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 3rd April, 1528 to 17th 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 29th 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, 9th 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 27th 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 13th 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 28th November, 1858 of Sheetal Dubey, Thanedar

(Exhibit-19, Suit-1) (Register -5, page 61) which says as under:

غریب پرور سلمت

گ سنگ فقیر خالص سییاکن ملییک پنجییاب بیییچ ہخداوندآج ک روز مسمی ن ھ ہ ے

ون اور پوجا گورگوینیید سیینگ مقییرر کیییا اور نشییان ان ک ھمسجد جنم است ہ ہ ھ

ی واسییط حفییاظت وقییت ا کیا اور پچیس نفرسیک ب گوان ک ک ےشری ب ہ ھ ھڑ ہ ھ

افتییاب دولییت اقبییال کییا ا عییرض کیییا ا پر واجب ت ا کرن نشان ک و ک ھ ۔ ں ہ ہ ے ہڑ

و فقط ہروشن عرضی

ان دار اود مورخ ہفدوی سیتل دوب ت ہ ے ھ ء۱۸۵۸ نومبر ۲۸ے

^^xjhc ijoj lyker]

[kqnkoUn vkt ds jkst+ eqlEeh fugax flag Q+d+hj [kkylk lkfdu

eqYd iatkc chp elftn tUe vLFkku ds gou vkSj iwtk xq: xkskfcUn

flag eqdjZj fd;k vkSj fu'kku Jh Hkxoku ds [kM+k fd;k vkSj iPPkhl

uQ+j fl[k Hkh okLrs fgQ+kt+r oD+r [kM+k djus fu'kku ds ogka ij gSaA

okftc Fkk vt+Z fd;kA vkQ+rkc nkSyr bd+cky dk jkS'ku gks [kq'kA

Q+d+r

vthZ

fQ+noh 'khry nqcs Fkkusnkj vo/k eksj[kk 28 uoEcj lu~ 1858 bZ ۰

(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 OudhDated 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 30th 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, 3rd 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:

^^¼ckcjh efLtn½

tukc vkyh eqd+ke x+kSj dk gS efLtn eqd+ke bcknr eqlyekuku

gS u fd c[ks+ykQ+ ml ds cotsg gquwn dh o lkfcd+ esa d+Cy esa

veynkjh ljdkj e qd +ke tue LFk ku dk lngk cjl d s fu'k ku

iM +k jgrk Fk k o vgy s g qu wn i wtk djr s Fk sA pcwrjk clkft'k

f'ko xqyke Fkkusnkj vo/k ds cSjkfx;ksa us 'kck'kc esa rk lqnwjs gqDe

ljdkj ds okLrs eqekfu;r ds ukfQt+ gqvk Fkk ccqyUnh ,d okfy'r

rS;kj djk fy;kA ml oD+r lkgsc fMIVh dfe'uj cgknqj us ceksftc

gqDe tukc lkgc dfe'kuj cgknqj ds Fkkusnkj dks ekSdwQ+ fd;k o cSjkxh

2816

ij tqekZuk eqrv;~;u gqvk vc fQ+ygky bl pcwrjs dh Hkh rjoehuu

lok xt+ rS;kj djk fy;k gS bl lwjr ljhg ft;knrh lkfcr gS ysgkt+k

mEehnokj gWwa fd cuke eqjrtk [kka dksroky 'kgj lqnwj gqDe gksos fd

dksroky cp'e [kqn eksvkbZuk djds meqjkr tnhn [kqnok Mkysa o

ejnqeku gquwn dks ckgj efLtn djsa A

lS;~;n eksgEen [k+rhc

eksvfTt+u efLtn ckcjh okd+S vo/k

30 uoEcj 1858 bZ^^

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 1¼ 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 28th 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 30th

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 6th 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

ا کرنیی۸۸۴ہءمقدم۵۸ہنقل حکم مقدم انیییداراود دوبییار ک ے عرضییی ت ھڑ ہ ہ ھ

یییک سیینگ فقیییر خالسیی کیی منفصییل ان ےنشییان در مسییجد جنییم اسییت ے ہ ھ ٹ ۶ھ

ء۱۸۵۸دسمبرسن

وا کیی حسییب حکییم وک دریافت ہآج یک مقدم روبکار ہ ہ ہ نومییبر سیین نییک۳۰ہ

ا روان کیا ۔فقیرکو جو مسجد بابری می بی ہ ہے ٹھ ںواک ہحکم ہی آتییا تییو اسییکو گرفتییار انیدار آود کیا جاو ک اگر فقیر ن ہےپروان بنام ت ں ہ ہ ے ہ ھ ہ

ں۔کرک روان حضور کری ہ ء۵۸ دسمبر سن ۵ے

دستخط حاکم

"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:

عرضیییی۸۸۴ہء مقیییدم نومیییبر ۱۸۵۸ دسیییمبر۱۰ہنقیییل حکیییم میییورخ

یییک ان سیینت ا کرن نشان درمسجد جنییم اسییت انیداراود دربار ک ٹت ھ ے ھڑ ہ ہ ھ

ٹسنگ فقیر خالص ک محل رام کو (کو رام چندر) منفصل ٹ ہ ے ہ دسمبر۱۵ھ

ء۱۸۵۸سن

ا گیا جو فقیییرآ ا ان س اک ا مسجد جنم است ن وا جسمی ج ڑآج روبکار ھ ے ھ ڈ ھ ں ہ

2819

ا نکال گیا ا ت ر ۔ک ھ ہ ےواک ہحکم ہ

و وک داخل دفتر ہمقدم خارج ے ہ ء۱۸۵۸ د سمبر۱۰ہ

^^udy gqdqe eksj[kk 10 fnlEcj 1858 bZ0 eqdnek ua0 884 vthZ

Fkkuknkj vo/k [kM+k djus fu'kku nj efLtn tUeLFkku lUr Vsd flag

Qdhj [kkylk ds eksgYyk jkedksV dksV jkepUnj equQlyk 15 fnlEcj

1758 vkt jkscdkj gqvk ftlesa >aMk efLtn tUeLFkku ls m[kkM+k x;k

tks Qdhj vkds jgrk Fkk fudkyk x;kA

gqdqe gqvk fd eqdnek [kkfjt gksds nkf[kys nQ~rj gksA**

"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 12th 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

18th 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 12th

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

22nd 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 22nd 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 3rd 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 7th 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 18th June, 1883.

2981. An application dated 2nd 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 22nd January, 1884 Exhibit 27 (Suit 1)

(Register 5 Page 95):

ہنقل فرد منفصیل احکام مورخ ۱۹۴۳۵ہء مقدم نمبر ۱۸۸۴ جنوری ۲۲ہ

ان اود ہواقع جنم است ین۱۸۸۴ جنوری ۲۲ھ ٹء اجلسی جناب اسیس ٹ

بادر فیض آباد ہکمیشنر صاحب سید محمد اصغر

بنام

2823

وبر داس ہرگی پ وا فریقین کو حکم صاحب ٹآج مقدم بحاضری فریقین پیش ڈ ہ ہ

ماش کی گی ک وبر داس کو ف ادر س اطلع دی گی اور رگ ہکمیشنرب ہ ہ ے ہ

ںاندرونی و بیرونی احاط و درواز مسجد کی مرمت وغیر ن کری اور ہ ہ ہ ہ

ا دیا گیا ک بیرونی درواز قفل ن لگایا جاو ی ہمحمد اصغر کو سمج ے ہ ہ ہ ھ

ا جا اور کوءی دست ہمناسب ضروری ک عمل درامد قدیم بحال رک ے ھ ہ ہے

۔اندازی و مداخلت ن ک جاو ہ ہ

وا ک ہحکم ہو المرقوم ذا داخل دفتر ہکاغذات ء۸۴ جنوری ۲۲ہ

^^udy QnZ vgdke eksj[kk 22 tuojh 1884 bZ0 eqdnek ua0 19435

okds tUe LFkku vo/k equQlyk 22 tuojh 1884 bZ0 btyklh tukc

vflLVsUV dfe'uj lkgc cgknqj QStkckn

lS;~;n eqgEen vlxj cuke j?kqcj nkl

vkt eqdnek cgkftjh QjhdSu is'k gqvk QjhdSu dks gqDe lkgc fMIVh

dfe'uj ls bfRryk nh xbZ vkSj j?kqcj nkl ds Qgekb'k dh xbZ fd

vUn:uh o cs:uh vgkrk o njoktk elftn dh ejEer oxSjg u djs

vkSj eqgEen vlxj dks le>k fn;k x;k fd ckgjh njoktk dqQ~y u

yxk;k tkosa ;g fugk;r t:jh gS fd vey njken dnhe cgky j[kk

tkos vkSj dksbZ nLr vUnkth u enk[kyr u dh tkosA

gqDe gqvk fd

dkxtkr gktk nk f[ky nQ~rj gk s vRejd we

22 tuojh 84 bZ0^^

"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 28th November, 1858 and complaint

dated 30th 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 17th 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 29th

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 21st to 29th 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 6th 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 25th Oct.. 1892.

That Bhagwan Das Udasi gave the land in suit to

Narayan Das by a registered deed dated 11th

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

^^uke egy ¼1½ % efLtn vgns 'kkgh

uEcj vkjkth ¼2@1½ % 583

jdck tnhn ¼2@2½ % 305@ 9 fc0 15 fclokalh 4 dN0

uEcj lkfcd ¼3@1½ % vkcknh 444

jdck lkfcd ¼3@2½ % 7 fc0 11 fclokalh 14 dN0

uke ekfyd vkyk ¼4½ % &

uke ekrgrnkj vxj dksbZ gks ¼5½ % &

uke dkfct gky ¼6½ % efLtn oDQ vgns 'kkgh

fdLe ¼7½ % elkftn

jdck ¼8½ % 9 fc0 15 fclokalh 4 dN0

vfyQ cvnk;s yxku ¼2½ fcyk yxku ¼9½ %

ctfj;s fefly uEcjh 427 ua0 6@ 47

jk;xat equQlyk 26 Qjojh lu~ 41 bZ0

nkf[ky [kkfjt cuke egUr jÄqukFk nkl

egUr tue LFkku eqdjZj fd;s x;s

ctk;s jkepju nkl

n0dk0

14-6-41

d.Mgy ¼10½ %

nLr vankth ¼11½ %

eqjyl e; rkjh[k ¼12½ %

jdck ¼13½ %

yxku ¼14½ %

[ksr uEcjh ¼15½ %

dSfQ;y ¼16½ %& efLtn iks[rk oD+Q+ vgns 'kkgh vUnj lgu

efLtn ,d pcwrjk ¼viBuh;½ tks tueHkwfe ds

uke ls e'kgwj gS nj[rku xwyj ,d beyh ,d

ewyfljh ,d] ihiy ,d] csy ,d ¼viBuh;½

efLtn ekSlwek 'kkg ckcj 'kkg ejgwe^^

(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 6th 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 23rd 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 23rd 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:

^3-- tUe Hkwfe efUnj esa iwtk iqtkjh djrk Fkk eU= vkSj cksyrk FkkA

eU= cksyus okys dk uke y{e.k nRr 'kkluh iq= vfEcdk ikaMs gS tks

;gkWa vnkyr esa [kM+s gSaA ogkWa 'kq: esa ckcw fiz;k nRr jke dh fu;qfDr esa

iqtkjh Fkk fof"Vkn~;= 'kSyh ds eryc gS fd ge Hkxoku dh iwtk ds

le; Hkxoku] ek;k vkSj tho rhuksa dh Hkkouk dh tkrh gS vkSj oSfnd

eU= cksyrs gSaA vkSj Hkxoku ds Luku ls ysdj lksyg izdkj dh iwtk

gksrh gS ;g iwtk ,d vkneh }kjk ugha gks ldrhA vxj iqtkjh dks eU=

ekywe gS rks oDr iM+us ij ogh iwtk dj ldrk gSA efUnj d s vUnj

i zo s' k dju s d s fy; s ijeh'ku dk vf/ kdkj ckc w fi z;k nRr

jke dk s Fk kA* *

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 5th 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

25th 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 12th

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 13th 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 6th 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 29th 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 5th 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 22nd/23rd 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 18th 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 16th

December, 1949 and he strongly relied on para 22 thereof

which read as under:

^^nQk 22- ;g fd eqn~nkvysgqe eqthc dks bYe ugha gS fd

tk;nkn eqrnkfo;k ;kuh efLtn ckcjh ds vUnj dksbZ ewfrZ gS- 16

fnlEcj lu~ 1949 bZ0 rd mlesa uekt gqbZ- ml oDr rd ml

es dksbZ ewfrZ u Fkh ysfdu vxj dksbZ ewfrZ efLtn ds vUnj fdlh

'k[l us pksjh o cnfu;rh ls ckn rkjh[k etdwj j[k fn;k gS- rks

mlls efLtn dh ljhgh csgqjerh o ukikdh eqrlfOoj gS- vkSj

Qsy etdwj dkuwuu eqtfjekuk gS- vkSj vxj eqn~nbZ ;k dksbZ

nwljk 'k[l efLtn etdwj esa ewfrZ iwtus ;k n'kZu djus ds x+jt

ls efLtn ds vUnj nkf[ky gksuk pkgrk gS rks og tqeZ dk

eqrZfdc gS- pqukps ,slh gkyr es vnkyr nhokuh nknjlh erywck

nsus ls dkflj gS- cgj gky mlls eqn~nbZ ;k fdlh xSj eqfLye

dks efLtn etdwj es dksbZ gd ugha iSnk gks ldrkA^^

"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

22nd/23rd 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 16th 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 16th 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 26th 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 (2nd

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 ( ہبفرمود ) 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 1st couplet in the 1st

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

17th 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

22nd August, 1757 and 23rd 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 9th 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 30th May, 1950 by

2875

Hon’ble 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 8th 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 14th February,

1950 (Page 119 Register 1); and Abdul Jalil S/o Abdul Wahid

dated 14th 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 6th 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 14th 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 29th 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:

^^nQk 1- ;g fd bekjr eqrukft;k okds eksgYyk jkedksV 'kgj v;ks/;k

'kgu'kkg fgUn ckcj 'kkg dh rkehj djnk efLtn ekSlwe cckcjh efLtn

gS- ftl dks 'kgu'kkg etdwj us ckn Qrsg;kch fgUnksLrku nkSjku D;ke

v;ks/;k lu 1528 bZ0 esa rkehj djk;k- vkSj reehj djds reke

eqlyekuku ds fy, oDQ vke dj fn;k- ftl esa vke eqlyekuku dk

gd bcknr gS-

nQk 2- ;g fd ckn rkehj efLtn etdwj 'kgu'kkg ckcj us efLtn

etdwj dh f[krkcr o nhxj v[kjktkr ds fy, ,d jde vfr;k

lkykuk vius [ktkuk 'kkgh ls eksdjZj fd;k- tks nkSjku lyrur

eqx+fy;k etdwj dks cjkcj feyrk jgk- vkSj ckn toky lyrur

eqxfy;k uokchu vo/k us bl vfr;k dks dk;e jD[kk- vkSj uokc

vklQqn~nkSyk cgknqj us vius tekuk gqdwer esa jde vfr;k etdwj dks

btkQk djds eqcfyx 302 :0 3 vkuk 6 ikbZ lkykuk vrk djuk eatwj

fd;k- tks jde ckn bUrtk lyrur vo/k fczfV'k xouZesUV us Hkh tkjh

jD[kk- vkSj tekuk cUnkscLr vOoy esa xouZesUV cjrkfu; us

eqRrofYy;ku dks ctk; uDn vfr;k et+dwj ds eokft;kr 'kksykiqjh o

cgksjuiqj eqRrfly v;ks/;k crkSj ekQh fcukcj elkfjQ efLtn ckcjh

vrk fd;k-

nQk 3- ;g fd vke eqlyekuku vkSj Qjhd nks;e dk dCtk crkSj oDQ

vke bekjr eqrukft;k ;kuh efLtn ckcjh ij 1528 bZ0 ls vkt rd

eqlyly pyk vkrk gS-

nQk 4- ;g fd Qjhd nks;e o vke eqlyekuku tk;n vt 400 lky

cbYe o vkxkgh Qjhd vOoy o vke vgsys fguwn bekjr eqrukft;k esa

crkSj efLtn oDQ vke fcyk fdlh jksd Vksd ds viuh bcknr djrs

vkSj uekt i<+rs pys vk, gS-

nQk 5- ;g fd Qjhd vOoy ;k vke vgsys fguwn dk dksbZ gd bekjr

2880

eqrukft;k ;kuh efLtn ckcjh esa u Fkk vkSj u gS- vkSj u mudk dCtk

dHkh bl ij jgk gS vkSj u gS-

nQk 6- ;g fd bekjr eqrukft;k ;kuh efLtn ckcjh u dHkh efUnj

tUe Hkwfe Fkh vkSj u gS- vkSj u dHkh Jh jkepUnz th dk efUnj jgk-

nQk 7- ;g fd Qjhd nks;e o nhxj eqlyekuku us bekjr etdwj

;kuh efLtn ckcjh esa 16 fnlEcj lu~ 49 bZ0 rd uekt tqek ctekr

vnk dh-

nQk 8- ;g fd dqN 'kksfj'k ilUn vgsys fguwn us ftl esa dqN eqdkeh

Qjhd vOoy Hkh 'kkfey Fkh- 12 uoEcj lu~ 1949 bZ0 dks bekjr

eqrukft;k ;kuh efLtn ckcjh ds djhc exj - - - - efLtn ls ckgj

esa tki 'kq: fd;k- ftl esa ,d vEcksg dlhj vgsys fguwn dk tek gqvk

ftl us fd dqN dOjs vkSj dukrh efLtn dh csgqjerh dh- tc Qjhd

nks;e us bl dh [kcj gqDdke ftyk dks nh rks mUgksaus ,d iqyhl xkMZ

bl eqdke ij rSukr dj fn;k fd vkbUnk bl fdLe dh gjdr ljt+n

u gks-

nQk 9- ;g fd 22 uoEcj lu ~ 49 b Z0 dk s tc ;g e'kg wj

g qvk fd bekjr e qruk ft;k ckcjh efLtn in dqN 'k k sf j' k

ilUn e qQfln geyk djuk pkgr s g S - rk s mldh bRryk

g qDdke ftyk dk s nh xb Z - rk s mUgk s au s i qyhl xkM Z e s a

btkQk dj fn;k vk S j gj uekt d s ckn efLtn etd wj e sa

rkyk yxk;k tku s yxk - ^ ^

"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 22nd

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 22nd/23rd 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 23rd

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 29th 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

22nd/23rd 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 6th

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:

^^fuLcr rudhg iUtqe ds ekSd+s ij iSekb'k dh vkSj i Sekb'k

uD +' k k lgh g S tk s e qrk fcd + e q Untk Z nkok g S fd e qgEen

vlx +j dk s H k h ml rknkn e q Untk Z vt +h Z nkok e s a vc dqN

mtz + u jgk cfYd og dqN rknkn dqN bUp esa de gS rknkn Q+hV

lgh gSA**

"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

^^fuLcr rud+hg 'k'kqe ceqykfgtk ekSd+k t+kfgj gS fd pju

;kuh ikn qdk uD +' k g S fd ftldh ijlfr'k gk sr h g S flok;

blds pcwrjs ls efUnj ckdS+; pcwrjs ij ,d ewjr Bkdqj th j[kh gqbZ gS

ftldh ijfLr'k gksrh gSA pcwrjk ed+c+wtk eqn~nbZ gS fd tks dqN ml ij

p<+kok p<+rk gS og eqn~nbZ ysrk gS fd bl ckr ;kuh p<+kok dks bl

oD+r eqgEen vlx+j eqn~nkySg Hkh rlyhe djrs gSaA xokgku eqn~nbZ ls

dCt+k eqn~nbZ dk c[kwch lkfcr gS fd bl otg ls nhokj dVgjsnkj gn

fgUnw eqlyeku vygnk vlsZ ls d+k;e gqbZ gS ftldk ft+dz vkbUnk ekSd+s

ij gksxkA xokgku eqn~nkySg d+Ct+k pcwrjk eqn~nbZ ls uokd+fQ+;r t+kfgj

djrs gSaA njfe;ku efLtn o pcwrjs ds ,d iq[rk nhokj dVgjsnkj gS

fd uD+'kk eqjfRrck vehu blykgs nkok ds eqykfgtk ls c[k+wch dSfQ;r

ekSd+k equdf'kQ+ gks ldrh gS vkSj lkQ+ t+kfgj gS fd gqnwn njfe;ku

efLtn o pcwrjs dh d+k;e dh xbZ gS vkSj bldh rkbZn ljdkjh

x+t+sfV;j ls tks d+Cy eqrkuktk gky ds eqjfRrc gqvk c[kwch gkfly gS

fd is'krj fgUnw o eqlyeku nksuksa bl eqd+ke ij ijfLr'k djrs Fks lu~

1855 esa ckn yM+kbZ njfe;ku fgUnw o eqlyeku ,d nhokj dVgjs dh

okLrs jQ+s fut+k ds cuk nh xbZ fd vUnj mlds eqlyeku o ckgj fgUnw

yksx ijfLr'k djsaA**

"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 16th 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 18th 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 20th

