not mention "from his father" in it.
This was narrated to us by Mahmud bin Ghailan
(who said): "Wakf" narrated it to us from Sufyan," And this
is more correct. 'Abayah bin Rifa'ah heard from him
grandfather Fafi' bin Khadij.
He said: There are narrations on this topic from
Tha'labah bin Al-Hakum, Anas, Abu Rihanah, Abu Ad-
Durda', 'Abdur-Rahman bin Samurah, Zaid bin Khalid,
Jabir, Abu Hurairah, and Abu Ayyab.
Comments:
Most people of knowledge agree that when the
warriors enter the land of the enemy, they are allowed to
3089
take food and fodder from there according to their needs,
however it should be rationed as indicated in this naration.
(Al-Mughni v. 13. p.176.)
1601. Anas narrated that the Messenger of Allah
said: "Whoever plunders then he is not of us." (Sahih)
(Abu Eisa said:) This Hadith is Hasan Sahih Gharib
as a Hadith of Anas.
Comments:
Plundering and looting the property of others is an
open violation of Islamic Law and against the basic
concept of brotherhood in Islam, therefore, according to the
words used in this narration "He is not from us".
Chapter 55. What Has Been Related About Having
Amicable Relations With People
1987. Abu dharr said: "The Messenger of Allah said to me:
'Have Taqwa of Allah wherever you are, and follow an evil
deed with a good one to wipe it out, and treat the people
with good behavior.'' (Hasan)
He said: There is something on this topic from Abu
Hurairah.
(Abu Eisa said:) This Hadith is Hasan Sahih.
(Another chain) with similar. And (another chain)
from Mu'adh bin Jabal, from the Prophet with similar.
Mahmud said: "What is correct is the Hadith of Abu
Dharr."
Comments:
The fountain head of all virtue and bulwark against
all evil is the fear of Allah, and the remedy for all ills is
goodness and virtue. As for the believer, all his grandeur
3090
and glory lies in inculcating virtuous behaviour.
Comments:
Allah has, without a doubt, invested eloquence some
speech, elegance of style, sweetness of the tongue and
grandeur and aptness of the articulated phrases and words
with such a power that they can keep the audiences spell
bound and mesmerize the listeners.
Chapter 83. What Has Been Relate About Oppression
2030. Ibn Umar narrated that the Prophet said:
"Oppression shall be darkness on the Day of Judgement."
(Sahih)
(Abu Eisa said:) There are narrations on this topic
from 'Abdullah bin 'Amr, 'Aishah, abu Musa, Abu Hurairah,
and Jabir. This Hadith is Hasan Gharib Sahih as a
narration of Ibn Umar.
Comments:
Tyranny and oppression in this world shall be
requited by darkness and doom on the Day of Judgement to
which the Qur'an refers when Allah rhetorically poses the
question: "Who rescues you from the darkness of the land
and sea?" (6.63)
Chapter 13. What Has Been Related About 'The Most
Virtuous Jihad Is A Just Statement Before A Tyrannical
Ruler'
2174. Abu Sa'eed Al-Khudri narrated that the Prophet said:
"Indeed, among the greatest types of Jihad is a just
statement before a tyrannical ruler." (Hasan)
(Abu Eisa said:) There is something on this topic from Abu
Umamah.
3091
And this Hadith is Hasan Gharib from this route.
Comments:
The expression 'Kalimat Al-'Adl' (just statement) as
used here, means commanding what is good and
prohibiting what is evil. To enjoin good to a tyrannical
ruler or prohibit him from doing wrong is inviting disaster
for oneself, may perhaps signing one's own death warrant,
while going out to face an enemy is not necessarily to court
injury or death. That is why admonishing a tyrannical ruler
has been described in the Hadith as the highest form of
Jihad.
Chapter 2. Whoever Guards Most Against The
Unlawful, then He Is The Most Worshipping among The
People.
2305. Al-Hasan narrated from Abu Hurairan that the
Messenger of Allah said: "Who will take these statements
from me, so that he may act upon them, or teach one who
will act upon them?" So Abu Hurairah said: "I said: 'I
shall O Messenger of Allah! So he took my hand and
enumerated five (things), he said: "Be on guard against the
unlawful and you shall be the most worshipping among the
people, be satisfied with what Allah has allotted for you
and you shall be the richest of the people, be kind to your
neighbor and you shall be a believer, love for the people
what you love for yourself and you shall be a Muslim. And
do not laugh too much, for indeed increased laughter kills
the heart." (Daif)
(Abu Eisa said:) This Hadith is Gharib, we do not know of
it except as a narration of Jafar bin Sulaiman (a narrator
3092
in the chain), and Al-Hasan did not hear anything from
Abu Hurairah.
This is what was reported from Ayyub, Yunus bin
'Obaid, and Ali bin Zaid, he said, Al-Hasan did not hear
from Abu Harairah Abu Ubaidah An Naji reported this
Hadith from al Hasan as his saying he did not mention.
"From abu Hurairah from the Prophet in it.
Comments:
a. Every one of us should learn the Ahadith with the
mention of acting upon them in case due to some reason, he
is not able to act upon them, he must teach them to those
who would act upon them.
b. It is an accepted fact that warding off harm and
destruction is of greater importance in life than going after
gains and profits. It is also a patent truth that a person who
has the gut to avoid unlawful acts also has the courage to
perform virtuous deeds. It must also be noted that failing to
carry out the commanded acts is an act of sin. Therefore,
the greatest form of worship and obeisance to Allah is to
avoid all things declared hateful or unlawful by Him.
Chapter 15. The Hadith: "The World Compared To The
Hereafter Is But Like What One Of You Gets When
Placing His Finger Into The Sea"
2323. Qais bin Abi Hazim said: I heard Mustawrid, a
member of Banu Fihr, saying. The Messenger of Allah said:
"The world compared to the Hereafter is but like what one
of you gets when placing his finger into the sea so look at
what you draw from it." (Sahih)
( Abu Eisa said ) this Hadith is Hasan Sahih. (Ismail)
3093
bin abi Khalid's ( a narrator in the chain) Kunyah is Abu
Abdullah, and Qais bin Abi Hasim's father's name is 'Abd
bin 'Awl and he was a Companion.
Comments:
The Hadith is in fact intended to convey the idea that
the world, when compared to the Hereafter, is as
insignificant as is the drop of water sticking to a man's
finger in comparison with the sea. The parable has just
been coined to deliver a message. Otherwise in reality, the
world does not weigh even as much as we understand from
the parable since the world, along with all its
paraphernalia, is at best temporal and limited while the
Hereafter is limitless and never ending. And it is a known
fact that the limited and temporal cannot be compared with
the never ending and limitless.
Chapter 16. What Has Been Related About "The World
Is A Prison For The Believer And A Paradise For The
Disbeliever'
2324. Abu Huraitah narrated that the Messenger of Allah
said: "The world is a prison for the believer and Paradise
for the disbeleiver." (Sahih)
(Abu Eisa Said:) This Hadith is Hasan Sahih.
Comments:
The main characteristic of a prison is that the
prisoner in it is not free to lead a life of his choice, but is
bound by the laws of the prison and the whims of its
officers. He is neither free in eating and drinking, nor in
sleeping and awakening, nor in moving about nor in
meeting with the people at will. In short, he has no freedom
3094
of any kind in a prison house, and has willy-nilly to obey
the orders of others. The second thing is that no prisoner
loves his prison like home, but is always on the lookout to
somehow get out of it. Paradise, one the other hand, is a
place where the inhabitants will have no such restrictions.
Each person will live a life of his choice, and every desire
of his will be fulfilled, and he will never feel the desire to
get out of it.
Chapter 44. What Has Been Related About Angels Do
Not Enter The House that Contains An Image Or A Dog
2804. Ibn Abbas narrated: "I heard abu Talhah saying: 'I
heard the Messenger of Allah saying: "The angels do not
enter a house in which there is a dog or an object of
images." (Sahih)
(Abu 'Eisa said:) This Hadith is Hasan Sahih.
Comments:
The taking or drawing of a picture is not allowed,
keeping it is also not permissible, and whoever does so is
deprived of the blessed and merciful supplications of the
angels; while a person is in need of mercy and blessing at
every moment. Likewise, a dog is an impure animal and
some are of a satanic nature and the angels despise the
devil.
3212. Next is Muwatta' Imam Malik translated by
Professor Muhammad Rahimuddin (First Edition in 1981,
Seventh improved edition in 2006) published by Kitab Bhavan,
New Delhi. Para 958 (Chapter 272 page 205/206) is as under:
Yahya b. Sa'id reported that when Abu Bakr Siddiq sent
an army to Syria, he went on foot with Yazid b. Abu Sufyan
3095
who was the commander of a quarter of the forces. Yazid
said to Abu Bakr : Either you mount up or I shall dismount.
Abu Bakr replied : Neither you will dismount nor will I
ride. I consider these steps to be a virtue in the path of the
Lord. You will find some people who imagine they have
devoted their lives to Allah (the hermits), leave them to
their work; you will find some people who shave their
heads in the middle (the Magi), strike them with your
swords. I instruct you in ten matters : Do not kill women or
children, nor the old and infirm; do not cut fruit-bearing
trees; do not destroy any town; do not cut the gums of
sheep or camels except for purposes of eating; do not burn
date-trees nor submerge them; do not steal from booty and
do not be cowardly.
3213. Next is Chapter 273 Para 960 page 206 as under:
(960) A man of Kufah reported that 'Umar b. al-Khattab
wrote to a commander of the army: I have received
information that some of you call an unbeliever when he
mounts a hillock and gives up fighting, and ask him not to
fear and then, getting the opportunity, kill him. I swear by
Him Who is the Master of my life, if I should learn anyone
doing so, I shall behead him.
3214. Then Chapter 284 at page 218 as under:
About the Land of the Dhimmi Who Embraces Islam
Imam Malik was asked: If an imam levies jizyah on a
nation of the non-believers, and one of them embraces
Islam, will his land and property remain his or become the
property of the Muslims? Imam Malik said : If the non-
believers agree to pay jizyah amicably without resort to
3096
fighting anyone converting to Islam his land and
property will be his, but if they are subdued by the
sword, their lands and other property will become
Muslim property even if any one of them converts to
Islam.
3215. Book XXIV Kitab Al-Aqdiyah, Para 1393 (Chapter
430), para 1683 (Chapter 540) and Para 1741 (Chapter 560) are
as under:
(1393) Umm Salamah, wife of the Prophet (may peace be
upon him), reported that the Messenger of Allah (may
peace be upon him) declared: I am a human being too. You
come to me disputing and quarreling. Perhaps some of you
indulge in logic to prove your assertions and it may be that
I give my decision on the strength of your argumentation.
Should I, therefore, give one that which his brother is
entitled to, he should not take it, for it would be as if I am
giving him a coal of fire.
(1683) 'Abbad b. Tamim reported that Abu Bashir Ansari
informed him that he was with the Messenger of Allah (may
peace be upon him) on one of his journeys. The Messenger
of Allah (may peace be upon him) sent word through a man
when people were sleeping, to cut off from the necks of
camels straps of wool or any kind of strap.
(1741) Rafi b. Ishaq, who was the freedman of Shifa,
reported : I and 'Abd Allah b. Abi Talhah went together to
Abu Sa'id Khudri to see him in his illness. Abu Sa'id said :
The Messenger of Allah (may peace be upon him) told me
that angels did not enter a house where there were pictures
and images. Ishaq is doubtful whether Abu Sa'id said
3097
pictures or images.
3216. Then reliance was placed on The Spirit of Islam
(A History of the Evolution and Ideals of Islam with a Life of
the Prophet) by Syed Ameer Ali (First Published in 1923,
reprinted in LPP 1990, 1995, 1997, 2002, 2010 published by
Low Price Publications, Delhi), the relevant parts are as under:
"A mosque was soon built, in the erection of which
Mohammed assisted with his own hands; and houses for
the accommodation of the exiles rose apace. Two brothers,
who owned the land on which it was proposed to build the
mosque, had offered it as a free gift; but as they were
orphans, the Prophet paid them its value.
The building was simple in form and structure, suited
to the unostentatious religion he taught. The walls were of
brick and earth, and the roof of palm leaves. A portion of
the mosque was set apart as a habitation for those who had
no home of their own.
Everything in this humble place of worship was
conducted with the greatest simplicity. Mohammed
preached and prayed standing on the bare ground or
leaning against a palm tree, and the devoted hearts around
him beat in unison with his soul-stirring words.
"He who is not affectionate to God's creatures and to
his own children," he would say, "God will not be
affectionate to him. Every Moslem who clothes the naked
will be clothed by God in the green robes of Paradise."
In one of his sermons he thus dwelt on the subject of
charity : "When God created the earth, it shook and
trembled, until He put mountain upon it to make it firm.
3098
Then the angels asked, 'O God, is there anything in Thy
creation stronger than these mountains?' And god replied,
'Iron is stronger than the mountains, for it breaks them.'
'And is there anything in Thy creation stronger than iron?'
'Yes; fire is stronger than iron, for it melts it.' 'Is there
anything in Thy creation stronger than fire?' ' Yes, water,
for it quenches fire.' 'O Lord is there anything in Thy
creation, stronger than water?' 'Yes; wind, for it overcomes
water and puts it in motion.' 'Oh, our Sustainer, is there
anything in Thy creation stronger than wind?' 'Yes; a good
man giving alms; if he give with his right hand and conceal
it from his left, he overcomes all things.'' (Page 54)
"It was about this time that the Prophet granted to
the monks of the monastery of St. Catherine, near Mount
Sinai, and to all Christians, a Charter which has been
justly designated as one of the noblest monuments of
enlightened tolerance that the history of the world can
produce. This remarkable document, which has been
faithfully preserved by the annalists of Islam, displays a
marvellous breadth of view and liberality of conception. By
it the Prophet secured to the Christians privileges and
immunities which they did not possess even under
sovereigns of their own creed; and declared that any
Moslem violating and abusing what was therein ordered,
should be regarded as a violater of God's testament, a
transgressor of His commandments, and a slighter of
His faith. He undertook himself, and enjoined on his
followers, to protect the Christians, to defend their
churches, the residences of their priests, and to guard
3099
them from all injuries. They were not to be unfairly taxed;
no bishop was to be driven out of his bishopric; no
Christian was to be forced to reject his religion; no monk
was to be expelled from his monastery; no pilgrim was to
be detained from his pilgrimage. Nor were the Christian
churches to be pulled down for the sake of building
mosques or houses for the Moslems. Christian women
married to Moslems were to enjoy their own religion, and
not to be subjected to compulsion or annoyance of any kind
on that account. If Christians should stand in need of
assistance for the repair of their churches or monasteries,
or any other matter pertaining to their religion, the
Moslems were to assist them. This was not to be considered
as taking part in their religion, but as merely rendering
them assistance in their need, and complying with the
ordinances of the Prophet which were made in their favour
by the authority of God and of His Apostle." (Page 84)
Accordingly, towards the end of this year, during the
month of pilgrimage, Ali was commissioned to read a
proclamation to the assembled multitudes, on the day of the
great Sacrifice (Yeum-un-Nahr), which should strike
straight at the heart of idolatry and the immoralities
attendant upon it : "No idolater shall, after this year,
perform the pilgrimage; no one shall make the circuit
(of the temple) naked ; whoever hath a treaty with the
Prophet, it shall continue binding till its termination; for
the rest, four months are allowed to every man to return
to his territories; after that there will exist no obligation
on the Prophet, except towards those with whom treaties
3100
have been concluded." (Page 108)
"The great Teacher, who was fully conscious of the
exigencies of his own times, and the requirements of the
people with whom he had to deal,- people sunk in a slough
of social and moral despond, - with his keen insight and
breadth of views, perceived, and one may say foretold, that
a time would come when the accidental and temporary
regulations would have to be differentiated from the
permanent and general. "Ye are in an age, "he declared,
"in which, if ye abandon one-tenth of what is ordered, ye
will be ruined. After this, a time will come when he who
shall observe one-tenth of what is now ordered will be
redeemed.
As we have already observed, the blight which has
fallen on Musulman nations is not due to the teachings of
the Master. No religion contained greater promise of
development, no faith was purer, of more in conformity with
the progressive demands of humanity.
The present stagnation of the Musulman communities
is principally due to the notion which has fixed itself on the
minds of the generality of Moslems, that the right to the
exercise of private judgment ceased with the early legists,
that its exercise in modern times is sinful, and that a
Moslem in order to be regarded as an orthodox follower of
Mohammed should belong to one or the other of the
schools established by the schoolmen of Islam, and
abandon his judgment absolutely to the interpretations of
men who lived in the ninth century, and could have no
conception of the necessities of the twentieth.
3101
Among the Sunnis, it is the common belief that since
the four Imams, no doctor has arisen qualified to interpret
the laws of the Prophet. No account is taken of the altered
circumstances in which Moslems are now placed; the
conclusions at which these learned legists arrived several
centuries ago are held to be equally applicable to the
present day. Among the Shiahs, the Akhbari will not allow
his judgment to travel beyond the dictates of "the
expounders of the law." The Prophet had consecrated
reason as the highest and noblest function of the human
intellect. Our schoolmen and their servile followers have
made its exercise a sin and a crime. (Page 183/184)
And hence it is that most of the rules and regulations
which govern now the conscience of so many professors of
the faith are hardly derived from any express and positive
declarations of the Koran, but for the most part from the
lego-religious books with which the Islamic world was
flooded in the later centuries. "Just as the Hebrews
deposed their Pentareuch in favour of the Talmud," justly
observes an English writer, "so the Moslems have
abolished the Koran in favour of the traditions and
decisions of the learned." "We do not mean to say," he adds
most pertinently, "that any Mohammedan if asked what was
the text-book of his religion, would answer anything but the
'Koran' , but we do mean that practically it is not the
Koran that guides his belief or practice. In the Middle Ages
of Christendom it was not the New Testament, but the
Summa Theologica of Thomas Aquinas, that decided
questions of orthodoxy; and in the present day, does the
3102
orthodox churchman usually derive his creed from a
personal investigation of the teaching of Christ in the
Gospels? Probably, if he refers to a document at all the
Church Cateehism contents him; or if he be of a peculiarly
inquiring disposition, a perusal of the Thirty-nine Articles
will resolve all doubts. Yet he too would say his religion
was drawn from the Gospels, and would not confess to the
medium through which it was filtered. In precisely the same
way modern Mohammedanism is constructed, and a large
part of what Moslems now believe and practise is not to be
found in the Koran at all."
And yet each system, each school contains germs of
improvement, and if development is now stopped, it is not
even the fault of the lawyers. It is due to a want of
apprehension of the spirit of the Master's enunciations, and
even of those of the fathers of the Church." (Page 185)
In the hour of his greatest triumph, when the
Arabian Prophet entered the old shrine of Mecca and broke
down the idols, it was not in wrath or religious rage, but in
pity, that he said-"Truth is come, darkness departeth,"
-announcing amnesty almost universal, commanding
protection to the weak and poor, and freeing fugitive slaves.
Mohammed did not merely preach toleration; he
embodied it into a law. To all conquered nations he
offered liberty of worship. A nominal tribute was the only
compensation they were required to pay for the observance
and enjoyment of their faith. Once the tax or tribute was
agreed upon, every interference with their religion or the
liberty of conscience was regarded as a direct
3103
contravention of the laws of Islam. Could so much be
said of other creeds? Proselytism by the sward was wholly
contrary to the instincts of Mohammed, and wrangling over
creeds his abhorrence. Repeatedly he exclaims, "Why
wrangle over that which you know not; try to excel in good
works; when you shall return to God, He will tell you about
that in which you have differed." (Page 213)
"...An examination, however, of the principles upon
which the relations of Moslem states with non-Moslem
countries were based, shows a far greater degree of
liberality than has been evinced by Christian writers on
international law. It is only in recent times, and under
stress of circumstances that non-Christian states have been
admitted into the "comity of nations." The Moslem jurists,
one the other hand, differentiate between the condition of
belligerency and that of peace. The expression, Dar ul-
Harb, thus includes countries with which the Moslems are
at war; whilst the States with which they are at peace are
the Dar ul-Aman." The harbi, the inhabitants of the Dar ul-
Harb, is an alien, pure and simple. He has no right to enter
Islamic States without express permission. But once he
receives the aman or guarantee of safety from even the
poorest Moslem, he is perfectly secure from molestation for
the space of one year. On the expiration of that period, he
is bound to depart. The inhabitant of the Dar ul-Aman is a
mustamin. The aman may be for ever or for a limited
duration; but so long as it lasts, the mustamin's treatment is
regulated in strict accordance with the terms of the treaty
with his country." The mustamins were governed by their
3104
own laws, were exempt from taxation and enjoyed other
privileges." (Page 215)
"It has been said that a warlike spirit was infused
into medieval Christianity by aggressive Islam! The
massacres of Justiman and the fearful wars of Christian
Clovis in the name of religion, occurred long before the
time of Mohammed.
Compare, again, the conduct of the Christian
Crosaders with that of the Moslems. "When the Khalif
Omar took Jerusalem, A.D. 637, he rode into the city by the
side of the Patriarch Sophronius, conversing with him on
its antiquities. At the hour of prayer, he declined to perform
his devotions in the Church of the Resurrection, in which
he chanced to be, but prayed on the steps of the Church of
Constantine; for, said he to the Patriarch, 'had I done so,
the Musulmans in a future age might have infringed the
treaty, under colour of imitating my example.' But in the
capture by the Crusaders, the brains of young children
were dashed out against the walls, infants were pitched
over the battlements; men were roasted at fires; some were
ripped up, to see if they had swallowed gold; the jews were
driven into their synagogue, and there burnt; a massacre of
nearly 70,000 persons took place;" (Page 220)
"This latter document has, for the most part,
furnished the guiding principle to all Moslem rulers in
their mode of dealing with their non-Moslem subjects, and
if they have departed from it in any instance the cause is to
be found in the character of the particular sovereign. If we
separate the political necessity which has often spoken and
3105
acted in the name of religion, no faith is more tolerant than
Islam to the followers of other creeds. "Reasons of State"
have led a sovereign here and there to display a certain
degree of intolerance, or to insist upon a certain uniformity
of faith; but the system itself has ever maintained the most
complete tolerance. Christians and Jaws, as a rule, have
never been molested in the exercise of their religion, or
constrained to change their faith. If they are required to
pay a special tax, it is in lieu of military service, and it is
but right that those who enjoy the protection of the State
should contribute in some shape to the public burdens.
Towards the idolaters there was greater strictness in theory,
but in practice the law was equally liberal. If at any time
they were treated with harshness, the cause is to be found
in the passions of the ruler or the population. The religious
element was used only as a pretext." (Page 272)
"The non-Moslem subjects were not preluded from
building new churches or temples. Only in places
exclusively inhabited by Moslems a rule of this kind existed
in theory. "No new Church or temple," said Abdullah bin
abbas, ''can be erected in a town solely inhabited by
Moslems; but in other places where there are already
Zimmis inhabiting from before, we must abide by our
contract with them." In practice, however, the prohibition
was totally disregarded. In the reign of Mamun, we hear of
eleven thousand Christian churches, besides hundreds of
synagogues and fire-temples within the empire. This
enlightened monarch, who has been represented as "a
bitter enemy" of the christians, included in his Council the
3106
representatives of all the communities under his sway,-
Moslems, Jews, Christians, Sabaeans and Zoroastrians;
whilst the rights and privileges of the Christian hierarchy
were carefully regulated and guaranteed.
It is a notable fact, with few parallels even in modern
history, that after the conquest of Egypt the Caliph Omar
scrupulously preserved intact the property dedicated to the
Christian churches and continued the allowances made by
the former government for the support of the priests.
The best testimony to the toleration of the early
Moslem government is furnished by the Christians
themselves. In the reign of Osman (the third Caliph), the
Christian Patriarch of Mery addressed the Bishop of Fars,
named Simeon, in the following terms: "The Arabs who
have been given by God the kingdom (of the earth) do not
attack the Christian faith, on the contrary they help us in
our religion; they respect our God and our Saints, and
bestow gifts on our churches and monasteries."
In order to avoid the least semblance of high-
handedness, no Moslem was allowed to acquire the land of
a zimmi even by purchase. "Neither the Imam nor the
Sultan could dispossess a zimmi of his property."
The Moslems and the zimmis were absolutely
equal in the eye of the law. "Their blood, "said Ali the
Caliph, "was like our blood." (Page 274)
"An examination of the political condition of the
Moslems under the early Caliphs brings into view a
popular government administered by an elective chief with
limited powers. The prerogatives of the head of the State
3107
were confined to administrative and executive matters,
such as the regulation of the police, control of the army,
transaction of foreign affairs, disbursement of the finances,
etc. But he could never act in contravention of the
recognised law.
The tribunals were not dependent on the government.
Their decisions were supreme; and the early Caliphs could
not assume the power of pardoning those whom the regular
tribunals had condemned. The law was the same for the
poor as for the rich, for the man in power as for the
labourer in the field.
As time advances the stringency of the system is
relaxed but the form is always maintained. Even the
usurpers, who, without right, by treachery and murder
seized the reins of government and who in their persons
represented the pagan oligarchy which had been displaced
by the teachings of Islam, observed more or less the
outward semblance of law-abiding executive heads of a
representative government. And the rulers of the later
dynasties, when they overstepped the bounds, often
unlimited, of arbitrary power, were restrained by the
sentence of the general body of jurisconsults, which in all
Musulman States serves as a constitutional check on the
sovereign. In the early times, however, the "Companions"
of the Master formed as it were an effective Council of the
State. The consideration attached to the title of
"Companion of the Prophet "was as great in the camp as in
the city. The powerful influence which they possessed
increased with the conquests of the Moslems." (Page 278)
3108
"The importance which Islam attaches to the duties
of sovereigns towards their subjects, and the manner in
which it promotes the freedom and equality of the people
and protects them against the oppression of their rulers, is
shown in a remarkable work on the reciprocal rights of
sovereigns and subjects, by Safi-ud-din Mohammed bin Ali
bin Taba Taba, commonly known as Ibn ut-Tiktaka. The
book was composed in 701 A.H. (1301-2), and is dedicated
to Fakhr ud-din 'Isa bin Ibrahim, Ameer of Mosul.
The first part deals with the duties of sovereigns to
their subjects, and the rules of the administration of public
affairs and political economy. The author describes the
qualities essential for a sovereign,-wisdom, justice,
knowledge of the wants and wishes of his people, and the
fear of God; and adds emphatically that this latter quality
is the root of all good and the key to all blessings, "for
when the king is conscious of the presence of God, His
servants will enjoy the blessings of peace and security."
The sovereign must also possess the quality of mercy, and
"this is the greatest of all good qualities." He must have an
ever-present desire to benefit his subjects, and consult with
them on their wants; for the Prophet consulted always with
his Companions, and God hath said." "Consult with them
on every affair." In the administration of public affairs, it is
the sovereign's duty to superintend the public income,
guard the lives and property of his subjects, maintain
peace, check the evil-doer, prevent injuries. He must always
keep his word, and then, adds the author significantly. "the
duty of the subject is obedience, but no subject is bound to
3109
obey a tyrant." Ibn Rushd (the great Averroes) says, " the
tyrant is he who governs for himself, and not for his
people."
The laws of the Moslems, based on equitable
principles, and remarkable for their simplicity and
precision, did not demand an obedience either difficult to
render or incompatible with the intelligence of mankind.
The countries where the Moslems established themselves
remained exempt from the disastrous consequences of the
feudal system and the feudal code. "Admitting no privilege,
no caste, their legislation produced two grand results, -that
of freeing the soil from factitious burdens imposed by
barbarian laws, and of assuring to individuals perfect
equality of rights." (Page 288/289)
3217. Sri P.R.Ganpati Ayyer while adopting the
submission of Sri Mishra also placed before us certain extracts
from "Hindu and Mahomedan Endowments" by Abdur
Rahim 1918. Chapter XIV relating to Mohammeden Law of
Waqfs, to the following effect:
"It may be a truism to say that the appropriator can only
constitute such property as wakf as over which he has a
disposing power. If he is not the owner of the property, no
wakf can attach. This is also the Shiah Law. Although this
may be a t.ism certain other consequences may appear to
flow from this. It may be thought that if somehow the
appropriator acquires the ownership later on or the true
owner consents later on, the wakf will not be affected. The
former part of the statement at that seems, however, not to
represent the Mahomedan Law. Thus Baillie in his Digest
3110
of Mahomedan Law says: "It is also a condition that the
thing appropriated be the appropriator's property at the
time of the appropriation; so that if one were to ...rp a
piece of land, appropriate and then purchase it from the
owner, and pay the price, or compound with him for other
property, which is actually delivered up it will not be a
wakf. Then a man make an appropriation for certain good
purposes if had belonging to another, and then becomes the
proprietor of the wakf is not lawful, though it becomes so if
allowed by the proprietor." so also, according to the Shiah
Law, "if one should appropriate a thing which is not his
own, the wakf will not be valid. But if the real owner should
sanction the appropriation, that will give it validity
according to some of .doctors, the sanction being
tantamount, in their opinion, to the new appropriation." If
the appropriator is owner only of the shares out of 16 and
purports to make the whole wakf it will good to the extent
of the appropriator's share.
If possession is necessary for the validity of a wakf
the some other consequences flow from the condition that a
person should own the property which he appropriates as
wakf. Thus it is said in Baillie : "If a bequest were made of
land of which the legatee immediately makes a wakf, after
which the testator dies, the land is not wakf; or if a donee
of lands should make an appropriation of it before taking
possession, and should make an appropriation of it before
taking possession, and should thus take possession, the
wakf will not be valid. Yet if possession were taken of land
given by an invalid gift, and it were ten made a wakf, it will
3111
be lawful, the donee being responsible for its value; and if
one should purchase by an invalid sale, take possession,
and then make an appropriation of the subject of sale in
favour of the poor, the wakf will be lawful, subject to the
like responsibility for its value to the seller; but if the
appropriation were made before taking possession, it will
not be lawful. When a man buys land by a lawful sale and
make an appropriation of it before taking possession and
paying the price, the matter is in suspense until he pays the
price and takes possession, when the wakf is lawful, but if
he die without leaving any property, the land is to be sole,
and the wakf is void. And if a right is established in the
property or it is claimed by a shoofee, under his right of
pre-emption, after the purchase has been made, the wakf is
void." The principle deducible from the above is that a
wakf of property before the full proprietary rights in it have
vested in the person appropriating it is, generally and
subject to certain exceptions, invalid."
3218. He also placed reliance on the "Principles of
Mahomedan Law" by Sir D.F.Mulla, First Edition 1906, 19
th
Edition revised by Mr. M. Hidayatullah in 1990 (Fourth Reprint
in 1993). Paras 174 and 176 are as under:
"174. The dedication must be permanent.- The dedication
must be permanent. A wakf, therefore, for a limited period,
e.g., twenty years, is not valid. Further, the purpose for
which a wakf is created must be of a permanent character."
"176. Subject of wakf must belong to wakif.- The property
dedicated by way of wakf must belong to the wakif
(dedicator) at the time of dedication. A person who is in
3112
fact the owner of the property but is under the belief that he
is only a mutawalli thereof is competent to make a valid
wakf of the property. What is to be seen in such cases is
whether or not that person had a power of disposition over
the property."