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 9th 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:

و ن بتایا ک سابق۲۶وقف ہ فیض آباد ک خدمات کی جانچ کی گءی ان ے ں ہ ۔ ے

وسکا ک کیا ی اور ن ی معلوم ہمتولی ک بیان س ن توکاغذات وقف بن ہ ہ ہ ں ہ ے ہ ے ے

۔بقایا اور کیا تحویل وقف کی امدنی ہے ی۵۰۰ہے ں۔ روپی س زاءد ہ ے ہ

ہے س کی ۱۷ےجسکی وصولی تحصیل جواد حسیر صاحب ن اکتوبر ے

ےجسکی وج س صرف ل مطالب بور۸۲ہ پیچ ی و سکی ڑ روپی وصول ہ ھ ں ہ ں ہ ہ

س جاری کیا یمان نو ی دفتر س وا یا ن ی ک وصول ی معلوم ن ٹب ڈ ڈ ے ں ہ ہے ہ ہ ں ہ ھ

و ن و سک ک کیا بقایا ان ےجاء تاک متولی جواد حساین کو معلوم ں ہ ہے ہ ے ہ ہ ے

ل مطالب سابق متولیان س لیا جاء دفتر س اس ےاستدعا کی ک پیچ ے ے ہ ھ ہ ہے

دایت کر دی ک و ہسلسل می مناسب اقدام کیا جاء می ن ان کو ہ ہے ہ ے ں ے ں ہ

ی ں۔حسابات وغیر باقاعد لک ھ ہ ہ دستخط

27.8.48

س جاری کرت وقت مطالب بور کی یمان نو ڈدفتر ک متعلق کلرک ہ ے ٹ ڈ ڈ ہ ے

ی۵۰۰تسخیص ی تحریر لک ں روپی پر کری اطلعا تحریر لک ھ ہے ں ھ ہے ں ہ

و جاء ر می غلط اندراج ن یمان رجس ے۔تاک ہ ہ ں ٹ ڈ ڈ ہ"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:

نوء رل بور آف وقف یو پی لک ھدفتر سنی سن ۔ ۔ ڈ ٹری وقف زیر دفع ہذیل فارم رجس پی مسلم وقف ایک نمبر۳۸ٹ ٹ یو ۔ ۔ ۔۔ مشمول مثل۱۹۳۶ سن ۱۳۔ ہ

۲۶ہنمبر سلسل

ورن پور و آراضی شعل ہضلع کا نام و تحصیل و گاءو جاءداد موقوف موضع ب ہ ہ ں

ورن پور پرگن حویلی اود تحصیل و ضلع فیض آباد ھپوری بحال ب ہ ہنشا بابر و نواب ی عطی ش ہنام وقف مع ولدیت و سکونت کوءی وقف ن ہ ہ ہے۔ ں ہ ۔۔۔

ںسعادت علی خاو مع پورا پت ہمتولیان و دیگر اشخاس ک نام جو انتظام وقف س مطعلق ں ہ ے ے

۴/۵ہمحمد ذکی و کلب حسین ایک قت

2901

۴/۵ جواد حسین و محمد حسین و عابد حسین

۴/۵ نورالحسن و ابو محمد و غلم اصغر

د کی جانشینی کا طریق ہدستاویز وقف یا رسم و رواج ک مطابق متولیان ک ع ہ ہ ے ےی تا کوءی خاص قاءد اور ن ہےنمبردار بحال معافی انتظامات کرتا ر ں ہ ہ ہے ہ

مسجد مذکور کی سفیدی و مرمت و فرش۔۔۔۔انتظام وقف کی اسکیم کی تفصیلت

ہروشنی وغیر اور تنخوا معذن و پیش امام و خرچ رمضان شریف و عیدگا ہ ہ ہ

وتا جو فرد حساب می درج ی ہےحالی کا انتظام ب ں ہے ہ ھ ہ

ہوقف ک متعلق تمام دستاویزات استحقاق اور دیگر دستاویزات متعلق کی بابت ے

ورن پور ۔۔۔۔تفصیلت ۳۵۱/۶۰ہموضع ب

ورن پور ہآراضی شعل پوری بحال ب ۱۷۷/۸ہ

و ا موقوف کی تفصیلت جو شناخت ک لء کافی ں۔۔۔۔جاءداد ہ ے ے ہ ے ہ کوءی وقف نامہ

ی صرف سند نانکار منجانب گورنمن ٹن ہے ہے۔ ں ہا موقوف کی سالن آمدنی ۔۔۔۔۔جاءداد ہ ہ ے ہروپی۱۵۲ہ

ات س ججام مرطب ے۔۔۔۔آراضی دی ہ روپی۱۴ہ۔۔۔مرمت مکانات وغیر ہ

ہ روپی۳۰۵ے۔۔۔۔۔دیگر ذراءع س میزان

اء موقوف بابت یکس جو جاءداد ہسرکاری مالگذاری ابواب لگان اور ہ ے ہ ٹ ۔ ےسالن ابواب رقم س ہ

و ہگورمن کو سالن واجب الدا ہ ٹ

۱۰

لت بموجب دستاویز یا رسم ورواج ہسالن مصارف کی تفصی ہ۔۔۔۔۔۔خییرچ تحصیییل وصییول مبلییغ بطورحییق نمییبرداری ملییک حسیین

۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔نمبردار۱۱

محمد ذکی حسین ۔۔۔۔۔۔تنخوا متولی 240/00ہ ہ نمبر لزمی مع جمع ۵۔۸۴ہجواد حسین وغیر ہ ۲۶۵۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔نورالحسن وغیر ہ

الف ۱۲

بی کام ک لء مخصوص مذ ےخیراتی اغراض ے ہ ۔۔۔۔۔۔۔۔ ب

ےواقف ک والیدین ۱ےخاندان س مراد ر۲؎ ہ واقییف کیی زوجیی یییا وافقیی کیا شیو ہ ہ ؎

ے دیگر افراد جییو واقییف سیی اسییک کسییی مورشییا مییرد۴؎ واقف کی اولد ۳ ے ؎

و ت ںعورت ک ذریع رشت رک ہ ے ھ ہ ہ و یییا۵ے ت ںو افراد جو واقف ک سات ر ہ ے ہ ھ ے ہ ؎

و ں۔اسک زیر پرورش ہ ے

ی کوءی رقم جمع ن و ہے۔کل پس ماند رقم جو متولی ک پاس جمع ں ہ ۔۔۔۔ ہ ے ہ ۱۳

2902

ی سالن حص پات و دار ت س ک ےدیگر تفصیلت جاءداد مذکور می ب ہ ہ ں ہ ٹ ھ ے ہ ں ۔ ہےی جو مسجد ک سالن خرچ س بچتا اور نمییبردار کییو حییق نمییبرداری ے ہ ہ ے ں۔ ہ

ہے۔ملتا ۱۴

و رکیلء درخواست دی گءی ۔۔۔۔۔۔تاریخ جسمی رجس ہ ے ٹ ء۱۹۴۳۔ستمبر ۴۶ں ۱۵

ییی بلکیی۔کیفیت ییی تسییلیم کرتیی و داران وقییف ن ہ نو فی الحال جملیی ک ں ہ ے ں ہ ٹ ھ ہ ٹ۔ م لوگو کو اپن حق ک لء استقرار کا دعوی ذا ی ل ت ےنانکار معافی ک ے ے ں ہ ہ ں ہ ے ہ

ےعدالت مجاز می کرن کا اراد جسکا موقع بضابط عطا فرما یا جاو ہ ہ ہے ہ ے ں ی و ک مندرج بال اطلعات بالکل صحیح اور درست ںمی بحلف تصدیق کرتا ہ ہ ہ ں ہ ں

ی ی رک رل بور آف وقف س پوشید ن ہے۔اور می ن کوءی بات سنی سن ھ ں ہ ہ ے ڈ ٹ ے ںOffice 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.4/5Nurul 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 villageFrom 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

26th 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:.

نؤ پی لک رل وقف بور یو ھسنی سن ۔ ڈ ٹہء حسب دفع۱۹۴۸مارچ ۳۱ء لغایت ۱۹۴۷ہذیل حساب آمدنی و خرچ بابت سال یکم اکتوبر

پی مسلم وقف ایک ۵۷ ٹ یو ہء..... مشمول مثل دفع ۱۹۳۶۔ مسجد بابری ضلع فیض آباد۲۶ہ

فیض آباد نمبر وقف ہ نام وقف یا واقییف بادشییا بییابر۲۶۔۔۔۔نام ضلع

نام متولی جواد حسین

ہرقم غیییر وصییول شیید سییال گزشییت نسییبت جییاءداد موقییوف ہ ہ زرعی و سکنی

الف ۱

ڈگریات ب

۹۸ و ہلگان نسبت جاءداد زرعی جوبابت سال حال واجب الوصول ہ الف ۲

۱۶ آمدنی سیر و خود کاشت ب

ہ(باغات تالب جنگلت وغیر مع تفصیلآمدنی ساءر ہ ج

2905

ہکرای مکانات دو کانات و آراضی سکنی د

دیگر آمدنی ر

۲۷/۴ و یکس واجب الدا ہمال گزاری سرکاری ٹ ۳

۷۰/۱۲ یکس اءی مال گزاری ٹخالص آمدنی بعد من ہ ۴

یا کسی نجی کام ےرقم جو ادس کی اولد یا خاندان کیلء و ہکیلء ازروء وقف نام واجب الدا ہ ے ے

الف ۵

و وقف نام براء کار خیر واجب الدا ہرقم جو ازرو ے ہ ے ب

ہکسی قسم کا قرض یا باریااداءیگی جو ذم جاءد موقوف شروع ہ ہ ا یکس وھسال واجب ت ٹ(مثل بار کرای مالگزاری ابواب ہ

گری وغیر ہتنخوا یا مال گزار یا ڈ ہ ہ۶

ہکسی قسم کا قرض یا باریااداءیگی جو ذم جاءد موقوف آخر ہ ہ ا یکس وھسال واجب ت ٹ(مثل بار کرای مالگزاری ابواب ہ

گری وغیر ہتنخوا یا مال گزار یا ڈ ہ ہ۷

وا روپی یا بینک می جمع شد جو سال ک شروع ےقرض دیا ہ ں ہ ہ ا ۔می ت ھ ں

۸

وا روپی یا بینک می جمع شد جو سییال کیی آخییر ےقرض دیا ہ ں ہ ہ ا ۔می ت ھ ں

۹

ر ہآن پ واقعی خرچ اندرون سال ر آ پا واقعی آمدنی اندرون سال

27 4 - سرکاری مالگذاری و ابوابٹیکس

۱ ہوصولی ازبقایا سال گزشت ہبابت جاءداد زرعی و سکنی

لاف

۱

ہمطالب وقف بور مع حوال ہ ڈ ہ نمبر و تاریخ رسید

۲ ہوصولی ازبقایا سال گزشت گریات ڈبابت ہ

ب

---------------- 82 - - لگان الف

۲

12 8 - صرف تحصیل وصول وانتظام جاءداد

۳ 16 - - سیر و خود کاشت ب

ہصرف مرمت و تعمیرجاءداد ۴ ساءر باغات جنگلت تالبہوغیر مع تفصیل ہ

ج

اخراجات مقدمات ۵ ------------------- - -

56 مسجد ۶ ------------------- - -

ہمدرس ۷ ------------------- - -

ہنزر دینا زد فاتح ۸ ------------------- - -

خیرات و امداد و غرباء ومساکین

۹ ہکرای مکانات و دوکانات و آراضیات سکنی

د

دیگر امور خیر مطابق وقفہنام

۱۰

ہدیگر آمدنی مع تفصیل ر

و ہتنخوا متولی اگر ہ ۱۱

ےجو روپی بینک س نکالگیا ہ الف

۳

ےرقم جو واقف یا واقف ک ہخاندان کو ازرو وقف نام ے

و ۔دی گءی ہ۱۲

ہجو روپی قرض کا وصول ہوا

ب

اخراجات متفرق ۱

2906

۳

ںجو روپی بینک می جمع کیا ہ ۔گیا

۱۴

۔جو روپی قرض دیا گیا ہ ۱۵

952

124

- میزان اخراجاتان ہپسماند رقم مع تفصیل ج ہ ہ

و ہجمع لءی۲ٹمطابق نو ھدک ؎

ےجاو

98 - - میزان کلی ھتحویل جو شروع سال ت

( ؎۲ٹمطابق نو لءی جاو ےدک ھ

98 - - میزان کل 98 - - میزان کل

ون س باقی ر گءی ۔۔۔۔۔۔۔کل رقم مطالب جو واجب الوصول می س وصول ہ ے ے ہ ے ں ہو ک مندرج بال اندراجات و رسیدات متعلق جنکی ہمی بحلف تصدیق کرتا ہ ہ ں ہ ں

ںصحت و اصلیت کی جانچ می ن کرلی میر علم و یقین می صحیح و درست ے ہے ے ں

ی ی رک ۔ی اور می ن کوءی بات پوشید ن ھ ں ہ ہ ے ں ں ہہدستخط متولی مع پورا پت ہ

وا ںجواد حسین بقلم نورالحسن ساکن سن ہ

ہاکخان درشن نگرضلع فیض آباد ڈ

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 Tax2.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 details1.(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 litigation6. Litigation on mosque7. Madrasa litigation8. Nazro, Niyaj and Fateha9. Charity and help to the poor.10. Other charities as per Waqf Names11. Salary of Mutawalli, if any.12. Amount paid to the Waqif or his family as per Waqf nama.13. Miscellaneous expenditure14. 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:

نؤ پی لک رل وقف بور یو ھسنی سن ۔ ڈ ٹ۵۷ہء حسب دفع ۱۹۴۸مارچ ۳۱ء لغایت ۱۹۴۷ہذیل حساب آمدنی و خرچ بابت سال یکم اکتوبر

پی مسلم وقف ایک ٹیو ںء مشمول می ۱۹۳۶۔ مسجد بابری ضلع فیض آباد۴۶ہ

ہ نام وقف یا واقف بادشا بابر نام متولی جواد حسین۲۶نام ضلع فیض آباد نمبر وقف ہرقم غیر وصول شد سال گزشت نسبت جاءداد موقوف زرعی و سکنی ہ ہ۔۔۔۔۔۔ الف ۱

۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ڈگریات بو ۔لگان نسبت جاءداد زرعی جوبابت سال حال واجب الوصول ہ ہ الف ۲

531/2/- ۔آمدنی سیر و خود کاشت بہآمدنی ساءر باغات تالب جنگلت وغیر مع تفصیل ہ ج

ہکرای مکانات دو کانات و آراضی سکتی ددیگر آمدنی ر

39/9/6 یکس ابواب و یکس واجب الدا ٹمال گزاری سرکاری ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ ہ ٹ ۳یکس اءی مال گزاری ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔خالص آمدنی بعد من ٹ 70/12ہ ۴

یا کی نجی کام کیلء ازروء وقف ےرقم جو ادس کی اولد یا خاندان کیلء ے ے و ہنام واجب الدا ہ الف ۵

و وقف نام براء کار خیر واجب الدا ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔رقم جو ازرو ہ ے ہ ے با ھکسی قسم کا قرض یا باریااداءیگی جو ذم جاءد موقوف شروع سال واجب ت ہ ہ ہ

گری وغیر یکس و تنخوا یا گزار یا ہ(مشل بار کرای مالگزاری ابواب ڈ ہ ہ ٹ ہ ۶

ا ھکسی قسم کا قرض یا باریااداءیگی جو ذم جاءد موقوف آخر سال واجب ت ہ ہ ہ گری وغیر یکس و تنخوا یا گزار یا ہ(مشل بار کرای مالگزاری ابواب ڈ ہ ہ ٹ ہ ۷

ا وا روپی با بینک می جمع شد جو سال ک شروع می ت ۔قرض دیا ھ ں ے ہ ں ہ ہ ۸ا وا روپی با بینک می جمع شد جو سال ک آخر می ت ۔قرض دیا ھ ں ے ہ ں ہ ہ ۹

ر آ پ واقعی خرچ اندرون سال ر آ پا واقعی آمدنی اندرون سال

2910

39 9 6 سرکاری مالگذاریو ابوابٹیکس

۱ ہوصولی ازبقایا سال گزشت ہبابت جاءداد زرعی و سکنی

الف

۱

ہمطالب وقف بور مع حوال ہ ڈ ہ نمبر و تاریخ رسید

۲ ہوصولی ازبقایا سال گزشت گریات ڈبابت ہ

ب

---------------- 400 - - لگان الف

۲

12 - - صرف تحصیل وصول وانتظام جاءداد

۳ - - سیر و خود کاشت ب

ہصرف مرمت ع تعمیرجاءداد ۴ ساءر باغات جنگلتہتالب وغیر مع تفصیل ہ

ج

اخراجات مقدمات ۵ ------------------- - -

202 - - مسجد ۶ ------------------- - -

ہمدرس ۷ ------------------- - -

ہنزر دینا زد فاتح ۸ ------------------- - -

خیرات و امداد و غرباء ومساکین

۹ ہکرای مکانات و دوکانات و آراضیات سکنی

د

دیگر امور خیر مطابق وقفہنام

۱۰ ہدیگر آمدنی مع تفصیل ر

و ہتنخوا متولی اگر ہ ۱۱ ےجو روپی بینک س ہ نکالگیا

الف

۳

ےرقم جو واقف یا واقف ک ہخاندان کو ازرو وقف نام ے

و ۔دی گءی ہ

۱۲ ہجو روپی قرض کا وصول ہوا

ب

اخراجات متفرق ۱۳

ںجو روپی بینک می جمع کیا ہ ۔گیا

۱۴

۔جو روپی قرض دیا گیا ہ ۱۵

253156

96

66

میزان اخراجاتان ہپسماند رقم مع تفصیل ج ہ ہ

و ہجمع لءی۲ٹمطابق نو ھدک ؎

ےجاو

400 - - میزان کلی ھتحویل جو شروع سال ت

( ؎۲ٹمطابق نو لءی جاو ےدک ھ

400 - - میزان کل 400 - - میزان کل

ون س باقی ر گءی ہکل رقم مطالب جو واجب الوصول می س وصول ے ے ہ ے ں ۱۳۱/۲ہ

و ک مندرج بال اندراجات و رسیدات متعلق جنکی صحت و ہمی بحلف تصدیق کرتا ہ ہ ں ہ ں

ی اور می ںاصلیت کی جانچ می ن کرلی میر علم و یقین می صحیح و درست ں ہ ں ے ہے ے ں

ی مج متولی جواد حسین صاحب ن مجاز کیا ی رک ہےن کوءی بات پوشید ن ے ھے ۔ ھ ں ہ ہ ے

ں۔ک ان کی طرف س حساب جانچ کر آو ے ہہدستخط متولی مع پورا پت ہ

اکخان درشن نگر وان ہنورالحسن ساکن سن ڈ ہ ضلع فیض آباد

Sunni Central Waqf Board U.P. Lucknow

Statement of income and expenditure from 1st April 1948 to

2911

31st 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 Tax2.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 litigation6. Litigation on mosque7. Madrasa litigation8. Nazro, Niyaj and Fateha9. Charity and help to the poor.10. Other charities as per Waqf Names11. Salary of Mutawalli, if any.12. Amount paid to the Waqif or his family as per Waqf nama.13. Miscellaneous expenditure14. 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 details2.(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

نؤ پی لک رل وقف بور یو ھسنی سن ۔ ڈ ٹ۵۷ہء حسب دفع ۱۹۵۰مارچ ۳۱ء لغایت ۱۹۴۹ہذیل حساب آمدنی و خرچ بابت سال یکم اکتوبر