3219. Sri Ravi Shankar Prasad, Senior Advocate
contended that the impugned mosque is contrary to Quranik
injunctions and cannot be termed as mosque in terms of Islamic
Law. Referring to "Mulla's Principle of Mohammedan Law"
edited by M. Hidayatullah 19
th
Edition, he submitted that there
is a consistent view of various authorities, i.e., Macnaghten,
Amir Ali, Baillie and Hedaya as translated by Hamilton
mentioned in the said book there is a consistent view that where
the title of the land was disputed no valid mosque can be
constructed thereat.
3220. A mosque built without the consent of the land
owner is against the wishes of Allah and is clearly prohibited. In
"Principles and precedents of Moohummudan Law" by W.H.
Macnaghten, 1825 (Second Edition), Chapter X, Case No. V
page 335 which deals with the case of mosque build without the
consent of the land owner. He refers to the following:
Both land and building are included in the term mosque.
It is neither simply land nor simply building but it
comprises both. The land is the chief part of it because the
foundation of the mosque stands upon it and the
superstructure is dependent on the land. Under these
circumstances without the consent of the Fakeer who is the
landlord, the building cannot in the legal sense be termed a
mosque because no one is at liberty to erect a building on
3113
the land of another without that others consent and if he
do so the law sanctions its being razed to the ground.
3221. He refers to page 336-337 of the aforesaid book of
W.H. Macnaghten where the author has quoted Kazee Khan:
"The appropriation of a superstructure without its
basis is not allowable, an edifice independently of its
founder is not a mosque. Further as per Shurhi Viqya if
anyone build or plant on the land of another let the
thing built or planted be razed or rooted out."
3222. In "The Law Relating to Gifts, Trusts and
Testamentary Dispositions Among the Mahommedans" by
Syed Ameer Ali (Tagore Law Lectures, 1884) at page 236 and
337it says:
"A sovereign cannot give any portion of the land
acquired by treaty and negotiation to be converted into a
mosque without the consent of the owners, but he can give
any portion of the land acquired by war, provided it does
not interfere with the rights of way possessed by any
individual."
Hedaya is quoted as If a person usurps land and build
and plant thereon , he will be desired to eradicate and raise
his plants or buildings
3223. He submitted that the above passage shows that if
the right of way of an individual is important then the right of an
entire community to offer worship at the land in question is of
greater sanctity. He also referred to the following passage from
"A Digest of Moohummudan Law" by Neil B.E. Baillie
(1875), Chapter VII, page 616, title "How a Musjid is
Constituted" says:
3114
A sick man has made his mansion a Musjid and
died but it neither falls within a third of his property nor is
allowed by his heirs: the whole of it is heritage and the
making of it a Musjid is void because the heirs having a
right in it there has been no separation from the rights of
mankind and a confused portion has been made a Musjid
which is void.
3224. In "The Hedaya" (A Commentary on the
Mussulman Laws) translated by the order of the Governor
General by Charles Hamilton (Premier Book Hose, Lahore):
"If a person convert the centre hall of his house into
a mosque giving general admission into it, still it does not
stand as a mosque but remains saleable and inheritable
because a mosque is a place in which no person possesses
any right of obstruction; and wherever a man has such a
right with respect to the surrounding parts the same must
necessarily affect the place enclosed in them. The place,
therefore, cannot be a mosque; besides it is necessarily a
thoroughfare for the family and consequently does not
appertain solely to God."
3225. "The History of Islam" by Akbar Shah
Najeebabadi, revised by Safi-ur-Rahman Mubarakpuri,
published by Darussalam, Riyadh, Saudi Arabia, he submitted
that the said book was written in Urdu Language in 1972 and
became a classic thereafter. It contains an authentic events in
concise form from the famous historics of Islam written in
Arabic and Persian languages. Its English translation was done
by Darussalam in three volumes. He refers from Vol. I page 148.
It narrates the histories of prophet into Al-Madinah. There is a
3115
specific reference about a deserted land being the property of
two orphan boys Sahl and Suhail. The said land was offered by
Muadhbin Afra for building a mosque as the two orphan boys
were related to him and he would make them part of the land.
But the Prophet asserted "I want to buy it and will not take it
without paying the price." Sri Prasad contended that authentic
real life of Prophet shows that the Holy and Noble sole imposed
strict injunctions for building a mosque, i.e., land of an orphan
despite the consent of guardian was not agreed to be taken
unless price is paid for, could the Babari mosque erected
forcibly by breaking a temple at a place held sacred by Hindus,
be at all described as a valid mosque and can the plaintiffs seek
any declaration as such when the disputed structure is not a
valid mosque in terms of Islamic Law. He also referred to
certain extracts of Holy Quran by Mohammad Abdul Haleem
Eliasi, translated in English by Abdullah Yusuf Ali, first
published in 1934 revised edition 2000 by Eliash Family Book
Service, Charminar, Hyderabad, India.
"Chapter-II (The Cow-II), Part-III, at Page 44, Verse
256:Let there be no compulsion in religion.
Chapter-II (The Cow-II), Part-I, Page 7, Verse 42:And
cover not Truth with falsehood nor conceal the Truth when
ye know (what it is).
Chapter-III (The Family of Imran-III), Part-IV, at Page 71,
Verse 140:Allah loveth not those that do wrong.
Chapter-VII (The Heights), Part-IX, Page 170, Verse
157:For He commands them what is just and forbids them
what is evil; He allows them as lawful what is good (and
pure) and prohibits them from what is bad (and impure).
3116
3226. He pointed out that the meaning of the word Islam
means peace and submission. Koran is Al-Furqan, i.e., one
showing truth from falsehood and right from wrong. Hence any
forcible construction of a mosque is against Quranik injunctions
and void ab initio. The disputed structure known as Babari
mosque is an invalid structure and has no protection in Islamic
Law.
3227. Sri G. Rajagopalan, learned Senior Advocate
advancing the submissions in the line of Sri P.N. Mishra,
Advocate and Sri Ravi Shankar Prasad, Senior Advocate
submitted that the meaning of the word mosque or a waqf needs
satisfaction of certain essential ingredients required by Islamic
texts. It is admitted by the plaintiffs that the disputed structure
built after a war between the Babar and then King of Ayodhya.
No pleading that it was a vacant site and the mosque was built
thereat for the benefit of muslims. It is well said that "Men may
lie but circumstances never". A bare look of the photographs of
the disputed structure would show that non islamic structure was
converted into Islamic one. On the victory at Ayodhya, Babar or
his commander built the structure in question with view to
deprive Hindus of their Holy spot, i.e., the revered and pious
place of birth of Lord Rama. Their attempt to continue with the
building in question, to maintain as mosque felt later on, also
that the construction of Ram Chabutara and others which were
non-Islamic structures and continuously worshipped by Hindus.
A mosque cannot have several Hindu features including idols
carved on the pillars affixed in its building. Then he refers to the
essential conditions of the arrangement of wazoo, absence of
minarets to contend that the building in dispute could not be a
3117
mosque since these are the essential features of all mosque. For
this purpose he placed reliance on "Hindu and Mohammaden
Endowments" by P.R. Ganapathy Iyer 1918, page 388.
Whether built or could not be built as a mosque, the portion of
the site continued to be worshipped by Hindus. When the
building had several Hindu idol carvings and the outer courtyard
of the building was used for Hindu idol worship, the structure
could not be used as mosque at all. It cannot be presumed that
the muslims would offer prayer/Namaz at a structure which is
against the tenets of Islam. He also contended that the necessary
pleadings are absent. The details as to who was the wakif,
whether Babar or his commander, what was the nature of
dedication, whether he was owner of the site, in what manner
the property was acquired and was there a divestment of interest
are some important questions which have not been pleaded at all
and in the absence of relevant pleadings and facts the same
cannot be added by evidence only. He also pleaded that there is
no evidence that Babar was sovereign as there was no
coronation of Babar at all. Even if it is admitted that Babar was
a king he has no proprietary right in the soil so as to dedicate the
land in question to God. In India as well as in Islamic countries
king never own the soil but only collect tax. If in Islamic
countries only the king own soil, the concept of waqf itself
would not have originated. He refers to Dr. Paras Diwan's
"Law of Endowments, Wakfs and Turst" mentioning about
first waqf in Islam, as follows:
"The Wakfs are founded on the two traditions of the
Prophet though the fact of the matter is that they were
developed in the later Islam by ijma, the consensus of the
3118
learned. The first wakf is Islam came into existence in the
following circumstances: The land on which the prophet
laid the foundation of Masjid Navi in Medina in the first
century of Islam belonged to two orphans. The Prophet
insisted to pay the price of land, but the orphans entered.
"No, by God we will not take the price, we will take it from
God". The second tradition is:One omer Ibn-al-khattab on
acquiring land in Khyber went to the Prophet and sought
his counsel as to how could be make the best use of the
land, for a pious and charitable purpose. The Prophet
declared, "Tie up the property (corpus) and devote the
usufruct to human beings, and it is not to be sold or made
the subject of gift or inheritance; devote its produce to your
children, your kindered and the poor in the way of God.
"Acting accordingly, Omer laid down that the property
would not be sold or given away in gift, nor would it
devolve by succession; its income would be devoted to
charity, for the poor, slaves should be freed, provisions
should be made for travelers, and guests should be
entertained."
3228. In order to constitute a waqf ownership of land is
mandatory and in case of conquer by a person as king, the only
right he had is to collect tax but would not own the soil. He
refers to various instances when the muslim kings had
purchased lands for construction of Tombs etc. In the alternative
he submitted that the outer courtyard is occupied by Hindus
since a long time and a property partly cannot be occupied by
muslims and Hindus so as to constitute a waqf. If there is no
valid creation of waqf the fact that prayers offered therein would
3119
not make it a waqf. He lastly submitted that Sunni Board has no
right to file a suit since the property in question is not a waqf in
accordance with the Islamic tenets.
3229. Sri R.L. Verma adopting all the above arguments
advanced on behalf of learned counsels for various parties
moved ahead with his arguments relying on "Muslim Vidhi (A
Text-Book of Mahomedan Law)" by Mahesh Prasad Tandon,
5
th
Edn. published by Allahabad Law Agency wherein on page
212 the learned author has referred to Amir Ali's book (Vol. 1,
4
th
Edn. Page 201 to the following effect:
lii-n l , l| | -l-n l l|
ln ,ii ln li ini r l l llil, n l n
li ni r, ni r i ri ni|
3230. Sri R.L. Verma placed reliance on "Law of
Endowments (Hindu & Mahomedan)" by A. Ghosh, Second
Edn. published by Eastern Law House, Calcutta. It says that the
waqf is the detention of a thing in the implied ownership of
Almighty God, in such a manner that its profits may revert to or
be applied for the benefit of mankind; and the appropriation is
obligatory, so that the thing appropriated can neither be sold, nor
given, nor inherited. Under Shia law, waqf is a contract while
under the Sunni law, it is a unilateral disposition of property, and
as such not subject to the rules of contract. In respect to the Shia
law of waqfs, the author has further said on page 491-492 as
under:
"Perhaps the most notable of these cases is Wasiq Ali Khan
v. The Government which, though a case relating to a Shia
Wakf, viz, the celebrated endowment under the will of Haji
Muhammad Mohsin for the Imambara at Hooghly was
3120
dealt with by the Sadar Dewani Adalat upon the principles
of the Sunni school of Mahomedan law which was then
prevalent as the Mahomedan law administered by the
Courts of British India. The case was decided so long ago
as the 22
nd
of September 1836, and it is a matter of doubt
whether in those days the Shia law was ever administered
by the Courts of the British India as the rule of decision,
even when Shias were concerned. Mr. Baillie at the outset
of the introduction to his Imameea law describes the
history of the manner in which the Shia law came to be
recognised in India, and it may be safely stated that it was
not till the ruling of their Lordships of the Privy Council in
Rajah Deedar Hossien v. Ranee Zahooroon-nissa decided
in 1841 that the enforceability of the Shia law by the
British Courts in India was placed upon a firm footing. In
that case their Lordships observed, 'it is true that the Sunni
law has generally prevailed, because the great majority of
the Indian Mahomedans are Sunnis, there being very few
families of the Shia sect except those of the reigning
princes, which will account for the prevalence of the Sunni
doctrines in the Courts, but there is no practice which
excludes the application of the Shia law to the rights of
persons professing the tenants of that sect."
3231. In Sunni law, according to Abu Hanifa, a detaining
of it in the ownership of the appropriator, but without the power
of alienation, and a bestowing of its produce in charity. The
learned author on page 498-499 says:
"It must, therefore, be taken that the Shia law recognises
wakf not as a unilateral disposition of property, as it is
3121
recognised in the Sunni law, but as a contract which ,
according to the requirements of juristic notions,
irrespective of either of these two systems, must be a
transaction inter vivos, and this ex necessitate rei. The
Sharayi-ul-Islam in describing the rule as to wakf goes on
to say: Conditions that relate to the waqf itself, which are
four in number, first, it must be perpetual; second, absolute
and unconditional; third; possession must be given of the
mowkoof, or thing appropriated , and, fourth it must be
entirely taken out if the waqif or appropriator himself. So
that if the appropriation is restricted to a particular time or
made dependent on some quality of future occurrence, it is
void.' Under the Shia law, a wakf can be created by will. A
mental act although afterwards sufficiently expressed in
conduct will not, unless clothed in appropriate words,
create a wakf. A mere statement in a will of some gift in the
past cannot be referred back to the date, still undetermined,
when that gift is afterwards alleged to have been made, or
such a narrative statement cannot in any view be an
adequate substitute for the oral deceleration of dedication
to God, which the Mahomedan law appears imperatively to
require, synchronously with the act of dedication itself.
There is a plain distinction between giving in charity and
declaring that one had given in charity. And for the
purpose of fixing the origin of the wakf, if there is a wakf at
all, the mere statement in a will that at some past date the
testator had set apart such and such funds for charitable
objects, is of comparatively slight value. Where there has
been no actual delivery a clear declaration is necessary to
3122
create a valid wakf. "The Mahomedan law, which only
allows a testator restricted powers of disposition over his
property, contains no such restriction as regards gifts inter
vivos but does not recognise such gifts as valid unless
possession is given to the donee. This also applies to wakfs
or gifts for religious or charitable purposes, at any rate
among Shias. Further, in the case of wakfs or gifts for
charitable purposes, the Shia law imposes a further
restriction that the wakif or settlor shall not retain for
himself any interest in the subject or the gift. This
restriction, for which reasons of a religious character are
assigned, undoubtedly operates as check on the creation of
wakfs not from purely religious motives, but with a view of
defeating the rights of heirs and transmitting the possession
and control of the settlor's property after his death to other
persons in the character of mutawallis. This restriction is
the last of the four conditions as to the validity of wakfs
laid down in the Suraya, the leading Shia authority, as
follows: '(i) It must be perpetual; (ii) absolute and
unconditional; (iii) possession must be given of the
mowkoof of the thing appropriated, and (iv) it must be
entirely taken out of the wakif or appropriator himself.
Where the settlor under colour of fixing her salary as
mutawalli, was really reserving for her life-time a portion
of the income or usufruct of the property far in excess of
what was assigned in the deed to future mutawalis or could
reasonably have been assigned to them, it was a clear
violation of the condition."
3232. On page 600-601, with respect to Mosque, it says:
3123
"Where a mosque is a public mosque open to the use of all
Mahomedans without distinction of sect, a Mahomedan
who, in the bonafide exercise of his religious duties in such
mosque, pronounces the word 'Amin' in a loud tone of
voice, according to the tenets of his sect, does nothing
which is contrary to the Mahomedan ecclesiastical law or
which is either an offence or civil wrong, though he may by
such conduct cause annoyance to his fellow worshippers in
the mosque. But any person, Mahomedan or otherwise.
Who goes into a mosque not bonafide for religious
purposes, but malafide to create a disturbance there and
interferes with the devotion of the ordinary frequenters of
the mosque, will render himself criminally liable. A
mosque, from its very nature, is dedicated for worship
and is open to all Muslims local and others. It is
dedicated for a specific purpose and not to the local
Muslims for such benefit as they may choose to derive
therefrom. They cannot of right claim to use it for any other
purpose however meritorious or beneficial it may be to the
members of the local Muslim community. "It is a well
recognised principal that if a person has an undoubted
legal right to say his prayers in a mosque the Courts
cannot refuse to recognise that legal right merely because
an anticipated breach of peace is to be committed by the
other side. A mosque does not belong to any particular
sect; for once it is built and consecrated, any reservation
for people of a particular locality or sect is void, and
persons not belonging to that locality or sect are entitled to
worship in it, whether or not any particular sect had
3124
contributed towards the site or the building of the mosque
and had been saying their prayers in it and every person
who believes in the unity of God and the mission of
Mahammad as a prophet is a Mussalman, to whatever sect
he may belong, and that the Shias satisfy the test; and that
there is no such thing as a Sunni or a Shia mosque
though the majority of the worshippers at any particular
mosque may belong to one or other sect either generally or
at various times." In Mahomedan law there can not be any
private mosque. When once a place is dedicated to be a
mosque, it becomes public property, it is property of God.
Therefore where a person in charge of such a mosque
claims the property as his private estate, he is liable to be
removed from charge of such mosque. But there can be
right of exclusion in case of mosques belonging to a
particular sect."
3233. It also says that a place may be dedicated as mosque
or Masjid without there being any building.
3234. In Syed Mohd. Salie Labbai & others Vs. Mohd.
Hanifa & others AIR 1976 SC 1569, the Court observed:
"Once the founder dedicates a particular property for the
purpose of a public mosque, the Mahomedan Law does not
permit any one from stopping the Mahomedan public from
offering prayers and reciting Koran etc. ...Under the
Mohammedan Law if a land has been used from time
immemorial for burial ground then the same may be called
a wakf although there is no express dedication. ...in cases
where a graveyard has existed from time immemorial or for
a very long time, there can be a presumption of a lost
3125
grant. It is open to a Court to infer from circumstances that
a plot of land covered by graves, which has been used as a
graveyard, is in fact a graveyard and had been set apart as
such by the original owners and made a consecrated
ground even though a registered document is not now
forthcoming."
"The word "wakf" means detention or appropriation.
According to the well recognized Hanafi School of
Mahomedan Law when a Mahomedan dedicates his
property for objects of charity or to God, he completely
parts with the corpus which vests in God and never
returns to the founder. Mahomedan Law contemplates
two kinds of Wakfs- a wakf which is private in nature where
although the ultimate object is public charity or God. but
the property vests in a set of beneficiaries chosen by the
founder who appoints a Mutawalli to manage the wakf
property. We are, however, not concerned with private
wakfs which are normally known as wakf-alal-aulad. We
are concerned with public wakf i.e. dedication made for the
purpose of public charity e.g. an Imam-Bada, a mosque, a
Serai and the like. So far as the dedication to a mosque is
concerned, it is governed by special rules and special
equity in the light of which a particular dedication has to
be determined. A mosque is obviously a place where the
Muslims offer their prayers. It is well-known that there
are certain formalities which have to be observed by the
Muslims before they observe the prayers. These formalities
are-
(i) Wazoo i.e. washing of hands and feet in a manner
3126
prescribed by Shariat:
(ii) the recitation of "Azaah" and "Ikamat" which is
usually done by the Pesh Imam or the Muayzin;
(iii) there must be a person who possesses virtuous
qualities and a knowledge of Koran and other
religious rites who should lead the prayers.
This is necessary in case of prayers offered in
congregation.
3235. In "Law of Endowments (Hindu & Mahomedan)"
by A. Ghosh, Second Edn. published by Eastern Law House,
Calcutta, on page 602 it is provided that the questions raised in a
Mahomedan community relating to a Mahomedan mosque and
tomb ought to be decided by Mahomedan law so far as the same
is applicable to the particular community and not expressly or
impliedly negatived by the general law of the land. (See:
Advocate General of Bombay vs. Yusufally 24 Bom. L.R.
1060).
3236. Sri M.M. Pandey, learned counsel for the plaintiffs
(Suit-5) has submitted that according to established
Mohammedan Law and evidence on behalf of Plaintiffs of OOS
4 of 1989, no Wakf can be created over property which is not
owned by the Wakif and if a Masjid is erected at a religious
place of another religion, Allah does not accept any Namaz
offered at such place. Islam does not recognise Wakf of property
which belongs to another or has been obtained by use of force or
by demolishing place of worship of another religion. PW 3
Farookh Ahmad (at p. 16), PW 10 Mohd Idris (at p. 24 & 104)
and PW 11 Mohd Burhanuddin (at p. 7 &14) admit this position
under Islam. Paper No. 107 C1/218 to 225 is write-up by Dr.
3127
Amaresh Arya, M.A., M.O.L., Ph D (formerly Dr. Amir Ali who
taught Islamic theology at Medina in Saudi Arabia) captioned
"Mosque, Mausoleum and Endowment in Islamic Shariat". At
page 107C1/221 it is mentioned: "According to Shariat the site
which has been occupied unauthoritatively should not be used
for constructing any Mosque or for cultivation (Fathva Siddeeq-
ul-Itasan)", and "Also all the temples which are deliberately
replaced by Mosques, performing of 'Namaz' on such a place is
also prohibited". Disputed building is therefore is Un-Islamic.
3237. A compilation of 'Problems & Solutions' issued by
the highest theological authority of Iran, sets out 9 Conditions
for an appropriate place of worship. The publication, 73rd
Edition, dt. 21 Ramzanul-mubarak 1413 Hijri (=1992), is
captioned: "Tauzihul-masayal, mutabiq ba Fatwai, Murajja
Azimushshan Jahan Tashbih, Hazrat Ayatullah Al-azami Aaqai-
Haaj Syed Mohammad Raza Mausoovi Galpayagani,
Madzallah-ul-Aala". It is published by Darul-Quranul-Karim,
Iran. Problem No. 875 deals with 'Makan Namaz Guzar' and the
solution sets out 9 conditions of which the 1st Condition is that
the place is Ankah, i.e., saying Namaz at such a place is 'Batil'
(=false/illegal) which is 'Ghasbi' (taken forcibly), and even if
Namaz be said on land, or on own sheet (farsh) or wood (takhat)
thereat, it would be Batil.
3238. One is reminded of what QURAN says. A 'Dar Al-
Chaura, Beirut, Lebanon' publication of English Translation of
Quran, approved by 'The Supreme Sunni and Shii Councils of
Republic of Lebanon', quotes verse No. 2:186 (at page 20), 'Do
not usurp another's property by unjust means ' Verse No.
2:190 (at page 21) commands: ' Fight for the sake of Allah those
3128
that fight against you, but do not be aggressive. Allah does not
love the aggressors. Similar Hindi translation of these verses is
contained at page 67 of "Quran Sharif" 5th Edition 1981, of
Hafiz Mohd. Hanif & Sons, Book-sellers, Mubarakpur
Azamgarh (UP) published by "Lucknow Kitabghar", printed by
'Lucknow Publishing House", Lucknow. It is absolutely clear
that if Babar ordered disputed structure to be erected at the site
of a Hindu Temple or if Mir Baqi erected it, under Babar's order,
at the site of a Temple demolished for the purpose, both the acts
violated Quranic injunctions thereby both are guilty of erecting
an Un-Islamic Mosque. The so-called Babri Masjid, therefore,
was void ab initio, violated Islamic mandate and must be
treated to be non-est, i.e, even if physically existent, it had no
legal existence.
3239. Sri Pandey relied on Keshavan Madhava Menon v.
State of Bombay, 1951 SC 128, wherein the Honble Supreme
Court relied on Black's Law Dictionary (III Edn.) for the
meaning of the word void in para 18:
The meaning of the word "void" is stated in Black's Law
Dictionary (3rd Edn.) to be as follows:-
"null and void; ineffectual; nugatory; having no legal force
or binding effect; unable in law to support the purpose for
which it was intended; nugatory and ineffectual so that
nothing can cure it; not valid."
3240. A Masjid erected in violation of injunction of Islam
was 'unable to support the purpose for which it was intended',
namely offering namaz, but Allah could not accept namaz in
such a masjid. He sought support from Baljinder Singh v.
Rattan Singh, JT 2008(10) SC 98 (para 25) where Honble
3129
Supreme Court quoted from Words and Phrases by Justice
R.P. Sethi and said: Void- Black's Law Dictionary gives the
meaning of the word "void" as having different nuances in
different connotations. One of them is of course "null or having
no legal force or binding effect" and the other is "unable in law,
to support the purpose for which it was intended".
3241. He further submits that on facts, justice, equity and
good conscience are in favour of plaintiffs of (Suit 5) rather than
plaintiffs (Suit 4).
3242. In para 1204 of Halsbury's Laws of England
(supra) it is stated that 'equity implies a system of law which is
more consonant than the ordinary law with opinions current for
the time being as to just regulation of mutual rights and duties of
men living in a civilised society. When Babar became Emperor
as a conqueror and did not frame any law governing Hindu
Deities/Temples, the Hindu Law prevailing at that time had to
be applied by him as indicated above.
3243. In general, when the word 'conscience' was used,
this denoted the conscience of the Defdt., and the Court by
decree in personam can prevent of making an unconscionable
use of rights at common law. The correction of Defendant's
conscience was the ground of the interference of equity in case
of fraud, breach of trust and 'wrong and oppression generally
(Ft.Note 1, HLE Supra). The special imperfections of medieval
common law, as to its administration were that its judgments
were not capable of being adapted to meet special circumstances
or were turned into a means of oppression. The Court of
Chancery, in so far as it remedied these defects, afforded an
improved system of attaining justice, but this was the difference
3130
between law and equity. Law and equity have both the same
end, which is to do right. Where it differed from the law, this
was in order to moderate its rigour, to supply its omissions, to
assist the legal remedy, or to relieve against the evasion of the
law or the abuse of legal rights; it supply omissions by exacting
conscientious conduct from the defendant when the law
recognised no binding obligation (Ft. Note 3, HLE Supra).
Babar could not be permitted, in equity or good conscience,
arbitrarily to deprive the Deity of its rights and possession at the
disputed site.
3244. An application of these principles of equity to the
present suits, entitles the plaintiffs (Suit 5) to the relief sought.
The pith and substance of the plaint case in Suit 5 is that the
disputed site is the birthplace of Bhagwan Shri Ram, that before
Babar's invasion, a Temple stood there, that worship of the
birthplace and the temple by Hindu public had been going on
since ancient/immemorial time, that the temple was destroyed
by the hordes of Babar and at its site Babri Masjid was
constructed, that a structure raised by force of arms on Deities'
land after destroying their temple, could not be treated to be a
legal/valid mosque according to Islam, and the Quran as shown
above. In view of this command of Quran, conversion of Temple
into Mosque did not create a valid dedication of the property to
Allah in fact or in law (para 24 of Plaint). In reply to these
pleadings, Sunni Central Boards of Wakf, Defdt. No 4, stated (in
para 24 of WS) that the quotation of Quran was 'out of context',
'not correct' 'nor complete'; but the Sunni Board did not set out
any context, nor the 'correct' or 'complete' quotation in written
statement or anywhere in evidence. Regarding Plaintiff's case of
3131
failed dedication to Allah, the reply is that Babar was the
Emperor, "the vacant land on which the Babri Masjid was built
lay in the State territory and did not belong to anyone and it
could very well be used for the purpose of the Mosque and
specially so when the Emperor himself consented and gave
approval for construction of the said Mosque". This is incorrect.
Babar never became Emperor. The land was a Hindu Deity as
birthplace of Bhagwan Shree Ram, hence was owned by the
Deity, whose Temple was standing thereat, as Deity's House in
possession of Bhagwan Shree Ram; therefore it could not vest in
the Conqueror/Emperor. As conqueror, it was Babar's duty to
protect the birthplace/temple. A significant fact stated by
Supreme Court in Ismail Farooqui's case, (1994) 6 SCC 360
(para 11) is that in the White Paper (Chapter II, para 2.8) of the
Central Government preceding the Acquisition of Certain Areas
at Ayodhya Ordinance No. 8 of 1993, re-enacted as Central Act
No. 33 of 1993, Muslim leaders had stated that if it was proved
that a Hindu Temple had existed on the site of the Disputed
Structure and was demolished on Babar's orders for construction
of Babri Masjid, the Muslims would voluntarily hand over the
disputed shrine to Hindus. It is also important that according to
para 4 of the Supreme Court Judgment, the Acquisition "Bill
was introduced in the Parliament leading to the above enactment
and the said Reference to this Court was made in the historical
background set out in the White paper". The legal effect is that
since these facts stand proved, the Central Govt. itself would be
estopped from denying the remedy sought by the Plaintiffs in
Suit 5, and would have to feed the estoppel by grant by the
equitable doctrine of Estoppel, vide, Renu Devi V. Mahendra
3132
Singh & Others (2003)10 SCC 200.
3245. Lastly he submits that these very established facts
would amount to "wrong and oppression" and "unconscionable
use" of his rights as Emperor, if at all, in as much as he violated
settled Usage/Custom of Hindu Community which Babar was
bound to protect as 'conqueror' enjoined by Hindu Law (the Law
of the 'Subject"). In the case of S. Darshan Lal Vs. Dr. R.S.S
Dalliwall, 1952 All 825 (DB), it is stated in para 16: "In an
inhabited country, obtained by conquest or cessation, law
already prevailing therein continues to prevail except to the
extent English Law has been introduced, and also except to the
extent to which such law is not civilised law at all." Earlier,
Privy Council had ruled in Mosque known as Masjid Shahidganj
Vs. Shiromani Gurdwara Parbandhak Committee, 1940 PC 116
at page 120, 'There is every presumption in favour of the
proposition that a change of sovereignty would not affect private
rights to property'. It also constituted violation of injunctions of
Babar's own religion contained in the Quran, and equity would
require Babar to purge his own conscience of the 'wrong,
oppression, and violation of Holy Laws of his own Subjects and
those of his own religion'. Similar equities would prevail
between the present parties to these suits in as much as 'wrongs'
committed by Babar, could not become 'right' by mere lapse of
time, and would continue to be wrongs even today. The 'general
law' of extinction of rights contained in the Limitation Act is not
enough to over-ride the substantive rights of the Deity under
'special' Hindu Law; no law of limitation can apply to the rights
and property of Deity.
3246. So far as the general principles of Islamic law as
3133
referred to in these very authenticated books are concerned, the
same are not disputed by any of the learned counsels for the
muslim party i.e. by Sri Jilani, Siddiqui and Irfan Ahmad. The
authority and authenticity of the english translation of the
aforementioned books are also not disputed.
Essentials of Waqf in Shariat Law
3247. Having given our anxious considerations, we find
that in a simple and well elaborated manner various aspects of
waqf are contained in above Islamic religious scriptures. It is
really strange, despite such clarity in the thoughts and its
solution contained in Shariyat scriptures exceptionally large
number of cases have come up before British Indian Courts, as
well as the Indian Courts after independence involving disputes
relating to waqf and waqf property. We propose to consider
some of the authorities, relevant on this aspect hereinunder:
3248. A Division Bench of Bombay High Court in Said
Maher Hussain Vs. Haji Alimahomed Jalaludin and others,
AIR 1934 Bombay 257 has summarised essential condition to
constitute a waqf and on page 264 has held:
there must be a declaration of dedication which should be
made contemporaneously with the act of dedication ...
The wakif must divest himself of the ownership of the
property ..... Physical delivery is not essential, but such
possession as is possible must be given.
3249. About mosques, it had been observed that there are
some special rules. Wilson's Anglo-Mahomedan Law, Amir
Ali's Muhammadan Law and Tyabji's Principles of
Muhammadan Law are referred to and the Court has said:
When once a building has been set apart as a
3134
mosque it is enough to make it wakf if public prayers are
once said there with the permission of the owner. But
though a declaration of dedication and completion by some
act giving practical effect to it are essential, it was not
always necessary that there should be any direct evidence
of these things. Dedication may be inferred from long
user as wakf property . . . . . . there can be no doubt as to
this principle which is recognised in all the text books.