پی مسلم وقف ایک ٹیو مسجد بابری ضلع فیض آباد۴۶ہء مشمول مثل وقف نمبر۱۹۳۶۔

جواد حسین۲۶نام ضلع فیض آباد نمبر وقف ۔۔۔۔۔ نام وقف یا واقف بادشا بابر نام متولی ہہروپیییییییییی ۱۰۰

ہرقم غیروصول شد سال گزشت نسبت جاءداد موقوف زرعی و ہ ہ۔۔۔۔۔۔۔ سکنی

الف ۱

۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ڈگریات ب۵۳۱/۱۰/۱ و ۔لگان نسبت جاءداد زرعی جوبابت سال حال واجب الوصول ہ ہ الف ۲

۔آمدنی سیر و خود کاشت ب۵۳۱/۱۰/۱ ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔آمدنی ساءر باغات تالب جنگلت وغیر مع تفصیل ہ ہ ج

۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔کرای مکانات دو کانات و آراضی سکتی ہ د۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔دیگر آمدنی ر

۴۱/۳/۴ و واجب الدا یکس ہمال گزاری سرکاری ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ ٹ ۳یکس اءی مال گزاری ۔خالص آمدنی بعد من ٹ ہ ۴

یا کی نجی کام کیلء ےرقم جو ادس کی اولد یا خاندان کیلء ے و ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔ازروء وقف نام واجب الدا ہ ہ ے

الف ۵

و وقف نام براء کار خیر واجب الدا ۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔رقم جو ازرو ہ ے ہ ے بہکسی قسم کا قرض یا باریااداءیگی جو ذم جاءد موقوف شروع سال ہ ہ

یکس و تنخوا یا گزار یا ا مثل بار کرای مالگزاری ابواب ہواجب ت ہ ٹ ہ ھ ہگری وغیر ڈ

۶

ہکسی قسم کا قرض یا باریااداءیگی جو ذم جاءد موقوف آخر سال واجب ہ ہ گری یکس و تنخوا یا گزار یا ا مثل بار کرای مالگزاری ابواب ڈت ہ ہ ٹ ہ ھ

ہوغیر۷

ا وا روپی با بینک می جمع شد جو سال ک شروع می ت ۔قرض دیا ھ ں ے ہ ں ہ ہ ۸ا وا روپی با بینک می جمع شد جو سال ک آخر می ت ۔قرض دیا ھ ں ے ہ ں ہ ہ ۹

ہروپی ہآن پ واقعی خرچ اندرون سال ہروپی ہآن پ واقعی آمدنی اندرون سال

۴۱ ۳ ۴ سرکاری مالگذاریو ابوابٹیکس

۱ ۱۰۰ - - وصولی ازبقایا سالہگزشت بابت جاءداد زرعی ہ

و سکنی

ا ۱

ہمطالب وقف بور مع حوال ہ ڈ ہ نمبر و تاریخ رسید

۲ وصولی ازبقایا سالگریات ڈگزشت بابت ہ ہ

ب

۴۹ ۶ - ---------------- ۵۳۱ ۱۰ - لگان ا ۲

۱۲ - - صرف تحصیل وصول وانتظام جاءداد

۳ - - سیر و خود کاشت ب

۵۶ - - ہصرف مرمت ع تعمیرجاءداد

۴ ساءر باغات جنگلتہتالب وغیر مع تفصیل ہ

ج

اخراجات مقدمات ۵ ------------------- - -

۱۸۰ - - مسجد ۶ ------------------- - -

2915

ہمدرس ۷ ------------------- - -

ہنزر دینا زد فاتح ۸ ------------------- - -

خیرات و امداد و غرباء ومساکین

۹ ہکرای مکانات و دوکانات و آراضیات سکنی

د

دیگر امور خیر مطابقہوقف نام

۱۰ ہدیگر آمدنی مع تفصیل ر

و ہتنخوا متولی اگر ہ ۱۱ ےجو روپی بینک س ہ نکالگیا

ا ۳

۲۴۰ - - ےرقم جو واقف یا واقف ک ےخاندان کو ازرو وقف

و ۔نام دی گءی ہ ہ

۱۲ ہجو روپی قرض کا وا ہوصول

ب

اخراجات متفرق ۱۳

ںجو روپی بینک می جمع ہ ۔کیا گیا

۱۴

۔جو روپی قرض دیا گیا ہ ۱۵

۵۷۸۵۳

۹-

۴۸

میزان اخراجاتہپسماند رقم مع تفصیل ہ

و ان جمع ہج ہلءی۲ٹمطابق نو ھدک ؎

ےجاو

۶۳۱ ۱۰ ۱ میزان کل تحویل جو شروع سال

ی ھت( ؎۲ٹمطابق نو

لءی جاو ےدک ھ۶۳۱ ۱۰ - میزان کل ۶۳۱ ۱۰ ۱ میزان کل

ون س باقی ر گءی ہکل رقم مطالب جو واجب الوصول می س وصول ے ے ہ ے ں ہ

و ک مندرج بال اندراجات و رسیدات متعلق جنکی صحت و اصلیت ہمی بحلف تصدیق کرتا ہ ہ ں ہ ں

ی اور ںکی جانچ می ن کرلی میر علم و یقین می صحیح و درست ہ ں ے ہے ے ےمی نں ں

ی ی رک ۔کوءی بات پوشید ن ھ ں ہ ہ

ہدستخط متولی مع پورا پت ہ

جواد حسین بقلم عابد حسین

اکخان درشن نگر نوان ہساکن س ڈ ہ ضلع فیض آباد

Sunni Central Waqf Board U.P. Lucknow

Statement of income and expenditure from 1st April 1949 to

31st 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 litigation6. Litigation on mosque7. Madrasa litigation8. Nazro, Niyaj and Fateha9. Charity and help to the poor.10. Other charities as per Waqf Names11. Salary of Mutawalli, if any.12. Amount paid to the Waqif or his family as per Waqf nama.13. Miscellaneous expenditure14. 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. 2Grand 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 .Faizabad (Masjid Babri) مسجد بابری

"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

رن پور شعل پییوری ضییلع فیییض آبییاد ہموقوت زمیندار واقع ب ہ ہ (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 کھتتونی (Khatauni)

which was not a certified copy. He should be asked to

keep a certified copy of کھتونی (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 خاندان وقف ( Family of Waqf) In proof of

this amount they show no paper to me therefore I

assess this amount وقف also (Khandan Waqf) خاندان

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 should (Mutwalli) متییولی 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 12th May 1934 showing that Muslims

were permitted to start the work of cleaning and repairs of

the disputed building from 14th May 1934 onwards. It

reads as under:

"The Mohammadans have been permitted to start the work

of cleaning of the Babri mosque from Monday 14th 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 6th 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:

ی غریب پرورسلمت جناب عالا اسییکا کییام عرصیی یک دیا گیا ت ہگذارش ک تابیدار کو بابری مسجد کا ھ ہ ٹھ ہ ہے

ہتےوا تیار کر دیا اسمی کچ سو دو سو روپی کا کییام بییاقی ر گیییا بغیییر ہ ہ ھ ں ہ

2923

ت سخت تکلیف ی جو سو دو سییو رپییی کییا کییام بییاقی ہرپی ک تابیدار کوب ہ ہے ہ ے ہ

ی بغیییر ھت اسکو مکمل کرن س مجبور اور کوی دوسرا کاروبار ب ہے ے ے ہےی چلتا جییس سیی کیی اپنییی ونیییز بچییو کییی تکلیییف دور کرییی ں۔روپی ک ن ں ہ ے ں ہ ے ہ

ی ییی ا اسوقت سات علو جسوقت کام کرن ک ل حکم دیا گیا ت ہاسک ہ ھ ھ ے ے ے ہ ے

ی روپییی تمکییو دیییا وگییا ویسیی ا جیس جیسیی روپییی وصییول وا ت ہحکم ہ ے ہ ہ ے ے ھ ہ

ی اور کییافی روپییی ور وا کیی وصییولیابی عرصیی سیی گا معلوم ہجاو ہے ہ ہ ے ہ ہ ہ ے

ا اس وا زبییانی حضییور سیی تکلیییف بیییان کیییا ت وچکییا عرصیی ھوصییول ے ہ ہ ہ

ی اسوج سی حضیور سی دوبیار ی ت ی ن ہدرمیان تابیدار کی طبعت اچ ے ے ہ ھ ں ہ ھ

ےاپنی مصیییبت بیییان نی کییر سیکا دوییم مکانییات جییوکی بییوج بلییو کیی جییل ہ ہ ۔ ہ

ا جسییمی سیی ت جسکو تعمیر کرن ک ل تابیدار کو حکم دیا گیا ت ےگ ں ھ ے ے ے ھے ے

یل وغیر قبل بارش ک درست کییر دیییا کچیی درواز۱۳ پ ہ مکان کی ک ھ ۔ ے ہ ں ھ

ا وغیییر ہوغیر کا کام باقی ر گیا جسمی کیی کچیی درختییان اور ج ڑ ھ ھ ہ ں ہے ہ ہ

ی کمشنر صاحب فیییض آبییاد ذریعیی نییزول نییاءب تحصییلدار پ ہبحکم جناب ٹ ڈ

ا ک جب ا گیا ت ا اور ی ک وا ت ادر فیض آباد ک تابعدارکو عطا ہصاحب ب ھ ہ ہ ھ ہ ے ہ

یگییا علو ار بل س اسییکی قیمییت لیییا جاو ہتمکو روپی مل گا اسوقت تم ے ے ھ ے ہ

ی اسک مطابق ی پ ےجو مکان نامکمل اب ں ہ ڑے اھ ا کییر رک ی سامان اک ھب ٹھ ھ

ذا ذریعیی ا ل ون کیی وجیی سیی بی ر ہ مگر بدرج مجبوری روپی نیی ہت ۔ ہت ٹھتہ ے ہ ے ے ہت ہ ہ ہ ہےو اذا گییذاران کییر امیییدوار ںدرخواست ہ ہکیی تابعییدار کییی اس مصیییبت پییرہ

ے۔ضور خیال کر ک روپی دین کا حکم صادر فرماوی گح ں ے ہ ےند مالک حضور ہواجب جانکر عرض کیا آ

ی مسمات ںتفصیل جو مکانات بنا گ ہ ے )۳ہ)حبیب الل (۲) مقصودا (۱(ے

ادت علی (۵ہ) خیرات حسین محل مگل پورا (۴حاجی نور محمد ( )۶ہ) ش

ہ) افضال الل (۹ہ) امین الل (۸) عابد علی (۷ہرحمت علی محل بیگم پورا (ی (۱۰ ہٹ) محمد کریم محل سو ٹ ہ) محمد بخش محل۱۲) مول بخش (۱۱ہ

ور علی ۱۳ہقاضیان ( ۔) ظ ہکیدار ساکن لل باغ فیض آباد ور خا ٹھعرضی فدوی ت ں ہ

سن ۲۵۔ ء۳۵فروری

^^xjhc ijoj lyker] tukc vkyh]

xqtkfj'k gS fd rkcsnkj dks ckcjh efLtn dk Bsdk fn;k x;k Fkk

bldk dke vjlk gqvk rS;kj dj fn;k blesa dqy lkS nks lkS #i;s dk

2924

dke ckdh jg x;k gS vkSj #i;s ds rkcsnkj dks cgqr gh l[r rdyhQ

gS fd ;g tks lkS nks lkS #i;s dk dke ckdh gS bldks eqdEey djus ls

etcwj gS vkSj dksbZ nwljk dkjksckj Hkh cxSj #i;s ds ugha pyrk ftlls

dHkh viuh o uht cPpksa dh rdyhQ nwj djsa blds vykok ftl oDr

dke djus ds fy;s gqDe fn;k x;k Fkk ml oDr lkFk gh ;g gqDe gqvk

Fkk fd tSls tSls #i;k olwy gksxk oSls gh #i;k gedks fn;k tkosxk

ekywe gqvk fd olwy;kch vjls ls gks jgh gS vkSj dkQh #i;k olwy gks

pqdk vjlk gqvk tckuh gqtwj ls rdyhQ c;ku fd;k Fkk bl njfe;ku

rkcsnkj dh rfc;r vPNh ugha Fkh bl otg ls gqtwj ls nksckjk viuh

eq'khcr c;ku ugha dj ldkA nks;e edkukr tks fd cotg cyos ds

ty x;s Fks ftldks rkehj djus ds fy;s rkcsnkj dks gqDe fn;k x;k Fkk

ftlesa ls 13 edku dh [kijSy oxSjg dOy okfjl ds nq#Lr dj fn;k

dqN njokts oxSjg dk dke ckdh jg x;k gS ftlesa dqN nj[rku vkSj

>kM+ oxSjg cgqdqe tukc fMIVh dfe'uj lkgc cgknqj QStkckn ds

tfj;s utwy uk;c rglhynkj lkgc cgknqj QStkckn ds rkcsnkj dks

vrk gqvk Fkk vkSj ;g dgk x;k Fkk fd tc rqedks #i;k feysxk ml

oDr rqEgkjs fcy ls mldk dher fn;k tkosxk vykok tks edku

ukeeqdEey vHkh i<+s gSa mlds eqrkfyd Hkh lkeku bdV~Bk dj j[kk gS

exj c otg etcwjh #i;ku gksus dh otg ls cSb jgk fygktk tfj;s

nj[okLr gktk xqejku dj mEehnokj gwWa fd rkcsnkj dh bl eq'khcr ij

gqtwj [k;ky dj ds #i;k nsus dk gqDe lkfnj Qjek;sxsa okftc tku

dj vtZ fd;k vkgUnk ekfyd gqtwjA

rQlhy tks edkukr cuk;s x;s gSa eqlEekr edlwnu] gchcqYyk ¼2½ 3-

gkth uwj eqgEen 4- [ksjkr gqlsu eqgYyk eqxyiqjk 5- lgknr vyh 6-

jger vyh eqgYyk csxe iqjk 7- vkfcn vyh 8- vehu mYyk 9-

vQtky mYyk 10- eqgEen djhe eqgYyk lkSVgVh 11- ekSyk cDl 12-

eqgEen c['k eqgYyk dft;kuk 13- tgwj fe;kaA

vthZ fQnoh rgOoj [kka Bsdsnkj lkfdu ykyckx QStkckn nLr[kr

rgOoj [kkWa

25-2-35^^

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 26th 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 15th 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 21st 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 27th

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 29th 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 30th April 1936 complaining about certain

claims disallowed by the PWD authorities and reads as

under:

غریب پرور سلمت

یییا مبلغ ھگزارش ک سایل کا بل بابت مرمت مکانات واقییع اجود ہ ۳۶۰۴ہے

سییایل کییو صییرف ۹ہروپی ا جسمی س ے آنا کا ت ں پییای۶ آنییا ۱ہ روپییی 3287ھ

جیانب نیزول نیایب تحصییلدار وتی ہےدیاگییا کمیی کیی وجی یی معلیوم ہ ہ ہ ہے

ہصاحب فیض آباد ن دوران جانچ کیام مرمیت یی تجیویزکر دییا کی دو،تیین ہ ے

ی انچ ،دروازو کی قیمت مالیتی اءی ںدورواز کی مو ڑہ ڈ ٹ ۱۲ہ روپی ۲۳ے

ے روپییی کییر دی جییا اور۱۱، ۱۶ے پییای کیی مبلییغ ۳ہ آنیی ۱۱ہ روپییی ۱۶آنییا، ہ

کیو کی قیمت بجا مبلغ ےک ں مبلغ ۷ھڑ ے روپی ک عییالی۴ہ ۔ روپی کر دی جییا ے ہ

ن یم ٹجا بوقت جانچ اس ٹ ٹ کیییو۳ہ ییی انییچ اور ک ای ں دروازو کی مو ہڑ ڑہ ڈ ٹ ں

ی نی بلیو ےکی قیمت کم کرک مج کیو پیی ڈ ڈ ھ ہ روپیی۱۶ہ آنی ۱۲ہ روپیی ۲۳ے

ی اور اسییی کیی مطییابق سییایل نیی۷ پاءی ۳ہ آن ۱۱ ے روپی منظییور کییی ت ے ھ ہ

ا اور جانییچ کیی وقییت آفیسییر لیی لگییا یییا ت کیا سالو پ ےدرواز اور ک ھ ے ہ ں ں ھڑ ے

یی ملی غالبا اسی وج س ییی ہانچارج جانچ کنند کو و نءی حالت می ن ے ہ ۔ ہ ں ہ ہ

کیییا تجییویز شیید رقییم درواز اور ک ہکمی تجویز کی گی حالنک ن ں ھڑ ہ ے ہ ہے۔

ات بال ساءل امیدوار کی ی وجو و سکتی ی ر گز تیار ن ہمی ہے ہ ں۔ ہ ہ ں ہ ہ ور۳ں ڈ

ی س دوبییار بلو کیو ک ری کی جانچ پی ہدرواز سوا انچ اور ک ے ڈ ڈ ٹ ے ں ھڑ ہ

مت فرمایا جییا سییایل کییا بییل بییابت ے۔کرالی جا اور ساءل کا بقی روپی مر ہ ہ ہ ے

ا جسمی س ساءل کو ۷۲۲۹مسجد بابری ے روپی کا ت ں ھ ہ آنیی۱۲ہ روپییی ۶۸۲۵ہ

2928

یمی جییو۴ہ روپی ۴۰۳ہےدیا گیا یعنی ٹ آنا کم برامیید کیییا گیییا حییالنک اسیی ٹ ہ ۔

ا و وا ت ہمنظور ھ یمی س کم بل دیا۷۳۲۹ہ ا اور سایل ن اس ے روپی کا ت ٹ ٹ ے ھ ہ

ی برامیید ایا جا ک کون کون سی رقم ساءل کی ن ذا ساءل کو سمج ا ل ںت ہ ہ ے ھ ہ ھ

۔کی گی جس می حضور س سایل اس ک متعلق عرض کر سک ے ے ے ںیکیدار مورخ ور خا ہفدوی ت ٹھ ں ء۳۶ اپریل ۳۰ہ

^^xjhc ijoj lyker]

xqtkfj'k gS fd lk;y dk fcy ckcr ejEer edkukr okds

v;ks/;k eqcfyx 3604 #i;k 9 vkuk dk Fkk ftlesa ls lk;y dks flQZ

3287 #i;k 1 vkuk 6 ikbZ fn;k x;k gSA deh dh otg ;g ekywe gksrh

gS fd tukc utwy uk;c rglhynkj lkgc QStkckn us nkSjku [kkfrj

dke ejEer ;g rtcht dj fn;k fd nks rhu njokts dh eksVkbZ Ms<+

bap njoktksa dh dher ekfy;rh 23 #i;k 12 vkuk] 16 #i;k 11 vkuk

3 ikbZ ds eqcfyx 16 #i;k] 11 #i;k dj nh tk; vkSj f[kM+fd;ksa dh

dher ctk; eqcfyx 7 #i;s ds eqcfyx 4 #i;s dj nh tk; vkyhtgk

cjoDr tkap LVsVesaV 3 njoktksa dh eksVkbZ Ms<+ bap vkSj f[kM+fd;ksa dh

dher de dj ds eq>dks ih0MCyw0Mh0 us 23 #i;k 12 vkuk] 16 #i;k

11 vkuk 3 ikbZ] 7 #i;k eUtwj dh Fkh vkSj blh ds eqrkfYyd lk;y us

njoktk o f[kM+fdka lkyks igys yxk;k Fkk vkSj tkap dsoy vkfQlj

bapktZ dqfUunk dks og ubZ gkyr esa ugh feyh xkycu bl otg ls ;g

deh rtoht dh xbZ gS gkykafd u;s njoktk o f[kM+fd;ka rtcht 'kqnk

jde esa gjfxt rS;kj ugha gks ldrhaA cotwgkr ckyk lk;y mEehnokj

gS fd 3 Mksj njokts lok bap o f[kM+fd;ksa ds jsV dh tkap ih0MCyw0

Mh0 ls nksckjk djk yh tk; vkSj lk;y dks cfd;k #i;k ejger

Qjek;k tkos lk;y dk fcy ckor elftn ckcjh 7229 #0 dk Fkk

ftlesa ls lk;y dks 6825 #0 12 vk0 fn;k x;k gSA ;kuh 403 #0 4

vk0 de cjken fd;k x;k gkayk fd LVhesV tks eUtwj gqvk Fkk og

7329 #0 dk Fkk vkSj lk;y us LVhesV ls de fcy fn;k x;k fygktk

lk;y dks le>k;k tkos fd dkSu dkSu lh jdesa lk;y dh ugha cjken

dh xbZ ftlesa gqtwj ls lk;y blds eqrkfYyd vtZ dj ldsA

fQnoh rgOoj [kka Bsdsnkj

rk0 30 vizSy lu~ 36^^

" 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:

دارمورخ یک ور خا ہنقل درخواست ت ہ ٹھ ں ہء مشمول مثل۱۹۳۵ اپریل ۱۶ہ

یا، فیض آباد ھبابری مسجد اجودادر فیض آباد دام اقبال ہبحضور جناب حاکم تحصیل صاحب ب ہ

غریب پردرسلمت جناب عالی

ی ک کلس و ی س ہگزارش بابری مسجد ک بل دین می دیری اب ہ ہ ے ھ ں ے ے ہے

ی مگر اب بل بحکم ی تک آیا ن ا اب و ر ںرم کا بنارس می تیار ہ ھ ہے ہ ہ ں ڈا ی جسمی الل لک رسنگ مرمر ب و پت ا ھحضور فورا داخل کر ر ہ ں ھ ھ ں ہ ہ

یگا و جاو فت می ی کیا ی دونو کام جو ک اندر ایک جاویگا مکمل ن ہ ں ہ ہ ہ ں ہ ں ہ

فت ک اندر داخل کر دونگا جو کچ کام باقی ھمکانات ک بل کچ اس ے ہ ہ ھ ے

ا واجبا عرض ور ا و ہے۔ت ہے ہ ہ ہ ھدار، ساکن لل باغ، فیض آباد یک ور خا ہفدوی ت ٹھ ں ہ

ور خا ںت ۳۵۔۴۔۱۶ہ ^^udy nj[okLr rgOoj [kkWa Bsdsnkj eksj[kk 16 vizSy] lu~ 1935 bZ0

e'kewyk fely ckcjh efLtn v;ks/;k] QStkckn

cgwtwj tukc gkfde rglhy lkgc cgknqj QStkckn nkes,dckygw

xjhc ijoj lyker

tukcs vkyh xqtkfj'k gS fd ckcjh efLtn ds fcy nsus esa nsj bl

otg ls gqbZ gS fd dylk Mze dk cukjl esa rS;kj gks jgk gSA vHkh rd

vk;k ugha exj vc fcy cgqdqe gwtwj QkSju nkf[ky dj jgk gwWaA iRFkj

laxejej Hkh ftlesa vYyk fy[kk tk;sxk eqdEey ugha fd;k ;g nksuksa

dke tks fd vUnj ,d gQ~rs esa gks tk;sxk edkukr ds fcy dqN bl

gQ~rs ds vUnj nkf[ky dj nwaxkA tks dqN dke ckdh Fkk gks jgk gSA

okftcu vtZ gSA

vthZ fQnoh rgOoj [kka Bsdsnkj lkfdu ykyckx] QStkckn

g0 rgOoj [kka

16-4-35^^

"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:

ےحضور جناب ک محسن صاحب صدر فیض آباد غریب پرور سلمت

یییا بلییو مییی جییل گء ےجناب عالی گزارش کیی مکانییات جییوکی اجود ں ہ ھ ہ ہے

ی وا اور تابیدار کییو اب کافی عرص و ھت جسکو تابیدار کو مکمل ک ہ ہ ے ہ ے ھے

م مکانییات غییایب وا کیی اسیی ی مل اور دریافت سیی معلییوم ٹتک روپی ن ٹ ہ ہ ے ں ہ ہ

ی بیابری مسییجد کییا بیل بلو ۔وگیا اسوج س جناب انجینیر صاحب پی ۔ڈ ڈ ۔ ے ہ ہم کیی ےچیک کر ک دوبار مثل کو واپس کر دیا مکانات کا بییل بغیییر اسیی ٹ ٹ ہ ے

م کییو جنییاب نییایب تحصیییل دارنییزول رییی پییی ۔ر گیا عالیجا اس اسیی ٹ ٹ ٹ ہ ۔ ہ

م لیاگیاجسییکی اردو ی س چیک کراک دوبار تابیدرارسیی اسیی ٹبلو ٹ ے ہ ے ے ۔ ۔ڈ ڈو تابیداراسکی کاپی پیییش کییر سییکتا ہکاپی میر پاس موجود اگر حکم ہے ے

ربانی کر ک میر مکانو کا بل جناب انجینیر صاحب ک پاس روان ہم ے ں ے ے ہ ہےو جاو تابیدار کو مییل جییاو کیییونک روپییی کییی ہکر دیا جا تاک بل چیک ہ ے ے ہ ہ ے

ہے۔سخت ضورت ہے۔واجبا عرض

عرضی

2932

کیدار ساکن لل باغ فیض آباد ور خان ٹھفدوی ت ہ۲۔۱۔۳۶۔

^^xjhc ijoj lyker tukcs vkyh xqtkfj'k gS fd edkukr v;ks/;k tks

fd cyos esa ty x;s FksA ftldks rkcsnkj dks eqdEey fd;s gq;s cgqr

vjlk gqvk vkSj rkcsnkj dks #i;k vHkh rd ugha feyk vkSj nj;kQ~r ls

ekywe gqvk fd LVhesV edkukr dk xk;c gks x;k bl otg ls tukc

bUthfu;j ih0MCyw0Mh0 ckcjh efLtn dk fcy psd djds feLy dks

okil dj fn;kA edkukr dk fcy cxSj LVhesV ds jg x;k vkyh tkg

bl LVhesV dks tukc uk;c rglhynkj lkgsc utwy jsV ih0MCyw0Mh0 ls

psd djkds nksckjk rkcsnkj ls LVhesV fy;k x;kA ftldh mnwZ dkih esjs

ikl ekStwn gS vxj gqdqe gks rkcsnkj bldks ;k bldh dkih is'k dj

ldrk gS esgjckuh djds esjk edkuksa dk fcy tukc bathfu;j lkgsc ds

ikl jokuk dj fn;k tkos rkfd fcy psd gks tk;s rkcsnkj dks #i;k

fey tk, D;ksafd #i;s dh l[r t:jr gS okftcu vtZ gSA

vthZ

fQnoh rgOoj [kka Bsdsnkj lkfdu ykyckx QStkcknA

2-1-36 g0 rgOoj [kkaA

"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.

ادر فیض آباد ہبعدالت جناب وقف کمشنر صاحب بنوان برگنیی حییویلی اود ہسیییدمحمد ذکییی ولیید سییید محمیید رضییی سییاکن شیی ہ ہ

تحصیل و ضلع فیض آباد

درخواست عذرداری

غریب پرور سلمت جناب عالی

حس جب دفع نام ایک نو ہبمقدم مندرج عنوان گذارش ک سایل ک ٹ ے ہ ہے ہ ۴ہ

وا ۱۹۳۶قانون مسلم اوقاف و کر تعمیل ذا س جاری ہےء عدالت ہ ہ ے ہ

ی ںچنانچ اسک جواب می سایل ک حسب ذیل عذرات ہ ے ں ے ہا پر انکشاف واقعات مقدم۱ہدفع ک ضروری شجر خاندان سایل ی ہ ی ں ہ ہ ہ ہ ۔

ب شیع اثنا ہذا درج ذیل اور اشخاص مندرج شجر مذکور کو پابند مذ ہ ہ ہ ہے ہی ں۔عشری ت اور ہ ھے

سید عبدالباقی:

۔۔۔۔۔۔سید علی:

سید حسین علی:

ۃمسما سکونت بی بی :

: : :محمد اصغر محمد افضل علی نقی

: : :

2936

محمد رضی امجد علی ناظم علی

حسینمحمد ذکی کلب حسین میرحسین جواد حسین محمد نورالحسن سید ابوا لمحمد سید غلم اصغر سید حسین اصغر

ر۲ہدفع ان ش لی ن ایک قطع مسجد واقع جنم است ہ: ی ک بابربادشا د ھ ہ ے ہ ہ ہ ہ ۔

یا تعمیر کرایا اور اسکو مسجد بابری ک نام س موسوم کیا اور ےاجو ے ۔ ھ

منصب تو لیت و خطابت مسجد مذکور کو سپرد سید عبدالباقی مورث سایل

۔مندرج شجر ک کیا اور مبلغ ے ہ ہ روپی سالن نقد و موازی قدیم ک پخت۴۰ہ ہ ہ ہ ہ

۔آراضی بطور پ سید عبدالباقی مذکور کو بطور مد و معاش عطا فرمایا ٹہ

ےجو یک ب دیگر اولد مورث مذکور کو ملتا چل آیا ےادر وزیر۳: ہدفع د نواب سعادت علیجان ب ک زمان سلطنت اود وع ہ ی ہ ہ ہ ہ ہ ہ

ھہاور مابین بجا رقم مذکور ک مبلغ تین سو دو روپی تین آن چ پای ہ ہ ے ے ہ

وا اور برابر ملتا ہبطور نانکارو مد و معاش مورث سایل کو ملنا شروع

ا ۔ر ہے ی ک ابتدا س زمان سلطنت برطانی اور المحاق صوب اود س سند۴: ہدفع ہ ہ ہ ہ ے ہ ہ ۔

وی اور ہنا نکار نقد گورنمن س عطا ے ہنقد سالن ۳۰۶ء تک مبلغ ۱۸۶۴ٹ

ا وکر مورث سایل کو ملتا ر ۔خزان گورنمن س برامد ہ ہ ے ٹ ہورن پور و آراضی۵:ہدفع جب تجویذ حکام گورمن موضع ب ہ ی ک بعد ازا ٹ ں ہ ہ

ےشعل پوری پرگن حویلی بانقوش زر نقد مذکور ک محمد اصغرو محمد ۔۔۔۔ ہ ہ

ہافضل مورثا و پیش روا سایل مندج شجر کو نانکان معافی عطا کیا ہ ں ں

ی ں۔گیا جب س مورثان سایل و سایل بمشمول دیگر سرکار ک چل آت ہ ے ے ے ےگری حقیت۶:ہدفع ڈ ی ک زمان بندوبست پخت اول می عدالت بندوبست س ے ں ہ ہ ہ ہ

ملکیت اعلی مواصفات مذکور کی بابت بحق محمد اصغر و محمد افضل

گری۱۸۷۰ فروری ۳مذکور بتاریخ وءی چنانچ بعد صدور ڈ صادر ہ ہ

گریداران مذکور بشمول سایل بحیثیت گریداران و ورثاء ڈمذکور و ے ڈ

ی ں۔مالک اعلی قابض و متصرف جاءداد کو چل آت ہ ے ےے ی ک مورث سایل و سایل مسجد بابری مذکور ک تحفظ و قیام ک۷:ہدفع ے ہ ہ ہ

ی ی کرت ر ں۔لء ضروری اخراجات ی ہ ہے ے ہ ے

ے ی ک بلحاظ واقعیات مندرج بال علی الخصوص بالحاظ اس عمل ک۸:ہدفع ہ ہ ہ

2937

ےک گورمن برطانی ن بعد اسحاق صوب اود اپنی جانب س رقم نانکار و ھ ہ ے ہ ٹ ہ

ہمدو معاش مذکور و بعد ازا مواصحات بشکر بال مورث سایل کو عطاں

ںفرمایاو نیز بوج اس ک ک بندوبست سابق پخت س موزمان و پیش روا ے ہ ہ ے ہ

وءی جاءداد مذکور گری ملکیت اعلی کی صادر ۔سایل ک حق می ہ ڈ ں ے

ی آ سکتی اور جاءداد مذکور کی طرح رگز ن ںمسلم وقف کی تعریف می ہ ہ ں

ی وج و سکت خصوصا ی ی متصور ہےس ایک قانون مسلم اوقاف ن ہ ہ ے۔ ہ ں ہ ٹ ے

ہے۔ک عطی جاءداد گورمن برطانی یعنی غیر مسلم کا اور مشروط ہے ہ ٹ ہ ہ

ر صورت جاءداد مذکور بموجب دفع ۹:ہدفع ہ ی ک ب ہ ہ ٹ ایک مسلم قانون۴ہ

ت۱۹۳۶ ہ قانون مذکور کی دفعات کی پابندی س مستثنی کیو ک ب ہ ں ہے ے

ی ان سایل مندرج ک ھٹزیاد حص آمدنی کا بطور مد و معاش سایل شرکا ہ ہ ہ ہ

وتاچل آیا ذاتی مصارف می صرف ہے۔ک ہ ں ےہ ی ک بالحاظ رفع حجت و بالحاظ مطالعت حکم عدالت امور۱۰:ہدفع ہ

رست (الف) ی ک اگر عدالت سایل کی ہدریافت طلب کا جواب درج ف ہ ہ

ذا کافی ن متصور ار واقعات مندرج درخواست ہمنظوری ک لء اظ ہ ہ ہ ے ہوے

ےتو سایل کو موقع عطا فرمایا جاو ک و اپن عذرات کو اپن وکیل ک ے ے ہ ہ ے

ے۔ذریع س عدالت مجاز می بتاریخ معین پیش کر ہ ں ے ہ

فدوی

سید محمد ذکی سایل

۱۹/۱/۱۹۳۸

"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 3rd 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:

نؤ ری صاحب سنی وقف بور لک ھملحظ جناب سیکری ڈ ٹ ہی نمبر ء۴۳اکتوبر سن ۲۷ہ مورخ 527ٹجواب چی

ا ۱۔ و مسجد می کوی زیادتی کییر ر ندوساد ک ہےھتے۔ی بلکل غلط ہت ں ھ ہ ہ ہے ہ ؎

ا و لوگ جسییکی بییابت انکییو عییدالت ہمسجد ک بیرونی احاط ک اندر ج ں ہ ے ہ ے

ا ڑس حق حاصل اس چپری کا شمالی حص گر گیا جو اسی طییرح پیی ہے ہ ہ ہے ے

و یییا گییر جییان سیی کچیی زیییاد و گیییا ا ی ہوا ممکن ک کچ ھ ے ے ہ ہت ڑھت ٹ ھ ہ ہے ہے۔ ہو جس قت و چپری نبوان لگی گ اسیی کیی پیمیاءش کرکی وتا ےمعلوم ے ں ے ہ ہ ۔ ہ ہ

ی ہے۔حضور کو مطلع کرونگا اس چپر س مسجد کا کوءی تعلق ن ں ہ ے ۔ای فیرش جاءنمیاز وغیییر صییرف روزمیر کییی ضییورت۲نمبر ہ : ی ک چ ہ ٹ ہ ہ

تییا بییاقی فییرش جاءنمییاز وغیییر علحیید مولییوی ر کییو موجییود ر ہب ہ ہے ہ ھ

ر جمع کییو لیی اتییا تا جسکو موذن ا ر ا رک ےعبدالغفارپیش امام ک ی ہ ہ ہے۔ ہ ھ ں ہ ے

ی رک دیا جاتا کیییو کیی اکییثر فییرش وغیییر ر و ہ اور نماز جمع پ ہ ں ہتے ھ ں ہ ھ ہ ہے

2941

تا ی ر روقت ن و گیا اس وج س کل فرش ۔مسجد س چوری ہ ں ہ ہ ے ہ ہے۔ ہ ےہ: یییی کییی سیییفیدی اور مرمیییت اکتیییوبر سییین ۳نمیییبر ی۴۱ہ وی ت ۔ میییی ھ ہ ں

ےکیدارسفیدی کی ایک نقل رسید مزدوری خان خییدمت دوسییر سییال ہتے۔ ہ ٹھی ا بوج سفیدی ن ی ملتا ت واءی ا کی تعمیر س این اور مسال ن ںبوج ہ ہ ھ ں ہ ہ ٹ ے ڈہ ہ ہ

ا امسال ضرورت سییفیدی اور مرمییت وا ت ر س ھو سکی صرف زینا با ہ ے ہ ۔ ہو ا ںکی ضرورت جسکی می فکر کر ر ہ ہ ں ہے

ہ: پیییش امییام کییی تنخییوا مییا اگسییت سین ۴نمبر آخییر شییوال حییال تییک۴۳ہ

ی ایییک نقییل رسییید پیییس امییام۷صرف ہے۔روپی باقی اور کوی بقایا ن ں ہ ہے ہ

ہے۔ارسال خدمت ہ: مسجد ک متعلق ن کوی وقف ن کییوی اسییوقت تییک کییوی متییولی۵نمبر ہے ہ ہ

ی اور ی معییافی جییو مورثییان کییو ملییی ت وا جاءداد متعلق شییا ھمقرر ہے ھ ہ ۔ ہ

ال و مرمییت ک انتظییام و دیکیی ب ون ھجاءداد مذکور کا بحیثیت مسلمان ھ ے ے ہ

ی ر اسطرح می ب ۔وغیر کیا کرتا پ ھ ں ھ ےء س نمبردار مقییرر۴۱فروری ۱۷ہ

و و اور مسجد کا کام انجام دیتا ں۔وا ہ ں ہ ہہ: ی ک بموجب حکم ۶نمبر جناب سید رحمت۴۳ اکتوبر ۲۷ہ ڈ سنی وقف بور

ر یی ا ا وکی کیی پییاس بغیرض جانییچ حسییابات گییا ت ٹحسیین صییاحب ایی ڈٹ ھ ے ڈ

ہے۔ نومبر یوم اتوار کو جانچ کیل بلیا ۴۱ےصاحب ن ے

ی ک وقف کمیشیینر صییاحب نیی۷نمبر ملوگو کو اسکی بلکل خبر ن ے: ہ ہے ں ہ ں ہ

ا چونک وقف بور ن جایداد سیینی وقییف بییور مییی شییامل ںکیا فیصل کیا ت ڈ ے ڈ ہ ھ ہ

و ا ںکی گی اسوج سیی مجبییورا اسییک احکامییات کییی پانبییدی کییر ر ہ ہ ے ے ہ ہے

کیییو کیی بینییاء و ےاسییک متعلییق عییدالت دیییوانی سیی مجبییورا چییار جو ہ ں ں ہ ہ ے ے

و وگی جسکا منتظر ں۔مخاصمت بعد گرفت پیدا ہ ہونا چییا کیی جایییداد جسییکی۸نمبر ہ: ی رقم چند اس کاغذ ک سات جمع ہے ہ ھ ے ہ ہ

ی بلک ناانکار معییافی جسییکی ہےامدنی س ی رقم ادا کی جاتی وقف ن ہ ں ہ ہے ہ ے

م م کر ک آیند روان کرونگا جو روپییی بوقییف چنیید فرا ہنقلی فرا ہ ہ ہ ہ ے ہ ہتے کییلں

گ تییو ےحسابات پیش کرن ک بعد روان کرونگا اگییر کچیی کمییی ر جاو ہ ھ ہ ے ے

ر روان کرونگا ۔پ ہ ھم۹نمبر ی بلکیی نانکییار معییافی جسییکی نقلییی فرا ہ: ی جایداد وقف ن ں ہے ہ ہے ں ہ ہ

۔کرک روان کرونگا ہ ےجسییکی تصییدیق حییاکم تحصیییل۱۰نمییبر ہے: حسییاب خییرچ بالکییل صییحیح

2942

وءی حسیاب ییی ی ی غلط کیی سییفیدی مسیجد ن ادر کر چک ہصاحب ب ں ہ ہ ہے ہ ں ہ ے ہ

و ا وءی انتظام کر ر ی ں۔سفیدی صحیح امسال سفیدی ن ہ ہ ہ ں ہ ہےے: پیش امام کی تنخوا ماقبل وال سال کی ۱۱نمبر ی اور۳۵ہ ھ روپی باقی ت ہ

ی جو اس سال ادا کی گی اس طرح موزن کی تنخوا۴۰حال کی ہ روپی ت ھ ہ

و نقییل ا چکییا ی دک ی جسکا حساب مداخل عدالت کو ب ں۔باقی ر گی ت ہ ھ ھ ہ ھ ہ

ہے۔رسید پیش امام روان ہی مسجد ایس موقع۱۲نمبر ہ: ی بدنظمی کی شکایت بالکل غلط عالیجا ے ہ ں ہے۔ ہ

تییا ر وقت ایدنش نقص امیین کییا ر ی اور وچک ہپر واقع ک اکثر بلو ہ ہ ں ہ ے ہ ے ہ ہے ہ

ہے۔ اسوج س صورتحال کو دیک کر انتظام کیا جاتا ھ ے ہ ہےون مولییوی پیییش امییام وغیییر ہدوسری وج شکایت کی محض میر شیع ے ہ ہ ے ہ

ی ی ورن ایسا کچ ن ی اماد کرت ی اور دوسرو کو ب ہے۔کرت ں ہ ھ ہ ں ہ ے ہ ھ ں ں ہ ےجوابات کییو حضییور ملحظیی فرمییاءی اگییر مار ذا ی ادب گزارش ک ںل ہ ے ہ ہ ہے ہ ہ

و تو معاف فرمادی اگر کچ کمی ر وءی ہکسی الفاظ می کوی گستاخی ھ ں ہ ہ ں

و تو اس س مطلع فرمادی ںگی ے ہ

ء۱۹۴۳ نومبر ۲۰المرقوم

بقلم خود سید کلب حسین ولد سید محمد رضی

اکخان درشن نگر ضلع فیض آباد ورن پور ۔ساکن ب ہ ڈ ہ ہ^^oeqykfgtk cuke lsdzsV~h lkgsc lqUuh oDQ cksMZ] y[kuÅ cuke fpV~Bh

uEcjh 527 eksofjs[kk 27 vDVqcj] lu~ 43 bZ0

ua0 1& ;g fcydqy xyr gS fd fgUnw lk/kw efLtn esa dksbZ T;knrh dj

jgk gS efLtn d s c s:uh gkr s d s vUnj tgk a og yk sx ftldh

ckcr mudk s vnkyr l s gd gk fly g S ml ij NIij ;k dk

lqekyh fgLlk fxj x;k g S tks mlh rjg iM+k gqvk gSA eqefdu gS

fd dqN Vs<+k gks ;k fxj tkus ls dqN T;knk ekywe gksrk gSA ftl o[r

og Nifj;k cuokus yxsxsa mldh iSekbl djds gqtqj eqRryk d:axkA

ml NIij l s efLtn dk dk sb Z reYy qd ugh a g SA

ua02& ;g fd pVkbZ Q'kZ tkuekt+ oxSjg flQZ jkstejkZ dh t:jr Hkj

dks ekStwn jgrk gSA okdh Q'kZ tkuekt+ oxSjg vykfgnk ek Syoh

vCn qy xQ~Qkj i sl beke d s ;gk a jD[k k jgrk g S ftldk s

e qvfTtu gj tqe s dk s y s vkrk g S vk S j ckn uekt + t qek fQj

ogh a j[k fn;k tkrk g S D;k s afd vdlj QlZ ox Sjg efLtn

2943

l s pk sj h gk s x;k g SA ml otg l s d qy Q'k Z gjo[r ugh a

jgrkA

ua03& lqQsnh vkSj ejEer vDVwcj lu~ 41 ls gqbZ FkhA Bsdsnkj lqQsnh dh

,d ud+y jlhn et+nwjh [kkuk f[kner gSA nwljs lky cotg gokbZ

vM~Ms dh rkehj ds bZaVs vkSj elkyk ugha feyrk FkkA bl otg ls lqQsnh

ugha gks ldhA flQZ t+huk ckgj gqvk FkkA belky t:jr lqQsnh vkSj

ejEer dh t:jr gS ftldh eSa fQdzz dj jgk gwaA

ua04& is'k beke dh ru[okg ekg vxLr lu~ 43 vk f[kj

'k kcku gky rd flQZ 7 :0 ckdh g S vk S j dk sb Z cdk;k ugh a

g SA ,d udy jlhn isl beke gjlky f[kner gSA

nQk 5& efLtn ds eqrkfyd u dksbZ otg gS vkSj u dk sb Z ml o[r

rd dk sb Z e qroYyh e qdj Z j g qvk g SA tk;nkn eqrkfydk lkgh

eqvkQh gS tks ewfjlku dks feyh Fkh vkSj tk;nkn et +d wj dk

uEcjnkj og S fl;r e qlyeku gk su s ds bUrtke o ns[kHkky o

ejEer oxSjg fd;k djrk gSA bl rjg l s H k h 16 Qjojh ] 41 l s

uEcjnkj e qdj Z j g qvk g w a vk S j efLtn dk dke vutke n sr k

g w aA

nQk6&;g fd oekSfto gqDe 26 vDVqcj lu~ 43 bZ0 lqUuh oDQ cksMZ

tuko ls jger gqlSu lkgsc] ,MksdsV ds ikl oxjt tkap fglkckr x;k

FkkA vkMhVj lkgsc us 21 uoEcj ;kSe brokj dks tkap ds fy;s cqyk;k

gSA

nQk 7& ge yksxksa dks bldh fcydqy [kcj ugha gS fd oDQ dfe'uj

lkgsc us ;g QSlyk fd;k Fkk pwWafd oDQ~ cksMZ us tk;nkn lqUuh oDQ~

cksMZ esa 'kkfey dh xbZ gSA bl otg ls etcwju mlds vgdkekr dh

ikcUnh dj jgk gwaA blds eqrkfyd vnkyr nhokuh ls etcwju pkjktqbZ

djus dk gwaA fcuk; eq[kkfler ckn xtV iSnk gksxh ftldk eqUrftj gwaA

nQk 8& ;g jde pUnk bl mt+ ds lkFk tek gksuh pkfg;s fd - - -

ftldh vkenuh ls ;g jde vnk dh tkrhg gS oDQ+ ugha gS cfYd

ekfydkuk eqvkQh gS ftldh udysa Qjk;e djds vkgUnk joku-- d:axk

tks #i;k ckcr pUnk cksMZ Qjkg~e ds dqy fglkckr is'k djus ds ckn

jokuk d:axk vxj dqN deh jg tk;sxh rks fQj jokuk d:axkA

nQk 9& ;g tk;nkn oDQ~ ugh a g S cfYd ukudkj ekQh g S

2944

ftldh udysa Qjkgse djds jokuk d:axkA

nQk 10& fglkckr [kpZ fcYdqy lgh gS ftldh rLohd gkfde rglhy

lkgsc cgknqj dj pqds gSaA ;g xyr gS fd lQsnh efLtn ugha gqbZ

fglkc lqQsnh lgh gSA belky lqQsnh ugha gqbZ gS bUrtke dj jgk gwWaA

nQk 11& is'k beke dh rU[okg ekg dCy okys lky dh 23 :0 ckdh

Fkh vkSj gky dh 40 :0 Fkh tks bl lky vnk dh xbZA bl rjg

eqvfTtu dh ru[okg ckdh jg xbZ Fkh ftldks fglkc eqnfo[kyk

vnkyr esa Hkh fn[kk pqdk gwaA udy jlhn is'k beke jokuk gSA

nQk 12& ;g couTeh dh f'kdk;r fcYdqy xyr gSA vkyhtkgk ;g

efLtn , sl s ek Sd s ij okd s g S fd vdlj cyo s gk s p qd s g S

vkSj gj lky - - -vUns'kk uq[l veu dk jgrk gSA bl otg ls

lwjrgky dks ns[krs gq;s - - bUrtke fd;k tkrk gSA nwljh otg

f'kdk;r dh egd esjs f'k;k gksus ls ekSyoh is'k beke cxSjg djrs gSa

vkSj nwljksa dks Hkh veknk djrs gSaA ojuk ,slk ugh gS fygktk ovno

xqtkfjl gS fd gekjs vck gqtwj eqykfgtk djek dj vxj dskbZ vyQkt

xqLrk[kh - - - -ekQ Qjek;sxsaA vxj dqN deh jg xbZ gks rks - - - -

vyejde 20 uoEcj lu~ 1943 bZ0^^

“ 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:

۴۸ نومبر ۲۵ہ مورخ ۵۰۰۷ہنقل مراسل ؎کنؤ ل پی ، یو رل وقف بور ری سنی سن ۔منجانب سکر ھ ۔ ۔ ڈ ٹ ٹ

26ہمنشی جواد حسین صاحب مشمول مثل وقف نمبر

مسجد بابری ضلع فیض آباد

یییا فیییض آبییاد نورالحسیین ۔منشی جییواد حسییین صییاحب مسییجد بییابری ایود ھ

وا ک وقف ہصاحب ک خط س معلوم ہ ے ے فیض آباد کیی متییولی سییید کلییب۲۶ے

و گیا اور ہےحسین کا انتقال ہ جون سیی اپ ان کییی جگیی بطییور متییولی۲۷ہ ے

ییی دی می ن ی مگر اس امرکی اطلع اپ ن دفتر وقف بییور ںکام کر ہ ں ڑ ے ں ہ ہے

ےتحریر کیجء ک کلب حسین صاحب ک بعد حق تولیت آپ کییو کییس طییرح ہ ے

ی روا ھحاصل نیزدرخواست تو لیت مع ایک روپی فیس درخواسییت ب ہ ہ ۔ ہے

ے۔ن کیجء ہ

2948

ری ٹدستخط سکر

"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.

ر اجود ہنقل درخواست عبد الغفار پیش امام مسجد بابری واقع رام کو ش ٹ ہ

ء۱۹۳۸ اگست ۲۰ھیا قبض آباد

ادر ہپیش کرد روبرو جناب وقف کمشنر ب ہ

ضلع فیض آباد

ہمشمول مثل دفع ضلع فیض آباد۲۶ہ

ادر ضلع فیض آباد جناب عالی دام اقبال ہ۔بحضور جناب وقف کمیشنر ب ہ ۔ ہ

تمم بابری مسجد (واقع موضع رامہفدوی منجاب محمد سید ذکی صاحب م

2949

تمم یا)بطور پیش امام مسجد مذکور مشار مقرر م ر اجود ہکو ش ہے ہ۔۔۔ ھ ہ ٹ

ی کرتا چنانچ ی تنخوا باقاعد ادا ن ہمزکور کب ہے ں ہ ہ ہ ء۱۹۳۵ دسمبر ۳۱ھ

ا۲۷۴ہتک مبلغ روپی تمم مذکور فدوی کا بابت تنخوا یا فتنی ت ھ ذم م ہ ہ ہ

تمم مذکورن ایک اقرار نام بتاریخ ہجسکی بابت م ے ء۳۶ جولءی ۲۵ہ

۔۔تحریر کر دیا جسکی رو س ے ونا۳۸ اکتوبر ۳۱۔ ہء کل رقم بامشتاط ادا

ا مگر اسوقت تک صرف مبلغ وا اور مبلغ۵۰ھتحریر ت ہ روپی محصول ہا ابتداء رقم مذکور ک مبلغ ۲۳۴ نوز غیر سودی ت ے روپی ۔ ھ ہ ہ روپی۱۵۵ہ

ہء مبلغ پابند تنخوا اور یاتنی۳۸ جولءی ۳۱ہء من ت ۳۶یکم جنوری

ذا اقبال تمم مذکور س دلیا جاء گا ل ہم ۔ ے ے ہادب گزارش ک از راہ ہ ہے

م مذکور س دلیا جاءیگا حکم صادر فرمایا ت ےخاوندی رقم یاتنی م ہ ہ

المرموم ۔۔۔جاو ہاقرار نام محمول در منسلکء دستاویز ۱۹۳۸ اگست ۲۰ے ہ

ذا س عرضی مدعی عبدالغفار پیش ذا بعد معاین درج ےدرخواست ہ ہ ہے۔ ہ

ر یا ساکن محل قضیان ش ر ایود ہامام مسجد بابری واقع رام کو ش ہ ہ ھ ہ ٹ

یا دستخط عبدالغفار ۔اجود ھ

"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:

ری مورخ یم صاحب وقف سکری ر محمد ابرا ہنقل رپور مس ٹ ھ ٹ دسییمبر۱۰ٹ

مثل ۴۹ یوسی بابری فیض آباد26ہء بابت مسجد بابری مشمول

یا ھمسجد بابری اجودل یک بعد دیگییر یا ک متولیان پ ری صاحب مسجد بابری اجود ےسکر ے ے ہ ے ھ ۔ ٹ

۔میر اصغر صاحب محمد رضی صاحب محمد ذکیی صیاحب کلیب حسیین ۔

ذا دوسییر متولیییان مییی تکییرار و گیا ل ںصاحب سابق متولی کا انتقال ے ہ ہے ہ

نوا مسییجد میذکور کیی لء وقییف مسییجد وا ک موضع سیی ہےسوال پیدا ے ے ں ہ ہ ہ

وگییا چلایییا کیی جییو نوا کییا نمییبردار میش موضع س ہمذکور کا متولی ہے ۔ ہ ں ہ ہ ہ

وتا محل مییی دریییافت ی ی مسجد مذکور کا متولی ب وتا و ںنمبردار ہ ہے۔ ہ ھ ہ ہے ہ

نوا کیی موجییود نمییبردار وا کیی موضییع سیی ہس اور تحقیقات س معلوم ے ں ہ ہ ہ ے ے

ییی اور ی وصییول تحصیییل کرتیی ییی اور و ںجناب جواد حسییین صییاحب ہ ے ہ ں ہ

ییا ذا نیذیر حسیین صییاحب مک ییی ل ی کرتی ھمسجد مذکور کا انتظییام ب ہ ں۔ ہ ے ھ

نوا ن بیان دیا ک موجود نمبردار جنییاب جییواد حسییین صییاحب ہموضع س ہ ے ں ہ

ی ی اور مسیجد میذکور کی متیولی ب ی وصول تحصیل کرت ھتی اور ی ے ں ہ ے ہ ں ہون اقییرار کیییا کیی مییی ںی جناب جواد حسین صاحب کا بیییان قلمبنید کیییاان ہ ے ہ ں۔ ہ

ت و ن اپنا بیان دیا ک محنت س تو ب و اور ان و اور متولی ہنمبردار ے ہ ے ں ہ ں ہ ں ہ

ی غبیین نیی کردنگییا اور باقاعیید ہکام انجام دونگا اور مسجد کا ایک پیسیی ب ہ ھ ہ

2951

ی کرونگییا ر حکم کی تعمیل ب ونگا ور وقف بور ک ۔حساب کتاب رک ھ ہ ے ڑ ھ

صییحب کییا نییام وتا ک جناب جواد حسین اسی حالت می مناسب ی معلوم ہ ہے ہ ہ ں

نییدو وا کیی ر فیض آباد می س معلوم ںبطور متولی درج کر لیا جاو ش ہ ہ ہ ے ں ہ ے۔

و ک خوف س کوی شخص عشاء کیوقت نمییاز مسییجد مییذکور ےاور سک ے ں ھ

تا اور رات کو اگر کویء مسافر مسجد می ر جاتا تییو ی پ ہےمی ن ہ ں ہے ٹھ ں ہ ں

نیدو کیا ر ی مسجد ک سحن ک بیا ت تنگ کرت ندو وغیر ب ںاسکو ہ ہ ے ے ں۔ ہ ے ہ ہ ہ

ی اور جو مسجد می مسلمان جاتییا ت ت س پن ر ا ب ںایک مندر ج ں ہ ے ہ ڈہ ے ہ ں ہ ہے

وا کی یی میوقع پیر گیییا اور تحقیقییات سی معلییوم تی ل ک ہ اس برا ب ہت ے ہ ں ہ ے ہ ھ ے ہےںمندرج بال باتی صحیح ندو سییہ ا تک کیا ک مسجد کو ےی لوگو ن ی ں ہ ہ ں ہ ے ں ں۔ ہ

وتییا ہکافی خطر ک اسکی دیوار وغیر کمزور ن کری مناسب ی معلوم ہ ں ہ ہ ہ ہے ہ

ہ ک ایک ی کمشنر فیض آباد ک پییاس روانیی کییر دیییا جییاو کییہے پ ہتحریر ے ہ ے ٹ ڈ

ییی ان کییو تنییگ نیی نیی جییات ہکوءی مسلمانو کو جو مسجد می نمییاز پ ں ہ ے ے ڑھ ں ں

ی عمارت اسک تحفظ کییا کییافی خیییال ےکری اور مسجد مذکور ایک شا ہے ہ ں

ے۔کیا جاو

ر وقف بور یم انسپک ر محمد ابرا ڈدستخط مس ٹ ہ ٹ

۱۰/۱۲/۴۹

"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

ر یم صاحب وقف انسپک ر محمد ابرا ٹنقل رپور مس ٹ ہٹ

۲۶ہ ء مشمول مثل وقف ۴۹ دسمبر ۲۳ہمورخ

وقف مسجد بابری ضلع فیض آباد

یا ھموجود حالت مسجد بابری اجود ہری صاحب می ںسکری ۔ یا بعض تحقیقات۴۹ دسمبر ۲۲ٹ ھء کو اجود

ا جس س مندرج ہموجود حالت مسجد بابری و قبرستان تحقیقات کرتا ر ے ہ ہ

گو وتا ک بابا ر و عرص تین ما کا ھذیل حالت اور واقعات معلوم ہ ہے ہ ہ ہ ے۔ ہ

ا آکر یا آء ت اور ی ن ایود ان دیک ںداس جنم است ہ ھے ے ھ ے ھ ےبیراگیو سھ ں

ان پر راماین کا پا ا ک جنم است ا ت ٹھپجاریو س زوردار الفاظو می ک ھ ہ ھ ہ ں ں ے ں

رت تمام اطراف ء اس بات کی ش ہونا شا ے ہ وگءی باباہ ۔وجوار می ہ ں

ح کیلی وداس ک چل جان ک ایک ما ک بعد راماین ک پا ےرگ ٹ ے ے ہ ے ے ے ے ہ

ا اس درمیانہ فتو پا ر و ت جمع ندو اور پوجاری اور پن ۔زارو ہ ٹھ ں ہ ے۔ ہ ڈ ہ ں

ن وال قبرستان کا زیاد ر سامن اور دک ہمی بیراگیو ن مسجد ک با ے ھ ے ہ ے ے ں ں

ی لگا دیا اور چند قبرو کی جگ ن دوا کربرابر کر دیا اور ج ہتر حص ک ں ڈ ھ ھ ہ

ا مگر ی پولیس کا نتظام ت ر رک دیا راماین ک پا کیوقت ب ھپر پت ھ ٹھ ے ہے۔ ھ ھ

ا جو بعد ود دیا گیا پولیس ن چار ادمیو کو پک ی قبرو کو ک ڑتب ب ں ے ۔ ھ ں ھ

یل پر اس ی رحمت الل علی کا مزار جو وگ خواج ا ہکو ضمانت پر ر ٹ ہ ہ ہ ہٹ ہ ے۔ ہ ہ

ا ود کر برابر کر دیا اور و ی اس مزار کو ک ںقبرستان ک قریب ہ ۔ ھ ہے ہ ے

و گیا مسجد ک درواز صحن پر جو ا لگا کر مقیم ن ہایک بیراگی ج ے ہے ہ ڈ ھ

ی مسجد ک کر بی ر رک ےپخت قبر اسکو برابر کر ک بیراگی پت ں۔ ہ ٹھے ھ ھ ے ہے ہ

ا پا س پیشتر مسجد کا الکر بی پر ےکنوی ک پاس ایک بیراگی چ ٹھ ہے۔ ٹھ ڈ ھ ے ں

ا گیا موذن کو مارا اسک بعد مسجد ک کتب ا تو ا اورلو ہگ ے ے ۔ ۔ ڑ ٹ ھڑ

ر دو پردیسی مسلمانو کو مارا اور و کافی ودنیکی کوشش کی پ ہکوک ں ھ ھ

یان ی ایک می پولس ک سپا ر دو خیم وء اب مسجد ک با ہزخمی ے ں ں ہ ہ ہ ے ے۔ ہ

ی اور دونو کی کل تعداد ت ی ر الین ک سپا ںی اور ایک می ب ں ہ ے ہ ہ ے ٹ ں ں ہتا یعنی بجز بروز جمع ک۸،۹ ے اب مسجد می برابر تال بند ر ہ ہے ہ ں ہے۔

وتی مسجد ک تال کی کنجی مسلمانو ک ی ےکسی وقت نماز اور اذان ن ں ے ۔ ہ ں ہ

ولن دیتی تال جمع ک روز محض ی ک تی پولیس تال ن ےپاس ر ہ ۔ ے ھ ں ہ ہے۔ ۔۳ہول جاتا اور اسی دوران می مسجد کی سفاءی۴ ن ک ل ک ں گ ہے ھ ے ے ٹہ ھ