3250. In Har Prasad and others Vs. Fazal Ahmad and
others, AIR 1933 PC 83 it was held that the capacity and
intention of wakif at the time of executing waqfnama is relevant
and crucial. If subsequently it is found that the waqfnama was
executed believing certain facts existing which subsequently
found non existing, the waqf, merely because the waqfnama was
executed, would not stand created.
3251. In Commissioner of Wakfs and another Vs.
Mohammad Moshin, AIR 1954 Calcutta 463 a Division Bench
of Calcutta High Court held that waqf is a purely Mohammedan
institution and concept. Its creation and incidents are governed
by the Mohammedan law. The Court cannot sanction creation of
waqf contrary to the Mohammedan law. In Mohammedan law
no one but the owner of the property can make a waqf of it. In
that case a waqf was sought to be created on behalf of a minor
by a guardian and that was claimed to be sanctioned by the
District Judge under Section 29 of Guardians and Wards Act
1890. The Court held it impermissible in law for the reason that
the Mohammedan law says that a minor cannot create a waqf. If
the creation of waqf by the guardian is really an act of the minor
through the guardian, then to uphold it would amount to
3135
allowing something being done indirectly which could not be
done directly. It also observed that the idea of agency in relation
to an infant is foreign to Muhammadan law and from that point
of view also guardian under Muhammadan law has no power to
make a waqf of the ward's property as the creator himself is not
owner of the property.
3252. In N.C.Ramanatha Iyer Vs. Board of
Commissioners for Hindu Religious Endowments, Madras
AIR 1954 Madras 492, the Court observed that dedication is a
fact which can be inferred from the circumstances of the
particular case and need not necessarily be based upon
documentary evidence. It also observed following the
commendation of P. B. Ganapathi Aiyar's Hindu & Mahomedan
Endowments at' page 136.
3253. The term "waqf" has recently been considered in the
light of the law of Islam in Faqruddin Vs. Tajuddin 2008 (8)
SCC 12 and in para 35, it says:
`Wakf' would mean taking out something out of one's
ownership and passing it on to God's ownership dedicating
its usufruct - without regard to indigence or affluence,
perpetually and with the intention of obtaining Divine
pleasure - for persons and individuals, or for institutions or
mosques and graveyards, or for other charitable
purposes.
3254. The question as to whether a public mosque is open
for worship to all Muslims irrespective of the consideration that
in different sects, there is difference in the manner of offering
Namaz, came to be considered before a Full Bench of this Court
in Jangu & others Vs. Ahmad Ullah & others 1889-1891 ILR
3136
13 (All.) 419. It was held that in a public mosque all
Mohammadans were entitled to say their prayers. Justice
Mahmood in his concurrent but separate judgement referred
with approval his earlier observations in Queen-Empress Vs.
Ramzan ILR, 7 All. 461:
Now, it is the fundamental principle of the Muhammadan
law of wakf, too well known to require the citation of
authorities, that when a mosque is built and consecrated by
public worship, it ceases to be the property of the builder
and vests in God (to use the language of the Hedaya) 'in
such a manner as subjects it to the rules of Divine property,
whence the appropriator's right in it is extinguished, and it
becomes a property of God by the advantage of it resulting
to his creatures.' A mosque once so consecrated cannot in
any case revert to the founder, and every Muhammadan has
the legal right to enter it, and perform devotions according
to his own tenets, so long as the form of worship is in
accord with the recognized rules of Muhammadan
ecclesiastical law. The defendants therefore were fully
justified by law in entering the mosque in question and in
joining the congregation, and they were strictly within their
legal rights, according to the orthodox rule of the
Muhammadan ecclesiastical law, in saying the word 'amin'
aloud.
3255. His Lordship further held :
I have no doubt that under the Muhammadan law of wakf,
and the Muhammadan ecclesiastical law, which we are
bound to administer in such cases under s. 24 of the Civil
Courts Act (VI of 1871), the provisions of which have been
3137
reproduced in s. 37 of Act XII of 1887, a mosque when
public is not the property of any particular individual or
even a body or corporation of any other human
organization which in the law has a personality. In the eye
of the Muhammadan law a mosque is the property of God,
it must be recognized as such, and subject only to such
limitations as the Muhammadan ecclesiastical law itself
provides, it is public property, being the property of God
for the use of his servants, and every human being is
entitled to go and worship there so long as he conforms to
the rules of the Muhammadan ecclesiastical ritual of
worship.
3256. In Ata-Ullah & another Vs. Azim-Ullah & another
1889 ILR 12 (All.) 494 another decision was rendered by a five-
Judges Bench of this Court on 5
th
November, 1889, i.e., the very
next day when the Full Bench judgment in Jangu Vs. Ahmad
Ullah (supra) was rendered wherein also a similar question was
considered as to whether the Mohammedans of different sects as
a matter of right can offer prayer in a public mosque built by
one of the sect of Mohammedans. Facts show that the mosque
was built by Hanafis sect of Mohammedans and used as their
place of worship since inception. Plaintiffs described themselves
as Muhammadis to whom the defendants, i.e., "the Hanafi sect
of Muslims" called Wahabis sought to offer prayer in the above
mosque which was objected to by the defendants saying that the
system of prayer of two is different, therefore, the plaintiffs
cannot offer prayer in the mosque established by Hanafi sect of
Muslims. Rejecting this contention it was held by Sir John
Edge, Kt., Chief Justice as under :
3138
...no authority has been brought to our notice to show that
a mosque which has been deviated to God can be
appropriated exclusively to or by any particular sect or
denomination of the Sunni Muhammadans, and without
very strong authority for such a proposition, I for one could
not find as a matter of law that there could be any such
exclusive appropriation. As I understand, a mosque to be a
mosque at all must be a building dedicated to God and not
a building dedicated to God with a reservation that it
should be used only by particular persons holding
particular views of the ritual. As I understand it, a mosque
is a place where all Muhammadans are entitled to go and
perform their devotions as of right, according to their
conscience.
3257. It was also held that merely for the reason that there
is some difference in the practice of offering prayer, it cannot be
said that though these persons are Muhammadans but belong to
category who are other than followers of prophet and it was
observed :
No authority has been brought before us to show that
these persons by reason of any views which they may
entertain as to ritual, could be treated by any orthodox
Muhammadans as persons other than followers of the
prophet.
3258. Hon'ble Justice Mahmood in his separate but
concurrent judgment observed :
...so long as a mosque is a mosque, that so long as the
plaintiffs are persons who call themselves Muhammadans
and entitled to worship, there is absolutely no authority to
3139
say that any sect or any creed or any portion of the
community can restrain others who claim to have the right
which to use the language of Muhammadan law, God and
his Prophet gave them, from putting such right into
exercise.
3259. In Musaheb Khan Vs. Raj Kumar Bakshi, AIR
1938 Oudh 238 the question was whether a compound having a
mosque, an Imambara and a number of tombs are liable to be
attached and sold in execution of a decree obtained against their
owner, inasmuch as they were alleged to have become dedicated
property or waqf, on account of a term contained in the will
executed by the owner, whereby he had transferred full
proprietary rights to a legatee and his representatives in
perpetuity, but had made a direction to continue certain religious
celebrations on the premises. The Chief Court of Oudh referring
to certain passages appearing in Baillie's "Commentary on
Mohammedan Law"; Syed Ameer Ali's "Principles of
Mohemmadan Law" and Tyabji's "Mohammedan Law",
held:
Even if a mosque, that is a building having the
appearance of a mosque, is built in a place which is not
enclosed, that is, is not situated in such a man's house,
something more than the mere appearances of a mosque
are needed before it will become entitled to be treated as a
mosque for all time. There must be proof of dedication or
of permission or of user such as by the saying of prayers
in congregational manner . . . . . the mere construction of
a mosque in a private house does not make it a mosque
in the sense of a public place of worship.
3140
3260. In Khalil Ahmad and another Vs. Sheikh Mohd.
Askari and others, AIR 1965 Allahabad 320 the question came
up for consideration was whether the building in dispute was a
public mosque or a private place of worship. A Single Judge of
this Court held that before a building can be said to be a public
mosque, the requisite essentials are (i) the building must be set
apart as a mosque; (ii) public prayers must have been said in it
at least once, even with the permission of the owner; and (iii)
there must have been long user of the same as a place of
worship by the public at large. This Court also held that like a
private chapel in England or a private Hindu temple in India
there could also be a private mosque for offering prayers by the
owners and the members of his family, and such private mosque
are not unknown in India. The two glaring examples of such
mosques are in the Red Fort at Delhi and Agra, where the
members of Mughal Royal family used to offer prayers in the
mosques situate within the four walls of their forts. The Court
further observed, obviously it could not have been suggested
that simply because those buildings were shaped and domed like
mosques and the members of the royal family regularly offered
prayers therein, the same had become wakf property so as to
entitle the general public to get into such private mosques and
offer prayers in congregation as of right.
3261. In Garib Das and others Vs. Munshi Abdul Hamid
and others, AIR 1970 SC 1035 it was held that a waqf inter
vivos is completed by a mere declaration of endowment by the
owner. It was also held that the founder of a waqf may constitute
himself the first mutawalli and in such a case when the founder
and the mutawalli are the same person, no transfer or physical
3141
possession is necessary. It is also not necessary in such a case
that the property should be transferred from the name of the
donor as owner into his name as mutawalli.
3262. In Abdul Ghafoor Vs. Rahmat Ali & others AIR
1930 Oudh 245, a learned Single Judge considered the question
of proof of Waqf by user and held that once it is established that
Mahomedan public used the land as burial ground, in the
absence of direct evidence of dedication, the wakf can be
established by evidence of user. The Court further said that if
there is no authority to establish the land as public wakf, on the
ground of user there must be evidence of continued use upto the
present day. The rule which allows evidence of user to take the
place of dedication is a rule of necessity. In the case of old wakf,
it is not possible to secure direct evidence of dedication and so it
has been ruled that even in the absence of such direct evidence,
a Court can hold a wakf to be established on evidence of long
user. It also observed that once land has been dedicated for the
purpose of a cemetery, it must always be regarded as a cemetery
unless for any reason the land turns out of the use as a cemetery.
Once a wakf is established either by evidence of dedication or
by evidence of user, it is in essence of the wakf that it should be
permanent.
3263. In Chhutkao Vs. Gambhir Mal AIR 1931 Oudh 45
it was reiterated by another Single Judge that it is a well
understood principle of Mahomedan law that a wakf may be
established by the evidence of user. It is also reiterated that land
once used as a cemetery is always regarded as cemetery unless
for any reason, it turns out to be unfit for use as such and that
once a wakf is established either by evidence of dedication or by
3142
evidence of user, it is in essence of the waqf that it should be
permanent.
3264. In Punjab Wakf Board, Ambala Vs. Capt. Mohar
Singh AIR 1975 SC 1891 it was held that mere mention of a
property in a notification issued under Section 55 (2) of Wakf
Act, 1954 showing the property to be an Idgah or the exercise of
power by the Board under the Muslim Wakfs Act by itself
would not establish and identify the property to be a wakf
property unless it is shown that there was a valid wakf created
and existed which was so notified under the Act.
3265. In Anjuman Islamia & others Vs. Munshi Tegh Ali
& others 1971 (3) SCC 814, it was held that if there is a very
big property, the mere fact that there existed a Mosque and a
School which is probably a Wakf property would not mean that
the entire area is a Wakf property unless the evidence is so made
available. In order to show that the entire area is a wakf property
by long and immemorable user, the evidence has to be produced
to the effect that the entire property is a wakf and not only the
Mosque or the School and the land occupied thereat.
3266. The question with respect to plot of land as to
whether it is a graveyard in the sense of Mahomedan law, i.e. to
say "extra commercium" and dedicated for the benefit of
Mahomedans in general in such sense that private ownership
therein does not exist, was considered in Ballabh Das and
another Vs. Nur Mohammad and another AIR 1936 Privy
Council 83. The matter had arisen from the judgment reported
in AIR 1931 Oudh 293. History of dispute was set out by the
learned Subordinate Judge, stating that in the mutiny of 1857
many people left the city of Lucknow. At the first Regular
3143
Settlement the Government found it extremely difficult to
determine the title to the tenements of the persons who returned
and occupied them. Seeing the previous insecurity of life and
property from which the people had suffered at the hands of
ruffians, it was not only difficult for them to prove their title, but
an enquiry into title was bound to prolong the settlement
operations to an inordinate length. The Government therefore
ordered that persons in possession be recorded as proprietors of
their tenements and the sites thereof. One Kale Khan was
recognized by the Government as the owner of plot No. 108.
Lord Canning's Proclamation of 15 March 1858 confiscated all
land in Oudh, and every right in the soil in the city of Lucknow
was vested in the Crown. By the letter of the Financial
Commissioner of Oudh dated 7
th
August 1868, lands were
granted to people whom the Crown liked to grant. It was at the
first Regular settlement, therefore that for the first time in the
city of Lucknow anybody's title was created to any land. All
previous rights including those of the grandfather of Mirza
Mahmud Beg, if any, had been swept away by confiscation. The
subordinate Judge observed that neither it could be proved that
Kale Khan made a Waqf nor that he ever divested himself of his
rights so as to deprive him of the ownership of the plot in suit.
The District Judge confirmed the judgement of the Subordinate
Judge but it was reversed in the Chief Court of Oudh. The Privy
Council disagreed with the view taken by the Chief Court that
the land would become a Waqf immediately upon the burial of
even a single person but observed that if a landowner allows one
or two of his relatives to be buried in his orchard, he would not
necessarily be held to have dedicated the land as a cemetery. It
3144
held:
The owner who permits one or two burials to take
place in his orchard would not describe his orchard as
qabristan. If the plaintiffs had to make out dedication
entirely by direct evidence of burials being made in the
ground, and without and record such as the khasra of 1868,
to help them, they would undoubtedly have to prove a
number of instances adequate in character, number ad
extent to justify the inference that the plot of land in suit
was a cemetery. The plaintiffs however are not in this
position.
3267. It further held that when in Khasara of 1868 one
comes across a description of certain land by the word
qabristan or "grave-yard", this, prima facie at all events,
means that the land is a grave-yard in the sense known to the
Mohamedan Law. With respect to the entry in khasara of First
Settlement the Privy Council observed that the khasara itself is
the instrument which confers or embodies the right and there is
no other document which creates title and khasra and map are
not merely historical materials but are instruments of title or
otherwise the direct foundation of rights. For this purpose
reliance was placed on Wali Mohammad V. Mohammad
Bakhsh AIR 1930 PC 91.
Status of Mosque and Mutwalli
3268. In Shanker Das Vs. Said Ahmad (1884) P.R.
No.153 of 1884 Lahore High Court considered the rights of
Mutawalli of a mosque and observed:
We are of the opinion that though theoretically wakf
property belongs to no human owner, nevertheless a
3145
mosque, as a concrete example of wakf, is an institution,
and its possession is legally maintained by its lawful
guardian for the time being: in virtue of his position, the
guardian can resist trespass, recover debts, make
purchases and mortgages all in virtue of the right which
resides in the institution. In the same way we think the
mosque, as an institution, might acquire an easement by
prescription; and that being so, we cannot think of any rule
or principle by which we could deny to the mosque (as an
institution) the same right of preventing strangers
approaching its walls by the exercise of a right of pre-
emption, as other house-holders have. The object of the
right of pre-emption is to secure the cohesion of families,
and obviate the inconvenience of a mixed or alien
neighbourhood among private house-holders. Now it can
hardly be denied that exactly the same convenience, which
results to a private house from the exercise of the right may
result also to a mosque.
We have no hesitation in deciding, on this principle,
that the mosque as an institution has practically
proprietary rights exercised through the guardian, and
that one of the rights is to claim, on the ground of
vicinage a right of pre-emption in the case of sales of
adjoining properties.
3269. This has been followed in Jindu Ram Vs. Hussain
Baksh & Anr. AIR 1914 Lahore 444 where the Court observed:
......all that is necessary for him to establish is that he is
the sole guardian and manager of the mosque and of the
property appertaining thereto; that the legal ownership in
3146
the mosque and the property attached does not vest in any
other person; and that he alone deals and is entitled to deal
with the outside world on behalf and for the benefit of the
mosque in all its legal relation. It is in this sense that the
muttawali of a mosque or the manager of a Hindu religious
institution by whatever name he may be called, can be
appropriately said to be a person whose immovable
property, though it is not his private property, clothes him
with a right of pre-emption regarding property contiguous
to the mosque or temple, as the case may be, under clause
seventhly of S. 13(1) Punjab Pre-emption Act.
3270. In Wahid Ali & another Vs. Mahboob ali Khan
AIR 1935 Oudh 425, the Court held that a Muslim Wakf is not a
trust and a Mutwalli cannot be said to be trustee. This Court
relied on two judgments of Privy Council in Vidya Varuthi
Thirtha Vs. Balusami Ayyar AIR 1922 PC 123 and Abdur
Rahim Vs. Narayan Das Aurora AIR 1923 PC 44 and also
pointed out that contrary and otherwise view taken by the
Bombay High Court in Dattagiri Vs. Dattatraya (1904) ILR 27
Bom 236; Allahabad High Court in Behari Lal Vs. Muhammad
Muttaki (1898) 20 All 482 and Calcutta High Court in Nilmony
Singh Vs. Jagabandhu Roy (1896) 23 Cal 536 wherein the
persons holding properties generally for Hindu or Mohammadan
religious purposes were treated as trustee were dissented by
Privy Council. It held that a Muslim Wakf in which the property
is vested in God, the Mutwalli has no power of alienation and he
cannot be compared with a Mahant of a Hindu religious
endowment.
3271. With respect to position of 'Mutawalli' and
3147
'sajjadanashin', also the Apex Court says in Faqruddin (Supra)
in para 36:
It is beyond any doubt or dispute that a Mutawalli
is the temporal head. He is the manager of the property.
Office of Sajjadanashin, however, is a spiritual office. It
has to be held by a wise person. He must be fit for
holding the office.
3272. With respect to a waqf, the Court considered as to
who can file a suit to recover possession of a waqf and in para
55 and 58 held as under:
"55. It may further be true that the land in question were
not Wakf lands but `Wakf Aulad'. Indisputably, however,
both Wakf land as also the land in question are under the
management of Mutawalli. He, apart from the Wakf land,
holds the land in suit on behalf of the beneficiaries. The
present appellants are also beneficiaries of the Wakf. If the
right to recover possession must vest in a Mutawalli and if
by reason of his status of `Matmi', Tajuddin did not become
a Mutawalli, which declaration in his favour must be held
to have been legally made by the High Court, the
respondents relying on or on the basis of the purported
Wills executed in their favour cannot claim independent
right to recover possession."
"58. The said principle was applied in a case of Debendra
Nath Mitra Majumdar v. Sheik Safatulla AIR 1927 Cal
130, stating:
"That the right of the plaintiff to hold the properties
of the wakf is a right appurtenant to his office as the
Mutwalli cannot be disputed : Gnanasambandha
3148
Pandara Sannadhi v. Velu Pandara (1899) 23 Mad.
271."
3273. Besides Sharii text and precedents, plaintiffs (Suit 4)
produced six witnesses as Experts in "Islamic religious matters"
to depose on the above aspect of the matter. These are PW 10,
Mohd. Idris; PW 11, Mohd. Burhanuddin; PW 19, Maulana Atiq
Ahmad; PW 22, Mohd. Khalid Nadvi; PW 25, S.M.Naqvi; and,
PW 26, Kalbe Jawwad.
3274. PW 10, Mohammad Idris, claims to have appeared
as an expert in religious matters:
- i i i | i l i r r i n| ;~-
l i r | i l iin iin i - r | - i i
ni -i l r ( - ) ri l i r | r | i n
r l s i i n i ;~- - n i n| ni i | r | . .
. i in - lnii ,ii l n ;~- r| r r i| -
in| ;~- | r| -n| i | ( oo)
My statement is based on my personal knowledge,
which is mainly regarding incidents. I have given my
statement as an expert, although I know few facts on
personal basis as well . . . . . The facts given by me to be
on basis of books, be also considered to be on basis of my
personal knowledge.(E.T.C)
3275. He also admits to have deposed statement on behalf
of Waqf Board:
- ni i | n in - nir| ii ii
- n r -i - r| ii l - n i iin l i n | . . . .
- n ni ; - - | ln l rili- i| nii ii|
( os)
I had come on behalf of Waqf Board, to give evidence in
court. I did not know about the questions to be put to me. . .
3149
I was told about this case only by Hashim Ansari. (E.T.C)
3276. About his qualification etc., he says:
il | ni|- l - i ni ii| - i
ni ni - | - n| r i r| ri n|| il i i
l i i ni ri n r | i l - ri | - n
;i ri i - i l -| r i r| r| l-|| (
/)
"I had gone to Benares to pursue Fazil course.
When I went to Benares, I would have been nearly 15 years
of age. It takes two years to do Fazil course. I have got
certificate for successful completion of Aalim course
from the Allahabad Cant Board and from
nowhere(else)." (ETC)
i - - ni|i (lr-- |) i| | i|| . . . . .lr-- | | lnii
i - s ni i| - i s - i | - i| i ii| .
. . .| | lni i i- ii ni|i i i l -i ii
i | n| lii r i | lni li lilr
l i| nr - i | lii r r - | i|| ( s)
I studied the history as well in Benares. . . Of the history
books I read some in Persian some in Urdu and some in
Arabic too. . . . An Arabic book was named Taarikh-ul-
Khulfa, which Maulana Jalaluddin Suyati has written, and
the other one was called Rizalusindhvalhind, which Kazi
Athar Mubarakpuri has written; I had gone through
that.(E.T.C)
;- r| lni i -i ii i | ir li| r lr|
i ri i| lr| r i i ri lr| coo
i n n| r | l | lni l ri| nr - i |
lii r , lr -ni | n-i- ni|i | lni li n i|
i zozr i r n i i nin| r |
i | | l ni i - | i | i i -
3150
ni | i l ni r | ; ili- ir lii r | i | |
- i i ; ni | i | l ni r| | | r lni - ni
i i i r n || i nin| r |
i - li| r ; - r n | lni | r | -
ii-i i r | | ii| | lni i n lr i |
- i - n| ii n | r-| | lni lr -ni
- -ii i riii i r -n | r |
ln| lni - ni| r i li - i r
- -i ii | li| r ; r | ; ii l| l i| i
| lni i i n -i i i| - ii l| -ir iin|
;lnrii | ni|i | lni r| || ( s)
Of them, the first book,written by Maulana
Jalaluddin, begins with Hijri, that is, with the first year of
Hijri and covers six hundred Hijri years. On the other
hand, the other book, written by Hazi Athar Mubarakpuri,
deals with the entire history of Hindustan up to the time of
its being written, that is, up to 20-25 years back.
A Persian book which I studied is named Taarikh-
e-Farishta. Kasim Sahib has written it. I did not go
through any other history book in Persian. This book
deals with the history of the period preceding the onset of
the Mughal reign.
I have written many books written in Urdu. I have
read Baburnama. I have gone through Janib
Akbarabadis book Aurangzeb Hinduon Ki Nazar Mein
and Mufti Shaukat Ali Fahmis book Hindustan Par
Musalmanon Ka Hajaar Saala Daur-e-Huqumat.
All these books which I referred to and which I have
gone through, are written by the Muslim writers. Except for
these, I did not go through any book of foreign writer or
3151
through its translation in Urdu or Persian or through any
history book of a famous Indian historian.(E.T.C)
- /c - - l | nr ii| i| . . . .
.i | - scz - si li ii| i - n l-| i||
. . . . . r| l ln ; -i - - | ili l r ;
i|| - i i i i i ni | i i | i ni r | ( o)
I took over as the Head Master in 1976 . . . . I had
left Benares in 1962. I had got certificate from
Benares. . . . . . . First of all I was appointed to teach class
I in this school. I teach language as also history. (E.T.C)
3277. He has disclosed his knowledge about Holy Quran
and other Islamic literature as follows:
;-i- | i i r l| ;-nir - -
rn r li n -i -ii| - n i i lii r i r |
; r , r i l n-i r , i i | |
r , i| iin i; r , rn -i r-- ir n- r ,
i-| i | i-n i ilr|, r | ;-i- - lii;
in| r | . . .i ;-i- - | ini r i ;i i| r , r
- -i -ii i ni| . . . i i | l ni i i
i - r , i i i | n n- i r i l -| |
i i| n- ir i zs i - - nl -i i
l-|| ;- s n r | ;- cccc in r | - iini |
nii r| ni i+ ni, l- i | -i i r | lrin
| n; r | (i ri l | iin l- ri- i i r,
iini | n| - ~i r- | li| r , li
i- ni|in r-li r, r ir i n -ni i , l
- ln| in li| n; , | nii - r| ni i+ ni|)
i i| - ; | i r - ii r l ;i i i i
ilr| r n i| ri- r , l | -ir| r | i|
l- s i- | lrin r | i i| iii- li
r| i n , r ;-i- i , l r
3152
li i i n , ; | i - i n n r|
ri ii|
ln -i r-- ir i - i r i | ;-i- |
n|n i| i -i r-- ir | r | ; r i| - -i
ri n i , i l li i ri i-| r| ;-i- ii ii|
-i r-- ir -i -|i lrn | i|| -i -
| i; n-ni i| i i ni i|, i ii
i i -in i | n i r n lr-i - -ln i
r| i|| . . . . . .ri n i i; |, s ;i i| |n ,
l - ;i i - ~ |n i r| ii, l~ i i i
-i i l ii| r -| r l i r - ii l i n -
n ni r , ~ir i- n - ii n i , l i
n - n r| ni , - ~ -| ,
;i nni r i l -- -n| i -n i |
( zs)
Islam is an Arabic word, which is called Masdar
in Istlaah which is rendered in Farmabardaari as laying
the neck. God is one; he is omnipotent; the holy Quran
is his gift; he has created the whole universe; Hazrat
Muhammad Sahib was his Prophet; a man should follow
the path of goodness. All these things are taught in
Islam. . . . . . . . One who believes in Islam and one who is
its follower, will be considered to be the Muslim. . . . . . .
The holy Quran is the name of that holy book which
came to Prophet Muhammad from Khuda (God). The
holy Quran came to Prophet Muhammad on several
occasions over the period of 23 years. It has 113 suras in
all. There are 6666 Ayats. I am not in position to tell the
number of Ayats counseling on solution in legal matters.
(Stated on his own Mulla Ahmad Jivan has written
Tafsir (an explanation) on Ayats containing rulings. It is
3153
called Tafsirat-e-Ahmadiya. This fellow was a teacher of
Aurangzeb, but I am not in a position to tell how many
Ayats are written in it.) The holy Quran repeatedly
ordains for what a man should do. There are many rulings
forbidding certain things to be done, that is to say, they
advise for certain things not to be done. The Adam who for
the first time descended after the creation of the world ,
took Islam with him, but it is not still settled in which
corner of the world he descended.
Prophet Muhammad Sahib was born in Arab.
Muhammad Sahib propagated Islam. Even before him there
used to be Muslims, because the very first man of the world
had come along with Islam.
Muhammad Sahib migrated from Mecca to Medina.
In Mecca, he was pitted against idol worshipers and
against those who believed in more than one God. The
worship of idol was prevalent in several parts of Arab at
that time. . . . . . . . . He was certainly engaged in war and
battle; he conquered some hamlets as well, but his purpose
was not to conquer regions or provinces. Rather, it was
meant to pronounce the Kalma of one God. It is true that
his command was - Fight, in the name of God, against a
person who fights with you, but in case of one who does
not fight with you, do not forcibly capture his country,
land, worship place and person.(E.T.C)
lii i | -in rn ir r n i | r |
rn ir i r i|i rn l || r |
i rn - i, n| rn -i n|| rn ir
| rin - l| i i|i i- r| li ii| . . .. . . .
rn ln - -i r-- ir nn i | . . . . .
3154
i|i i - -ii - rn ir | ii|| i il
ni r , ;l r || i li; i i n| i i i
-ii ini r | ( rc)
There came to be Shia and Sunni communities much
after Prophet Muhammad. Khalifa Hazrat-e-Abubakar
Siddiqui preceded Prophet Muhammad. After him came
Hazrat-e-Umar Farooq and the third Hazrat Usman Gani.
Hazrat Sahib had not nominated any one as Caliph in his
Hayat. . . . . . . . . . Hazrat Abu Bakr was father-in-law of
Muhammad Sahib by relation. . . . . . . . . . The office of
Caliph depicts the succession of Hazrat Sahib. Hence,
Caliph is taken to be his successor both worldly and
religiously. (E.T.C)
r -n r l rn ir rn -i r-- | n-
i;ii il i | . . . . . .rn -i, -i r-- ir i-i
i rn -i r-- ir | i irili | ii| i |n
i| r| i ;n-i ri i | |, rn -i ir
r ; i|| ( c/)
It is true that Hazrat Abu Bakr was father of
Ayesha, wife of Prophet Muhammad. . . . . . . . . . Hazrat
Usman was the son-in-law of Muhammad Sahib. The two
daughters of Hazrat Muhammad Sahib were married to
Hazrat Usman one after the other, that is, the second one
was married after the death of the first one. (E.T.C)
ir n| n r| lr| ii i|i |
rn -i ir i ;ni -iii rii irin r i
ii| . . . . . i rn | i|i - i| s -ni
r i | ( /)
Abu Bakr Sahib became Caliph in or around the
13
th
Hijri year. Hazrat Usman embraced martyrdom at the
3155
hands of certain hooligans. . . . . . . . After that some
differences also cropped up over Hazrat Alis becoming
Caliph.(E.T.C)
r n sz i ss lr| i ii r ; r rn |
ir i ;ni i| -ii ,ii ir| r i ii| r
irin i ir | -l- - r ; i|| n lr| i z i
s i i ri ri ni| ( s)
This battle took place in or around 32
nd
or 33
rd
Hijri
year. Hazrat Ali Sahib had also to martyr himself at the
hands of hooligans. This martyrdom took place at the
mosque of Kufa city. At that time it would have been the
42
nd
or 43
rd
Hijri year.(E.T.C)
~i ii| i r | ; i i -n r i i|i| rn
| ir ; i i|ii - iil- r , i -i in r |
- i- i i- ii| n i| -ir r | r
ni s i in lr| i - r ; i|| r i; n- ir
ili i |i i | - | n; i|| ( s)
Khulafa-e-Rashideen are four in number. This word
means Sabba Khalifa. Hazrat Ali Sahib is among these four
Caliphs, who are considered to be truthful.
Badra is the name of a place. The battle of Badra is
quite famous. It had taken place perhaps in 6
th
or 7
th
Hijri
year. This battle was fought between the followers of
Prophet and the Quraysh tribe. (E.T.C)
i| lii, r r| -in l rn | n- ir
r , r n i ii i i|i i | . . . . .
| ir i c -r| n ;-i- r i i|i -ii ni
ii| ( s)
All the Shias do not believe that Hazrat Ali was the
foremost, most favourite and worthiest Caliph of Prophet
3156
Muhammad. . . . Imam-e-Hasan was regarded as Caliph
up to six months after Ali Sahib. (E.T.C)
rn -ili i | nr nn | -i ii| in
i | in| r l r ir i| - l| r l-i li,
l | i ilr-niilr-ni i ;ni ri ni| ;-i-
r si - ii; ;-i- r liin i i i | r -|i
-i n i -i i | n n i | n ||
i | i; - /z/s i n ir| r i | . .si - iri
rn | n ir| r i | n- i r i
li ni ii| . .-i r - r i| -i| in| i| r r i|
- nl i|| r rii | -i r - i r i ii ;l
i ; i i| ii n| -ii i ni| . . .- i ri r
l lii i | i i rin -i r - i -in r | ( zo)
After Hazrat-e-Mabiya, Yazid sat on the throne in his
place. It is said that somebody had poisoned the water
offered to Hasan Sahib drinking which he passed away by
and by. Imam-e-Hussain, younger brother of Imam-e-
Hasan, had been a claimant to the office of Caliph. He had
gone from Medina to Mecca and from Mecca to Kufa and
was locked in battle with Yazid.
72-73 people had martyred in the battle of Karbala. .
The younger son, Hazrat Ali Asgar, had certainly martyred
and his wife and sister had been imprisoned. . . Muharram
used to be celebrated even earlier and it was in existence
earlier as well. This incident had taken place on the 10
th
day of Muharram. So, after that it came to be celebrated
with much more fervour . . . . I have to say that both Shia
and Sunni communities celebrate Muharram. (E.T.C)
n- ir i i i s i| i- li i
ri -i r| -ii -- i i- r| r | r| iri
3157
i i i i n| -- i i i- r| r i s
i ni ni|| i i i n| i i| r| ri r |
r| ; ni rn n- ir | rin - li| r|
n| i|| r i - nr| r | r n -i r n|i| n-
ir si r ln i| n| r r n r | rn ir
l r -i i | n rn r | i ri -ii
i| n rn r | ( zz)
"The actions of Prophet Muhammad as also the actions not
forbidden by him when done in his presence, are called
Hadis. The name of Hadis is given to such words, actions
and sayings, and some persons have called the words,
actions and sayings of Tabiri Hadis.
Hadis was not, in this way, written in the life time of
Prophet Muhammad. It came to be written afterwards.
Sunnat means method. All the methods introduced by
Prophet Muhammad are Sunnat. The actions done by
Prophet are called Faili Sunnat and whatever he decreed
is called Kauli Sunnat. (ETC)
i i ni rn ir i- li i ri i-
r| li n|| n rn r | n i ; i i ri
li i i i| i r| - r- l- ni | nii
;-i--n i in - nlr - | in|| ; -i rn
r i n- i r -i i | ;-i -
i i i n, l i n r-n ri n ri r ;-i
r | ;-i i i -i n -r- r| rni r nini
in r ni| ( zs)
Whatever others did in front of Prophet Muhammad
and which did not attract disapproval from him, is called
Takriri Sunnat. If there is any question to which we do not
come across any answer in the holy Quran and Hadis, we
3158
will look for the answer in Izma-e-Ummat and Kayat-e-
Muzat-Hid. The point on which distinguished scholars of
Islam agree after the time of Prophet Muhammad is called
Izma. Izma does not hold good just for a particular
time; rather, it will continue to be consistently in force.
(E.T.C)
;-i l - ni i n| i | l i ; r| i
i i i i i | i i | , r| , ; -i i i
i i i l n r | r| i | n ri ni r | i|n l iiii
i i r i ;-il- i -- i i- r | r -| r l
i|n -i r r i-ni l i ilr| lr i|n |
iii r | lr i| l i r | lr i n -i -n
r | ( zs)
Islamic ways and manners hinge on these very
four bases, that is, the holy Quran, Hadis, Izma and
Kayas. Only this is called Shariyat. Shariyat is a word
of Arabic language and it is the name of Islamic law. It
is true that Shariyat means a path which should be
followed. Fiqh is a branch. Fiqh means understanding.
(E.T.C)
-r i ni~ i i | ;in i| r | -r i i
i| iln ri n| r l n- ri ini r i i|
-r i l ri ni ni n- i i- i- i ni| r
-| r l n n n li n n lr-i -
i n i r lri ln r -i | ii i ii
l r| i-ni liii| r i i n i r ;ri
- -ii ii -iri i ni ii ri ni l i- r
li li r i i | n -i ii|
-i o rn ir | i; i -i - r ; i|| ri | o
i | - - -i - r| n- ri i i li ii|
( )
3159
Religion is also concerned with worship of God.
There is a figure, which presents/introduces religion, who is
called Prophet and whenever religion is referred, the name
of Prophet also comes to light. It is true that such renowned
persons were born in different parts of world from time to
time, who showed the correct way to improve the condition
of an out of order society. These renowned persons must
have seen the atmosphere surrounding their birthplace, but
they did what was the command of God.
Prophet Mohammad was born in Mecca. He declared
himself to be Prophet in Mecca itself at the age of 40
years. (E.T.C)
r -| r l ri r i| i li ii l i i i
| i ni i lni i| i i| | i ni
r i - -i ri ni r -| r l r ; nr
-i ii i ; - -i r| ii| i i i | i
r| r ~ir i | i r l r ri nn ri ni l
n- ir | ri i r ~ir i i i n
ri ni ri | l n r i - -i - r i n ri r n
- i n li i | si - si - |i - i n r i | |
i - i; i ri n| i|| r i n ni | i| ;in n i i
~ir i i| i- n i | . . .r ir i i i| i ;ri-
r| l~ ; -iii r i| . . i i| i lni
| nn| ilni | r | i i| i r ir |
-| r| lii| . . .l l| -r - -n|
-iin | ;in ri - -ii i r| || ( z)
It is true that he had also declared that one who
shall believe in one God and one book i.e. the holy Quran,
shall be called a true Muslim. It is true that prior to him
none could become Muslim in this manner by reading
3160
Kalma. The word Khuda is not a Arabic word. The word
Allah is an Arabic word but it would be wrong to say that
the word Allah was not used prior to Mohammed Saheb
being declared the prophet. At time of birth of Prophet
Mohammad in Mecca, very few literate people existed over
there. People lived in small tribes. They had mutual
clashes. They also used to worship idols and take the name
of Allah. . . . . . The holy Quran was revealed to Prophet
Mohammad at not just one but many places. . . . . The holy
Quran was given the shape of a book by other Qatibs
(scribe). The holy Quran was not penned down by Prophet
Mohammad himself. . . . . However, he did not permit the
Muslims to forcefully oppose any other religion. (E.T.C)
n r -i - i -n r l lr| i- i -
r i -i i ni n-ni i i ni i |
- iin li n i rlii r -i - i l ,
ii ii n -i l , i ii li i r
i| n | -i | i || ; i- - i ; ni
r| | i ii ii - -i i ri n|| . . . . i i |
- n-n| l i i i n ni r r| | ( s)
By Fateh Mecca I mean that when Prophet
Mohammad returned to Mecca in the 8
th
year of Hizri era,
the idolaters and his opposers, surrendered their weapons
in his feet, removed idols from Khan-e-kaba, cleaned it
and became followers of Prophet Mohammad. (They)
started offering namaz. No force was used in this and
namaz started in Khan-e-kaba. . . . . . . . The holy Quran
does contain Ayats (a sentence of Quran) against
idolatry. (E.T.C)
r i; i n| s lr| n | i n n
3161
n| ii r| - -i i ii| ( r)
These battles continued approximately till 8 Hizri
era and by that time, almost the entire Arab had become
Muslim. (E.T.C)
i i| zs i - - inl -i i nni ri
| nr nn| li ii i| ri i| ilni ,ii lii
ii i| ri i ; | - r | i;i i| i| r| i| |
n| ii i r| ;-il- ni ii l| -r
i -i ii i - il l nii - i| r| ri
ii|( c)
The holy Quran was revealed on different occasions
over a period of 23 years. It was written in the same
manner and in the same period, the battles of Prophet
Mohammad also continued. Almost the entire Arab country
had turned Islamic and the population of followers of other
religions, became negligible in Arab. (E.T.C)
lni n| i i i-i l- li| r |
i- r -i ii i | n| i r -i ii
i | -r~|| n| i -r~| nri i- r i -
ii i | i i iri r| nri r i i | r
lni | i - li| n| r | ( r)
The book Tafsir Jalalen has been written together
by two Alams. Their names are Maulana Jalaluddin Suyati
and Maulana Jalaluddin Mahalli. Suyati and Mahalli
are names of places around Samarkand. Both these
gentlemen belonged to said places. This book has been
written in Arabic. (E.T.C)
| lni i i- -i -n| r lni i| |
i - r ; i i i- - n ; n i r| i ri|
lni n| i| i| l - li| r ; r | . . . .
.n|in r-li i| | i - r | ; - ~i r- |
3162
lii r | . . . . .lni n| | li i ;-i-
i|i| r | r i| | i - r | ( rz)
The other book titled Madarekuttanjil is also in
Arabic. Presently, I am unable to recollect the name of its
author.
The book Tafsir Bajabi is also in Arabic. . .
Tafsirate Ahmadiya is also in Arabic. It has been written
by Mulla Ahmad Jeevan. . . .The author of Tafsire Kabir is
Imam Fakhruddinraji. It is also in Arabic. (E.T.C)
n| -i i| | i - r |
ln| i| + ni| n| lni r ; i li
i ;-i- ri-| i |
l ni i i | i | i ;-i - -i r- - ;--i ;
i r r | l r| | | | - l i | n| r |
n n i i | i - - - ni nn| | i
| i | | l ni i | | i - r | l ni - l --
i | i | | i i i i - r ; i i i - ;-i -
- l -- r | r l ni i i | i | s l i i
l i | n| i | | l nl -| i | l ni i | | i i i i -
r ; i i i - ;-i - ; i r | ( rs)
'Tafsire Kassak' is also in Arabic.
The authors of all the books mentioned above, were
Hami (Protector/Patron/Supporter) of Islam.
Imam Mohammed Ismail was the author of the
book Bukharisharif. It has been written second
century of Hizri era. By that time, the holy Quran had
been formally prepared. These books are also in Arabic.
The book Muslim Sharif is also in Arabic and its
author is Imame Muslim. This book was written
subsequent to Bukhari Sharif. The book Tirmiji
3163
Sharif is also in Arabic and its author is Imam Abu
Isa. (E.T.C)
lni i i| i| | iiii - r ; i i
i- i r + i| i i lnii s i li| n| r |
lni ; -ii i| i| | - r ; lni i
i- r i r i| | -i - s in |s li| n|
r |
r -| r l ; lnii i ;-i-| ii r
i i |
lr | lni lrii | iiii - li| n| r l
; n - r n | iiiii - l n r | ; i i i-
ri | r | r | lni ii i| | i -
r i ; i i i- - n i r| i ri| lni
- lin - ~| | i - r ; i i i- i| - n i
r| r | lni nii lr|i | - r l r n i -ii
l- n i li r | lni nr | i| | i - r ;
i i i- - n i r| i ri| lni r - ni i l
| - r l ~i-i ir lii r i i- - n i
r| i ri r | lni - rni i| | - li| n| r | ;
i i i- - n i r| r | ( r)
The book Abudawood Sharif is also in Arabic and
Abudawood is its author. It was written after the aforesaid
two books.
The book Ibnemaza Sharif is also in Arabic, and it
is in the name of its author and it has also been written
around that period.
It is true that the authors of all these books, were
residents of Islamic countries.
Hidaya, the book of Fiqh is written in Arabic but
it has been translated into many other languages. Its
author is Burhanuddin Abul Hasan Ali. The book Sare
3164
Ukaya is also in Arabic, but I do not remember the name
of its author. The book Fatawa Hindiya is in Arabic and
has been prepared collectively by many Ulemas. The book
Fathulkadir is also in Arabic, whose authors name I am
unable to recollect. There is a book Durre Mukhtar is in
Arabic, which has been written by one Allama, whose name
I am unable to recollect. The book Raddul Muhtar is also
in Arabic. I do not remember the name of its
author.(E.T.C)
nii lr|i i-n|| r n -ii ;- - ri
li| i| ; -i ii li- | ir i i l lr -ni
ili i | ( rr)
'Fatawa Hindiya Alamgiri' was written collectively
by many Ulemas (clerics in Islam). Their head was
Maulana Nizamuddin, because he was a resident of
India.(E.T.C)
;-i- - i | rl-n r | i | rl-n - l--
-i rii | ni|i i l r l i ; i-
l| ( rr)
Moon has importance in Islam. The importance of
moon is for determining the dates of festivals in Muslims
calender and is not for decoration purposes. (E.T.C)
rn -i o i r r | ; i i l r n
i n ; i -| r rn r | . . rn ; i r i
i | - nn| r| ni ni | l -
r ni i - ni ni r i i l r ;
l ni i i - i | ni ni r | l rn - i
l rl n i -, ; ~i r | l ni ni n, rn
i i -, ~i r | l ni i l
r ; r | i -i | l ni r | i i
lni il r| r ; | . . . . r n | i| r l
3165
~ir i ; i| lni si -| i | il r| || i s
i| i l si -| lni il | n|| si -| lnii i
ir|i ri ini r | ( rsrs)
Prophet Christ came before Prophet Mohammad,
who is called Jesus Christ by the English people . ..I
cannot tell the Tarteeb (sequence) of the Prophets, who
came prior to Jesus Christ. However, I can name many
of them, as also the books revealed to them e.g. Allahs
book Tauret on Hazrat Musa Al Hiti Salam, Allahs
book Zabur on Hazrat Dawood Al Salam. These four
books are major heavenly revelations. Books were not
revealed to other Prophets. . .There have been many such
Prophets, on whom Allah did not make any minor or major
revelation, and there were few on whom Allah made minor
revelations. Such minor revelations are called
Shahida.(E.T.C)
|;-i- - r ; -i i i i i - s
;nii r, l i - i r| | l ni - i ri
i-| ir r , i ni - r i i r ; i i -
rn | r | i r i| r l ri i rn
i i i -ii i ni, i l r r| r| r| i i; i||
r i i| n | | i|, l ni - ri i
lin |, i - in r r l ri s i; i -
i lr-i li ii, l | in r r l | i; i |
nii l- ri i lin |, / i|| ; i; i i li|
ni r| ii l r |;-i- | n|n n i i
i n | - iin n i | ( cr)
There are some Ekhtlakh regarding the first
persons to have faith in the religion of Islam. However, it
was subsequently decided that the first amongst the elderly
3166
people was Abu Baqr, Khudaija amongst women and
Hazrat Ali amongst children. There is another view that
Hazrat Khudaija would be considered to be the first person
because the first Bahi was read by Prophet Mohammad to
him.
Prophet Mohammad had to contest many battles. As
regards the battles participated by him, there is one line of
thought giving the number of such battles to be 19, whereas
another line of thought gives the said number to be 17. The
basic cause of these battles was that Prophet Mohammad
used to propagate the religion of Islam whereas others used
to oppose the same. (E.T.C)
r n- n - | n i
-i n i , l i i r - - ni l
i i i i | n - r -i n |
rn i i - - ini r | r -l- |
r| i i ni ;i ii ii, ;| nr
iiii i i i ri -i i i| ;r| i ii ni
ii| r r n i- i , ri| ii| ri| -n ; in i r l
r rii r i i | ( cs)
Originally Prophet Mohammad used to offer
namaz facing sacred Baitul, and then on command of
God, he started offering namaz facing Khan-e-Kaba.
I know about Hazrat Bilal. Prophet Mohammad had
given him the opportunity to give the first Ajaan call from
the Nabvi mosque. Similarly, the opportunity of giving the
first Ajaan call from Khan-e-Kaba, was also given to
him. Earlier he was slave i.e. Habshi. By Habshi, I
mean he was resident of Habsha. (E.T.C)
l nl -| i | r| | l ni r , l ;-i - ; i
3167
l nl -| l i i r | - i| i r |
i i l ni i - -l - -| i i n - i
ri | i n r| l i | n; | . . . - i - r| l
i i | i - | l ni | r | ; l ni i ;-i -|
i i - i | l i - -i ni | i n| r | (
szss)
'Tirmiji Sharif' is a book of 'Hadis', which is
written by Imam Abu Isa Tirmiji. I have read it as well.
The absence of minarets and domes has not been
in both the said books. . . . I have read the book titled
Sahilil Bukhari. This book is recognized all over the
world as regards the Islamic law. (E.T.C)
3278. Regarding the structure and construction of a
Mosque, he says:
-n| l | | -| i ;-i n i | n| r
-l - r| r| ri n| ;l i i i i i
ri i i ; i r| r| r | l| i| ;inii i
ni i ;-i- - -i r ;l ni -l- i i i
r| i r| ri ni| n l| ln r - l - i -il i n
ni i| -l- i | i ; -ir| r| r | r
| in r l r ; - i -n| rlii -l- r|
i n | ( z)
A building built on somebodys land by force will
not be a mosque. So, there is no question of its being
legitimate or illegitimate. Demolishing any place of
worship is forbidden in Islam. So, there is no question of
breaking the same and building a mosque instead. If the
debris of any fallen temple is sold by its owner, then there is
no prohibition on building a mosque by purchasing such
materials. It is another thing that they cannot build a
3168
mosque by forcibly grabbing this debris. (E.T.C)
-l- i i| i i nr i| in| r | -l-
nr i i- r ri ~ir | ;in l -| i
li ni ri | ir ri ;-in i| i i i| i|
i i - -| i -i l r| ni
r | r| - -l - | i i n i - l
i i r | r| | -ir lnil-in i| r | r|
ni r r l | -l- i ir n -|i ii - | iii
i | r| - in| i i i| r - li ni r | r lni
l-in i| | i - r | ;i - i| ; i ni n -i
li r | ( zr)
A mosque is built at a tidy and holy place. Mosque
is the name of a place where land is given in Waqf for the
worship of Allah, irrespective of the fact whether a
structure is raised or not there. Only the owner of the land
can give it in Waqf. Hadis speaks of the face and
shape of the mosque. A famous book on Hadis is
Mishkat Sahrif. There is also a Hadis to construct a
mosque even without a minaret or in a bare shape. And the
other Hadis has ordained simplicity to be maintained.
This book Mishkat Sharif is in Arabic. Many people has
rendered it in Urdu too. (E.T.C)
i i| - -l- ii n i l r| r| r
ni r i r| i r| ri ni l - nil -|i i|
i i i| i -|i i i r - r| l| lni - r|
l-ni| ( zr)
When there is no mention of size and shape of
mosque in the holy Quran, there is no question of minarets
being built or not being built in accordance with it. There is
no command in any book for building minarets. (E.T.C)
3169
l| i| lni - n - i i i i i i
i| r - r| l-ni| r| - i r - r| r l -l- l
|i r| i| r | . . li l| ni-| i| -l- n|
r |( zc)
No book decrees for dome to be built or not to be
built. There is no decree in Hadis which says that a wall
alone is sufficient for a mosque. . . .There may be a mosque
even without any construction. (E.T.C)
-l- | lrin l n i| nii
nii i , ni i ; r r| r , . . . r -l- l l|
- n~| i ri i | r| r | - n~| l-- i ; -r|
i r| ri n | i i- ;ni- i i r | ;-i- i
iil- r | r -i i i - lii ri ni r, n-i- -r| i-
l-- r| ri n | . . .-l- - ;-i- | l ln - n~| ni
r | . . . s -l-i - ini ini -i l- ri n r i s
-l-i - i ; i| -i| ii i i- ni r | -i l- |
l ln i| - n~| ni r | ( z/)
If a mosque is ever closed and locked for its safety,
that is not objectionable. . . . .Every mosque needs to have
a Mutvalli. Mutvalli is not assigned with any religious
functions. His job is to look after its management. The
office of Imam is a religious post. He is the head
pronouncing namaz. He is not assigned with many
religious functions. . . . . Mutvalli appoints Imam at a
mosque. . . . Some mosques have Muazzins in a due
process, and in certain mosques, any namazist performs the
job of giving Ajaan(Ayaan) call. (E.T.C)
-l - | i ; i , l si i i
l i | i ; ni - i -i l i -
i i l - r| r , i i - i i ri ni r ir
;-i- ri , ir -i l ri i i ; i i-| ri , i r| nr
3170
i| n r ni, nr | r ; ;-in, |
i-, | sn i |ii | i- ; |i | ii|
n ii i ri i n|| n l| ;-i- i ; in |
ii| ri l l| ;-in - i lii l i -ln i | r ;
ri , l| - | - ln | r ; ri i l| -| | |i| i - |
- ln i li ri , ni -i i r r r r-i | i lii
ni, l n r i r| ni r i ini r , ni i| -i
ni ri r| i n|| | -i | n i i i - - r
r| r i r l r s riin - -r ri i n| i s -
-r i| r| ri n|| n ;-i - ; l -- l i
i l ni i r-i | i l i i r| ni , ni r i
- r |
n l| -l- | ;-in - | - i ; i i-| i i
li i , i n | |i -i; i ri i l r i i lr-
i-| i i i| i- i- in ri , ni i| -i
| i n| r , i i-| i n n - ln i ri ni i|
| n -i | i n| r , l ; n - ;-i- i r
ri ni l r ri -ln i i r-i | ilii |
( zs)
Cleaning of the mosque, laying mattresses or
arranging water for Vaju is not included in the duties
of Muazzin. It is his job to give Ajaan(Ayaan) call. With
the passage of time, a person who stays at one and the
same place for quite sometime whether he is an Imam or
a Muazzin or any other person will naturally come to
know all about the structure built there and about its
construction, ceiling and wall decorations. If an Imam has
the knowledge that pictures of animals and birds, or idols,
or statues of human beings, or straight or crooked images
or representations of any women are engraved in any
structure , he will try to remove such engraving before the
3171
recital of namaz. But if he does not do so even then the
namaz will get offered. I have already spoken about the
status and efficacy of such namaz. It will be Mawrooh in
some circumstances and it will not be so in some
circumstances. If the Imam does not try to remove this
types of pictures and shapes, it will be a crime on his
part.
If any partition, which may be in the shape of grill
wall and which may even allow both the portions to be seen
face to face even after such partition, is made in the middle
of the structure of any mosque, even then there may be idol
worship on one side of such partition and namaz may be
offered on its other side. But in this circumstance, it will be
the duty of Imam to try to get those idols removed from
there. (E.T.C)
-l - l -ni - i | i ; i n| r , i n l r
nr, ri -l - i ; i r| ri , | ri , l -
l | | n| ri | ; nr | -l- ni r-i
- ri - r| r , i l ni | - | r ; r | s i n
l -ni | lrin l i ;ni- l - il- i n
r , - il-| i nl i ri ini r | ( s)
A mosque may be built even at a graveyard, provided
that there lies no grave at the place where such mosque
is being built. This type of mosque is certainly situated at
our place Mehdawal and it is built in the centre of the
graveyard. Some people engage employees for safety and
management of graveyard; such employees are called
Takiyedaar.(E.T.C)
l r | r| r l r l -ni l nl i
ri |
3172
iiir nr i rn r , ri i ; | -r| iln
-, r ;in, lin n| r i - |i i ||
-r| in nin| r , nr i i- iiir r | . . . iiir
i- i i ; li i ll-n r| r | iiir l nir
i ri i i ; | r| r | nir - ii | ri n r | ii
| i ii i i r i| l ii -i i| ;i i
r nr - ii| iiir i| ii i| ri ni r |
i i r r n ii i ii| ii -i
r - i| nr| i i ii i - nl i r |
i -i i i | r| r | ( sr)
But it is not necessary for every graveyard to have a
Takiyedaar
The name of Khankah is given to a place where any
distinguished religious person seats himself, performs
worship and tells his followers about religious matters.
That place is called Khankah. No particular shape is
fixed for Khankah. It is not necessary for any Khankah
to have a Dargah. There are Sajjada Naseens in a
Dargah. The term Sajjada Naseen is coined by putting
two words together. That is to say, Sajjada Jama Naseen
means one who sits at a place. A Khankah also has a
Sajjada Naseen. Sajjad means one who does Sajda a
great deal. Sajjada means a sitting place . Sajjad and
Sajjada are two different words. Sajjad does not mean
Chadar(sheet) or Dari(mattress). (E.T.C)
- i - ri -l | nr -l- i i | r|
r, r |i| | in r r l n -l ln i i
-| | -l~n i ; nii ri i -il | -|
-| i , ni -l- n| r | - r i n
-r | i r| | r , l ~ i l n l ri
| r i i l ni i - l i i ni r , i
3173
- i n r i | r | r i n i l n | |
l ni i - l i | r , l ni i -n| | | . . . r
i n - i -i l - l i | r ; r | (
sc)
My statement about building a mosque at the site of
the temple, basically means that if there is no dispute on
the ownership of the land vacant after demolition of temple
and if its owner donates the land out of his free will, then
mosque can be built over there. I have not stated this only
on basis of my views and instead it is in accordance with
Shariyat (the body of doctrines that regulate the lives of
those who profess Islam) and the books. It is written in
authentic books of Shariyat such as Fatwaye
Alamgiri. .This fact is contained in its chapter Babul
Masajid.(E.T.C)
;| nr iln - r i| lii r i r l n -l- |
|ii i i-i i l| ii | | n-| i - ln i | r ;
ri , ni ri ni - | n; -i -r ri n|| r l r |
l ri i - l i i r i r | r lni i| - ii r|
ii, n r - ri ni i ni r | r l ri i -
l i i r | - r i li r l n -l- l| lr- -
- ln i i| r ; r , ni i| -i i ri n|| ; ii - i i|
- r i | r i | i n + i | l ni l ri i - i ;
r | r i n i | i - - - r | r i n l r
| i | -i r l ni i - l - n| r | | l ni
r i -n| | , ni i i | i i , - ni ,
-i rni n r| n l| -l- - ; ii n ir r
i i rii - i ri , -i r| | i , ni i| i ;
r| ni, r -l- i r n|| n | -l- lr i i
i ri ri i ri i ii n | ii- i| ri n| r| ri ,
i i| r -l- i r n|| ( i ri l
3174
i i i i i l ni l n r n n -i n
i r , -n -l - ri - i ; r|
i ) | ( s/)
Similarly it is mentioned in the Shariyat that if picture or
idol of any living being exists over the walls or pillars of
mosque, then the namaz offered there would be Makruh
(undesirable) under certain situations. It is so mentioned
in the Hidaya of Fiqh. I have not brought along even
this book, but if directed, I can bring it. It is mentioned in
Hidaya Awwalen. I have stated that even if idols have
been kept in some part of a mosque, the namaz offered
there would be proper. I had said many other things along
with it. This fact is also mentioned in the aforesaid
Hidaya book. This fact is also contained in the chapter
titled Awwalen. This fact can also be found in all
famous books of Fiqh. The other books are- Alamgiri,
Fatwa Kazi Khan, Durre Mukhtar, Raddul Mohtar etc.
Even if namaz is not offered in any mosque for years, may
be hundreds or thousands, it shall have no effect and it
would remain a mosque. Even if the Hindus had been in
possession of such mosque and had been offering their
prayer-worship over there for hundreds of years, then also
it would remain a mosque. (Stated on his own that many
big idols were kept of very long period around the
Khane-kaba, but it had no effect on its status of
mosque). (E.T.C)
rn -i o i r -l - ni -| i ; i | | -i
r -|i ni| n ni ri ri -l- i; i|
i -l - i i - -i r r | l i r -| i -
ri | -l - ni -| i ; i i i | |
3175
-l - i - -i r r | ; -l-i - |ii i; n|
i sn l i | l-ni i ili i ;-n -i li
ni| ri n - i i r| i r| ri ni ii i l sn
i | l-ni i ili | i|| ;- -|i i| r| i; n| |
r n r l- ; i i -l-i | n-| sn| rn| r |
l r n-| -i i ni-|in | r , l i - i; n|
-l-i || ( rc)
Prophet Mohammad had built a mosque. When he
went to Medina from Mecca, he built a mosque over there
which is famous as Kaba mosque. Thereafter, he built a
big mosque in the city of Medina, which is still famous
as Nabvi mosque. Walls were built in these mosques and
palm leaves & branches were used for roof. The issue of
construction of domes did not arise over there because the
roof were made up of palm leaves & branches. Minarets
were also not built in them. There are many calenders,
which publish the photographs of these two mosques.
However, these photographs are of the existing
constructions, and not of the mosques built
originally.(E.T.C)
- -l-i | n ni-| | in i i li r, r -r
i ni i | i; ini r| r, l~ - i lnii - i
r | - r lnii - i r, i r| r | l r | n-i- -ir
lnii - r lii r i r l -l- l -ni - i| i; i
n| r | ; n ri n - | i i n| r , r i n
l ri i - i | l i | r ; r | ; lni i ri |
r | lii r | r nii ;i r i i | ;|
lni - ri r i| lii r l ri n i r ri , ri
i| -i | i n| r | lni - r i| lii r i r l
ri n - l-- i n ri i | ii- n ri , ri i|
-i | i n| r | r lni lr| | i | | - li|
3176
n| r | ( cz)
My statement regarding the manner of construction of
mosques, is not merely based on hearsay and instead I have
read so in books. I have read it in books and not heard the
same. In various famous books of 'Fiqh' (Islamic
jurisprudence) it is mentioned that mosque can be built
even in graveyards. To the best of my present memory,
this fact is mentioned in Hidaya as well. This book has
been written by Burhanuddin Abul Hasan Ali. He was a
resident of Tashkand. In this very book he has also written
that namaz can be offered even at places where idols have
been kept. It has also been written in said book that namaz
can be offered even at places where non-Muslims are
present and perform their prayer-worship. This book has
been written in fifth century of the Hizri era. (E.T.C)
-l- - -|i i | -ir| r , i l - r i i
r | l r -ir| n| i| r| r , r~|~| r , li
-n r l -|i i ii r| li ni r r in -
r| i| - | r | r in -ir lni ri| - r |
; in r| i| - r r n- ir i r| i r | i |
r| i i | n r| | r i r in -|ii i| ;
- in| r | ( cs)
As already stated by me, building of minarets is
prohibited in mosques. However, that restriction is not
strict and instead is casual, which means that construction
of minarets has not been appreciated. I have read this in
Hadis Sharif . This practice is contained in the famous
book Baihaki. The words of Prophet Mohammad in this
behalf, are contained in Hadis Sharif . Kauli Hadis and
Kauli Sunnat are same and this fact of minarets, falls in
3177
this category. (E.T.C)
-l - i l -| i l i l - -i l i l
i - - ni -| i -i l ri | -|
si ni ni -l - n| | r -| i ni i
| -| ri ni r | ( or)
A mosque can be built over a land only when its
legal owner voluntarily donates the land for the same.
He would execute Waqf of that land, and the Waqf is
executed voluntarily. (E.T.C)
l| -l- l -| i i |ii n|i r l
i -il r si | ( oc)
The simple manner of executing Waqf of land for any
mosque, is that its owner leaves it by saying Waqf.(E.T.C)
l | i i| li i , il i i il- -il
ri i ilr i | | -| ri i ilr| ir
i ;i i ir l ;i , r|
i| r | . .ri - n~| il r| ri ni, l r | -|
l ir - n~| i |. . .- l| ni|i | lni - i r|
i l liln i ir| lr- - i ; ni ri ri | ; nr
| in - in| ;~- - i| r| r | - n -i - r| l l|
n -ln -iiln lr i n i n r ri | ( z)
Whatever is given in Waqf, must be wholly owned by its
owner and the Waqf must be executed voluntarily. The
execution of Waqf is good enough, whether executed orally
or in writing. . . .The first Mutwalli is the Waqif (executor
of Waqf) and then subsequently he may appoint anyone on
his will. . . . I have not so read in any history book that
there was any platform in outer part of the disputed
structure. Such fact is not within my personal knowledge as
well. I do not know that Hindus installed and worshiped
3178
idols over any such platform. (E.T.C)
l | - l i ni | ;-i - - ;i n r| r | r-
l| -l i ni -l- r| i n | n - l - -ln -iiln
ri ni - ln i i| r| ni n | - l i i - ln i ni ri
-l- i i i r| i r| ri ni| . . - n -i - r| l l
nr - nili ;-in | r ; i| r i i| i r| | .