ا ر تال بدستور بند کر دیا جاتات وتی پ ۔وغیر اور جمع کی نماز ھ ھ ہے ہ ہ ہ

2954

ی س جب ی اور سی ت شور کرت وت وقت بیراگی ب ےجمع کی نماز ڑھ ں ہ ے ہ ے ہ ہ

یل ی تو متصل مکانات س نمازیو پر جوتا اور ڈھنمازی نیچ جات ں ے ں ہ ے ے

ر وداس ک بعد مس ی بولت رگ ٹآتا مسلمانان خوف کیوج س کچ ن ےں ہ ے۔ ہ ھ ے ہ ہے۔

ا ک قبرو کی یا اء ت اور لیکچر وغیر دیا اور ک ی اجود یا ب ںلو ہ ہ ہ ھے ے ھ ھ ہ

نؤ س کوی ر حال می لک ول وغیر ک درختان لگا دو پ ےجگ پر پ ھ ں ھ ۔ ے ہ ھ ہ

ومی ا ک مسجد جنم ب ہےمنتری صاحب آ ت ان س بیراگیو ن ک ھ ہ ہ ے ں ے ھے ے

و اور ی ن زیادتی کرن کو منع کیا اسپر بیراگی ان پر خفا ےدل دو ان ہ ے ے ں ہ

ںو پولیس کی حفاظت می فیض آباد واپس چل گ اسی دوران می ے۔ ے ں ہ

ور پرساد ان مسمی رگ ا است نت ب ون ک م یا ک کنک ب ھاجود ھ ڑ ہ ے ھ ے ھ

ون می ان لوگو ن ےویدانتی جی دیونراءن درسی، آچاری اشرفی ب ں ں ھ ہ

ندو نم ی گیا ور احمد ک کوءی ن ر بخبر ظ ا پ ےسلمانو کو بلنا چا ں ہ ۔ ں ہ ے ہ ھ ۔ ہ ں

ای ورن ای ب مکو دل دو اور تو ب ا ک مسلمانو س مسجد ور س ک ہظ ھ ھ ہ ے ں ہ ہ ے ہ

وا ک بیراگی مسجد رگیا صبح کو معلوم یا ہدشمن می رات کو اجود ہ ۔ ٹہ ھ ں ۔

ی می موقع پر گیا تو کیا ی آج جمع ب ہپر زبردستی قبض کر ر ں ہے۔ ھ ہ ں۔ ہ ہے ہ

ال وغیر لیکر مسجد ک ا اور ب ن و ک دس پندر بیراگی تا ےدیک ہ ھ ڈ ڈ ہ ہ ں ہ ھ

ا ن ت س بیراگی مسجد ک درواز پر ی اور ب ڈصحن می موجود ڈ ہ ے ے ہ ں ہ ں

ی ور ندو جمع ی اور اطراف و جوانب ک ں۔وغیر لیکربی ہ ہے ہ ہ ے ں۔ ہ ٹھے ہ

ر اور پولیس وغیر کا کافی انتظام مسلمان ری کوتوال ش ی مجس ہےس ہ ہ ٹ ٹ ٹ

و می اب دریا گ نامعلوم کیا حشر ںجمع کی نمازادا کرن ضرورآوی ۔ ہ ے ں ے ہ

و ا ی گون ک لء جا ر ں۔پار کر ک لک من ہ ہ ے ے ڈہ ڈ ڑ ے"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 عشری

ی ں۔ت اور ہ ھےسید عبدالباقی

۔۔۔۔۔۔سید علیسید حسین علی

ۃمسما سکونت بی بیمحمد اصغر محمد افضل علی نقی

محمد رضی امجد علی ناظم

علی

حسین احمد

محمد ذکی کلب حسین میرحسین جواد حسین محمد حسین

نورالحسن سید ابوا لمحمد سید غلم اصغر سید حسین اصغر

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 26th 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.

ورن پور پرگن حییویلی اود تحصیییل ضییلع ھشجر نسب مالیکان موضع ب ہ ہ ہ ہ

داری مالداری ںفیض آباد حقیقت معافی بشکل زمیسید عبدالباقی

:۔۔۔۔۔۔سید علی

:سید حسین علی

:ۃمسما سکونت بی بی

:۔۔۔۔۔۔۔۔۔۔۔ محمد افضل علی نقی ۴/۵ ۴/۵ ۴/۵

"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 18th 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 23rd 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 22nd 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 18th 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 16th 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:

**/kkjk 15& ;g fd ftl tk;nkn dk eqn~nS;ku us nkok fd;k gS og

'kgu'kkg fgUn ckcj ckn'kkg dh rkehj djnk e'kthn ekSlwes ckcjh

elftn gS ftldks lgu'kkg etdwj us vius othj + + + +ds ,greke ls

+ + + + rkehj djk;kA vkSj eqlyekuku ds fy;s oDQ vke dj fn;k ftlesa

reke eqlyekuku dk gd bcknr gSA** ¼Written Statement½

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 Iyer’s Law Relating

to Hindu and Mahomedan Endowments, (2nd 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

Iyer’s law relating to Hindu and Muhammadan

Endowments 2nd 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, 2nd 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 22nd December, 1949 and

even Friday prayers have been offered in the same till 16th

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 Allâh, 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

(Islâmic 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:

^ ^d q#{k s= ij vkd ze.k dh ; sktukckY;koLFkk esa ,slk gqvk fd ,d ckj mlus dq#{ks= ij vkdze.k

djuk fu'p; fd;kA bl fo"k; ij vkfyekssa dk er Kkr djus ds fy,

mlus mUgsa ,d= fd;kA ml ;qx ds lcls cM+s vkfye ¼fe;ka vcnqYykg

vtks/kuh Hkh mifLFkr FksA lHkh us mudh vksj ladsr fd;k fd] ^^budh

mifLFkfr esa ge dqN Hkh ugha dg ldrsA^^ fe;ka futke us fe;ka

vcnqYyk ls bl fo"k; esa iwNkA mUgksaus iwNk] ^^ogka D;k gksrk gS\^^ fe;ka

futke us dgk fd] ^^ml LFkku ij izR;sd izns'k ls dkfQj ,d= gksdj

Luku djrs gSaA^^ fe;ka vcnqYykg us iwNk fd] ^^;g izFkk dc ls py jgh

gS\^^ 'kgtkns us dgk fd] ^^;g cM+h izkphu izFkk gSA^^ fe;ka vcnqYykg us

2990

iwNk fd] ^^vkids iwoZ eqlyeku ckn'kkgksa us bl lEcU/k esa D;k fd;k\^^

'kgtkns us dgk fd] ^^blds iwoZ fdlh ckn'kkg us dqN Hkh ugha fd;kA^^

eqYyk us dgk fd] ^^bldk mRrjnkf;Ro mu yksxksa ij gSA i z kphu

e afnj dk s u"V djuk mfpr ugh aA ^ ^ fe;ka futke us #"V gksdj]

dVkj fudky yh vkSj dgk fd] ^^loZizFke eSa rqEgkjh gR;k d#Waaxk

rnqijkUr ogka vkdze.k d#WaaxkA^^ mUgksaus dgk fd] ^^lHkh ds fy, ejuk

vfuok;Z gSA fcuk bZ'oj ds vkns'k ds dskbZ Hkh ugha ejrkA tc dksbZ Hkh

O;fDr fdlh vR;kpkjh ds ikl tkrk gS rks vius fy, eR;q fu'p; djds

tkrk gSA tks dqN gksuk gS og gksxk fdUrq vkius eq>ls 'kjk dh leL;k

ds fo"k; esa iz'u fd;k rks eSaus mldk mRrj fn;kA ;fn vkidks 'kjk dh

fpUrk ugha gS rks iwNus dh dksbZ vko';drk ughaA^^ lqYrku us vius dzks/k

dks jksdk vkSj dgk fd] ^^;fn vuqefr iznku dj nsrs rks dbZ gtkj

dkfQjksa dks ujd igqWapk nsrk vkSj vf/kdak'k eqlyeku mlls ykHkkfUor

gksrsA^^ fe;ka vCnqYykg us dgk fd] ^^eq>s tks dqN dguk Fkk eSaus dg

fn;k] vc vki tkusaA^^ og njckj ls mB [kM+k gqvkA vU; vkfye yksx

mlds lkFk py fn;sA efydqy myek vius LFkku ij [kM+s jgsA fe;ka

futke us fdlh vU; vksj /;ku u fn;k vkSj dgk] ^^fe;ka vCnqYykg vki

dHkh&dHkh eq>ls HksaV djrs jgsaA^^ ;g dg dj mUgsa fonk dj fn;kA

ckY;koLFkk esa mldh ;g n'kk FkhA

Fk ku s'oj d s Luku d s fojk s/ k dk i z;Ru

mlus viuh ckY;koLFkk esa tc fd og 'kgtknk Fkk ;g lquk fd

Fkkus'oj esa ,d dq.M gS] tgkWa fgUnw ,d= gksdj Luku djrs gSaA mlus

vkfyeksa ls iwNk fd ^^blds fo"k; esa 'kjk dk D;k vkns'k gS\^^ mUgksaus

mRrj fn;k fd ^^izkphu eafnjksa dks u"V djus dh vuqefr ugha gSA tc

fd ml dq.M esa izkphu dky ls Luku djus dh izFkk pyh vk jgh gS]

mlesa Luku dk fu"ks/k vkids fy, mfpr ughaA^^ 'kgtkns us dVkj

fudky yh vkSj ml vkfye dh gR;k dk ladYi djrs gq, dgk fd] ^^rw

dkfQjksa dk Ik{kikrh gSA^^ ml cqtqxZ us mRrj fn;k fd] ^^tks dqN 'kjk esa

fy[kk gS mls eSa dgrk gwWa vkSj lR; ckr dgus esa dskbZ Hk; ughaA^^

'kgtknk larq"V gks x;kA

/kek Z U / krk

,d fnu mlus vkns'k fn;k fd ^^Fkkus'oj tkdj dqdZ{ks=

2991

¼dq#{ks=½ dks feV~Vh ls ikV fn;k tk; vkSj og Hkwfe ogka ds /keZfu"B

O;fDr;ksa dks otgs evk'k esa uki dj ns nh tk;A^^ ml dky dk

efydqy myek ml LFkku ij mifLFkr FkkA mlus 'kgtkns ls iwNk] ^^ogka

D;k gS\^^ mlus mRrj fn;k] ^^,d gkSt gS tgka 1000] 2000 dksl ls

fgUnw yksx Luku gsrq vkrs gSaA^^ mlus iwNk] ^^dc ls ;g dk;Z izkjEHk

gqvk\^^ 'kgtkns us dgk] ^^o"kksZ ls ;g fonvr py jgh gSA^^ efydqy

myek us iqu% iwNk] ^^vkids iwoZ ds ckn'kkg bl fo"k; esa D;k djrs Fks\^^

mlus mRrj fn;k] ^^dqN ughaA^^ efydqy myek us dgk] ^^;g rqEgkjk

mRrjnkf;Ro ugha dkj.k fd rqEgkjs iwoZ eqlyeku ckn'kkgksa us bl fo"k;

esa dqN ugaha fd;k\^^ 'kgtknk bl ckr ls cM+k xje gqvkA mlus dgk]

^^bl dky¼31½ds vkfye cM+s fofp= izdkj ds gSaA^^ la{ksIk esa] ;qokoLFkk esa

og bLyke dk bruk cM+k Ik{kikrh FkkAs ^

3156. In his Farman/Manshur of Emperor Aurangzeb of

15th 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 property—to 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 (3rd 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, 5th 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 13th

February, 1856 and Lord Canning's proclamation on 15th

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 (1st 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, 19th

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 19th 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 other’s 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,

5th Edn. published by Allahabad Law Agency wherein on page

212 the learned author has referred to Amir Ali's book (Vol. 1,

4th Edn. Page 201 to the following effect:

^^ifj.kker% ;fn ,d oDQ] fdlh ,slh lEifRr ds fy, fdlh

O;fDr }kjk lftr fd;k tkrk gS ftls fd fof/k&fo:) <ax ls vftZr

fd;k x;k gS] rks og voS/k gksxkA^^

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 22nd 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 Hon’ble 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 Hon’ble

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 5th 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 7th 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:

^^e S au s viuk tk s H k h c;ku fn;k g S og tkrh; bYe l s

fn;k g SA tks fd T;knkrj okD;kr ds ckjs esa gSA e S au s viuk c;ku

crk S j ,d ek fgj ¼,DliV Z ½ gk sdj fn;k g SA ;g n wljh ckr

g S fd dqN okD;kr dk bYe e q> s tkrh; rk S j ij Hk h g S A - -

- tks ckrsa eSaus fdrkcksa ds }kjk fy;s x;s bYe ls dgh gSa og Hkh esjs

tkrh; bYe dh gh le>h tk;sA** ¼ist 100½

“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:

^^eSa rks oDQ cksMZ dh rjQ ls vnkyr esa xokgh nsus vk;k Fkk

eq>s igys ekywe ugha Fkk fd eq>ls D;k lokykr fd;s tk;saxsA - - - -

eq>s rks bl eqdnesa dh fulcr flQZ gkf'ke valkjh us cryk;k FkkA**

¼ist 103½

“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:

^^Qkfty dh rkyhe ds fy, eSa cukjl x;k FkkA tc eSa cukjl

x;k rks esjh mez rdjhcu 15 lky jgh gksxhA Qkfty dk dkslZ djus ds

fy, nks lky yxkus gksrs gSaA vk fye gk su s dh lun e q> s

bykgkckn dS UV ck sM Z l s feyh g S vkSj dgha ls ugha feyhA^^ ¼ist

7½

"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)

^^cukjl esa eSaus rkjh[k ¼fgLV~h½ Hkh i<+h FkhA - - - - -fgLV~h dh fdrkcksa

dks eSaus dqN rks Qkjlh esa i<+k dqN mnwZ esa vkSj vjch esa Hkh i<+k FkkA -

- - -vjch dh ,d fdrkc dk uke Fkk rkjh[kmy [kqyQk ftls ekSykuk

tykyqn~nhu lq;rh us fy[kk gS vkSj nwljh fdrkc fjtkyqflU/koyfgUn

ftls dkth vrgj eqckjdiqjh us fy[kk gS og eSaus i<+h FkhA** ¼ist 8½

“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)

^^buesa ls igyh fdrkc tks ekSykuk tykyqn~nhu lkgc us fy[kh gS fgtjh

ls 'kq: gksdj ;kuh fgtjh ds igys lky ls 'kq; gksdj fgtjh ds 600

lky rd pyrh gSA tcfd nwljh fdrkc ftls gkth vrgj eqckjdiqjh

us fy[kk gS] fgUnqLrku dh reke rkjh[k mudh fdrkc fy[kus rd ;kuh

vkt ls 20&25 lky ds igys rc ds nkSj dks crykrh gSA

Qkjlh dh fdrkc tk s e S au s i< +h F k h mldk uke

3150

rkjh[k s Qfj'rk g S A bls dkf'ke lkgc us fy[kk gSA Qkjlh dh

e S au s vk S j dk sb Z rkjh[k dh fdrkc ugh i< +h A ;g fdrkc eqxyksa

dk nkSj vkus ls igys rd ds ihjh;M dks crykrh gSA

mnwZ tqcku esa fy[kh gqbZ eSaus cgqr lh fdrkcsa i<+h gSaA eSaus

ckcjukek i<+k gSA tuhc vdcjkcknh dh fdrkc ^^vkSjaxtsc fgUnqvksa dh

utj esa** vkSj ^^eqQ~rh 'kkSdr vyh Qgeh** dh fdrkc ^^fgUnqLrku ij

eqlyekuksa dk gtkjlkyk nkSjs gqdwer** i<+h gSA

;s ftruh fdrkcsa eSaus cryk;h gSa vkSj ftudks eSaus i<+k gS

eqlyeku ys[kdksa dh fy[kh gqbZ gSaA buds vykok fdlh fons'kh ys[kd

dh fdrkc ;k mldk rtZqek mnwZ ;k Qkjlh esa Fkk fdlh e'kgwj Hkkjrh;

bfrgkldkj dh rkjh[k dh fdrkc ugha i<+hA** ¼ist 9½

“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

Akbarabadi’s book ‘Aurangzeb Hinduon Ki Nazar Mein’

and Mufti Shaukat Ali Fahmi’s 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)

^^eSaus lu~ 76 esa lnj eqnfjZl dh txg laHkkyh Fkha - - - -

-cukjl dh eSaus 1962 esa NksM fn;k FkkA cukjl ls eq>s lun feyh FkhA

- - - - -lcls igyh fu;qfDr bl enjlk esa esjh ntsZ vkfy;k ds fy, gqbZ

FkhA e S a H k k " k k vk S j rkjh[k Hk h i< +krk g wW aA * * ¼ist 10½

“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:

^^bLyke vjch tcku dk yQ~t gS ftldh bLrykg esa elnj

dgrs gSa ftldk rtqZek Qjekcjnkjh esa xnZu j[k nsuk fy[kk gqvk gSA

b Z 'oj ,d g S ] og lo Z' k fDreku g S ] d q j ku 'kjhQ mldh n su

g S ] lkjh dk;ukr mlus cukbZ gS] gtjr eksgEen lkgc mlds iSxEcj gSa]

vkneh dks usdh ds jkLrs ij pyuk pkfg,A] ;g phtsa bLyke esa fl[kkbZ

tkrh gSaA - - -tks bLyke esa ;dhu j[krk gS vkSj bldk vuq;k;h gS] og

eqlyeku ekuk tk;sxkA - - - d qj ku 'kjhQ ml fdrkc s a ikd dk

uke g S ] tk s [k qn k dh rjQ l s i SxEcj lkgc dk s feyhA

dqjku 'kjhQ iSxEcj lkgc dks 23 lky ds oDQs esa eq[rfyQ ekSdksa ij

feyhA blesa dqy 113 lwjrs gSaA blesa 6666 vk;rsa gSaA eSa mu vk;krksa dh

rknkn ugha crk ikÅWaxk] ftuesa dkuwuh elyksa dks gy djus dh fgnk;r

nh xbZ gSA ¼vt[kqn dgk fd ,slh vk;krsa ftuesa ,gdke dk c;ku gS]

mu vk;krksa dh ,d rQlhj eqYyk vgen thou us fy[kh gS] ftldk

ukew rQ'khjkrs vgefn;k gS] ;g lkgc vkSjaxtsc ds mLrkn Fks] ysfdu

mlesa fdruh vk;rsa fy[kh xbZ] mudh rknkn eSa ugha crk ikÅWaxkA½

dqjku 'kjhQ esa bl pht dk gqDe ckj&ckj gS fd bUlku dks D;k djuk

pkfg,A cgqr ls ,sls Hkh ,gdke gSa] ftuds djus dh eukgh gSA ;kuh

ftuesa dqN dke u djus dh fgnk;r gSaA tks Hkh ckck&vkne nqfu;k ds

cuus ij lcls igyh ckj mrjs] og bLyke ysdj vk;s] ysfdu og

3152

nqfu;k ds dkSu ls dksus ij mrjs] bl pht ds ckjs esa vkt rd r; ugha

gks ik;kA

ftjr eksgEen lkgc vjc ns'k esa iSnk gq, FksA bLyke dh

rcyhx ;kuh izpkj eksgEen lkgc us dh gSA buls igys Hkh eqlyeku

gksrs Fks] D;ksafd nqfu;k dk igyk vkneh gh bLyke ysdj vk;k FkkA

eksgEen lkgc us eDdk ls enhuk fgtjr dh FkhA eDdk esa

mudh yM+kbZ cqrijLrksa ls Fkh vkSj mu yksxksa ls Fkh] tks ,d ls T;knk

[kqnk ekurs FksA ml oDr vjc ns'k ds cgqr ls fgLlksa esa ewfrZ iwtk py

jgh FkhA - - - - - -mUgksaus tax vkSj yM+kbZ t:j dh] dqN bykds Hkh thrs]

ysfdu edln bykds ;k eqYd thrus dk ugha Fkk] cfYd ,d [kqnk dk

dyek i<+kus ds fy, FkkA ;g Bhd gS fd mudk gqDe Fkk fd tks rqels

tax djrk gS] vYykg ds uke ij rqe mlds lkFk tax djks] ysfdu tk s

r qel s t ax ugh a djrk ] mld s e qYd ij tehu ij]

bcknrxkg ij ;k ftLe ij tcjnLrh dCtk er djk sA **

¼ist 12&13½

“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)