. . .- scz - | ni|- | i r| i ni ii i
s/c - - l ( iiii l l) n ni ii| ( r)
Islam does not permit the demolition of any
temple. We would not demolish any temple and build a
mosque. If idols have been installed in the temple, then
would not damage the idols as well. The issue of building a
mosque over there after demolishing that temple or idol,
does not arise. . . . .I do not know whether the place where
the disputed structure stood, was public Nazul or not. . . . I
started teaching in 1962 just after completing my education
and became the Principal in 1976. (E.T.C)
3279. PW 11, Mohd. Burhanuddin has also towed the
same line in his cross-examination. He has said:
- l-- i i r , lr n | i i i
r n r | i- r i -|, i (r|), ;-i,
i| iln i -n r r i i ~ir i
l li r | ( s)
There are four principles of Muslim law, which can
be termed as source by English speaking people. They
are- holy Quran, Sunna (Hadis), Ijma, Kayas.
Shariyat means the law laid down by Allah for his
fellows. (E.T.C)
r -| r l | i ; ni| i i| - i| r| r l
-l- | i i n ri i ri i i|, | ni i
3179
i-| i n ii i ri ni i ln| r ; -l- i|
-l- -i| i n| i ii n l| ;innir ri i
i ri ni n rn r| ( )
It is true that the holy Quran does not contain any
description either regarding the form & shape of a mosque,
or as to what would happen in case of depiction of
animals-birds, Gods-Goddesses or men & women faces
over there, or will a collapsed mosque also would be
considered a mosque, or as to what would be the effect of
presence of any other worship place around it, etc.(E.T.C)
-l- i -n r l -i | nr i| |
nr| -i i i r i nr i li i ni r |
; -i - -l- l l| ii nr | n r| r |
-l- ~ir l i; in| r , nil i i- li i |
- r in r| | lnii - nil ni ri r i i i| -
i| r| ri ni r | . . . . -l- i l r | r| l
ri - -ii | i| ri | -l- - ili l i| i;
in| r | - n~| i ni~ r , -l- r| , ;l
| r| l r -l- i - n~| ri | . . . .iln - nil
- n~| | i ri ni i ~ir l li ni r | i
ii ~ir l | n; r , | iii i
- n~| i i- r | ni~ i ii i i| i- r ,
ir r || i- r , ir ;nil-i i- r , i liii - n~|
i i- r | ( r)
Mosque implies the place of offering namaz i.e. the
place of Sajda (bowing down in reverence). Namaz or
Sajda may be offered at all holy places. As per this
meaning, no particular place is required for a mosque. A
mosque is built for Allah, so that he can be remembered. I
am stating this fact in accordance with the books of
Hadis, and similar versions are found in holy Quran as
3180
well. . . . . .Existence of Muslim populace is not essential
for building a mosque at that place. Mosque is built for
travelers as well. A Mutwalli is related to Waqf and not
mosque, and as such it is not necessary that there is a
Mutwalli of every mosque. . . .According to Shariyat (the
body of doctrines that regulate the lives of those who
profess Islam), a Mutwalli shall exist in case of only such
Waqf, which is executed in the name of Allah. It is the duty
of the Mutwalli to look after the property, whose Waqf has
been executed in the name of Allah. It is the duty of the
Mutwalli to perform all the duties related to Waqf,
whether religious or managerial. (E.T.C)
i i r| -i ri n| r , l n i ;
-iini riin ri ni ;-i- ir ; in | n-| n l
i | n; r i r| i l -i i n | . . . . -- |
-i l i| r il- r| l i ri | r | in r l
l ni| | -ii ii r | . . . .i n i|
-i ri n| r, r l r | lnii - lii r i r |
iln -- i i- lr r | li| lri
l r i -n r l,, ;- | i ;-nir| ( l- ni )
ni ;i -n r i, r|, ;-i, i i -i
l r , r iln rn r | . . . . .iln - -i r
i i i n r | ( c)
Namaz is offered only after hearing the Ajaan call,
but in case of any Mashwata (doubtful) circumstance, the
Imam shall verify whether the Ajaan call has been given
or not, and thereafter shall administer the namaz . . . . It is
not lajim (necessary) to give Ajaan call for the namaz of
Jumma. It is different that there is more Taqid for it in
comparison to other namaz. . . . .It is mentioned in the
3181
books of 'Fiqh' (Islamic jurisprudence) that namaz can be
offered even in absence of Ajaan call.
Fiqh is the summary of Shariyat. The dictionary
meaning of Fiqh is wisdom, intelligence and
practically Shariyat means the Masail (problem/topic/
issue) of Quran, Hadis, Ijma, Kayas. . . . .Giving of Ajaan
call before namaz, is Sunnat in Shariyat. (E.T.C)
l r | r n r- lni ; r | . . - lri r n
r- lnii - - ni -ir ii-| i- -ir r |
; i i i--i r-- -| ; i|| ii-| r | . .
iln i l r - i ; li| r| r | l r - iln i
nn| | n; r | iln i r| i ; ni l r
- nn| | n; r | lrii - -l- | in i| s ri ni
r | l - -l- | i | in i ; li| lrin r|
r |. . . r -| r l l| n | -| -n| -l- i
| - -iln i| r | n l| | -| iln ri ni
-il | -| n ri -l- i- r| ri n|| . . .n n
- l- | i ir - l-- | i| i ; ii ri ni l|
i| n - ni i n-|- ri -n| -l- r|
i; i n|| n i iln ri ini r ni r -l- i
r| -i| i n|| r in i - ni ri r , r l r | r i
i lrii - ii ini r i i| ; lnii - ii ini r | i
nii i-ln| - i| ii ini r nii lr|i i
i-n|| r| lni i- r | . . - - oz -ii
i n | r -i; - r lni li| r | l ini i - l
li r , r | i| lni - i; r | ( /s)
There are many important books of 'Fiqh' (Islamic
jurisprudence). . . . . .According to me, out of the very
important books Raddulmukhtar is famous as Mashhoore
Shami. Its writer is Mohammed Amin Ibne Abidin
Shami. . . . . There is no fundamental difference between
3182
Shariyat and Fiqh. Shariyat has been given Tartib
(sequence/arrangement) in Fiqh. After reading the
Shariyat and giving it due thought, has it been given
Tartib in Fiqh. The Hidaya discuss mosques in detail,
but it does not contain any fundamental instruction
regarding the form of a mosque. . . . . . It is true that there
is a restriction on forcefully building a mosque over
someone elses land. If the ownership of someone is proved
over a land, then a mosque would not be built over there in
absence of the consent of owner. . . .If any property
belongs to a non-Muslim or even a Muslim, then a mosque
cannot be forcibly built over there under any circumstance
by demolishing the same. If it is so proved, then the mosque
would not be considered legal/proper. The facts being
stated by me, are of Fiqh and are found in Hidaya as
well as in many other books. It is so found in Fatwa
Alamgiri as well. Fatwa Hindiya and Alamgiri are the
names of the same book. . . . . .This book has been written
by at least 10-12 Ulemas under the patronage of
Aurangzeb. The facts stated by me, are also contained in
that book. (E.T.C)
i i r| n| r| | r | rn -i r-- ir i
i- l i i ri in -i; i i in ri il-i
i n r ii i i -i r| li i l ini i ri
-| | r i - in| r | |, i| i n|| ;
n| iiiii - i i i -i i ni r | i i n r n
|, n i| i n n||| ; i lni li| n;
r | ;| i r| rn r | r| li ii - r i
; - i ; i i ; r- i rn i-
in r | . . . . i i n r - inl r|i i i| i n
3183
i , i li r nn| ii - ;-i- i , -il
l| lni i i| i; in| r | . . . . .- -l- | i-
i| i n i - i ; l r| r | ( s)
Sunna and Hadis are almost the same thing. The
acts of Prophet Mohammad or his sayings or the things
seen by him being done by others and not objected by him
or the things approved by him, all fall within Sunna.
Sunna can be divided in three branches viz. Faily (acts),
Kauli (promises) and Takriri (preachings). They are
called Sunnate Faily, Sunnate Kauli and Sunnate
Takriri. Hundreds of books have been written on them.
This is called Hadis. Amongst the first ones to write the
Hadis are Abdul Ibne Aam, Ibne Aas, Abu Ibne Hazm and
Hazrat Anas. . . . . .The first Imam to have memorized
different Hadis and summarized them, was Malik whose
book is still available. . . . . . It does not mention about the
construction i.e. form and shape of mosque. (E.T.C)
- i| i ; in| -l- i- i i r| i| n
i ; nr n| n n - l-- ;inniri li| r ; ri ni ri
-i | i n| r , l| r| - ; - -iln r| r |
. . . . . n l| ;-in - l i i i l ri ,
i -n | n i r| i i ii lr i -i
ri , ni i| -i | i n| r , in l i i
i-ni ri | i l l r - ii r, r| - | n|in r|
r | ( s)
I never heard the name of Kanati mosque. If any
place is surounded on three sides by non-Muslim worship
places, then also namaz can be offered over there, and
none of the Hadis prohibit the same.. . . . . If there are
only two gates, in east and north, for entering any building,
3184
and worship places of Hindus exist at both the said gates,
then also namaz can be offered inside it provided there is a
way leading to it. It is so mentioned in the Fiqh, but no
such detail is found in the Hadis. (E.T.C)
n li r i ri i -l- - i
;ni- i| ri i n i| -ni ri ni n- -
-i i | i n| r | . . . .- i| | -l- i| r , ri
l i| i ;ni- ri ri | ( s)
Namaz can be offered even by performing Taimum
(substitute for Vazoo), if Vazoo has not been performed
and there is no arrangement in the mosque for performing
Vazoo and water is not Dastyab (available) even at
distant places . . . I have also seen such mosques, where
there was no arrangement for performing Vazoo.
(E.T.C)
l| -i -i - i ri i ni
r ;-i rini r | . . . -l- | i- i i n i -
i ; ;-i r| r i| i -i n -i r| r| l l
-l- ii n l -ni ri ni ri -i | i i r| | . .
; in i| i ; ;ini r| r i l l ;-in i n| i
ii n i| i ; n - l-- ;in nir ri ni ri -i |
i n| r i r| , ri -i i| | i n| r |
- ri r ;r| li - ;r -ii ni r ; i| ni ri
ri r i l i| n ;ini l| r| li| ( o)
When the Ulemas of a period become unanimous on
any issue, the same is called Ijma. . . . . There is no Ijma
regarding the form or shape of mosque. Such an issue has
not arisen till date as to whether namaz be offered or not in
a mosque, which is surrounded on all sides by
graveyard. . . .There has been no Ekhatlaf (disagreement)
3185
on this issue as well as to whether namaz can be offered or
not in a building which is surrounded on 2-3 or all sides by
non-Muslim worship places. Actually namaz can be offered
over there as well. These issues are recent and have been
raised recently. They are still being considered because
none has done Ekhatlaf as yet. (E.T.C)
-l- i i| i-- r| ri n|| n -l-
- i n| ni ri ir -i | i i | i r r-ii
-l- -i| i n|| n ri -in| -i i| | n| ri ni
i| ri -l- r n|| n -l- i i ni-| - -
i ni ri li ni i| r -l - -i | i n|
i r ri i i | -i | n| ri | n ni-|
i | ln -l- | i| i i ni i -l- i |
ni -l- n|| ( )
A mosque never ceases to exist after it is built. If a
mosque has come into existence, then it will always be
treated as a mosque even if namaz is offered over there or
not. It would remain a mosque, even if the Jamati
(collective) namaz is not offered over there. If the builder of
the mosque has delivered the mosque to people after
completion of its construction, then also it will be treated a
mosque even if namaz has not been offered over there
even once. If the intention of the builder was a mosque
and he delivers a mosque to people after its constructions,
then a mosque comes into existence. (E.T.C)
n i ; i n -l - i l ni ni i | r
nr -l - ri n| i ;-i r | i r l ni -
l i i r | l | i ; i i l -i l -
;~- - r| r ri ; nr | i n ri i ri -l -
l ni ; n| ri | . . . lni| r ; -l- -ii i -l- -ii
3186
i ni ; in ;-i r i - r i r | n r| -l- lnn| r
ni r -l- r| r n| ; r -i -i iii i ;l-i ri
r i - i r | i - l r - i r | ;-i ;l
i| i| r i l i i i r n -i i| ni ri ni ii
i ;| nr ; ;-i i i| ;-i i|
( z)
There is a Ijma to the effect that if others
demolish a mosque, then also that place would be called
a mosque. It is so written in every book. However, there
is no specific example in my knowledge where such a
situation exists or where mosque has been
demolished. . . . The site of a demolished mosque, would
always be treated as a mosque and a Ijma to said effect
has taken place in all times. I have so read that if any
mosque collapses, then it would remain a mosque and the
clerics of all times have been unanimous in this regard. I
have so read in Fiqh. Such a Ijma was also issued
because many future issues were also considered and
accordingly a Ijma of this Imkan (probability/situation)
was also formed. (E.T.C)
l lr | lnii - ii r l n l| ;-in
| |ii i i-ii i li li i| li i i|
| ni i i | n i | n-| ri ni i| -i ri n| r
i n | ;i-in li i| li ri ni i| -i ri
n| r ri l i -r ri i n|| n i| li i
-i| | - i ; i-ii ri l ;i-in ri ni i| -i
ri n| l n i-in -i| l i- ri n , ni
-i -r ri i n|| ( z)
It is mentioned in the books of Fiqh that namaz
can be offered even if pictures of animal, bird, God,
3187
Goddesses or living being exist on all the walls or pillars of
any building except for the wall facing Kibla, and if such
Ilamat (symbol) exist on the wall facing Kibla, then also
namaz can be offered although it would be Makruh
(undesirable). If there are such Ilamat over a pillar in
between the wall of Sajda and the namazist, then also
namaz would be offered but if these Alamat (symbol) are
immediately opposite the namazist then the namaz would
become Makruh. (E.T.C)
i|n ri- | i l-- r r . z. ri- s.
-r . - r. i| ;i iil- r - ri i ni r | . .
. . ri- | l-- - i i- in r l| -ir| | n| r | i
-ir| r n n| i | |i | n| r -r - l n
i-i | -ir| | n| r l n| n| r| | i |
l-- - i i- in r i l i| i n r i l i| i
n r | i ; i r| i i ; n ir
r| | ( )
There are five kinds of Ahkam (ordain) of
Shariyat- 1. Farz (duty), 2. Haram (forbidden act), 3.
Makruh (undesirable), 4. Mandub (representative/
delegate), 5. Jayaz (justified/legal). They can also be
termed as tenets. . . . . . . . Haram includes such actions,
which have been prohibited. The prohibition has been
imposed by very strict and strong reasons. Makruh
includes the actions restrained but not that strictly. Jayaz
includes such acts, which can and cannot be done. Their
performance does not yield any Sawab (virtue) nor does
their non-performance entail any offense. (E.T.C)
r i| lnii - ini r l n l| -r |
;innir i i l| i-| | nr i -n| ni
3188
-l i | n| ri ni r -| r| r | ( )
It is contained in all the books that if a mosque has
been built by forcibly demolishing the worship place of
another religion or the place of any other person, then it is
not proper. (E.T.C)
i | i - - r| ri ni | ( s)
A Waqf never terminates. (E.T.C)
n- ir ;-i- r| ii i| ;-i- | i in
r| | ;i ini ni i- r i- r | -i r-- ir
ili| n- i i ri ;-i- i ili| - - i ||
r ;-i- | - - i r| i|| ( z)
Prophet Mohammad did not found Islam i.e. he did
not start it. It began with Adam Alehusalam. Mohammad
Saheb was the last Prophet and he gave Islam its final
shape. Prior to him, Islam did not have a final
shape.(E.T.C)
- ;~- - i r| r l -i r-- ir r -i -
n | ;in ri n| i|| l r -| r l n | ;in ri n|
i|| ( z)
It is not in my knowledge that prior to Prophet
Mohammad, nature was worshiped in Mecca. However, it
is true that idols were worshiped. (E.T.C)
;-i- lri -ili | -| lii - l ni i
ii r | ( z/)
According to Islam, demolition of temple without
the consent of owners, is illegal/unjustified. (E.T.C)
n-n| ;-i- lii r | r ri nn r l ri
- ln i -iiln | n| ri ri -l- r| n| in i
-| - -ii i n| ril | r ; ri | i ni
ril i -n r -il | -| | ri , lri
li ri i | ri in l -| i i ; -il
3189
ii| r -| i i | i| ri n| r , ril- | ri n| r r -n
| i| ri n| r i l| i; - i-| | i| ri n| r n
-| r -n | r ni ril- i i lni r | n
i| -| r i ril- - -i r i i ril- r ni
-| ril- -l- i ni r | n ril- i
ril- - nil nr ril ni r ni r -|
n ri ril- | ri i n|| ( z/)
Idolatry is contrary to Islam. It is wrong to say that
mosque cannot be built at a place where idols have been
installed, provided the land has been obtained
legally/justifiably by Muslims. Obtaining legally/
justifiably means given voluntarily by the owner or gifted
or sold, provided the land had some owner. The land can be
of God, of Hakim (ruler), of Government and of some
private person as well. If the land is of Government, then
the Hakim (ruler) would have total rights over the same.
If the land is public and the Hakim (ruler) is Muslim and
is a legal/justified Hakim (ruler), then the Hakim (ruler)
can build a mosque over that land. If one Hakim (ruler)
conquers another Hakim (ruler) principally, then that
land would become of the Fatehaab Hakim (victorious
ruler) (E.T.C)
i ; i | - -i i -l - i ni
| i i r i l | l r- - l | n-| i
r| i ni i i i | | n-| r| i ni |
l| | n-| i i i r| r| i ri ni| - l- |
i|i| ir| lr- n l| ii| | n i
| in| r ni r i r| r |
( zs)
No Muslim, who builds a mosque, would depict
3190
any picture in any part of inside or outside of the
mosque. (He) would not depict the picture of any living
being. The question of depicting the picture of any pig,
does not arise at all. If the figure of any living being is
made on outer part of the boundary wall of the mosque, the
same is not legal/justified. (E.T.C)
i ; - -i l -l- i ni ni
i i ; ii | r| i ni ir r i i| ri ir
i| ri ir i ; | ni ri i n r i ni ni r
n rni ri ni| l r -l- l i| ri n| n i iin
| ri n| ri ni | ( so)
When any Muslim would build a mosque afresh,
then he would not get the picture of any living being be it
animal-bird or male-female or God-Goddess, depicted
inside it and if he does so, he would be an offender.
However, it would still be called a mosque if other
Sharayat are observed. (E.T.C)
- i - - r|, lr, n|, -ln,
ii r|, | - il- i i i| i li ii|
il- | i; - - -i-| ir, , inn, l,
n|, , lr, r|, n| i | ( s)
I studied Hadith, Fiqh, Tafsir(exhaustive
explanation) , Mantik (logic), Falsafa (philosophy),
Usulehadis (principles of Hadith) at the Darul Uloom,
Deoband. I also passed the Alim (degree). During my
Alim course, Noh(branch of grammar), Sarf (branch
of grammar), Balagat (experts), Usulefik (principles of
Fiqh), Usuletafsir (principles of exhaustive explanation),
Adab (literature), Fiqh, Tafsir (exhaustive explanation)
were my Majamin (subjects). (E.T.C)
3191
-i l | r | ( ss)
Vazoo is essential for namaz. (E.T.C)
i - lnl-| r| | lni - i| lii r | i-ni
; nr | in i - li| ri n| r | ( s)
It is so written in the book of Tirmiji Hadis as well.
Usually such facts are mentioned in Babul
Vazoo.(E.T.C)
;-i- | i in i- r ;-i- r ; l i -
-ir r l r r i - i i | ;-i- | ili|
- -- i ili| n- ir | i ri ; -i
ii| r ir - r| i r i i r| ri ;-i-
i i i i- i li ii|
-l- ri- - - i- r i -i ir -
r | r i - -i i -i| nin ini ri l--i| nin ini ri
i l i| ril ri l r r l r - -
i ri i r r iln - -ii l r |
( )
Islam began with Adam Alehuislam, about whom it
is famous that he had first arrived in Lanka. The final
shape to Islam was given by the last Prophet, Mohammed
Saheb and he propagated it on a large scale. Prophet
Mohammad was born in Arab and from here he started
propagating Islam.
Masjide Haram is a sacred place and is situated in
the city of Mecca in Arab. It is the duty of each such
Muslim, who is financially competent, physically fit and
has the conveyance, to go there once in his life and perform
Haj. This duty is for adult Muslims. (E.T.C)
-|i i| n r ril i -i
i| r ni| i ni i i i | i ri r|
i i ni i | r rn l i i i
3192
i i | . . . . .-in | -i l -ili i i
l i | in| r ; in i - in r r
r ni rn li i ;l ii ii i l | ii
r n i|| ii ;l | n| nil
-i| i il ii n
in| r ;l rn li sn i ri i | i||
( s)
On proceeding from holy Medina and after
registering victory when Prophet came to holy Mecca, he
bestowed Hazrat-e-Bilal with a standing to give the first
Azaan by standing at holy Kaba. . . . . . . . . . . . . Azan
is given in order to call namazists to offer the mass prayer.
Taking this point into account, Prophet bestowed this
standing on Hazrat-e-Bilal because his voice was very
eloquent. His eloquent voice was liked because it was
audible enough for namazists to hear it from far away
places because when a call is given from an elevated place
it goes far and wide. This was the reason why Hazrate-e-
Bilal had given the Azan call by standing on the
roof.(E.T.C)
| ii i i l i i | in| r , i ; i|
i-| ir lni si -i i ir lni i r| i ri , -ilii
ni ril r| ni| ( r)
Nobody, howsoever big or small he may be, cannot
as an owner acquire a Waqf property, which becomes that
of Khuda (God). (E.T.C)
li ii i- r ;-in i ; -|i r| r i
r| r i|| i i i i n i -l - r
-| i r | ( rs)
There is no minaret over that structure which is
3193
named Qaba, nor did it exist earlier. There is minarets
over the mosque surrounding Qaba. (E.T.C)
lrii - r lii r i r l ri i -l-
i r r-i; r| i n|| r nr r- ii r| -l- r n||
( cz)
It is written in Hidaya that a mosque once built at
a particular place cannot be shifted from there. That place
will always remain to be mosque. (E.T.C)
l il ri i | r . . . . .n -n|
rl i i ; nr i l i i ni r ri - r r
r| r| ri ni | . . . . - ;~- - l| r| - -i
n n| i - i r -ir| r| i| n; |
( cs)
It is necessary for there to be a Waqif (executor of
Waqf) for the purpose of Waqf . . . . . If Waqf is
executed in respect of forcibly captured land, it is
Haraam(a forbidden act) and it would not certainly be
Waqf. . . . . To my knowledge, no Hadith imposes any
restriction on wearing coloured clothes and the ones
designed with embroidery at the time of offering namaz.
(E.T.C)
li l n i i i i r-i ri i -
-l - r l i i - i | -l - i - -i r r |
i - - i ; ni|i | lni r| | r -l- i
lii r r| i r | ( cc)
Besides the disputed structure there is also a
temple at our place which is famous by the name of
Babri mosque. I have not read any history book about that.
It is so mentioned in the mosque epitaph; I have read about
it from that very source. (E.T.C)
3194
i i| - ; in i l r| r l -l- l nr
| -| i; i | . . . . . i i| - -ln ni i r -
r| r | ri - rn ; ilr- i l r - ln ni | in|
l li ni r |
l| -l- - i n i i ni i i l| i| ii | |
i i n ii i r| r | l| i| -l- | |ii
ir | nr ri i ir | n ri l| ii | |
i i n ii i r| r | ( c/)
The holy Quran does not mention at what type of
land a mosque should be constructed. . . . The holy Quran
does not command the breaking of idols. Nevertheless, it
approvingly mentions about Hazrat Ibrahim in connection
with the breaking of idols.
It is not legitimate to construct the face and shape of
any spirit or demon or of any animate thing at a mosque. It
is not legitimate to carve the face and shape of any animate
thing on either side-outer or inner- of the walls of any
mosque.(E.T.C)
- - l -- i i - ni - i
l ri l r i r | ( /o)
I am present to depose as an expert in Muslim
law. (E.T.C)
n r iln ri i l -ili i i| i-| r|
| r, ni r -l- i r| -i| i n|| ( /)
If it is proved that owners have not given their
consent with pleasure, that mosque will not be taken to be
legitimate. (E.T.C)
- | -n - i - ;~- - ; n l r -ni -
- i i - l -- i i - i i | i i i
i ; i l - r| r , - i ri n r l
- n rn r| r | ( /s)
3195
To my understanding and knowledge, there is no
Aalim in Hindustan having better knowledge of
Muslim law than I. They may be equal to me but they
cannot be better than I. (E.T.C)
- l | ni|- ni r | ( //)
I teach Fiqh. (E.T.C)
ri -l - -n -l - l i r
l ;-i n i | n ;-in ln i| i ni i-
r ni| - ii -| -l- r| n|| n l| i-|
i i| -| - lr-i ri i r ri i r -l- l
| ;in ni ri -l- r| n|| ( s)
Here mosque means Waqf for the mosque, not
its structure. Even if the structure crumbles, the Waqf will
continue to be there. A mosque cannot be constructed on
Musha land. If any other person has a share or title in a
particular piece of land and he does not allow the said land
to be given in Waqf for the purpose of mosque, then mosque
will not be built there. (E.T.C)
n-| i| in ; lr | lnii - -i r -
r i; , - ni, i i| - n ; n i
r| l l i i l ni - - r i i i l -l -
-| i i n - i | n r| i ri
; ni - | n r| | r in - - nl lnii i
- - ; ni -n| r | - r i r| r l i i| i
r| - -l- | i n i n ni-| i ; ii lrin
r| r | ( s)
A fact as to picture is present in many Fiqh books
i.e. Bahyar Raik, Raddul Mukhtar and Baday Asnay.
At present I do not remember in which particular book I
read that there is no requirement of minarets or domes
3196
or of any arrangement for vaju in a mosque. I have
developed an overall understanding about this thing by
going through different books. This statement of mine is
true that the holy Quran and Hadith do not have any
specific piece of advice regarding the face and shape of a
mosque or its style of construction. (E.T.C)
l r in -| r l i ni i| i; i
lri ii rn i -| rlii; in| r
-l- i i | -ir| r | - | -i - ri i n||
r -| r l r| i - nil n i ; -il
l| -| i ii i ni l r | r l
r i -il ri | ( sr)
But it is true that it is forbidden to build a mosque
on any land which is grabbed in an illegitimate manner or
by resorting to illegitimate activities as per the Shariyat
law. Offering namaz at such a mosque will be Maqrooh
(undesirable).
It is true that under the Hanfi law, in order to give
any land or property in Waqf , it is not necessary for the
person making such Waqf to be its owner. (E.T.C)
r -| r l r-i | - nil i s
i i | - ri ni r i i s rn -i r- -
i r -i n r i - r| r i r - i ;
-| i | r| | i n| | ( s)
It is true that as per our tradition, no change can
be effected in what is stated in the holy Quran or in what
Hazrat Muhammad Sahib has ordained and what has
not been forbidden. (E.T.C)
r- i i r| i|n i i in r | - r| r
ni l r-i i - i i ri ini r ii l l ii
3197
ini r i r| i l r - i -- r| r - -i| -i-in i
l-- i r| r | . . . .l r - n -i - r l r- i i ;
;-i r| n | ( sz)
We do not teach laws framed by the British
Government. We teach the law of Shariyat, not that of the
Government. I cannot say from where money comes or
came for our Darul Ulum and whether such money came
from abroad or not; because it is not my concern and I
have no responsibility in financial matters. . . . . . . . . . But
it is know to me that we do not take any grant from the
government. (E.T.C)
3280. PW 19, Maulana Atiq Ahmad:
- l-- i r ii -i o l il- r i | . . . .
-i o l il- | iii| li - i|| . . . . . i r| r l -io
l il- ii ilr ri i i - n| i ri r
|n i i i|i i i - n| . . . . ; r - l--
nil lr -ni i i i ilr | iili i| | ;
nili | ii| -i i i n in i - i||( c)
Mohammad Bin Qasim was the first ruler of the
Muslim period. . . . . The capital of Muhammad Bin Qasim
was in Sindh. . . . . It is not that Muhammad Bin Qasim had
returned after being defeated by King Dahir. (Stated on his
own) he had won and had returned on being called back by
the Caliph. . . . . Prior to that, the Muslim merchants had
come to Hindustan and their settlements were found on
sea-shores. These merchants had their settlements in the
existing states of Kerala and Gujrat.(E.T.C.)
~ir i ri i ii r| ii ni ii| rn
-i r-- ir | ri i;i i| r i| ii ii| r ri
-| r| ri ni l ii -i r-- ir i i l~ r
3198
r n r i ii| ( s)
The first abode of Allah was built at Qaba over here
itself. Another reason was that Prophet Muhammad was
born here. It would not be correct to say that Qaba came
into existence after Prophet Muhammad; rather it had
come into existence much earlier.(E.T.C.)
il | ln | -oo | ln | | nr r | il -
nili nr r| ii ini i ii ni ;-i-| -
ii ini r | - il, r|, n|, lr nr - li|
( s)
The degree of Fazil is like an M.A. degree. In Fazil
course, geography etc. is not taught and Islamic disciplines
are particularly taught. I did my Fazil in Hadis, Tafsir,
Fiqh, etc.(E.T.C.)
- -ni i| r| | lni r | ; i ;-i-
-il i |
lrii i i ii i- lnii - -l- | i-
i - i ; n| r| | n|| ( o)
Muasta(Muwatta) is the oldest book of Hadis.
Imam Malik was its writer.
No details have been given about the construction of
the mosque, in the books called Hidaya and Shar-e-
Vakaya.(E.T.C.)
;-i- - i i- i lr-i r | ( )
In Islam, law is a part of religion.(E.T.C.)
; -| | ili| -| l - n i s c ,
zoo - r ; - -l- | i| rln i - in|n r ;
i| i r i r i l -l - r- i i -l - rn| r
i l ni | r -l - | r l n i - - r|
ri i n| | ( /)
In the last meeting of this academy which was
3199
held between 13
th
to 16
th
April, 2001, deliberations were
held about the religious status of the mosque and it was
decided that the mosque is always a mosque and it does
not lose its status of mosque on account of being
demolished.(E.T.C.)
i i | i | r -n i i -i i i
r -n - i ; i i i r| ri ni i i , in| li-
- i i ri ni ii| ( s)
During the reign of Lodhi dynasty, there used to
be no particular interference on the part of Ulemas in
governance, but there used to be their interference in the
court administration.(E.T.C.)
- ; -n r-n r| r l ; i l| i| i-
ii i ni r , l~ r | i- ii i ni r, i
i l li| . . . . . - n r in -i - r| r
l ii -i ;l | l-n| - i in n-
lr ii | i ii| | i|| - n ; in i| -i - r|
r l i | i r ; n- r|i, il i | -n
i i l i i ni| ( zo)
I do not agree to the view that God can be called by
any name; rather, he can be called only by that very name
which He liked to be used for Himself. . . . . . I do not know
that Khwaja Moinuddin Chisti got married with the
daughter of Hindu King on the shore of Anna Sagar near
Ajmer. I also do not know whether Begum Hafiza, a
daughter that he begot out of their wedlock, was sent in
and outside the country for the propagation of
Sufism.(E.T.C.)
i - s ri s i i r in r | . . . . i -
i i ; r - r| r l l | | -|
3200
-n| -l - i ; i | . . r -| r l i i
r n-n| ri r| i|| . r -| r l - i i n n-n|
n i i i r r il ri ni| i - i ; i
r - r| r l il i -i li i | r -| r l ;-i- i-
i r lr -ln i i| n i | . . . . i - -n;
ni lr -ln i i ni i i ; l r| r | ( zrzc)
The Quran has six thousand six hundred sixteen
Ayats(verses). . .The Quran does not ordain for forcibly
constructing a temple on the land of any other
person. . . .It is true that idolatry was being practised even
before the Quran. . . . It is true that those who performed
idol worship in Arab were called Kafir(a blasphemous
person) before the advent of Quran. The Quran does not
ordain for Kafir to be killed. It is true that Hindus
practised idolatry as well before the advent of the
Quran. . . . .There is no specific mention about breaking the
Hindu idols in the Quran.(E.T.C.)
n- ir | ln| - l| lr | nii | - ln
i ni | i ; i-i r| r || . . .r -| r l n i ;
-l- l| | -| -n| i| in| r ni i
i ri- ri ni i r -l- r| r | ( z/)
No incident of breaking idols of male and female
Hindu deities occurred in the lifetime of Prophet
Muhammad. . . . . It is true that if a mosque is constructed
forcibly and on anothers land, such an act will be
Haram(a forbidden thing) and it (such a construction) is
not a mosque. (E.T.C.)
r -| r l -i i - i i i r | -|
r| r | . . . . i r i -| r l i i
-| i -i l ri | ( zs)
3201
It is true that namaz relates to Khuda(God), not to
the earth. . . . . and it is natural for the person making the
Waqf to be owner of that land.(E.T.C.)
l izo . . . . ;- r ri - l ri ni l ;-
+ i ; i i l i r i r | i i i | -i - ri n| r |
l i sz i i ni r ri l ;-
- l n i l i i | r| r | | - l n i rn r l
-i ri ni r -i -r ri n| | -ln i rn r ri
-i i i r| ri ni| ( zs)
Picture No. 20. . . . It is difficult to say that the
image of a lion is carved on the top in it. Two eyes appears
to be carved. Looking at Picture No. 32 the witness stated
Idols are seen in it. If namaz is offered in the presence of
such idols, that namaz will be Maqrooh. It will not be
legitimate to offer namaz there in presence of the
idols.(E.T.C.)
n -l- ir| r - i-i ili i i i
|n il ri ni r ni i| - -l- -i i |
i n| r | -l- i ri i | r| r | ( s)
Even if the outer yard of a mosque continues to
witness ringing of bells and gongs, blowing of conchs,
singing of devotional song etc., namaz may be offered
inside that mosque. It is not necessary for there to be wells
inside a mosque.(E.T.C.)
;-i r r l l| -| i | l-l~n ri
-n| i -l- ii i r| r | ;-i |r
- i i ; -i n r| l-ni r l n l| ;-in - l ri i
-i i ln ri ni i -i | i n| r
~-ii - n| i ;l-ni r l n i
-i | i n| r | ( ss)
It is Izma that it is not legitimate to build a mosque
3202
by forcibly capturing a piece of land owned by somebody
else. No instance is found in Islam allowing namaz to be
offered by covering a picture or human figure, if there be
any, in a building ; but Muslim clerics are almost one in
opinion that namaz may be offered by covering that
figure.(E.T.C.)
- ;~- - i r| r l o o - i lr -ni - i ; |
-l- ri l n|i n i- ;in nir - l i -ln i
ri i l - i i ; r| li r | . . . . - ;~- - ; nr
| i ; nr r| r ri -l- n| n -r -l i
- ln ri | ( ssr)
I do not have the knowledge as to whether there is
any mosque in Uttar Pradesh or Hindustan which is
surrounded by worship-places or idols of another faith on
three sides, because I have not carried out any such survey.
. . . . . In my knowledge, there is no such type of place
where there are temples or idols of another faith
surrounding a mosque on its three sides. (E.T.C.)
- n~| i ;-i- - r | ( sc)
There is difference between Mutvalli and
Imam.(E.T.C.)
ii-i - liln -i i| i| -l- i i i ;
l r| r | . . .r r| r l -l - - - l r| i i
i ni | ( s/)
Baburnama does not have mention of building the
disputed structure, that is, Babri mosque. . . It is true that
a temple cannot be constructed in a mosque.(E.T.C.)
i ; i | - -i ; i n | ;i n r| ni
l -l - l r | ni i l i |
i- r | i- lr-i- ;-i- i- i|
3203
. . . . . -i r-- ir r| r| l~ ~ir r | r ni-
li l n-n| i i-- li i i l ~ir | ;in |
i| . . . . ;| r -l-i - r| i| n r| i n|
( o)
No Muslim will allow images of male and female
Hindu deities to be built inside the mosque.
The First Prophet Adam ('alayhis-salaam) introduced
Islam first of all. . . . . . . . . . . Not only Muhammad Sahib
but all other messengers of Allah gave the message that
idolatry be disbanded and God alone be worshipped. . . . .
for this very reason idols were not constructed in mosques
anywhere. (E.T.C.)
;-i - | l ri n ni r| r l -l - - - l n
i | i r ri ni r l | l i i n| n
r -l - - - l n i n ri | . . . . - ; r-n r| r
l -ii ri -l- - -ln ri ri - -ii - l -
-n| i -l- i li ri | . . . . . .- n i r| r
l i ; | -l- r l- r -ii l | nii
l ri -i -l- - ni l n ri | ( )
Islam does advise that an idol should not be
carved in a mosque. It may be that people, while
opposing him, carve idols in mosques. . . . . . I do not
agree to the view that the presence of idols in a mosque
may be attributed to forcible capturing of a temple and
converting the same into such mosque. . .I do not remember
whether there is any mosque in which lying stones with
pictures of male and female deities engraved on them may
have been used.(E.T.C.)
r r| r l l | - l - ri | ni i
l ri i -i i ri ri i ; - -i -i
3204
r| i ni | ( )
It is true that no Muslim will go to offer namaz at
any temple where there are images or places of male and
female deities.(E.T.C.)
r -| r l -i r-- ir ii r n ~ir
i i r | r| nii r-i ni r| r | - s
i i- - ini r | r -| r l rn - i ~ir
i | ni n il r ; i ~ir | lni i|| r
i| r| r l rn ; i ~ir i i r il
r ; | - n r| -i - l i| ~ir | lni r i r| | i r
l il r ; | il i -n r l l| | i +
| ii| ( rr)
It is true that Allah has sent many other Prophets
besides Mohammed Saheb, but their exact number is not
known to me. I know names of few of those Prophets. It is
true that Hazrat Musa was a Prophet of Allah. Tauret, a
book of Allah, was revealed to him. It is also true that
Hazrat Isa was a Prophet of Allah and Zahoor was
revealed to him. I do not know whether Veda is a book of
Allah or not, or to whom was it revealed. Nazil means
something coming down (to earth) from top (heavens).
(E.T.C.)
r -i r-- ir r i - n i r i i |
i ri n| i|| ( rc)
Statues had been kept in Kaba prior to Prophet
Mohammed and they were worshiped. (E.T.C.)
r r| r l -i r-- ir lii r| in i ;l
i liin i r i| r| r l i n n i , i n i
i li n i | - ; r-n r l i i i
- | i| - r | ii n i -
| lni r | ( rs)
3205
It is true that Mohammed Saheb did not know to
write and as such got others write down the same. It is also
true that people used to hear, memorize and write. I agree
that the holy Quran is in the category of being heard,
memorized and acted upon i.e. it is a book to be heard,
memorized and acted upon. (E.T.C.)
r i i ; r - r| li r l l| -r
i- -i i ni - -l- i| i|| r -|
r l n l | i - -i | ;-i n i ni
- i ; -l - i | i n| r ni i i
-r r r ;ri - l ri | ( rs)
The Prophet did not give any command to demolish
the worship place of some other religion and build a
mosque out of its debris. It is true that according to
Ehkam (sanction) of the prophet, if any building is
demolished and mosque is built from its debris, then the
same is Makruh (not desirable). (E.T.C.)
i | -l- ; - ;i; - r | n
- -l- i i r| i i- r | r r| r l i -
-i o ir i r - ii l -i n - | i - r |
i | i r r - r| li ii| ( c)
The Aksa mosque is presently in possession of
Israel. Sacred Baitul is another name of Aksa mosque. It is
true that it was always the command of Mohammed Saheb
that namaz be offered facing sacred Baitul. This command
of his, was on basis of Wahi. (E.T.C.)
- i i ril r| r | ( c)
I am not a Hafiz (one who memorizes the complete
Quran) of Quran. (E.T.C.)
r r| r l r in i rn
3206
l || -i - i ; i i ; li| r ; | ni ii i r
rni ii l r liii ii, ni irin i| i niri |
nir| -i li ini ii| . . . . ; i i i rn
-i - ; iln - -n li ii| ( cs)
It is true that after the death of Prophet
Mohammad, in the times of Hazarat Abu Waqar Siddiqui, if
any person produced any written material and said that
Prophet Mohammad had dictated the same, then it was
accepted on evidence of two witnesses. . . . . This holy
Quran was prepared by Zaid Ibne Sabit in the period of
Hazarat Abu Baqr. (E.T.C.)
r -| r l l ri i - i ri ni r l l
-l - r| i | i | ( /o)
It is true that it is contained in the Hidayas that
mosque be not built at a public place. (E.T.C.)
r| - ii ri i- | lni - | ni r| r i|
r | . . . . - l i i- ii l-i i r | . . . . .
- ri ni r| -l - i | r l n i -
- | r l n ni r| i i r | ( /)
As regards Hadiqs, I have not read but seen the
book titled Shahda. . . . . It was probably written by Mirza
Jaan. . . . I have come to give evidence as an expert on
Sharyi (according to Islamic Shariyat) status of
mosque. (E.T.C.)
i| -l- liln -i -|i| ii ii|
i r - | i| -l- r -i ni r i ii - r
in li| r ; i| l r -l- -|i| i r - i;
r | r -i - i r| ii i n lni i| -l- -
i rii r - ii - ls r r | ( /c)
Mir Baqi had built Babri mosque at the disputed
site, but on the command of Babar. An inscription was fixed
3207
at the Babri mosque in which it was mentioned that this
mosque had been built by Mir Baqi on command of Babar.
I did not see this inscription myself, but the contents of the
inscription have been published in the aforesaid book
Babri Masjid. (E.T.C.)
liln i i l -| l-in ii | l-~|n
i - - ii| | . . . . . .-| | ; n i i| |
n| - n r| -i -| l -l- r n i| i| ;l
-| | l-ln i - r- r| ni| - ;n| ii| |
l r i| -l- i| -| | i ; n i|,
-l- r i i|, ;| ii| r| || ( //)
I inquired about the ownership of the land, over
which the disputed structure stood. . . . . . . I do not know
the details of status of the land. Since the mosque was very
old, I did not get to know about ownership of the land. I
inquired this much that it was an old mosque, but did not
inquire about the status of said land or about its status
prior to construction of the mosque. (E.T.C.)
io -| | . . . . - | ; in r-n r| r l
l| liln -| -l- r| n|| ( /s)
Dr. Amir Ali . . . . I do not agree with this version of
his that mosque cannot be built over any disputed land.
Shekhul Islam is not a name, and instead is a title.(E.T.C.)
- ;~- - i ; | l ni r| r l - -l -
i i i -l - i n| i - i ;
l ri n | n| ri | . . . . . . iln lri r -| i
ii| ri i ; ll~ n ri r i| -l- ri n| r l
-l- l li ni ri | ( /s)
There is no book in my knowledge, which lays
down the shape of mosque and the manner of its
3208
construction. . . . . . According to Shariyat, if any land is
vacant and there is no building over it, then it can be a
mosque if Waqf has been executed for a mosque. (E.T.C.)
3281. PW 22, Mohd. Khalid Nadvi in his statement said
that there is no reference about the form or shape in a particular
manner to be observed for construction of a mosque in Holy
Quran or Holy Hadis. No such reference is found in other books
of Shariat law. Neither a dome nor a minarate nor a well nor
arrangement of water for wazoo are essential conditions for
constructing a mosque. He further said that once there
constructed a mosque, it would remain for ever as it is and
neither placement of any idol nor otherwise its status or position
would stand altered. Even if, followers of any other religion
start practicing their religious faith in a mosque, that would not
affect the status of mosque at all. In his cross-examination on
pages 3 and 4 he says:
i n| -i i r | i i| | ii
s ; i | i n| r i i ~ir i il i
ili| lni r i -i r-- (ooo) zs i | - n -
rn l | (oo) i-n - i -| - il
r ; |...............n | -i - i| i i i i | lni ri i
ni r | ( s)
The Quran literally means 'to read'. The Quran can
be explained as the last book of Allah(God) which
descended to Muhammad(S.A.V. i.e. peace be upon him) in
Mecca and Medina through Angel Gabriel(A.S. i.e.
salutation to him) in the span of 23 years. The Quran, as
per its English meaning also, may be called the Book of
God. (E.T.C.)
3209
i i so i r | r i - n n
i i| - r i r - in r | ( )
There are total 30 'Paras'(parts) of the holy
Quran. Each part has separate 'Suras'(chapters) and each
chapter has 'Ayats' (sentences). (E.T.C.)
3282. But then as pointed out by learned counsels for some
of the defendants (Suit-4) he admits that a mosque cannot be
constructed on a land which has not been acquired in a just and
fair manner and further it cannot be constructed on the religious
place of another religion or by desecrating a place of worship of
another religion. He said:
i i - i r| r| ri ni r l l |
| -| i i i i i i l n -i
l i i | l| | -| i n | i- |
i- riin - r| ii i ni r | n rn r l r
-i r-- ir ri ri i ( c)
The holy Quran has ordained nowhere for
anybody's land or property to be forcibly captured or
encroached upon. Capturing someone's land forcibly and
without his consent cannot be taken to be valid in ordinary
circumstances. Sunnat is what Prophet Muhammad has
stated. (E.T.C.)
l| ;-in i ni i| -l- r -i r--
ooo r| i|| ( s)
Muhammad Sahib(S.A.V.) did not forcibly build any
mosque even by demolishing any building. (E.T.C.)
-l- ni~ - i i r l -l- i|
i ni r l i i ri , l| | -| i| i l
i n| ril li ni ri iir l-l~n i
l ,l| | nr i | ri , ~- i -n|
3210
nr -l - r| i | i n|
r |( s)
I have read in relation to mosque that whenever it is
constructed, its face should be towards Quibla and it
should be constructed on a piece of land acquired in a
legitimate manner by way of ownership or waqf(gift for a
religious purpose). A mosque cannot be constructed,
forcibly and by inflicting excesses, at a place which
belongs to another person. (E.T.C.)
r -| r l l | -r | ;i nni r i
ni -l - r| i | i n| | ;| i l|
- r | ;innir i -l- r| i|
i n| r | ( s)
It is true that a mosque will not be constructed by
forcibly demolishing a place of worship belonging to any
religion. Similarly it cannot be constructed by forcibly
capturing a place of worship belonging to any other
religion. (E.T.C.)
- ri l ; i | irn | i n| r l
ri -l- i| i i i i r i; ii ~ir
l i i l| | -| i|-ii i ni|ii i
i | ( sz)
(Himself stated) This statement can be explained in
such a way that wherever and by whosoever a mosque is
built, it should be built for the sake of Allah(God) with
truthfulness and not on anybody else's land by grabbing it
in a fraudulent or forcible manner. (E.T.C.)
r -| r l r -| ir l ;-n -i - ri l
n r r-ln ni -l- i; i n|
r |( sc)
3211
It is true that whosoever may be using the land, a
mosque can be constructed on it if he consents to
that.(E.T.C.)
3283. He also says that Waqif must be the owner of the
land:
r ri i| r| r l -l- lii i i |,
-| i -l- i- i | ri ni| r ri r| r
l i -| i ni , r -l - i | -| i
-i l ri i | r | ( z)
It is also correct to say that it will be necessary for
land to be gifted in the name of mosque, no matter it is
constructed by Shias or Sunnis. It is correct to say that a
man making waqf of land needs to be the owner of the
masjid land. (E.T.C.)
3284. He has also said in his cross-examination that the
land in dispute was vacant when the disputed building was
constructed and it was in the ownership of muslims prior to
1528 AD.
- | ii| - nil i| -l - l -|
| i | r -| -l - r i | rzs
r i i | -| i | , i ; l -i i r| i |
- | r ii| l rzs r liln -i ii| -| i|
ssc i s| si -| lnii r ; | ( zz)
To my knowledge, the land on which the Babri
mosque was built was a vacant land before 1528, that is,
prior to the construction of the mosque. My knowledge
that the disputed site was a vacant land before 1528,
stemmed from little books published after 1986. (E.T.C.)
ri n - n i r i r | r-i i r
| -n - ; ri i i l ; - nl l i r
3212
l -l - r l i l n -i i i | -| i | | ;|
-i - ri l i- | li - i rii li r i
; - r- i r i i i r| r | ( zs)
As far as I remember, Sabah-ud-Din Abdur
Rehman has, in his book, quoted several references
saying that before the construction of the mosque the
disputed site was a vacant land. In this very regard, he has
quoted the report of Alexander Cunningham which I
remember as of now. But I do not remember other
references. (E.T.C.)
r ri r| r l l| i| i- | ;innir i l lni
li i ni r | i- | ;innir r n| r ri r| r l
l - l i ni -l - i | i ni |
r l n r| n| i r - l r| r ni i l -l-
i ni - l i li i ni r -l- r| r n|| l r
i l n ri i l l i l n -i - l i i l
ni -l - i | n| ni r - l r| -i i
i ni | - | -i -i n - rzs r l i l n -i
- -i i | l -l ~n i | | r ii| - n - iii
lni r ; | ..........i i ii s// - ilin r i ii|
( zrzc)
It is correct to say that if a place of worship
belonging to a particular faith is demolished, it will remain
to be a place of worship belonging to that very faith. It is
correct to say that a temple will not lose its character and
will remain to be a temple even if it is demolished to
build a mosque. If any mosque is demolished and a temple
is constructed in its place, the mosque will remain to be a
mosque. If it is proved that there was a temple on the
disputed site forcibly demolishing which a mosque was
3213
constructed, then such a temple will continue to be
treated as a temple. To my knowledge, the disputed site
was the property of Muslims before 1528. I came to know
of this from the book mentioned above. The second
publication of . . .came out in 1977. (E.T.C.)
3285. With respect to his statement-in-chief about the
characteristics of mosque he however has admitted on page 27
that he has not acquired any special knowledge in this regard as
under:
- ; l l - i ; l i i ni l n r|
l i l -l - i i i - i ri | lr | i
lnii - - r i r l -l- ii i ri- i ri |
n | i- i - r| r| i r | i r| n
ni-| i i ; n|i nii ni r | ( z/)
I did not acquire any specific knowledge as to
what the shape and form of a mosque should be. In
certain books of Fiquah I have read what 'Aadab'(manners)
and 'Ahkam'(orders) should be followed in a mosque. But I
have nowhere studied about its structure, nor is there any
mention of any style of its construction. (E.T.C.)
3286. Neither he has ever visited Ayodhya nor has himself
seen the disputed building, therefore, other part of his statement
in cross-examination in this regard is wholly irrelevant. His
admission about visit to Ayodhya is on pages 24/25:
r ri r| r l l - i| i i r| ni ;l
- n ; in | ii| r| r l liln -i ri r i
l l-iln - r | ( zzr)
It is correct to say that since I never visited
Ayodhya, I do not know where the disputed site stands and
3214
in what position it is. (E.T.C.)
3287. He has tried to explain the reason of construction of
disputed building of Babari Mosque by Mir Baqi while stating
on pages 11/12 that Mir Baqi lived at Ayodhya and since there
was a large population of muslims thereat he found it necessary
to construct Babari mosque thereat since mosque is normally
constructed where there is a settlement of muslims. He,
however, denied any knowledge about the exact muslim
population at the relevant time of Ayodhya and also any
knowledge about the existence of any mosque at Ayodhya as is
evident from page 11/12 and 22 as under:
-| i| i i - rni ii| i | -l - i |
n ;l i | l ri - -i i | |
i i | i | i ;l ri - -i i | i i | ri n|
r ri -l - i ; i n| r | ii| | nii ( i) i
;~- - n r| r | ( z)
Mir Baqi lived at Ayodhya. The Babri mosque was
needed to be constructed because there was a large
population of Muslims. A mosque is constructed where
there is a settlement of Muslims. I do not know exact
figures of the Muslim population. (E.T.C.)
liln i i,i| -l- ni-| - i i -
i i| -l- i| | ln| -l- i|, r n| r| ni
ni r | ( zz)
At the time of constructing the disputed structure/
Babri masjid, Ayodha had certain other mosques as well. I
cannot detail how many mosques were there. (E.T.C.)
3288. PW 25, S.M. Naqvi is of Shia sect and is active in
politics as admitted on page 2:
3215
- lii -n i r | - lii lri s lnii i
li r | . . .lii lri i lr illi i| ri ini
r |
i|ln - - i ni~ i|ln i ri r | i - -
-r|i i -r|i i n - l ili- n ii i n
i-| n li ni - i il-- i-| - ii ni i n
- iii | ii ni ri, iiii | | - - i
- - i- l r | | i-| - n| i i r n ri| -
n li i ii ri r | - ri | ili| -i+
li - -| i - ri r i r| n li i i| -
ri r | - ;- i i ri; - i i r | i i
li - n - r | . . . - sso - ~ l-n
li ln- o o i - ri r |
- i ;li lii i | - - -| i r n li
n - - ri r | ( z)
I am of Shia faith. I have read certain books on Shia
Fiquah...... Shia Fiquah is also called Fiquahe Zafiria.
In politics I had contacts with political parties.
Initially in Congress for a month or two. Then the Socialist
group separated itself from the Congress party then I
joined the Socialist party and since then I remained with
Sri Raj Narayan. After the death of Sri Raj Narayan I was
in the party of Sri Mulayam Singh till three to four years
back. I was the Chairman of Akbarpur Municipal body. I
was the Chairman of its last town area committee and the
Chairman of its first Municipal board. I am the manager of
an Intermediate college and one High school. Both of them
are in District Ambedkar Nagar............ In 1990 I was the
Chairman of Minorities Finance and Development
Corporation U.P.
3216
I was member of central committee of All India Shia
Conference for many days. (E.T.C.)
~ l-n li ln- lo, -n i i
nl-n li r | - ; i| i - ii i li -
;| iiii -iiln ri n; r | - n i -i |n li ii, ii n
sso - - i- l r | i li ii| ( o)
The Minorities Finance and Development
Corporation Limited has been constituted by the Uttar
Pradesh Government. I was the Chairman of this body but
these days its branches have been established in districts. I
had been nominated by the Government, that is in 1990 by
the Government of Sri Mulayam Singh. (E.T.C.)
3289. His statement is basically to the extent that since the
mosque vests in Allah irrespective of sect muslim belong, he can
offer Namaz and on the basis of sect, i.e., Shia or Sunni no
difference can be made out. On page 6 he is said to have heard
about offering of Namaz in the disputed building before 1948 as
under:
- i i r l ss r i | i |
-l - - -i r i n| i | | ( c)
I have heard that Namaz was offered in Babri
masjid even before year 1948. (E.T.C.)
3290. On page 8 he admits of big difference in the manner
of offering Namaz by Shia and Sunni and said:
lii i | - r n i r | . . . lii i |
-i n| - i r | ( s)
There is much difference between Shia and Sunni.
.... There is difference in the manner of offering Namaz
between Shia and Sunni. (E.T.C.)
3291. He, however, admits to have never offered Namaz at
3217
Ayodhay and said:
i i i ss - i i l i i ni ii|
- i i - i| i| l| -l - -i i r| || (
r)
After the election campaign, I again visited
Ayodhya on couple of occasions in 1948. I never offered
Namaz in any mosque in Ayodhya. (E.T.C.)
3292. Though he says that he had seen some of his other
acquainted persons to have visited the disputed building for
offering Namaz but on page 16 he says:
- liln -l- - - i i n l| i
r| ii| . . . - r -i n r| ii| ( c/)
I did not see anybody entering the disputed mosque
through the main gate... .. .. I had not seen them offer
Namaz. (E.T.C.)
3293. Then further he could not explain the exact extent of
difference in the manner of offering Namaz between Shia and
Sunni as evidence from page 26:
- | lr i r| li ;l - lii i
| i ni -i n| - i i r | nr
r| ni ni| l ilri ni lii rii ii -i
n r i | rii i i -i n r | lii i | |
i - r n r l lii l ~-i i i - rn r
i | i - r| rn r | i n| i r| rn |
( zc)
I have not studied Sunni 'Fiquah'. As such I can not
fully tell about the differences in the manner of offering of
Namaz by Shia and Sunni people. However, apparently
Shia offer Namaz open handed and Sunni offer Namaz
close handed. The difference in 'Ajan' (prayer call given
3218
from mosque) of Shia and Sunni is that the 'Kalmas'
(Fundamental formula of the Quran) in 'Ajan' of Shia are
not present in the Sunni 'Ajan' and they are not announced
that number of time. (E.T.C.)
3294. Rest of his statements in respect to Babar, Mir Baqi,
construction of building etc. are wholly irrelevant and
inadmissible since he neither is an Expert Historian nor claims
to possess any personal knowledge but whatever statement he
has given are on hearse basis.
3295. From the books of 'Sharii' and the relevant extracts
mentioned above, broadly, some of the features, which are
permissible or impermissible for a believer of Islam while
offering Namaz in a mosque or for construction of a mosque or
for spreading islamic religion and religious practices, are as
under:
i. No compulsion in religion.
ii. People of other religion are permitted to carry out other
religious practices according to their own religion but if
they are residing under an Islamic reign, he may have to
pay certain amount.
iii. Messengers of the almighty born in every community or
nation.
iv. No Prophat be given superiority over another.
Superiority to a learned has been given only for the
purpose to tell the people what is right or wrong
according to religion.
v. Freedom of religion was subject to payment of Jizya.
The Islamic Rulers and army of Islam are under duty to
protect religions, shrine and life of those isolator who
3219
paid tax (Jazya) which was in the nature of a protection
tax.
vi. The temples of non-islamic people could be utilized for
stay by a muslim travellors.
vii. At one place, two separate building of worship or two
religions cannot exist.
viii. No Jizya upon the Muslim.
ix. In a public mosque, there cannot be a prayer without
adhan (Ajan)
x. An assembly of worshippers pray in a Masjid with
permission, that is delivery.
xi. Foundation of a mosque must be laid on piety and not
hypocrisy.
xii. A mosque cannot be used as a home nor a place of
gossips.
xiii. Prayer between two columns is prevented.
xiv. Funeral prayer in the mosque is not permitted.
xv. Images, portrait, pictures, idols etc. as also designed
garments having pictures are prohibited in a mosque.
xvi. Sitting on the graves and performing of Salat towards
graves is not permitted.
xvii. Musical instrument i.e. bell etc. is not permissible in the
mosque or in the vicinity thereof.
xviii.Where bells are ringing or conch shells are blown,
prayer would not be offered.
xix. Before offering Friday prayer, one should take a bath in
a house and perform Wudu (ablution) in the mosque.
xx. Before other prayers, Wuzu i.e. cleanliness of hand, face
and feet is necessary.
3220
xxi. A mosque is to be built on a land obtained in a valid
manner and by the owner or with the permission of the
owner. In other words, user of land for the purpose of
mosque in an unjust manner strictly prohibited.
3296. For the purpose of a waqf, valid in Shariyat Law,
one must satisfy the following requirements:
i. The land must belong to Waqif.
ii. There must be dedication which is permanent.
iii. For a public waqf, the delivery to Mutawalli or anyone
else on his behalf.
3297. The above factors have been enumerated on a
careful reading of the books of Sharii, as also the relevant
authorities on the subject, noticed above. We find that the so
called religious experts at several places have made statements
which are strictly not in conformity to what has been said in the
texts, the extract whereof, we have already referred, and at times
is contrary thereto. It is now settled that in the matter of the
principles or laws of Muslims or Hindus, the Courts are
supposed either to obtain opinion of those who claimed to be
'Expert' in religious matter nor must rely thereon but should
consider itself the relevant religious scripture to find out the
correct position. The decision in this regard we have already
referred to i.e. Mosque known as Masjid Shahid Ganj Vs.
Shiromani Gurdwara Prabandhak Committee, Amritsar,
1940 PC 116.
3298. The case of the plaintiffs is that Babar conquered
Hindustan after defeating Ibrahim Lodhi in the battle of Panipat
in 1526 AD and thereby became emperor of the entire territory
over which Ibrhim Lodhi had been reigning at that time. The
3221
area of Oudh was within the reigning territory of Ibrahim Lodhi
and therefore, it also fell under the authority of Babar. He being
the conqueror of the territory was a sovereign authority enjoying
complete ownership on the entire land which fell within his
reigning territory and thus was entitled to use any land for the
purpose as he liked. Mir Baqi, his agent, with the permission
and approval of Babar used the land in question for construction
of the disputed structure. Since the Babar as conqueror was
owner of the entire land, it cannot be said that the land was not
owned by him. In this regard Sri Jilani had placed reliance on
the following:
A. Travels in the Moghal Empire, AD 1656-1668 by
Francois Bernier, translated by Archibald Constable (1891),
Second Edition revised by Vincent A.Smith published in 1916
by Oxford University Press, Page 5:
"It is usual in this country to give similar names to the
members of the reigning family. Thus the wife of Chah
Jehan- so renowned for her beauty, and whose splendid
mausoleum is more worthy of a place among the wonders
of the world than the unshapen masses and heaps of stones
in Egypt-was named Tage Mehalle, or the Crown of the
Seraglio; and the wife of Jahan-Guyre, who so long
wielded the sceptre, while her husband abandoned himself
to drunkenness and dissipation, was known first by the
appellation of Nour-Mehalle, the Light of the Seraglio, and
afterwards by that of Nour-Jahan-Begum, the Light of the
World.
The reason why such names are given to the great,
instead of titles derived from domains and seigniories, as
3222
usual in Europe, is this: as the land throughout the whole
empire is considered the property of the sovereign, there
can be no earldoms, marquisates or duchies. The royal
grants consist only of pensions, either in land or money,
which the king gives, augments, retrenches or takes away
at pleasure."
B. Under the title "Letter to Colbert" at page 204, in the
above book, it mentions as under:
"The importation of all these articles into Hindoustan does
not, however, occasion the export of gold and silver;
because the merchants who bring them find it
advantageous to take back, in exchange, the productions of
the country.
Supplying itself with articles of foreign growth or
manufacture, does not, therefore, prevent Hindoustan from
absorbing a large portion of the gold and silver of the
world, admitted through a variety of channels, while there
is scarcely an opening for its return.
It should also be borne in mind, that the Great Mogol
constitutes himself heir of all the Omrahs, or lords, and
likewise of the Mansebdars, or inferior lords, who are in
his pay; and, what is of the utmost importance, that he is
proprietor of every acre of land in the kingdom,
excepting, perhaps, some houses and gardens which he
sometimes permits his subjects to buy, sell, and otherwise
dispose of, among themselves."
C. At page 205 it mentions:
"Second.-the empire of the Great Mogol comprehends
sevral nations, over which he is not absolute master. Most
3223
of them still retain their own peculiar chiefs or sovereigns,
who obey the Mogol or pay him tribute only by compulsion.
In many instances this tribute is of trifling amount; in
others none is paid; and I shall adduce instances of nations
which, instead of paying, receive tribute."
D. "The English Factories in India" (1668-1669) by Sir
William Foster, published at the Clarendon Press, Oxford
(1927) on page 184, it says:
"..for here in this country there are noe firme estates in
land to be purchased, the whole country being the Kings
and not held by any tenure."
E. "The History of British India" by James Mill (Vol.1)
published by Associated Publishing House, New Delhi, First
Published 1817, Second Edition in 1829 and Second Reprint in
1978, Page 136, says:
"At different times, however, very different rights and
advantages are included under the idea of property. At very
early periods of society it included very few: originally,
nothing more perhaps than use during occupancy, the
commodity being liable to be taken by another, the moment
it was relinquished by the hand which held it: but one
privilege is added to another as society advances: and it is
not till a considerable progress has been made in
civilization, that the right of property involves all the
powers which are ultimately bestowed upon it.
It is hardly necessary to add, that the different
combinations of benefits which are included under the idea
of property, at different periods of society, are all equally
arbitrary; that they are not the offspring of nature, but the
3224
creatures of will; determined, and chosen by the society, as
that arrangement with regard to useful objects, which is, or
is pretended to be, the best for all.
It is worthy of remark, that property in moveables
was established; and that it conveyed most of the powers
which are at any time assigned to it; while, as yet, property
in land had no existence. So long as men continue to
derive their subsistence from hunting; so long, indeed, as
they continue to derive it from their flocks and herds, the
land is enjoyed in common. Even when they begin to derive
it partly from the ground, though the man who has
cultivated a field is regarded as possessing in it a property
till he has reaped his crop, he has no better title to it
than another for the succeeding year.
In prosecuting the advantages which are found to
spring from the newly-invented method of deriving the
means of subsistence from the ground, experience in time
discovers, that much obstruction is created by restricting
the right of ownership to a single year; and that food would
be provided in greater abundance, if, by a greater
permanence, men were encouraged to a more careful
cultivation. To make, however, that belong to one man,
which formerly belonged to all, is a change, to which men
do not easily reconcile their minds. In a thing of so much
importance as the land, the change is a great revolution. To
overcome the popular resistance, that expedient which
appears to have been the most generally successful, is, to
vest the sovereign, as the representative of the society, with
that property in the land which belongs to the society; and
3225
the sovereign parcels it out to individuals, with all those
powers of ownership, which are regarded as most
favourable to the extraction from the land of those benefits
which it is calculated to yield. When a sovereign takes
possession of a country by conquest, he naturally
appropriates to himself all the benefits, which the ideas
of his soldiers permit.
In many of the rude parts of Africa, the property of
the land is understood to reside in the sovereign; it is in the
shape of a donation from him, that individuals are allowed
to cultivate; and when the son, as is generally the case,
succeeds to the father, it is only by a prolongation of the
royal bounty, which, in some places at least, is not obtained
without a formal solicitation. It is known, that in Egypt the
king was the sole proprietor of the land; and one fifth of the
produce appears to have been yielded to him as revenue or
rent. Throughout the Ottoman dominions, the Sultan claims
to himself the sole property in land. The same has
undoubtedly been the situation of Persia, both in ancient
and modern times. "It is established", says the late
intelligent Governor of Java, "from every source of inquiry,
that the sovereign in Java is the lord of the soil." And when
the fact is established in regard to Java, it is established
with regard to all that part of the eastern islands, which in
point of manners and civilization resembled Java. It is not
disputed that in China the whole property of the soil is
vested in the Emperor. By the laws of the Welsh, in the ninth
century, all the land of the kingdom was declared to belong
to the king; and we may safely, says Mr. Turner, believe,
3226
that the same law prevailed while the Britons occupied the
whole island.
To those who contemplate the prevalence of this
institutions, among nations contiguous to the Hindus,
and resembling them in the state of civilization, it cannot
appear surprising, that among them, too, the sovereign
was the lord of soil. The fact is, indeed, very forcibly
implied, in many of the ancient laws and institutions. "Of
old hoards," says one of the ordinances of Manu, "and
precious minerals in the earth, the king is entitled to half
by reason of his general protection, and because he is
the supreme lord of the soil." The king, as proprietor, and
as fully entitled to an equitable return for the land which he
has let, is empowered to punish the cultivator for bad
cultivation. "If land be injured, by the fault of the farmer
himself, as if he fails to sow it in due time, he shall be fined
ten times as much as the king's share of the crop, that might
otherwise have been raised; but only five times as much, if
it was the fault of his servants without his knowledge."
Among other ancient memorials of Hindu institutions and
manners, are certain inscriptions engraved on durable
materials. Some of them are records of grants of land,
commonly to favourite Brahmans; and afford strong
indication of the proprietary rights of the sovereign. The
sovereign gives away villages and lands, not empty, but
already occupied by cultivators, and paying rent. It
appears from an ordinance of Yagyavalkaya, one of the
most sacred of the law sages, that the kings alienated the
lands within their dominions, in the same manner, and by
3227
the same title, as they alienated any portion of their
revenues. On this point, it is of material importance to
remark, that up to the time, when the interests of the
Company's servants led them to raise a controversy about
the rights of the Zamindars, every European visitor, without
one exception that I have found, agrees in the opinion, that
the sovereign was the owner of the soil.
Wherever the Hindus have remained under the
influence of their ancient customs and laws, the facts
correspond with the Inference which would be drawn from
these laws. Under the direction of the Governor-General of
Bengal, a journey was undertaken, in the year 1766, by Mr.
Motte, to the diamond mines in the Province of Orissa. In a
narrative of his journey, he gives an account of the
distribution of the land as Sambalpur, which till that time
had remained under the native government. Each village
being rated to the government at a certain quantity of rice,
which is paid in kind, the land is thus divided among the
inhabitants: To every man, as soon as he arrives at the
proper age, is granted such a quantity of arable land as is
estimated to produce 242 1/8 measures of rice, of which he
must pay 60 5/8 measures or about one fourth to the raja
or king. Mr. Motte adds; "The reserved rent of three or four
villages, being one fourth the produce of the land, is
applied to the use of the raja's household. The reserved rent
of the rest is given to his relations or principal servants,
who by these means have all the inhabitants dependent on
them." Dr. Buchanan gives a particular account of the
manner in which the crop, in those parts of India which are
3228
most purely Hindu, is divided between the inhabitants and
the government. In Bengal it is not allowed to be cut down
till the rent or tax is first paid: but in those countries to
which his journey principally relates, it is the custom, after
the grain has been thrashed out in the field, to collect it
into heaps and then to divide it. A heap generally consists
of about 110 Winchester bushels, of which he presents the
following distribution as a specimen of the partition which
is usually made. For the gods, that is, for the priests at
their temples, are deducted five seers, containing about
one-third of a Winchester gallon each; for charity, or for
the mendicant Brahmans, an equal quantity; for the
astrologer and the Brahman of the village, one seer each;
for the barber, the potmaker, the washerman, and the
Vasaradava, who is both carpenter and blacksmith, two
seers each; for the measurer, four seers; for the Aduca, a
kind of beadle, seven seers; for the village chief, eight
seers, out of which he has to furnish the village sacrifices;
and for the accomptant, ten seers. All these perquisites are
the same, whatever be the size of the heap beyond a
measure of about twenty five Winchester bushels. When
these allowances are withdrawn the heap is measured; and
for every candaca which it contains, a measure equal to 5
1/20 Winchester bushels, there is again deducted half a
seer to the village watchmen, two and a half seers to the
accomptant, as much to the chief of the village; and the
bottom of the heap, about an inch thick mixed with the cow-
dung which in order to purify it had been spread on the
ground, is given to the Nirgunty, or conductor of water.
3229
These several deductions, on a heap of twenty candacas, or
110 Winchester bushels, amount to about 5 per cent on
the gross produce. Of the remainder, 10 per cent is paid to
the collectors of the revenue, as their wages or hire; and
the heap is last of all divided into halves between the king
and the cultivator.
From these facts only one conclusion can be
drawn, that the property of the soil resided in the
sovereign: for if it did not reside in him, it will be
impossible to show to whom it belonged. The cultivators
were left a bare compensation, often not so much as a bare
compensation, for the labour and cost of cultivation: they
got the benefit of their labour: all the benefit of the land
went to the king.
Upon the state of facts, in those places where the
present practices of the Hindus have not been forced into a
disconformity with their ancient institutions, the fullest
light has been thrown, by those servants of the Company,
who made the inquiries requisite for the introduction of a
regular system of finance, into the extensive regions in the
south of India added to the British dominions during the
administrations of the Marquisses Cornwallis and
Wellesley. Place, Munro, Thacheray, Hodgson, were
happily men of talents; sufficiently enlightened to see the
things which were before them with their naked eyes; and
not through the mist of English anticipations. From the
reports of these meritorious gentlemen, presented to their
superiors, the Committee of the House of Commons, which
inquired into East India affairs in 1810, have drawn the
3230
following as a general picture: "A village, geographically
considered, is a tract of country, comprising some
hundreds, or thousands, of acres of arable and waste land.
Politically viewed, it resembles a corporation, or township.
Its proper establishment of officers and servants consists of
the following descriptions: The Patail, or head inhabitant,
who has the general superintendence of the affairs of the
village, settles the disputes of the inhabitants, attends to the
police, and performs the duty of collecting the revenues
within his village: the Curnum, who keeps the accounts of
cultivation, and registers every thing connected with it: The
Tallier and Totie; the duty of the former appearing to
consist in a wider and more enlarged sphere of action, in
gaining information of crimes and offences, and in
escorting and protecting persons travelling from one
village to another; the province of the latter appearing to
be more immediately confined to the village, consisting,
among other duties, in guarding the crops, and assisting in
measuring them: The Boundaryman, who preserves the
limits of the village on gives evidence respecting them in
cases of dispute: The Superintendent of water courses and
tanks, who distributes the water for the purposes of
agriculture: The Brahman, who performs the village
worship: The Schoolmaster, who is seen teaching the
children in the villages to read and write in the sand: The
Calendar Brahman, or astrologer, who proclaims the lucky,
or unpropitious periods for sowing and thrashing: The
Smith, and Carpenter, who manufacture the implements of
agriculture, and built the dwelling of the ryot: The Potman
3231
or potter: The Washerman: The Barber: The Cow-keeper,
who looks after the cattle: The Doctor: The Dancing Girl,
who attends at rejoicings; The Musician, and the Poet.
"Under this simple form of municipal government,
the inhabitants of the country have lived, from time
immemorial. The boundaries of the villages have been
seldom altered: and though the villages themselves have
been sometimes injured, and even desolated, by war,
famine, and disease, the same name, the same limits, the
same interests, and even the same families, have continued
for ages. The inhabitants give themselves no trouble about
the breaking up and division of kingdoms; while the village
remains entire, they care not to what power it is
transferred, or to what sovereign it devolves; its internal
economy remains unchanged; the Potail is still the head
inhabitant, and still acts as the petty judge and magistrate,
and collector or renter of the village."
These villages appear to have been not only a sort of
small republic, but to have enjoyed to a great degree the
community of goods. Mr. Place, the collector in the jaghire
district at Madras, informs us, that "Every village
considers itself a distinct society; and its general concerns
the sole object of the inhabitants at large; a practice," he
adds, "which surely redounds as much to the public good
as to theirs; each having, in some way or other, the
assistance of the rest; the labours of all yield the rent; they
enjoy the profit, proportionate to their original interest, and
the loss falls light. It consists exactly with the principles
upon which the advantages are derived from the division of
3232
labour; one man goes to market, whilst the rest attend to
the cultivation and the harvest; each has his particular
occupation assigned to him, and insensibly labours for all.
Another practice very frequently prevails, of each
proprietor changing his lands every year. It is found in
some of the richest villages; and intended, I imagine, to
obviate that inequality to which a fixed distribution would
be liable."
F. It is said that similar facts have been stated by certain
other writers namely:
i. Letters from the Mughal Court, 1593-1617 Jerome
Zenxavir translated by H.Hosten, Journal of Asiatic
Society of bengal, NS, XXIII (1927), page 121-22, 105.
ii. John Fryer, A New Account of East India and Persia,
being Nine Years' Travels, 1671-82, ed. W. Crooke, 3
Vols., Hakluyt Society, London, (1909, 1912, 1915), Vol.
I, page 137
iii. Nicolao Manucci, Storia do Mogor, 1656-1712,
translated by W.Irvine, 4 Vols., Indian Texts Series,
Government of India, London, 1907-08, Vol. II, P.46.
3299. It is not disputed that king had purchased land at
times. Regarding payment made by Shahjahan for acquiring
land to construct Taj Mahal, it is stated that there existed a house
built by Raja Maan Singh succeeded by Raja Jai Singh and
therefore pursuant to an agreement certain other properties was
transferred to him in lieu of the aforesaid land. A facsimile of
Firman issued on 28
th
December, 1533 to Raja Jai Singh is
available in "Jaipur Kapaddwar Collections" and copy thereof
has been published recently in a book "Tajmahal, the
3233
Illumined Tomb" compiled and Translated by W.E.Begley and
Z.A.Desai published by the University of Washington Press,
1989. At page 41 para 5.1 reads:
"QAZWINI
Body of the Queen Taken to Akbarabad
[fol. 235A] In short, after six months her blessed corpse
was dispatched to the Abode of the Caliphate, Akbarabad,
escorted by the branch of the tree of sovereignty and
caliphate, prince Sultan Shah Shuja' Bahadur, the 'Umdat
ul-mulk Wazir Khan, and the veiled lady possessing the
virtues of Rabi'a Satti Khanam, who had attained the high
rank of first Lady-in-Waiting of that recipient of divine
pleasure in Paradise by her laudable services, sincere faith
and purity of intention.
As there was on the southern side of Akbarabad,
adjoining the city, on the bank of the river Jumna, a tract of
land (zamini), which formerly (sabiqa) was the house
(khana) of Raja Man Singh, but at this time was in the
possession of his grandson Raja Jai Singh, and which from
the point of view of eminence and pleasantness appeared to
be worthy of the burial of that one whose residence is
Paradise, it was selected for this purpose. And the Raja as
a token of his sincerity and devotion, donated the said land
(zamin) and considered this to be the source of happiness.
However, His Majesty, in exchange (iwad) for that, granted
to the Raja a lofty house (khana-i-'ala) which belonged to
the crown estate. And even though the Raja's consent was
obvious, the Emperor obtained permission for the repose of
that companion of the Houris of Paradise.
3234
And it was decided that her auspicious body should
be buried in that heart-pleasing land (zamin); but until its
arrival at the Abode of the Caliphate, everywhere on the
roads, there should be distributed food and drink [fol.
235B] and innumerable coins should be given in alms to
the poor and the deserving. And the prince of the people of
this world and his companions, having carried the blessed
dead body to the Abode of Caliphate, entrusted it to that
holy earth. And having halted in the seat of the kingdom for
three or four days, they returned to the exalted court.
And in compliance with the order which is obeyed by
the World, the overseers (mutasaddiyan) of the affairs of
the Abode of Caliphate hurriedly covered the top (bala) of
that grave (turbat), having the signs of divine mercy, so
that it remained hidden from the public gaze (nazar)."
3300. At page 43, it says:
"As there was a tract of land (zamini) of great
eminence and pleasantness towards the south of that large
city, on which there was before this the mansion (manzil) of
Raja Man Singh, and which now belonged to his grandson
Raja Jai Singh, it was selected for the burial place
(madfan) of that tenant of Paradise. Even thought Raja Jai
Singh considered the acquisition (husul) of this to be his
good fortune and a great success, by way of utmost care,
which is absolutely necessary in all important things,
particularly in religious matters, a lofty mansion from the
crown estates (khalisa-sharifa) was granted to him in
exchange ('iwad).
After the arrival of the dead body in that highly
3235
dignified city, on the 15
th
of Jumada II 1041 (8 January
1632] of the next regnal year, the luminous body of that
heavenly essence was consigned to the holy earth. The
overseers (mutasaddiyan) of the Abode of the Caliphate,
under exalted orders, hastily concealed from the public
gaze (nazar) the heaven-ranked grave (turbat) of that
world of chastity."
3301. Firman dated 28
th
December, 1633 to Raja Jai Singh
translated in English at page 169 reads as under:
"Be it known through this glorious farman marked by
happiness, which has received the honor of issuance and
the dignity of proclamation, that the mansions (haveli)
detailed in the endorsement (dimn), together with their
dependencies, which belong to the august crown property,
have been offered to that pride of peers and vassal of the
monarch of Islam, Raja Jai Singh, and are hereby handed
over and transferred to his ownershipin exchange for the
mansion (haveli), formerly belonging to Raja Man Singh,
which that pride of the grandees willingly and voluntarily
donated for the mausoleum (maqbara) of that Queen of the
ladies of the world and Lady of the ladies of the Age, that
honor of the daughters of Adam and Eve and upholder of
the stature of chastity of the Time, that Rabi'a of the world
and chastity of the World and Religion, that recipient of
Divine Mercy and Pardon, Mumtaz Mahal Begam.
And it shall be incumbent upon all present and future
governors, officials (amil), overseers (mutsaddiyan), agents
and inspectors (mushrif), in the implementation and
execution of this august lofty order, to hand over to his
3236
possession the said mansions, and convey to that one
worthy of bounty their absolute ownership. Moreover they
should never and by no means bring about any obstruction
or deviation, nor should they ever require a fresh farman or
deed; and they should neither depart or deviate from this
order, nor fail to execute it promptly.
Written on this date, the 7
th
of the month of Dai, Ilahi
year 6, corresponding to the 28
th
of Jumada II , year 1043
Hijri [28 December 1633].
Endorsement on Reverse of the Farman
....Sunday, the 28
th
of the month of Dai, Ilahi year 6,
corresponding to the 14
th
of Rajab, year 1043 (?)
The memoranda (risala) of the Pillar of the State
('Umdat al-Mulk), the......of the government and support of
the kingdom, the trust of the great.....and organizer of the
affairs of kingship, the Plenipotentiary of the government
(Jumlat al-Mulk) and pivot of important affairs (Madar al-
Maham) [i.e., the Prime Minister], 'Allami Fahami Afzal
Khan; and that asylum of ministership of and minstay of
good fortune and glory, Mir Jumla; and that asylum of
ministership .......Makramat Khan; and the holder of the
secretariat (diwani), the least of the servants, Mir
Muhammad:
The ever-obeyed farman, as effulgent as the sun and
axalted as the sky, was issued [to the effect that]:
The mansions (Haveli), together with their
dependencies, belonging to the august crown estate,
in exchange for the mansion (Haveli) belonging to
Raja Jai Singh, which that Pillar of the State ('Umdat
3237
al/Mulk), for the sake of the Illumined Tomb,
willingly and voluntarily donated as a gift (peshkash
namudand), have hereby been granted by us to the
said Raja and settled on him in full ownership.
And by way of attestation, this note (ya'd-dasht) has
been put into writing. And endorsement (sharh) in the
handwriting of Jumlat al-Mulki Madar al-Mahami [Afzal
Khan] is that: This should be entered in to news-register.
Another endorsement in the handwriting of Jumlat al-Mulki
is that: The haveli of the late Shahzada Khanam [?]
which was granted to the said Raja is confirmed.
The endorsement in the handwriting of that asylum of
ministership and mainstay of good fortune and glory, Mir
Jumla, is that: As specified in the memorandum (ba-
risala) of Jumlat al-Mulki Madar al-Mahami, it should be
entered in the news-register (waqi'a). The endorsement in
the handwriting of that asylum of good fortune and
mainstay of glory, Makramat Khan, is that: It should be
entered in the news-register.
The endorsement on the margin (hashiya) is in the
handwriting of the news-writer (waqi'a-navis), attesting its
entry in the news-register [?].
Another endorsement in the handwriting of the
Jumlat al-Mulki Madar al Mahami, 'Allami Fahami, is
that: It should be resubmitted. The endorsement in the
handwriting of that favorite of the royal court, Hakim
Muhammad Sadiq Khan, is that: It should be placed
again before the august notice on Tuesday.
Another endorsement in the handwriting of that
3238
favorite of the royal court, the administrator [?] of the
foundations of the Gurgani rule and enforcer [?] of the
rules of justice, the model of the lords of high station and
choice of the peers of the world, Jumlat al-Mulki Mdar al-
Mahami, 'Allami Fahami Afzal Khan, is that: A farman of
high dignity should be issued.
List of the Properties
Four Properties (manzil) have been granted to
the Raja:
Haveli of Raja Bhagwandas.....
Haveli of Madho Singh.....
Haveli of Rupsi Bairagi, in the locality
(mohalla)
of Atga Khan Bazar
Haveli of Chand Singh, son of Suraj Singh, in
the aforementioned locality
Attestation and Seal
Certified as a true copy of the original:
THE SERVANT OF THE RELIGIOUS CODE OF
MUHAMMAD
......ABUL-BARAKAT"
3302. Clarifying the legal position of 'Firman' issued by a
Ruler, the Apex Court in Faqruddin (supra) observed that
Maharana of Udaipur possessed executive and legislative power
both. The rule by him are therefore statutory. It relied on an
earlier decision in Tilkayat Shri Govindlalji Maharaj Vs. State
of Rajasthan AIR 1963 SC 1638 and observed:
In appreciating the effect of this Firman, it is first
necessary to decide whether the Firman is a law or not. It
3239
is matter of common knowledge that at the relevant time
the Maharana of Udaipur was an absolute monarch in
whom vested all the legislative, judicial and executive
powers of the State. In the case of an absolute Ruler like
the Maharana of Udaipur, it is difficult to make any
distinction between an executive order issued by him or a
legislative command issued by him. Any order issued by
such a Ruler has the force of law and did govern the rights
of the parties affected thereby. This position is covered by
decisions of this Court and it has not been disputed before
us, vide Madhaorao Phalke v. State of Madhya Bharat AIR
1961 SC 298. Ameer-un-Nissa Begum v. Mahboob Begum
AIR 1955 SC 352 and Director of Endowments,
Government of Hyderabad v. Akram Ali AIR 1956 SC 60"
3303. Per contra Sri P.N.Mishra Advocate appearing for
defendant no.20 (Suit-4) submits:
A. Plaintiffs claim of creation of mosque and graveyards
by Emperor Babur falls during the period of 1526 to 1530
AD ,the validity of the wakf and the title of the wakif
which is precondition for creation of a wakf can be
decided only by applying the law of Shar (Haneefi
School) which was the Law for the time being in force.
B. Neil B.E. Baillie in his Book A Digest of
Mahommedan Law compilation and translation from
authorities in the original Arabic on the subjects to which
it was usually applied by British Courts of Justice in India
in preface of its Part-First containing the doctrines of the
Hanifeea Code of Jurisprudence at page vii-viii (Second
Edition 1875 published by Smith Elder, & Co., London )
3240
records that in the Province of Oudh since inception of
Muslim rules in India the Hanifeea Code was the general
law of the country and after the assumption of regal
dignity (on 19th October, 1818) by Ghazi-ooddeen Hyder,
the Hanifeea was gradually superseded by the Imameea
Code. In the preface of Part-Second of the said book at
page xi-xii (2nd Edn. 1887 published by Smith Elder, &
Co., London) he reiterate that in the United Provinces of
Oudh since inception of Muslim rules in India and till the
accession of Umjad Ally Shah (who reigned from 17
th
May, 1842 to 13
th
February, 1847) the law of the Oudh
province was Soonnee Hanifite Law. Relevant extracts
from the said compilations read as follows:
The Moohummudan Sovereigns of India were
Soonnees of the Hanifeea sect, and the Hanifeea code
was the general law of the country, so long as it
remained under the sway of Moohummudans. Even in
Oude, where the actual rulers were of the Shia
persuasion, yet, so long as they preserved a nominal
allegiance to the Sovereigns of Delhi, the Hanifeea
code remained the law of the province. After the
assumption of regal dignity by Ghazi -ood-deen
Hyder, the Hanifeea was gradually superseded by the
Imameea code, until at length the latter had become
the general law of the country at the time of its
annexation to the British empire.
The Mussulmans of India are generally Soonnes of
the Hanifite sect.

3241
The process of assimilation was less rapid in India,
where, though several of the Nawabs, or local
Governors, were Sheeuhs, they acknowledged at least
a nominal dependence on Delhi, and never ventured
to make any ostensible change in the law of their
provinces. This was eminently the case in Oude, the
Nawabs of which were hereditary Viziers of the
empire, and though long virtually independent, did
not throw off their allegiance to it till the year 1818,
when the Nawab Vizier Ghazi-ood-deen Hyder, with
the consent, and, indeed, at the suggestion, of the
British Government, assumed the title of Padshah or
King. It was not, however, till the accession of Umjad
Ally Shah, that any formal alteration was made in the
law.
C. The Gazetteer of India (Vol.II at p.361-363) records
that during the Sultanat & Mughal period the medieval
state under Muslim rule was a theocracy. The sovereignty
of Allah was unquestioned. The supremacy of the Shar
was always acknowledged. Relevant portion of the said
Gazetteer reads as follows:
The medieval state under Muslim rule was
definitely a theocracy since it had all its essential
elements- the 128 Argued by P N Mishra & assisted
by R Agnihotri, Advocates on behalf of the Defendant
No. 20. sovereignty of God and government by the
direction of God through priests in accordance with
divine laws. The Sultans of Delhi considered
themselves as deputies or assistants of the Caliph
3242
who was Gods viceregent. Sher Shah and Islam Shah
assumed the title of Caliph and the Mughal
emperors, from Akbar to Aurangzeb, those of
Shadow of God, Caliph of God, and Agent of
God on Earth. The sovereignty of God was
unquestioned. The supremacy of the shar was always
acknowledged, though Akbar added to the shar the
state-laws. Under him and his two immediate
successors, Islamic law ceased to be the exclusive
code of government. Jahangir and Shah Jahan,
however, did not regard themselves as above Muslim
law and the former even assumed the role of
Protector of Islam and Shar. The Shar is based on
the Quran, the word of God, and Hadith or the
Prophets interpretation of the word of God. Hence,
the Shar consists of divine commands and not human
ordinances."
D. The Gazetteer of India (Vol.II at p.361-363) records
that during the Sultanat & Mughal period the law of Shar
which is based on Quran, the word of God, and Hadith or
the Prophets interpretation of the word of God was the
law of the land. Relevant portion of the said gazetteer
reads as follows:
The first question that arises in this context is
whether the state under the Sultans of Delhi and the
Mughal emperors was Islamic or otherwise. This has
been the subject of a lively controversy among
modern historians. According to Muslim
constitutional law, the world is divided into dar-ul-
3243
harb or abode of war and dar-ul-Islam or abode of
Islam; and a darul- Islam is a country which is
under the rule of a Muslim sovereign and where the
ordinances of Islam have been established. The
Sultans of Delhi acknowledged the sovereignty of the
Caliph and considered their kingdom as a part of
Dar-ul-Islam of which the Caliph was the juridical
head. India under the Mughal emperors was
governed by the Muslim law Shar. The fact that the
bold and daring Alauddin Khalji consulted the Qadi
of Bayana to ascertain what was legal proves the
supremacy of the shar; and neither he nor
Muhammad Tughlaq with his revolutionary
inclinations, dared violate it. Even Akbar the Great,
considered infidel by orthodox Muslims, did not
disregard Muslim law.
E. The Gazetteer of India (Vol. II at p.368-369) records
that till 1579 AD. the Muslim rulers of India
acknowledged the legal sovereignty of the Caliph.
Relevant portion of the said gazetteer reads as follows:
The Sultans of Delhi acknowledged the legal
sovereignty of the Caliph. According to Muslim
political jurisprudence no Sultan had legal right to
the throne unless he was recognized by the Caliph.

The claim of caliphal supremacy over the Mughal

empire was finally overthrown when Akbar assumed
the title of Imam and Amir-ul-muminin by virtue of
the Mahdar (Declaration) of A.D.
3244
1579. The coins and the Khutba mention him as
Caliph and Amir-ul-muminin. By becoming the chief
mujtahid, he also challenged the pretensions of the
Safavi Shahs of Persia who claimed suzerainty over
the Mughal empire, on the ground that both Babur
and Humayon had sought and obtained their military
help. It was under Akbar that the monarchy in India
became absolutely independent of any foreign or
external authority. His successors maintained this
tradition. The Mughal emperors from the time of
Akbar assumed the authority of the Caliph and called
their capital darul-khilafat.
F. In (2008) 8 SCC 12, Faqruddin v. Tajuddin, the
Honble Supreme Court held that a title does not remain in
vacuum. It has to be determined keeping in view the law
operating in the field viz. religious law or statutory law or
customary law, etc. Relevant paragraph nos.44 & 45 of the
said judgment read as follows:
44. The jurisdiction of the Board of Revenue being
limited, no title could have been conferred upon the
plaintiff. Title in or over a land will depend upon the
statutory provisions. A title does not remain in
vacuum. It has to be determined keeping in view the
law operating in the field viz. religious law or
statutory law or customary law, etc.
45. Revenue authorities of the State are concerned
with revenue. Mutation takes place only for certain
purposes. The statutory rules must be held to be
operating in a limited sense. The provisions of Rule
3245
13 of the Matmi Rules laying down a rule of
primogeniture will have no application in relation to
the offices of sajjadanashin and mutawalli, which are
offices of different nature. They are stricto sensu not
hereditary in nature. It is well settled that an entry in
the revenue records is not a document of title.
Revenue authorities cannot decide a question of
title.
G. In AIR 1980 SC 707 "Krishna Singh v. Mathura
Ahir" the Honble Supreme Court held that in applying
the personal law of the parties, a Judge cannot introduce
his own concepts of modern times but should enforce the
law as derived from recognised and authoritative sources
of Hindu law, i.e., Smritis and commentaries referred to,
as interpreted in the judgments of various High Courts,
except where such law is altered by any usage or custom
or is modified or abrogated by statute. Relevant paragraph
no. 17 of the said judgment read as follows:
17. It would be convenient, at the outset, to deal
with the view expressed by the High Court that the
strict rule enjoined by the Smriti writers as a result of
which Sudras were considered to be incapable of
entering the order of yati or sanyasi, has ceased to be
valid because of the fundamental rights guaranteed
under Part III of the Constitution. In our opinion, the
learned Judge failed to appreciate that Part III of the
Constitution does not touch upon the personal laws
of the parties. In applying the personal laws of the
parties, he could not introduce his own concepts of
3246
modern times but should have enforced the law as
derived from recognised and authoritative sources of
Hindu law, i.e., Smritis and commentaries referred to,
as interpreted in the judgment of various High
Courts, except where such law is altered by any
usage or custom or is modified or abrogated by
statute.
H. In AIR 1953 SC 394 "Rao Shiv Bahadur Singh v.
State of Vindhya Pradesh the Honble Supreme Court
held that on the change of sovereignty over an inhabited
territory the pre-existing laws continue to be in force until
duly altered. Relevant paragraph nos.10, 17 & 21 of the
said judgment read as follows:
10. In this contention our attention has been drawn
to the fact that the Vindhya Pradesh Ordinance 48 of
1949 though enacted on 11-9-1949, i.e. after the
alleged offences were committed, was in terms made
retrospective by S. 2 of the said Ordinance which
says that the Act "shall be deemed to have been in
force in Vindhya Pradesh from the 9th day of August
1948", a date long prior to the date of the
commission of the offences. It was accordingly
suggested that since such a law at the time when it
was passed was a valid law and since this law had
the effect of bringing this Ordinance into force from
9-8-1949 it cannot be said that the convictions are
not in respect of 'a law in force" at the time when the
offences were committed. This, however, would be to
import a somewhat technical meaning into the phrase
3247
"law in force" as used in Art. 20. "Law in force"
referred to therein must be taken to relate not to a
law "deemed" to be in force and thus brought into
force but the law factually in operation at the time or
what may be called the then existing law. Otherwise,
it is clear that the whole purpose of Art. 20 would be
completely defeated in its application even to 'ex post
facto', laws passed after the Constitution. Every such
'ex post facto' law can be made retrospective, as it
must be, if it is to regulate acts committed before the
actual passing of the Act, and it can well be urged
that by such retrospective operation it becomes the
law in force at the time of the commencement of the
Act. It is obvious that such a construction which
nullifies Art. 20 cannot possibly be adopted. It
cannot, therefore, be doubted that the phrase "law in
force" as used in Art. 20 must be understood in its
natural sense as being the law in fact in existence
and in operation at the time of the commission of the
offence as distinct from the law "deemed" to have
become operative by virtue of the power of
legislature to pass retrospective laws. It follows that
if the appellants are able to substantiate their
contention that the acts charged as offence in this
case have become such only by virtue of Ordinance
No. 48 of 1949 which has admittedly been passed
subsequent to the commission thereof, then they
would be entitled to the benefit of Art. 20 of the
Constitution and to have their convictions set aside.
3248
This leads to an examination of the relevant pre-
existing law."
17. It has been urged, however, that though this may
have been the intention, the intention did not become
operative for reasons to be presently stated. Section 2
of Ordinance No. 4 of 1948 while extending the laws
of Rewa State to the rest of Vindhya Pradesh refers to
the publication of such laws in the Rewa Gazette as a
requisite therefor, and it is pointed out that the Rewa
Gazette itself came into existence only in October
1930 (Vide page 386 of the printed Paper book),
whereas the Penal Code and the Criminal Procedure
Code were brought into operation in the Rewa State
in 1921 and 1922. It is also pointed out that the
deletion of the requirement of previous publication in
the Rewa Gazette by Ordinance No. 20 of 1949 came
into operation only when that Ordinance was
published in the Vindhya Pradesh Gazette, i.e. on 15-
5-1949 sometime after the commission of the offence
in this case. To substantiate the view that only such of
the Rewa laws which were previously published in
the Rewa Gazette were understood as having been
originally extended to Vindhya Pradesh by
Ordinance No. 4 of 1948, a decision of the Vindhya
Pradesh High Court dated 29-10-1949 in Criminal
Appeal No. 27 has been brought to our notice which
assumes that the Prisoners Act in force in India was
not in force in Vindhya Pradesh as there was no
previous publication of it, in the Rewa Gazette. On
3249
the other side a notification of Vindhya Pradesh
Government dated 19-3-1949 and published in the
Vindhya Pradesh Gazette dated 30-3-1949 has been
brought to our notice which specifically mentions all
the laws by then in force in Vindhya Pradesh and
shows "Indian Penal Code - 'mutatis mutandis'- with
necessary adaptations" as item 86 thereof. This is
relied on to show that there must have been a
previous publication thereof in the Rewa Gazette
before integration. There seems to be considerable
force in this argument that in respect of the various
Rewa State laws which have been enumerated in the
above-mentioned Gazette as having been brought
into force in Vindhya Pradesh (some of these are Acts
prior to 1930) there must have been previous
publication in the Rewa Gazette sometime after 1930,
and that neither Ordinance No. 20 of 1949 nor the
decision of Vindhya Pradesh High Court relating to
Prisoners' Act (which is not one enumerated in the
above Gazette) can be taken to negative it. We are
'prima facie' inclined to accept this view and to think
that the Indian Penal Code as in force in Rewa
became extended to Vindhya Pradesh by Ordinance
No. 4 of 1948. But even assuming that S. 2 of the
Ordinance failed to achieve its purpose on account of
misconception as to the previous publication of any
particular Rewa law in the Rewa Gazette, it is clear
that that Rewa law would continue to be in force in
the Rewa portion of United State of Vindhya Pradesh,
3250
as the Vindhya Pradesh law therefor, on the principle
recognised in - 'I Moo Ind App 175 (PC) (H)', that on
change of sovereignty over an inhabited territory the
pre-existing laws continue to be in force until duly
altered. Since in the present case we are concerned
with offences committed in relation to the Rewa State
portion of Vindhya Pradesh, there can be no
reasonable difficulty in holding that the Criminal
Law of Rewa State, i.e., the Indian Penal Code and
the Criminal Procedure Code with adaptations
'mutatis mutandis' was the relevant law for our
present purpose by the date of integrated
administration, viz., 9.3.1948.
21. It must therefore be held that the rulers of the
native States had prior to 1947, the authority to pass
extraterritorial laws relating to offences committed
by their own subjects and vesting in their own courts
the power to try them, except where the contrary is
made out by evidence in the case of any individual
State, and that so far at least as Rewa State is
concerned, the contrary cannot be held to have been
proved."
I. In AIR 1940 P C 116 "Shahid Ganj v. S. G. P.
Committee" the Privy Council held that Court cannot
uproot titles acquired prior to annexation by applying law
which did not then obtain as law of land as also that there
is every presumption in favour of the proposition that a
change of sovereignty would not affect private rights.
Relevant extracts of the said judgment reads as follows:
1
3251
It has been made clear by learned counsel for the
appellants that the plaintiffs do not now claim any
relief extending beyond the actual site of the mosque
building. The first question to be asked with reference
to this immovable property is the question : In whom
was the title at the date when the sovereignty of this
part of India passed to the British in 1849? It may
have been open to the British on the ground of
conquest or otherwise to annul rights of private
property at the time of annexation as indeed they did
in Oudh after 1857. But nothing of the sort was done
so far as regards the property now in dispute. There
is nothing in the Punjab Laws Act or in any other Act
authorising the British Indian Courts to uproot titles
acquired prior to the annexation by applying to them
a law which did not then obtain as the law of the
land. There is every presumption in favour of the
proposition that a change of sovereignty would not
affect private rights to property : cf. (1905) 2 KB
391.3 3. West, Band Gold-mining Co. v. The King,
(1905) 2 KB 391=74 LJ KB 753=93 LT 207=21 TLR
562.
Who then immediately prior to the British annexation
was the local sovereign of Lahore? What law was
applicable in that State to the present case ? Who
was recognized by the local sovereign or other
authority as owner of the property now in dispute?
These matters do not appear to their Lordships to
have received sufficient attention in the present case.
3252
The plaintiffs would seem to have ignored them. It is
idle to call upon the Courts to apply Mahomedan law
to events taking place between 1762 and 1849
without first establishing that this law was at that
time the law of the land recognized and enforced as
such. If it be assumed, for example, that the property
in dispute was by general law or by special decree or
by revenue-free (muafi) grant vested in the Sikh
gurdwara according to the law prevailing under the
Sikh rulers, the case made by the plaintiffs becomes
irrelevant. It is not necessary to say whether it has
been shown that Ranjit Singh took great interest in
the gurdwara and continued endowments made to it
by the Bhanji Sardars as was held by Hilton J. (20
th
January 1930) presiding over the Sikh Gurdwaras
Tribunal. Nor is it necessary that it should now be
decided whether the Sikh mahants held this property
for the Sikh Gurdwara under a muafi grant from the
Sikh rulers. It was for the plaintiffs to establish the
true position as at the date of annexation. Since the
Sikh mahants had held possession for a very long
time under the Sikh State there is a heavy burden on
the plaintiffs to displace the presumption that the
mahants' possession was in accordance with the law
of the time and place. There is an obvious lack of
reality in any statement of the legal position which
would arise assuming that from 1760 down to 1935
the ownership of this property was governed by the
Mahomedan law as modified by the Limitation Act,
3253
1908.."
J. In AIR 1922 Privy Council 123 "Vidya Varuthi v.
Baluswami" the Privy Council held that; from the year
1774, the Legislature, British and Indian, has affirmed,
time after time, the absolute enjoyment by the Hindus and
Muslims of their laws and customs so far as they are not in
conflict with the Statutory laws. It would be a serious
inroad into their rights if the rules of the Hindu and
Muslim laws were to be construed with the light of legal
conceptions borrowed from abroad. Relevant extracts of
the said judgment reads as follows:
From the year 1774, the Legislature, British and
Indian, has affirmed time after time the absolute
enjoyment of their laws and customs, so far as they
are not in conflict with the statutory laws, by Hindus
and Mahommedans. It would, in their Lordships'
opinion, be a serious inroad into their rights, if the
rules of the Hindu and Mahommedan laws were to be
construed with the light of legal conceptions
borrowed from abroad, unless perhaps where they
are absolutely, so to speak, in pari materia. The vice
of this method of construction by analogy is well
illustrated in the case of Vidyapurna Tirthaswami v.
Vidyanidhi Tirtha Swami (3)where a Mohant's
position was attempted to be explained by comparing
it with that of a bishop and of a beneficed clergyman
in England under the ecclesiastical law. It was
criticised, and rightly, in their Lordships' opinion, in
the subsequent case, which arose also in the Madras
3254
High Court, of Kailasam Pillai v. Nataraja
Thambiran (4)To this judgment their Lordships will
have to refer further later on.
K. The Oudh Laws Act, XVIII of 1876 made the Muslim
Law and Hindu Law applicable to the persons of
respective faiths. Section 3 of the said Act reads as
follows:
3. The law to be administered by the Courts of
Oudh shall be as follows:-
(a) the laws for the time being in force regulating the
assessment and collection of land revenue;
(b) in questions regarding succession, special
property of females, betrothal, marriage, divorce,
dower, adoption, guardianship, minority, bastardly,
family-relations, wills, legacies, gifts, partitions, or
any religious usage or institution, the rule of decision
shall be
(1) any custom applicable to the parties concerned
which is not contrary to justice, equity or good
conscience, and has not been, by this or any other
enactment, altered or abolished, and has not been
declared to be void by any competent authority;
(2) any Muhammadan law in cases where the parties
are Muhammadans, and the Hindu Law in cases
where the parties are Hindus, except in so far as such
law has been, by this or any other enactment, altered
or abolished, or has been modified by any such
custom as is above referred to;
(c) the rules contained in this Act;
3255
(d) the rules published in the local official Gazette as
provided by section 40, or made under any other Act
for the time being in force in Oudh;
(e) The Regulations and Acts specified in the second
schedule hereto annexed, subject to the provisions of
Section 4 and to the modifications mentioned in the
third column of the same schedule;
(f) subject to the modifications hereinafter
mentioned, all enactments for the time being in force
and expressly, or by necessary implication, applying
to British India or Oudh, or some part of Oudh;
(g) in cases not provided for by the former part of
this section, or by any other law for the time being in
force, the Courts shall act according to justice, equity
and good conscience.
L. In Moores Indian Appeals (1863-1864) 9 MIA 387,
The Advocate- General of Bengal on behalf of Her
Majesty Vs. Ranee Surnomoye Dossee; the Privy Council
held that the law applicable to the Hindus prior to
acquisition of the rights of sovereignty by the English
crown unless altered by express enactment by the Crown
those laws remained unchanged and applicable to them.
Relevant extract from page 426-427 & 429 of the said
judgment reads as follows:
But, if the English laws were not applicable to
Hindoos on the first settlement of the country, how
could the subsequent acquisition of the rights of
sovereignty by the English Crown make any
alteration? It might enable the Crown by express
3256
enactment to alter the laws of the country, but until
so altered the laws remained unchanged. The
question, therefore, and the sole question in this case
is, whether by express enactment the English law of
felo de se, including the forfeiture attached to it, had
been extended in the year 1844 to Hindoos
destroying themselves in Calcutta.
We were referred by Mr. Melvill in his very able
argument, to
the Charter of Charles II. In 1661, as the first, and
indeed the only one which in express terms
introduces English law into the East Indies. It gave
authority to the Company to appoint Governors of
the several places where they had or should have
Factories, and it authorized such Governors and
their Council to judge all persons belonging to the
said Company, or that should live under them, in all
causes, whether Civil or Criminal, according to the
laws of the Kingdom of Engl and, and to execute
judgment accordingly. The English Crown, however,
at this time clearly had no jurisdiction over native
subjects of the Mogul, and the Charter was admitted
by Mr. Melvill (as we understood him) to apply only
to the European servants of the Company; at all
events it could have no application to the question
now under consideration. The English law, Civil and
Criminal, has been usually considered to have been
made applicable to Natives, within the limits of
Calcutta, in the year 1726, by the Charter, 13th Geo.
3257
I. Neither that nor the subsequent Charters expressly
declare that the English law shall be so applied, but
it seems to have been held to be the necessary
consequence of the provisions contained in them. But
none of these Charters contained any forms
applicable to the punishment, by forfeiture or
otherwise, of the crime of self-murder, and with
respect to other offences to which the Charters did
extend, the application of the criminal law of
England to Natives not Christians, to Mahomedans
and Hindoos, has been treated as subject to
qualifications without which the execution of the law
would have been attended with intolerable injustice
and cruelty.

We think, therefore, the law under consideration

inapplicable to Hindoos, and if it had been
introduced by the Charters in question with respect
to Europeans, we should think that Hindoos would
have been excepted from its operation. But that it was
not so introduced appears to us to be shown by the
admirable judgment of Sir Barnes Peacock in this
case; and if it were not so introduced, then as regards
Natives, it never had any existence.
M. In Moores Indian Appeals (1836-1837) 1 MIA 175
The Mayor of the City of Lyons Vs. the Honble The
East India Company and His Majestrys Attorney
General, the Privy held that a foreign settlement obtained
in an inhabited country, if is allowed, than the law of the
3258
country continues until the Crown, or the Legislature
change it. Relevant extract from page 270-272 of the said
judgment reads as follows:
It is agreed, on all hands, that a Foreign Settlement,
obtained in an inhabited Country, by conquest, or by
cession from another Power, stands in a different
relation to the present question, from a settlement
made by colonizing, that is, peopling an uninhabited
Country.
In the later case, it is said, that the subjects of the
Crown carry with them the laws of England, there
being, of course, no lex loci. In the former case, it is
allowed, that the law of the Country continues
until the Crown, or the Legislature, change it. This
distinction, to this extent, is taken in all the Books; it
is one of the six propositions, stated in Campbell v.
Hall, as quite clear; and no matter of controversy in
the case. And it had been laid, in Calvins case; in
Dutton v. Howell; (Shower, Parl. Ca.24) in Bl ankard
v. Galdy (Salk 411), by Lord Holt, delivering the
judgment of the Court; and nowhere more distinctly,
and accurately, than in the decision of this Court
(Anon.2P.Will 75). Two limitations of this
proposition are added, to which it may be material
that we should attend. One of these refers to
conquests, or cessions. In Calvins case, an
exception is made of infidel countries; for which, it is
said, in Dutton v. Howell , that, though Lord Coke
gives no authority, yet it must be admitted, as being
3259
consonant to reason. But this is treated, in terms, as
an absurdity, by the Court, in Campbell v. Hall ;
the other limitation refers to new plantations. Mr.
Justice Blackstone (1 Bl. Com. 106) says, that only so
much of the English law is carried into them, by the
settler, as is applicable to their situation, and to the
condition of an infant Colony. And Sir William Grant,
in The Attorney- General v. Stewart (2 Mer 161)
applies the same expression, even to the case of
conquered or ceded territories, into which the
English law of property has been generally
introduced. Upon this ground, he held that the
Statute of Mortmain does not extend to the Colonies
governed by the English law, unless it has been
expressly introduced there; because it had its origin
in a policy peculiarly adapted to circumstances of the
mother Country.
N. Yajnavalkya-Smriti (I/343) lays down that in the
acquired country the King should deliver justice according
to custom, usage and law of the said conquered country.
The said verse of the Yajnavalkya Smriti as well as
Mitatakashara commentary thereon with its Hindi
translation are reproduced as follows:-
l-- i iii ri l-iln|
ni li-i si i i- inn||ss||
l , i ii i- inn-ni -iiiil i l n
l-- i ii ~l-iln rii n i-|-n ii
li|i l inli ln| i i inn ;
i n-i inl- ;ln li n- | ii n- (- /,sr)
nl-i|n i- i-i | n| n i- nn ii - ||
3260
;ln ||ss||
iiii i - i i ni l i - i ii, ri i
| -i i ri i | - r i ||ss||
3304. The learned counsel further submits that assuming in
1526 AD Babar became Ruler of Delhi, Agra and Oudh
defeating Sultan Ibrahim Lodi in the battle of Panipat, these
territories comprised of 'Dur-ul-Islam' . When in the year 1526
King Babur acquired sovereignty over Delhi, Agra and Oudh
defeating Sultan Ibrahim Lodi In the battle of Panipat those
territories were constituent of Dar-ul-Islam for the reason that
outgoing Sultan was a Muslim and during his reign Law of Shar
was Law of the Land. Therefore by defeating Sultan Ibrahim
Lodi Emperor Babur acquired only those right of Sovereignty
that a Islamic Ruler had under Shar and; as Shar does not
extinguish title of land owner on the basis of change of
sovereignty or religion of the subjects he didnt become owner
of the land owned by his Hindu subjects and their endowments.
As a Hindu Endowment Ramajanamsthan Temple was already
existing, Emperor Babur did not acquire ownership of that place
as such alleged creation of Wakf for erection of Masjid thereon
rendered the said alleged Wakf null and void.
3305. Illustrated author and great jurist Syed Ameer Ali in
his book the Spirit of Islam (at p.215) describes the
relationship between the citizens of three types of Nations Dar-
ul-Islam i.e. an Islamic State, Dar-ul-Harb i.e. a State Ruled by
belligerent non-Islamic Ruler, Darul-Aman. i.e. a State Ruled by
non-Islamic Ruler with which an Islamic State is at peace.
Relevant extract of the said book reads as follows:
The spirit of aggression never breathed itself into that
code which formally incorporated the Law of Nations with
3261
the religion; and the followers of Mohammed, in the
plentitude of their power, were always ready to say to their
enemies, Cease all hostility to us, and be our allies, and
we shall be faithful to you; or pay tribute and we will
secure and protect you in all your rights; or adopt our
religion, and you shall enjoy every privilege we ourselves
posses.
3306. Syed Ameer Ali in his book Commentaries on
Mahommedan Law also describes Dar-ul-Harb. Relevant
extract from the foot note 1 of the said book reads as follows:
The Moslem jurists, like the jurists of Christendom, until
very recent times, divided the world into two portions,
one the Dar ul-Harb, and the other the Dar ul-Islam, the
country of peace. Juridically, all Mussulman nations
were at peace with each other. As a matter of fact, no
Mussulman Sovereign could declare war against another
without first pronouncing him to be a heretic and beyond
the pale of Islam. The non-Moslem subjects of Moslem
States are called Zimmis. The non-Moslem subjects of
non-Moslem Sovereigns at peace with Islamic States are
called Mustamins."
3307. Fighting between two Muslim Rulers is not fighting
between Dar-ul-Islam and Dar-ul-Herb but it is fighting between
two armies of Islam for Superiority for the benefit of Islam and
subject people. This is very much apparent from the extract
quoted in the preceding paragraph from Syed Amir Alis book as
also, from the answer given by Sultan Sikandar Lodi to the
Kalandar (i.e. a person who had no worldly desires). When said
Darvesh conveyed the Sultan that he would attain victory in
3262
ongoing battle, the Sultan told him that when two Islamic armies
are fighting decision should not be given in ones favour but
only good wishes should be given stating that who will be
beneficial for Islam and subject people will attain victory.
3308. The arguments extended contending that Muslims
are not free to lead the life of their choice and they are bound by
the law of Shar. Muslims should not transgress law as
enunciated in Shar otherwise they will lose their status of being
Muslim. According to Shar Plunderer & looters are not
Muslims. Islamic Ruler and Muslims are subject to Divine Law
of Shar according to which duty of an Islamic Ruler is to guard
the lives, honour and property of his subjects, maintain peace,
check the evildoer, and prevent injuries and; duty of Muslims is
to disobey oppressive and sinful order of a Tyrant Ruler and
refrain himself from such sinful acts. Muslims should not
approve bad deed of the Amirs i.e. the rulers. Making a just
statement before tyrannical ruler is a greatest type of Jihad. A
person who acts as God against the unlawful, is kind to his
neighbour and loves the people as he loves himself is Muslim,
otherwise not.
3309. The Sacred Compilation Hadith Sahih Muslim
(Vol.-III) 1854 & 1854R1 reveal that the Holy Prophet has
commanded that Muslims should not approve bad deed of the
Amirs i.e. the rulers. Said Hadith reads as follows:
"[1854]. It has been narrated on the authority of Umm
Salama that the Messenger of Allah (may peace be upon
him) said: In the near future there will be Amirs and you
will like their good deeds and dislike their bad deeds. One
who sees their bad deeds (and tries to prevent their
3263
repetition by his hand or through his speech), is absolved
from blame, but one who hates their bad deeds (in the heat
of his heart, being unable to prevent their recurrence by his
hand or his tongue), is (also) safe (as far as God's wrath is
concerned). But one who approves their bad deeds and
imitates them is spiritually ruined. People asked (the Holy
Prophet): Shouldn't we fight against them? He replied: No,
as long as they say their prayers.
[1854R1] It has been narrated (through a different chain of
transmiters) on the authority of Umm Salama (wife of the
Holy Prophet) that he said: The Amirs will be appointed
over you, and you will find them doing good as well as bad
deeds. One who hates their bad deeds is absolved from
blame. One who disapproves their bad deeds is (also) safe
(as far as Divine wrath is concerned). But one who
approves their bad deeds and imitates them (is doomed).
People asked: Messenger of Allah, shouldn't we fight
against them? He replied: No, as long as they say their
prayers. (Hating and disapproving refers to liking and
disliking from the heart)."
3310. The Sacred Compilation Hadith Sahih Muslim (Vol.-
III) 1855R1 reveals that the Holy Prophet has commanded the
Muslims to condemn such act of their Rulers which is an act
of disobedience to God i.e. the Holy ordinances of the Allah
and his Holy Messenger. Said Hadith reads as follows:
"[1855R1] It has been narrated on the authority of Abf
b.Malik Al-Ashja'i who said that he heard the Messenger of
Allah (may peace be upon him) saying: The best of your
rulers are those whom you love and who love you, upon
3264
whom you invoke God's blessings and who invoke His
blessings upon you. And the worst of your rulers are those
whom you hate and who hate you, who curse you and
whom you curse. (Those present) said: Shouldn't we
overthrow them at this? He said: No, as long as they
establish prayer among you. No, as long as they establish
prayer among you. Mind you! One who has a governor
appointed over him and he finds that the governor
indulges in an act of disobedience to God, he should
condemn the governor's act, in disobedience to God but
should not withdraw himself from his obedience."
3311. The Sacred Compilation Hadith Sahih Bukhari
3.628 reveal that the Holy Prophet has strictly commanded to
avoid oppression. Said Hadiths read as follows:
"Narrated Ibn `Abbas: The Prophet sent Mu`adh to Yemen
and said, "Be afraid, from the curse of the oppressed as
there is no screen between his invocation and Allah."
3312. The Sacred Compilation Jami At-Tirmidhi (Vol.-5)
Hadith 2683 reveals that the Holy Prophet has directed the
Muslims to refrain from any kind of major and minor sins. Said
Hadith and comment thereto read as follows:
2683. Ibn Ashwa narrated from Yazid bin Salamah Al-Ju
fi, he said: Yazid bin Salamah said: O Messenger of
Allah! I heard so many narrations from you that I am
afraid the last of them will cause me to forget the first of
them. So narrate a statement to me that will encompass
them. So he said: Have Taqwa of Allah with what you
learn. (Daif)
Comments:
3265
The extract and a full outcome of the whole religion is
Taqwa, for this objective the Prophets, Messengers and the
Books were sent; and Taqwa is to refrain from any kind of
major and minor sins, it big and small.
3313. The Sacred Compilation Jami At-Tirmidhi (Vol.-5)
Hadith 2687 reveals that the Holy Prophet has commanded the
Muslims to accept everything that is good and perfect setting
aside the worldly benefits, objectives and lusts. Said Hadith and
comments thereto read as follows:
2687. Abu Hurairah narrated that the Messenger of Allah
said: The wise statement is the lost property of the
believer, so wherever he finds it, then he is more worthy
of it. (Daif)
Comments:
In the creation and nature of human, the passion of
obedience and submission is planted, which is the origin
and source of every good and righteousness, but because of
worldly benefits, objectives and lusts it becomes neglectful
of good and righteousness, whereas the demand of its
nature and habit is to accept everything that is good and
perfect.
3314. The Sacred Compilation Jami At-Tirmidhi (Vol.-5)
Hadith 2826 reveals that if there is anyone to whom the Holy
Prophet has made a promise it must be complied by the Rulers.
Said Hadith read as follows:
2826. Ismall bin Abi Khalid narrated that Abu Juhaifah
said: I saw the Messenger of Allah (he was) white and
turning grey. Al Hasan bin Ali resembles him most. He had
promised thirteen young she-camels for us, so we went to
3266
get them. When we arrived he had died without giving us
anything. So, when Abu Bakr (became the Khalifah) he
said If there is anyone to whom the Messenger of Allah
made a promise, then let him come forth. I stood to inform
him about it, and he ordered that they be given to us.
(Sahih)
3315. The Muwatta Imam Malik 959 reveal that the
Muslims should neither break vows nor kill disbelievers
breaking promise of protection given to him. Said Muwatta nos.
959 read as follows:
"[959] It reached Malik that 'Umar b. 'Abd al-Aziz wrote to
one of his administrators: We have learnt that whenever the
Messenger of Allah (may peace be upon him) sent out
force, he used to command them: Fight taking the name of
the Lord. You are fighting in the cause of the Lord with
people who have disbelieved and rejected the Lord ; do not
commit theft, do not break vows ; do not cut ears and
noses, do not kill women and children. Communicate this to
your armies. If God wills ! Peace be on you."
3316. By defeating Sultan Ibrahim Lodi in the battle of
Panipat Emperor Babur acquired only those rights which the
said Monarch had. As defeated Monarch was not Owner of the
Sri Ramajanamsthan Temple at Ayodhya, according to Shar
Emperor Babur did not acquire title of the said Temple.
According to the Divine Law of Shar a Muslim can erect Masjid
only on such land of which he is lawful owner and he can create
Wakf only of his own lawful property. Unless the first prayer
was offered with permission of the lawful owner even
dedication of Masjid and Wakf by user can not be claimed. Shar
3267
does not permit conversion of a Temple into a Mosque and says
that even if a mansion was given by a Jimmi to Muslims for
their using it as Masjid, after death of such Jimmi his said
mansion goes back to his heirs. Suffice to say that according to
Shar the Wakif must be owner of the property at the time of its
dedication otherwise Wakf is invalid. As Emperor Babur was
not owner of the Suit-land, alleged creation of Wakf for Masjid
and Graveyard was ab initio void and the Plaintiffs are not
entitled for the reliefs as prayed for in the instant Suit.
3317. In the book Ibn Battuta Ki Bharat Yatra Ibn
Battuta writes that he was given fund and permission by Sultan
Muhamad bin Tughlaq for purchasing 20 villages for the
purpose of increasing income of the endowment of Mausoleum
of Sultan Kutubuddin. From said fact it becomes crystal clear
that the Sultan was not owner of the land of the subject people
and he had to purchase land for accretion of said wakf property.
In other words private proprietorship of land was in existence
during the Sultanate period. Relevant extract from page 158 of
the the book Ibn Battuta Ki Bharat Yatra (translated by
Madan Gopal published by National Book Trust of India first
published in 1933 reprinted in 1997) reads as follows:
r. - i i
; in - - i- n | -ili-ii i -
-nl-n ri ni| ri - i- ;i - i- nii iir n
i| | rii li + i (ii n i rii i) n l-i i |
ini |, i ; i - n l-n | i i l | ni
i -i | ini || - i| i-i i i ii i
li ; ni i -i i i i| - r| li ni
ii|
3318. From the Farman of Emperor Shah Jahan of 1633-
3268
34 AD. It becomes clear that the right of private proprietorship
was in existence during the Mughal period and for the purpose
of creation wakf of Taj Mahal the Emperor had to acquire land
of Raja Jai Singh by giving him other land in lieu of the
acquired land. The extract of the Farman taken from page 53
and 54 the book "Mughal Documents AD.1628-59", Volume-II
compiled and translated by S.A.I. Tirmizi and published by
Manohar Publishers, Delhi, 1995 Edn., reads as follows:
"56. Farman of Shah Jahan addressed to Raja Jai Singh
informs the Raja that in lieu of the plot of land acquired for
the construction of the mausoleum of Mumtaz Mahal the
following four havelis have been granted to him (Jai
Singh):
1. Haveli of Raja Bhagwan Das.
2. Haveli of Madhav Singh.
3. Haveli of Rupsi Bairagi.
4. Haveli of Chand Singh, son of Suraj Singh.
The zimn on the reverse bears the risala of Afzal Khan and
waqia of Makramat Khan. (MIM.IV,p.165;
DLFMN,p.55,CHDKD.pp.176-177)."
3319. In the Farman of Emperor Shah Jahan dated 3
rd
August, 1648 contained a Nishan of Prince Dara Shukoh, the
then Viceroy of Gujrat it has been held that conversion of
temple of Sati Das into mosque by erstwhile Viceroy of Gujrat
prince Aurangzeb was in violation of Islamic Law and as it was
constructed over the property of another person it could not be
considered a mosque according to the inviolable Islamic Law.
On the basis of said finding of Law of Shar the Emperor
directed authorities to hand over the said building to Sati Das for
3269
his using the same as his temple. The extract of the Farman
taken from page 89 of the book "Mughal Documents AD.1628-
59" Volume-II (supra), reads as follows:
"199. Nishan of Prince Dara Shukoh addressed to the
subadar, hukkam, and mutasaddis of suba gujarat,
particularly Ghairat Khan, informs that a farman in
connection with the temple of Sati Das Jawahari had been
formerly issued to Umdatul Mulk Shaista Khan to the effect
taht Prince Aurangzeb having constructed several mihrabs
in the said temple had given it the name of a masjid and
thereafter Mulla Abdul Hakim had represented to the
Emperor that this building, by reason of its being the
property of another person, could not be considered a
mosque according to the inviolable Islamic law. The
imperial orders were, therefore, issued stating that this
building belonged to Sati and that because of its being
mihrabi, no obstruction should be caused to the above
mentioned person (Sati Das) and that the mihrabs should
be removed and the said building be restrored to him (Sati
Das). Now the royal orders are issued to the effect that the
mihrab which the Prince above referred to had constructed
there, may be retained and a wall be built close to the
mihrab between the temple and miharab to serve as a
screen. It is now ordered that since the Emperor had
granted the said temple to Sati Das, he should be left in
possession of it as usual and he may worship there
according to his creed in any way he likes and no one
should cause any obstruction or hindrance to him in this
regard. Some faqirs who have settled there be ejected and