^^f'k;k vkSj lqUuh tekrsa gtjr lkgc ds cgqr ckn cuh gSaA

gtjr lkgc ds ckn igys [kyhQk gtjrs vcwcdj fln~nhdh gq,A muds

ckn gtjrs mej Qk:d] rhljs gtjrs mleku xuhA gtjr lkgc us

viuh g;kr esa fdlh dks [kyhQk uketn ugha fd;k FkkA - - -- - - -

gtjrs vcwcdj fj'rs esa eksgEen lkgc ds llqj yxrs FksA - - - - -

3154

[kyhQk dk in eqlyekuksa esa gtjr lkgc dh tku'khuh dks tkfdj

djrk gS] blfy, ;g nhuh vkSj nqfu;kbZ nksuksa rjhds ls mudk tkWu'ku

ekuk tkrk gSA** ¼ist 15&16½

“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)

^ ^;g nq:Lr gS fd gtjr vcwcdj lkgc gtjr eksgEen dh csxe

vkb'kk ds okfyn FksA - - - - - -gtjrs mleku] eksgEen lkgc ds nkekn

Fksa gtjr eksgEen lkgc dh nks lkgctkfn;ksa dh 'kknh ,dsckn nhxjs

;kuh igyh dk bUreky gkus ds ckn nwljh dh] gtjr mleku lkgc ls

gqbZ FkhA** ¼ist 16&17½

“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)

^^vcwcdj lkgc rdjhcu rsjgoha fgtjh ds vklikl [kyhQk cusA

gtjrs mleku lkgc dk bUrdky pUn cnek'kksa ds gkFk 'kgknr ls gqvk

FkkA - - - - -muds ckn gtjr vyh ds [kyhQk cuus easa Hkh dqN erHksn

gq, FksA** ¼ist 17½

“Abu Bakr Sahib became Caliph in or around the

13th Hijri year. Hazrat Usman embraced martyrdom at the

3155

hands of certain hooligans. . . . . . . . After that some

differences also cropped up over Hazrat Ali’s becoming

Caliph.”(E.T.C)

^^;g tax 32 ;k 33 fgtjh lky ds vklikl gqbZ gSa gtjr vyh

lkgc dk bUrdky Hkh pUn cnek'ksa }kjk 'kghn djus ij gqvk FkkA ;g

'kgknr dwQk 'kgj dh efLtn esa gqbZ FkhA ml oDr fgtjh dk 42 ;k

43 oka lky jgk gksxkA** ¼ist 18½

“This battle took place in or around 32nd or 33rd 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

42nd or 43rd Hijri year.”(E.T.C)

^^dqYQk;sjk'knhu pkj gSaA bl 'kCn dk eryc gS&lCck [kyhQkA gtjr

vyh lkgc bu pkj [kyhQkvksa esa 'kkfey gSa] tks lPps ekus tkrs gSaA

cnz ,d eqdke dk uke FkkA taxs cnz dkQh e'kgwj gSA ;g

xkycu N% ;k lkr fgtjh lky esa gqbZ FkhA ;g yM+kbZ iSxEcj lkgc ds

vuq;kf;;ksa vkSj dchyk dqjS'k ds chp esa yM+h xbZ FkhA** ¼ist 18½

“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 6th or 7th Hijri

year. This battle was fought between the followers of

Prophet and the Quraysh tribe.” (E.T.C)

^^lHkh f'k;k] ;g ugha ekurs fd gtjr vyh iSxEcj lkgc ds

lcls igys] lcls pgsrs vkSj lcls T;knk ;ksX; [kyhQk FksA - - - - -

vyh lkgc ds ckn 6 eghus rd bekesa glu dks [kyhQk ekuk x;k

FkkA** ¼ist 19½

“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)

^^gtjrs ekfc;k ds ckn mudh txg r[r ij ;thn cSBk FkkA jok;r

c;ku dh tkrh gS fd glu lkgc ds ikuh esa fdlh us tgj feyk fn;k]

ftls ihus ds ckn vkfgLrk&vkfgLrk mudk bUrdky gks x;kA bekes

glu ds NksVs HkkbZ bekes gqlSu f[kykQr ds nkosnkj cus FksA og enhuk

ls eDdk x;s vkSj eDdk ls dwQk dh rjQ x;s vkSj ;thn ls tax dhA

dcZyk dh yM+kbZ esa 72&73 yksx 'kghn gq, FksA - -NksVs lkgctkns

gtjr vyh vlxj t:j 'kghn gq, Fks mudh csxe vkSj cgu dks dSn

dj fy;k x;k FkkA - -eksgjZe igys Hkh euk;h tkrh Fkh og igys Hkh

eqrcfjZd FkhA ;g gknlk nloha eksgZje ds jkst gqvk Fkk blfy, mlds

ckn bls vkSj Hkh iqjtks'k rjhds ls euk;k tkus yxkA - - -esjk dguk gS

fd f'k;k vkSj lqUuh nksuksa gtjkr eksgZje dks eukrs gSaA** ¼ist 20½

“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 10th

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)

^^iSxEcj lkgc ds dkSy Qsy vkSj tks dqN Hkh muds lkeus fd;k vkSj

mUgksaus euk ugha Qjek;k mlds eteq,a dk uke gnhl gSA ,sls gh lkgck

3157

ds vkSyk vkSj QSy vkSj rdjhj ds eteqvka dk uke gnhl gS vkSj dqN

yksxksa us rkchjh ds vkSy vkSj Qsy vkSj rdjhj dks Hkhj gnhl dgk gSA

gnhl bl rkSj ij gtjr iSxEcj lkgc dh g;kr esa fy[kh ugha

x;h FkhA ;g ckn esa rgjhj gq;h gSa lqUur ds ek;us gSa rjhdkA iSxEcj

lkgc ds NksM+s gq, ftrus Hkh rjhds gSa og lc lqUur gSaA gtjr lkgc

ds fd, gq, veky dks QSyh lqUur dgrs gSaA tks mUgksaus Qjek;k mls

dkSyh lqUur dgrs gSaA^^ ¼ist 22½

"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)

^^tks nwljs yksxksa us gtjr lkgc ds lkeus fd;k vkSj mUgksaus mls ukeatwj

ugha fd;k mls rdjhjh lqUur dgrs gSaA vxj dksbZ ,slk loky gks

ftldk tokc dqjku 'kjhQ vkSj gnhl esa gesa u feys rks mldh ryk'k

btek,&mEer vkSj d+;krs eqtrfgn esa dh tk,xhA bt +e k ml s dgr s

g S a tk s i SxEcj lkgc d s teku s d s ckn nhu s&bLyke d s cM + s

tkudkj yk sx ] ftl ckr ij lger gk s a x, gk s a og btek

g S A btek dk QSlyk ,d tekus rd egewn ugha jgrk og yxkrkj

ykxw jgsxkA** ¼ist 23½

“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)

^^bLyk fed rk S j vk S j rjhdk s a dh c q fu;kn bUgh a pkj

vk/ k kj k s a ij ;kuh d qj ku 'kjhQ] gnhl] bt +e k vk S j d +; kl

ij vk/ k k fjr g SA ;gh 'kjh;r dgykrk g SA 'kjh;r vjfcd Hkk"kk

dk 'kCn gS vkSj bLykfed dkuwu ds eteqa, dk uke gSA ;g Bhd gS fd

'kjh;r ds ek;us gSa og jkLrk ftl ij pyuk pkfg,A fQdg 'kjh;r dh

,d 'kk[k gSA fQdg Hkh ,d vjfc 'kCn gSA fQdg dk rjtqek le>

gSA** ¼ist 23½

“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)

^^etgc dk rkYyqd [kqnk dh bcknr ls Hkh gSA etgc dks is'k djus

okyh ,d 'k[fl;r gksrh gS ftls iSxEcj dgk tkrk gS vkSj tc dHkh

ml etgc dk ftdz gksxk rks iSxEcj dk uke lkeus t:j vk;sxkA ;g

Bhd gS fd vyx vyx oDr ij nqfu;k ds vyx vyx fgLlksa esa ,sls

cM+s cM+s yksx iSnk gq, ftUgksaus foxMs gq, lekt dh n'kk dks lq/kkjus ds

fy, lgh jkLrk fn[kyk;kA ;g tks cM+s cM+s yksx iSnk gq, bUgksaus vius

tUe LFkku ds vklikl ds ekgkSy dks rks ns[kk gksxk ysfdu dke og

fd;k ftldk mUgsa [kqnk dh rjQ ls Qjeku FkkA

eks0 gtjr lkgc dh iSnkbZ'k eDdk esa gqbZ FkhA mUgksaus viuh 40

lky dh mez esa eDdk esa gh vius iSxEcj gksus dk ,yku fd;k FkkA^^

¼ist 41½

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)

^^;g Bhd gS fd mUgksaus ;g Hkh ,yku fd;k Fkk fd tks ,d [kqnk

ij ;dhu yk;sxk vkSj ,d fdrkc ;kuh dqjku 'kjhQ ij ;dhu yk;sxk

og lPpk eqlyeku dgyk;sxk ;g Bhd gS fd muds igys bl rjg ls

dyek i<+dj cuus okyk dksbZ eqlyeku ugha FkkA [kqnk 'kCn vjch dk

ugha gS vYykg 'kCn vjch dk gS ysfdu ;g dguk xyr gksxk fd

iSxEcj lkgc ds uch gksus ds ,syku ls igys vYykg ds 'kCn dk iz;ksx

u gksrk gksA ftl oDr gtwj dk tUe eDdk esa gqvk ml oDr ogka cgqr

de yksx i<+s fy[ks FksA NksVs NksVs dchyksa esa yksx c<sa gq, FksA mudh

vkil esa yM+kbZ;ka gksrh FkhA og yksx cqrksa dh Hkh bcknr djrs Fks vkSj

vYykg dk Hkh uke ysrs FksA - - -gtwj lkgc dks dqjku 'kjhQ dk bygke

,d ugha cfYd dbZ LFkkuksa ij gqvkA - - dqjku 'kjhQ dks ,d fdrkc

dh rjrhc nwljs dkfrcksa us nh gSA dqjku 'kjhQ dks gtwj lkgc us viuh

dyeh ugha fy[kkA - - -ysfdu fdlh nwljs ds etgc esa tcjnLrh

enk[kyr djus dh btktr mUgksaus eqlyekuksa dks ugha nhA** ¼ist 42½

“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)

^^Qrsg eDdk ls esjk eryc gS fd fgtjh ds vkBosa lky esa tc

gtwj okil eDdk vk;s rks cqrijLrksa us vkSj mu yksxksa us tks mudh

eq[kkyQr fd;k djrs Fks vius gfFk;kj gtwj ds dneksa esa j[k fn;s]

[kkus&dkck ls cqr mBok fy;s] mls lkQ lqFkjk dj fn;k vkSj gtwj ds

vuq;k;h cu x;sA uekt i<+uh 'kq: dj nhA bl dke esa dksbZ ryokj

ugha pyh vkSj [kkusdkck esa uekt 'kq: gks x;hA - - - - d qj ku 'kjhQ

e s a c qrijLrh d s f[kykQ vk;r s a rk s g S a gh aA * * ¼ist 43½

“By ‘Fateh Mecca’ I mean that when Prophet

Mohammad returned to Mecca in the 8th 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)

^^;g yM+kbZ;kWa rdjhcu 8 fgtjh rd pyh vkSj ml oDr rd

3161

rdjhcu lkjk vjc gh eqlyeku cu pqdk FkkA** ¼ist 45½

“These battles continued approximately till 8 Hizri

era and by that time, almost the entire Arab had become

Muslim.” (E.T.C)

^^dqjku 'kjhQ 23 lky esa eq[krfyQ ekSdksa ij mrjrk jgk mls

mlh rjg ls rjrhc fn;k tkuk tkjh jgk ;kuh dkfrcksa }kjk fy[kk

tkuk tkjh jgk vkSj bl chp esa gtwj dh yM+kb;kWa Hkh tkjh jgh FkhaA

rdjhcu lkjk vjc ns'k gh bLykfed cu x;k Fkk fdlh nwljs etgc

dks ekuus okyk vjc ns'k esa dkfcys ftdz rknkn esa ckdh ugha jgk

FkkA**¼ist 46½

“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)

^^fdrkc ^^rQlhj tykySu** nks vkyeksa us feydj fy[kh gSA

muds uke gS ekSykuk tykmn~nhu lw;rh vkSj nwljs gSa ^^ekSykuk

tykyqn~nhu egYyh**A lw;rh vkSj egYyh txgksa ds uke gSa tks lejdan

ds vklikl FksA ;s nksuksa lkgcku mUgha txgksa ds jgus okys FksA ;g

fdrkc vjch tcku esa fy[kh x;h gSA** ¼ist 51½

“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)

^^nwljh fdrkc dk uke ^^enkjsdqRruthy ;g fdrkc Hkh vjch

tcku esa gS blds ys[kd dk uke eq>s bl oDr ;kn ugha vk jgkA

fdrkc rQlhj ctkch Hkh vjfcd esa fy[kh gqbZ gSA - - - -

-rQlhjkrs vgefn;k** Hkh vjch tcku esa gSA bls eqYyk vgen thou us

3162

fy[kk gSA - - - - -fdrkc ^^rQlhjs dchj** ds fy[kus okys beke

Q[k:nhujkth gSaA ;g Hkh vjch tcku esa gSA** ¼ist 52½

“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)

^^rQlhjs dLlkd Hkh vjch tcku esa gSA

;s ftruh Hkh Åij cryk;h x;h fdrkcsa gSa bu lcdks fy[kus

okys bLyke ds gkeh FksA

fdrkc c q[ k kj h' kj hQ d s y s[ kd beke ek sg Een bLekby

lkgc g SA ; s fgtjh dh n wljh lnh e s a fy[k h x;h g S A ml

oDr rd dqj ku 'kjhQ dk s e qdEey rk S j ij rjrhc dh tk

p qdh Fk hA ; s fdrkc Hk h vjch t qcku e s a g S A fdrkc e q fLye

'kjhQ Hk h vjch Hk k " k k e s a g S bld s y s[ kd dk uke beke s

e q fLye g SA ;g fdrkc c q[k kj h 'kjhQ d s d qN fnuk s a ckn

fy[k h x;h Fk hA frjfeth 'kjhQ fdrkc Hk h vjch Hk k " k k e s a

g S bld s y s[kd dk uke beke vc w b Zlk g S A * * ¼ist 53½

“'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)

^^fdrkc vcqnkmn 'kjhQ Hkh vjch Hkk"kk esa gS blds ys[kd dk

uke vcwnkmn gS ;s Åij okyh nksuksa fdrkcksa ds dqN ckn fy[kh x;h gSA

fdrkc bCusektk 'kjhQ Hkh vjch esa gS bl fdrkc ds ys[kd ds

vius uke ij gS vkSj ;g Hkh mlh tekus esa dqN vkxs ihNs fy[kh x;h

gSA

;g Bhd gS fd bu lc fdrkcksa ds ys[kd bLykeh ns'kksa ds jgus

okys FksA

fQdg dh fdrkc fgnk;k vjch Hkk"kk esa fy[kh x;h gS ysfdu

blds rjtqes cgqr lh Hkk"kkvksa esa fd;s x;s gSaA blds ys[kd dk uke

cqjgkuqn~nhu vcqy glu vyh gSA fdrkc ljs mdk;k Hkh vjch tcku esa

gS vkSj blds ys[kd dk uke eq>s ;kn ugha vk jgkA fdrkc

eqfu;krqy&eqlYyh vjch tcku esa gS blds ys[kd dk uke Hkh eq>s ;kn

ugha gSA fdrkc Qrkok fgUnh;k vjch esa gS ftls cgqr lkjs myekvksa us

feydj rS;kj fd;k gSA fdrkc Qrgqydnhj Hkh vjch tcku esa gS blds

ys[kd dk uke eq>s ;kn ugha vk jgkA ,d fdrkc gS nqjsZ eq[rkj tks fd

vjch esa gS ftls ,d vYykek lkgc us fy[kk gS mudk uke eq>s ;kn

ugha vk jgk gSA fdrkc jnnqy eqgrkj Hkh vjch esa fy[kh x;h gSA blds

ys[kd dk uke eq>s ;kn ugha gSA** ¼ist 54½

“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 author’s 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)

^^Qrkok fgUnh;k vkyexhjh cgqr ls mysekvksa us bdV~Bs gksdj

fy[kh Fkh buds lnj ekSykuk futkeqn~nhu lkgc Fks tks fd fgUnqLrku ds

ckf'kans FksA** ¼ist 55½

“'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)

^^bLyke esa pkan dh vgfe;r gSA pkan dh vgfe;r eqfLye

dSys.Mj ds R;ksgkjksa dh rkjh[k tkuus ds fy, gS u fd dksbZ ltkoV

djus ds fy,A** ¼ist 55½

“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)

^ ^gtjr ek s0 lkgc l s igy s uch b Zlk vk; s ftUg s v ax z st

yk sx b Zlk elhg dgr s g S aA - - gtjr b Zlk l s igy s tk s

jl wy vk; s mudh e S a rjrhc ugh crk ldrkA y sfdu mue s a

l s cg qrk s a d s uke crk ldrk g wW a vk S j mu ij uk fty g qb Z

fdrkck s a d s uke Hk h crk ldrk g wW aA t Sl s fd gtjr e wlk

vy fgfr lyke] bu ij vYykg dh fdrkc rk S j sr ] gtjr s

nkmn vy lyke] mu ij vYykg dh fdrkc t +c wj uk fty

g qb Z ;g 4 cM +h vklekuh fdrkc s a g S aA vkSj nwljs jlwyksa ij

fdrkcsa ukfty ugha gqbZA - - - - cgqr ls ,sls uch Hkh gq, ftu ij

3165

vYykg us dksbZ Hkh fdrkc NksVh ;k cM+h ukfty ugha dhA vkSj dqN ,sls

Hkh Fks ftu ij NksVh fdrkc ukfty dh x;hA mu NksVh fdrkcksa dks

'kghnk dgk tkrk gSA** ¼ist 58&59½

“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. Allah’s

book ‘Tauret’ on Hazrat Musa Al Hiti Salam, Allah’s

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)

^^nhu&,&bLyke esa lcls igys bZeku ykus okys 'k[l ds ckjs esa dqN

b[ryk[k gS] ysfdu ckn esa ,d jk; ;gh cuh fd cqtqxksZ esa ,slk igyk

vkneh vcwcdj lkgc gq,] vkSjrksa esa gtwj [kqnStk gqbZ vkSj cPpksa esa

gtjr vyh gq,A ,d jk; ;g Hkh gS fd lcls igyk 'k[l gtjr

[kqnStk dks ekuk tk;sxk] D;ksafd gtwj us igyh cgh mUgha dks lqukbZ FkhA

gtwj dks dkQh taxs yM+uh iM+h Fkha] ftu taxksa esa mUgkasus [kqn

f'kjdr dh] mlds ckjs esa ,d jok;r ;g gS fd mUgksaus 19 yM+kbZ;ksa esa

[kqn fgLlk fy;k Fkk] tcfd nwljh jok;r ;g gS fd ,slh yM+kbZ;ksa dh

rknkn ftlesa mUgksaus [kqn f'kjdr dh] 17 FkhA bu yM+kbZ;ksa dk cqfu;knh

lcc rks ;gh Fkk fd gtwj nhu&,&bLyke dh rcyhx djrs Fks vkSj

nwljs yksx mudh eq[kkyQr djrs FksA** ¼ist 65½

“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)

^ ^igy s i SxEcj c Sr qy e qdn ~nl dh rjQ :[k djd s

uekt i< +r s Fk s] fQj [k qnk d s g qDe d s e qrk fcd

[k ku&,&dkck dh rjQ e q W g djd s uekt i< +u s yx sA

gtjr csyky ds ckjs esa eSa tkurk gwWaA gtwj us efLtns uoch ij

lcls igyh vtku nsus dk :rck budks c['kk Fkk] blh rjg ls

[kku&,&dkck dks vtku nsus dk igyk ekSdk Hkh bUgha dks c['kk x;k

FkkA igys ;g xqyke Fks] gC'kh FkkA gC'kh ls eryc bl ckr dk gS fd

og gC'kk ds jgus okys FksA** ¼ist 69½

“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)

^ ^ frj feth 'kjhQ gnhl dh fdrkc g S ] ftl s beke vc w b Zlk

3167

frjfeth u s fy[k k g S A eSaus mls Hkh i<+k gSA

mu nk su k s a fdrkck s a e s a efLtn ij ehukj vk S j x q E C kn u

gk su s dh ckr ugh a fy[k h xb ZA - - - e S au s tke s lgh fyy

c q[k kj h uke dh fdrkc i< +h g S A bl fdrkc dk s bLykeh

dku wu d s ckj s e s a lkjh n q fu;k e s a ek U;rk nh tkrh g SA * * ¼ist

92&93½

“'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:

^ ^tcjnLrh fdlh dh tehu ij tk s bekjr cuk;h x;h og

efLtn gh ugh a gk sx h blfy, mldk tk;t ;k uktk;t

gk su s dk dk sb Z loky gh ugh a g SA fdlh ds Hkh bcknr[kkus dks

rksM+uk bLyke esa euk gS blfy, mls rksM+dj efLtn cukus dk loky

gh iSnk ugha gksrkA vxj fdlh fxjs gq, eafnj ds eycs dks ekfyd yksx

csap nsa rks mls [kjhndj efLtn cukus dh dksbZ eukgh ugha gSA ;g

nwljh ckr gS fd og bl eycs dks tcjnLrh gfFk;k dj efLtn ugha

cuk ldrsA** ¼ist 24½

“A building built on somebody’s 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)

^^efLtn lkQ&lqFkjh vkSj ikd txg ij cuk;h tkrh gSA efLtn

ml txg dk uke gS tgka vYykg dh bcknr ds fy, tehu dks oDQ

fd;k x;k gksA pkgs ogka ij bekjr cuk;h tk, ;k u cuk;h tk,A

oDQ dju s dk dke ml tehu dk ek fyd gh dj ldrk

g S A gnhl e s a efLtn dh 'kDy vk S j l wjr d s ckj s e s a ftdz

vk;k g SA gnhl dh e'kgwj fdrkc&fe’dkr 'kjhQ gSA ,d gnhl

rks ;g gS fd viuh efLtn dks pkgs cxSj ehukj ds cukvks eq.Mh cukkvks

vkSj nwljh gnhl esa lknxh j[kus dk Hkh gqDe fn;k x;k gSA ;g fdrkc

fe'dkr 'kjhQ vjch tcku esa gSA bldk mnwZ esa Hkh dbZ yksxksa us rjtqek

fd;k gSA** ¼ist 25½

“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)

^^dqjku 'kjhQ esa efLtn ds 'kDyksa lwjr dk tc ftdz gh ugha gS

rks ;g loky gh iSnk ugha gksrk fd mlds eqrkfcd ehukjsa cuk;h

tk,a ;k u cuk;h tk,aa ehukj cukus dk gqDe dgha fdlh fdrkc esa ugha

feyrkA** ¼ist 25½

“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

^^fdlh Hkh fdrkc esa xqEcn ds cuk, tkus ;k u cuk, tkus dk

Hkh gqDe ugha feyrkA gnhl esa ,slk gqDe ugha gS fd efLtn ds fy, ,d

nhokj gh dkQh gSA - - fcuk fdlh rkehj ds Hkh efLtn cu ldrh

gSA**¼ist 26½

“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)

^^efLtn dh fgQktr ds fy, vxj mls cUn djds dHkh rkyk

yxk;k tk;s] rks dksbZ gtZ ugha gS] - - - gj efLtn ds fy, fdlh

eqroYyh dk gksuk t:jh ugha gSA eqroYyh ds ftEes dksbZ etgch

Qjk;t ugha gksrsA mldk dke bUrtke ns[kus dk gSA beke dk in ,d

/kkfeZd in gSA og uekt i<+kus dk eqf[k;k gksrk gS] reke etgch dke

mlds ftEes ugha gksrsA - - -efLtn esa beke dh fu;qfDr eqroYyh djrk

gSA - - -dqN efLtnksa esa cdk;rnk ctkMrk eksvfTte gksrs gSa vkSj dqN

efLtnksa esa dksbZ Hkh uekth vkku nsus dk dke dj nsrk gSA eksvfTte dh

fu;qfDr Hkh eqroYyh djrk gSA** ¼ist 27½

“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)

^^efLtn dh lQkb Z djuk ] lQ s fcNkuk ;k ot w d s

fy, ikuh dk bUrtke djuk ek sv fTtu d s Qjk;t e s a

' k k fey ugh a g S ] mldk dke vtku n su s dk gk sr k g S a pkgs

beke gks] pkgs eksvfTtu gks ;k dksbZ nwljk vkneh gks] tks ,d gh txg

3170

ij dkQh vlsZ rd jgsxk] mls ml txg ij cuh gqbZ bekjr] mldh

cukoV] mldh Nr vkSj nhokjksa dh ltkoV bu lc phtksa dh tkudkjh

oDr ds lkFk vius vki gks tk;sxhA vxj fdlh beke dks bl ckr dh

tkudkjh gks fd fdlh bekjr esa i'kq if{k;ksa ds fp= ;k ewfrZ;kWa cuh gqbZ

gksa] fdlh euq"; dh ewfrZ cuh gqbZ gks ;k fdlh L=h dh lh/kh ;k Vs<+h

ewfrZ ;k fp=.k gks] rks uekt i<+kus ls igys og mUgsa gVkus dh dksf'k'k

djsxk] ysfdu vxj og ,slk ugha djrk gS ;k dj ikrk gS] rks Hkh uekt

rks gks gh tk;sxhA ,slh uekt dh uo;r vkSj lckc ds ckjs esa eSa igys

gh dg pqdk gwWa fd og dqN gkykr esa ed:g gks tk;sxh vkSj dqN esa

ed:g Hkh ugha gksxhA vxj beke bl fdLe d s fp= vk S j

vkd ` fr;k s a dk s gVku s dh dk sf ' k' k ugh a djrk ] rk s ;g mldk

tqe Z g SA

vxj fdlh efLtn dh bekjr esa chp esa dksbZ ,slk ikVhZ'ku Mky

fn;k tk;s] tks taxys dh nhokj Vkbi dk gks vkSj ftlls og nksuksa fgLls

ml ikVhZ'ku ds ckotwn Hkh vkeus lkeus utj vkrs gksa] rks Hkh uekt

i<+h tk ldrh gS] ,slk ikVhZ'ku ds ,d rjQ vxj ewfrZ&iwtk gks rks Hkh

nwljh rjQ uekt i<+h tk ldrh gS] ysfdu bl lwjr esa beke dk ;g

QtZ gksxk fd og ogkWa ls mu ewfrZ;ksa dks gVokus dh dksf'k'k djsA**

¼ist 28½

“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)

^ ^efLtn dfc z Lrku e s a H k h cukb Z tk ldrh g S ] c'kr sZ fd og

txg] tgk W a efLtn cukb Z tk jgh gk s] , slh gk s] ftle s a

fdlh dh dc z u iM +r h gk sA bl rjg dh efLtn rks gekjs

esagnkoy esa gh gS] tks dfczlrku ds chp esa cuh gqbZ gSA dqN yksx

dfczLrku dh fgQktr ds fy, vkSj bUrtke ds fy, eqykfte j[k ysrs

gSa] ,sls eqykftehu dks rfd;snkj dgk tkrk gSA** ¼ist 34½

“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)

^^ysfdu ;g t:jh ugha gS fd gj dfczLrku ds fy, rfd;snkj

gksaA

3172

[kkuokg ml txg dks dgrs gSa] tgkWa dksbZ cM+h etgch 'kfDl;r

cSBdj] jgdj bcknr] fj;ktr djrh gS vkSj vius eqjhnksa dks nhuh

etgch ckrs crkrh gS] ml txg dk uke [kkudkg gSA - - - [kkudkg

ds cukoV dk dksbZ fo'ks"k :i fu;fer ugha gSA [kkudkg ds fy, njxkg

dk gksuk dksbZ t:jh ugha gSA njxkg esa lTtknk ulhu gksrs gSaA lTtknk

ulhu nks 'kCnksa dk tksM+ gS ;kuh fd ^^lTtknk tek** u'khu** bldk vFkZ

gS txg ij cSBus okykA [kkudkg ij Hkh lTtknk u'khu gksrk gSA

lTtkn ds vFkZ gSa&cgqr T;knk ltnk djus okykA lTtknk ds ek;us

gSa&cSBus okyh txgA lTtkn vkSj lTtknk nks eq[rfyQ 'kCn gSaA

lTtkn ds ek;us pknj ;k njh ugha gSA** ¼ist 35½

“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)

^^eSaus vius c;ku esa tgkWa efUnj dh txg efLtn cuk;s tkus dh dgh

gS] og lh/kh lh ckr ;g gS fd vxj efUnj ds fxjus ds ckn lkQ

tehu dh efYd;r ij dksbZ ruktk u gks vkSj ekfyd viuh ethZ ls

ml tehu dks ns ns] rks ml ij efLtn cu ldrh gSA e S au s ;g ckr

egt viuh jk; l s ugh a dh g S ] cfYd 'k fj;r d s fglkc l s

dh g S vk S j t Slk fdrkck s a e s a fy[k k x;k g S ] mldk s

3173

en ~n sutj j[kr s g q, Hk h g S A ;g ckr 'k fj;r dh cM +h

fdrkck s a e s a fy[k h g S ] t Sl s fd Qrok; s&vkyexhjhA - - -;g

ckr mld s p sIVj ^ ^ckc qy elkftn* * e s a fy[k h g qb Z g SA ** ¼ist

36½

“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)

^^blh rjg ls 'kfj;r esa ;g Hkh fy[kk gqvk gS fd vxj efLtn dh

nhokjksa ;k [kECksak ij fdlh tkunkj pht dh rLohjsa ;k ewfrZ;ka cuh gqbZ

gks] rks ogkWa pUn lwjrksa es dh xbZ uekt ed:g gksxhA ;g fQdg dh

^ ^ fgnk;k * * e s a fy[k k g qvk g S A ;g fdrkc Hkh eSa lkFk ysdj ugha

vk;k] vxj gqDe gks rks yk ldrk gwWaA ;g fgnk;k vOoy su e s a

fy[k k g S A eSaus ;g c;ku fd;k gS fd vxj efLtn ds fdlh fgLls esa

ewfrZ;kWa j[kh gqbZ gSa] rks Hkh uekt tk;t gksxhA blds lkFk eSaus vkSj Hkh

tqeys dgs FksA ;g Hk h ckr Åij okyh fdrkc fgnk;k e s a vkb Z

g S A ;g ckr Hk h vOoy Su uked p S IVj e s a g S A ;g ckr fQdg

dh lHk h e'kg wj fdrkck s a e s a fey ldrh g SA n wljh fdrkc s a

g S a& vkyexhjh ] Qrkok dkth [k k W a] n q j sZ e q[rkj ] jn ~n qy

ek sgrkj ox S jgA vxj fdlh efLtn esa dbZ o"kksZ rd pkgs og

lSdM+ksa ;k gtkjksa esa D;ksa u gks] uekt ugha i<+h tk;s] rks Hkh dksbZ QdZ

ugha iM+rk] og efLtn cjdjkj jgsxhA vxj ,slh efLtn ij fgUnqvksa dk

dCtk jgk gks ;k ogkWWa lSdMksa o"kksZ rd mudh iwtk&ikB Hkh gksrh jgh gks]

mls ckotwn Hkh og efLtn cjdjkj jgsxhA ¼vt[k qn dgk fd

3174

[k kuk; s&dkck d s fxnk Z fxn Z cg qr l s c qr cM + s teku s rd

j[k s jg s] exj mld s efLtn gk su s e s a dk sb Z QdZ ugh a

iM +k ½A ** ¼ist 37½

“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)

^^gtjr ek s0 lkgc u s efLtn rkehj djokb Z Fk hA eDdk

ls tc og enhuk r'kjhQ ys x;s rks ogka mUgksaus ,d efLtn cuokbZ Fkh

tk s efLtn dck d s uke l s e'kg wj g SA fQj 'kgj enhuk e s a

mUgk s au s ,d cM +h efLtn rkehj djkb Z tk s vkt Hk h ucoh

3175

efLtn d s uke l s e'kg wj g S A bu efLtnksa esa nhokjksa cukbZ x;h

vkSj Nr ds fy, [ktwj dh ifRr;kWa vkSj Mkfy;ksa dk bLrseky fd;k

x;kA ogka ij xqEcn cuus dk loky gh iSnk ugha gksrk Fkk D;ksafd Nrs

[ktwj dh ifRr;ksa vkSj Mkfy;ksa dh FkhA buesa ehukjs Hkh ugha cuokbZ x;haA

cgqr ls dSys.Mj gSa ftuesa bu nksuksa efLtnksa dh rLohjsa Nirh jgrh gSA

ysfdu ;g rLohjsa ekStwnk rkehjkr dh gS] u fd 'kq: esa cukbZ x;h

efLtnksa dhA** ¼ist 56½

“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)

^^eSaus efLtnksa dh rtsZ rkehj dh ckcr tks c;ku fn;k gS] og egt

yksxksa dk lquh&lqukbZ ckrksa ij ugha gS] cfYd eSa us ,slk fdrkcksa esa i<+k

gSA eSaus ;g fdrkvksa esa i<+k gS] lquk ugha gSA fQdsg dh reke e'kgqj

fdrkcksa esa ;g fy[kk gqvk gS fd efLtn dfczLrku esa Hkh cukbZ tk

ldrh gSA bl oDr tgk W a rd e sj h ;kn tkrh g S ] ;g ckr

^ ^ fgnk;k * * e s a H k h fy[k h g qb Z g SA bl fdrkc dks cqjgkuqn~nhu vcqy

glu vyh us fy[kk gSA ;g rk'kdUn ds bykds ds jgus okys FksA blh

fdrkc esa mUgksaus ;g Hkh fy[kk gS fd tgkWa ij cqr j[ks gq, gksa] ogkWa ij

Hkh uekt i<+h tk ldrh gSA ml fdrkc esa ;g Hkh fy[kk gqvk gS fd

tgkWa ij xSjeqfLye yksx gksa vkSj viuh iwtk&ikB djrs gksa] ogkWa ij Hkh

uekt i<+h tk ldrh gSA ;g fdrkc fgtjh dh ikWapoh lnh esa fy[kh

3176

x;h gSA** ¼ist 62½

“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)

^^efLtn esa ehukj cukus dh eukgh gS] tSlk fd eSa igys c;ku dj pqdk

gwWaaA ysfdu og eukgh l[rh okyh ugha gS] gYdh&QYdh gS] ftldk

eryc gS fd ehukj dks cukuk ilUn ugha fd;k x;k gSa ;g ckr eSaus

gnhl 'kjhQ esa i<+h gSA ;g jok;r e'kgwj fdrkc ^^cSgkdh** esa ntZ gSA

bl ckcr gnhl 'kjhQ esa ;g gtwj iSxEcj lkgc dk gh dkSy gSA dkSyh

gnhl vkSj dkSyh lqUur ,d gh pht gS vkSj ;g ckr ehukjksa okyh bl

ntsZ esa vkrh gSA** ¼ist 63½

“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)

^^efLtn cuku s d s fy, tehu dk s flQZ dk fey ek fyd ;k fu

tk s e q Ddey rk S j ij ml tehu dk ek fyd gk s viuh eth Z

l s Nk sM + sx k rk s efLtn cu sx hA og ml tehu dks oDQ djsxk vkSj

oDQ viuh ethZ ls gksrk gSA** ¼ist 105½

“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)

^^fdlh efLtn ds fy, tehu dks oDQ djus dk lh/kk rjhdk gS fd

mldk ekfyd mls oDQ dgdj NksM+ nsA** ¼ist 106½

“The simple manner of executing Waqf of land for any

mosque, is that its owner leaves it by saying Waqf.”(E.T.C)

^^ftl pht dks Hkh oDQ fd;k tk;s] okfdQ mldk iwjk dkfey ekfyd

gksuk pkfg, vkSj oDQ mldh iwjh ethZ ls gksuk pkfg,A oDQ pkgs

tcku ls bdjkj djds djs vkSj pkgs fny ls bdjkj djds djs] ogh

dkQh gSA - -igyk eqroYyh okfdQ gh gksxk] fQj og viuh ethZ ls

ftls pkgs eqroYyh cuk nsA- - -eSaus fdlh rkjh[k dh fdrkc esa ,slk ugha

i<+k fd fookfnr Hkou ds ckgjh fgLls esa dksbZ pcwrjk jgk gksA bl rjg

dh ckr esjs tkrh; bYe esa Hkh ugha gSA eq>s ekywe ugha fd ,sls fdlh

pcwrjs ij ewfrZ LFkkfir djds fgUnw yksx iwtk djrs jgs gksaA** ¼ist 112½

“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)

^^fdlh e afnj dk s rk sM +u s dh bLyke e s a btktr ugh a g S A ge

fdlh eafnj dks rksM+dj efLtn ugha cuk;sxsaA vxj eafnj esa ewfrZ LFkkfir

gks rks ewfrZ dks Hkh ugha rksM+sxsA ml eafnj dks ;k ewfrZ dks rksM+dj ogka

efLtn cukus dk loky gh iSnk ugha gksrkA - - eq>s ekywe ugha fd ftl

txg ij eqrnkfo;k bekjr cuh gqbZ Fkh og utwy ljdkj Fkh ;k ughaA -

- - -eSa 1962 esa viuh rkyhe iwjh djus ds ckn gh i<+kus yxk Fkk vkSj

1976 esa lnj eqnfjZl ¼iz/kkukpk;Z & fizfUliy½ yx x;k FkkA** ¼ist 115½

“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:

^^eqfLye dkuwu ds pkj mlwy gS] ftUgsa vaxzsth cksyus okys lkslZ

dg ldrs gSaA muds uke gSa& dqjkus ethn] lqUuk ¼gnhl½] btek]

d;klA 'kfj;r dk eryc gS& og dkuwu tks mYykg us vius cUnksa ds

fy, fn;k gSA** ¼ist 3&4½

“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)

^^;g Bhd gS fd ,slh dksbZ rQ'khy dqjku 'kjhQ esa Hkh ugha gS fd

efLtn dh D;k 'kDy o lwjr gks ;k ogkWa ij i'kq&i{kh] nsoh&nsork ;k

3179

vkneh o vkSjr ds 'kDyksa ds cuus ij D;k gksxk ;k fxjh gqbZ efLtn Hkh

efLtn ekuh tk;sxh ;k mlds pkjks rjQ fdlh bcknrxkg ds gksus dk

D;k vlj gksxk oxSjg&oxSjgA** ¼ist 4½

“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)

^^efLtn dk eryc gS fd uekt i<+us dh txg ;kuh ltns dh

txgA uekt ;k ltnk gj ikd txg ij vnk fd;k tk ldrk gSA

bl ek;us esa efLtn ds fy, fdlh [kkl txg dh t:jr ugha gSA

efLtn vYykg ds fy, cukbZ tkrh gS] rkfd mldk uke fy;k tk ldsA

eSa ;g ckr gnhl dh fdrkcksa ds eqrkfcd crk jgk gwWa vkSj dqjk 'kjhQ esa

Hkh ;gh dgk x;k gSA - - - - efLtn cukus ds fy, ;g t:jh ugha fd

ogkWa ij eqlyekuksa dh vkcnh gksA efLtn eqlkfQjksa ds fy, Hkh cukbZ

tkrh gSA eqroYyh dk rkYyqd oDQ ls gS] efLtn ls ugha] blfy,

t:jh ugha fd gj efLtn dk eqroYyh gksA - - - -'kfj;r ds eqrkfcd

eqroYyh mlh oDQ dk gksxk tks vYykg ds fy, fd;k x;k gSA tks

tk;nkn vYykg ds fy, oDQ dh xbZ gS] mldh ns[kHkky djuk

eqroYyh dk dke gSA ml oDQ ls rkYyqd j[kus okyk tks Hkh dke gS]

pkgs og nhuh dke gS] pkgs bUrtkfe;k dke gS] mldks fuHkkuk eqroYyh

dk dke gSA** ¼ist 4&5½

“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)

^^vtku lquus ds ckn gh uekt gksrh gS] ysfdu vxj dksbZ

e'kokrk gkykr gksa rks beke lkgc bl ckr dh rLnhd dj ysaxs fd

vtku nh xbZ gS ;k ugha vkSj fQj uekt i<+k;saxsA - - - -tqEes dh

uekt ds fy, Hkh ;g ykfte ugha fd vtku gksA ;g nwljh ckr gS fd

mlds fy, rkdhn nwljh uektksa ls T;knk gSA - - - -vtku ds cxSj Hkh

uekt gks ldrh gS] ;g fQdsg dh fdrkcksa esa fy[kk gqvk gSA

'kfj;r ds eteq, dk uke fQdg gSA fMD'kujh ds fglkc ls

fQdsg dk eryc gS ^^cqf)**] ^^b.VsyhtsUl** vkSj bLrykgh ¼iSzfdVy rkSj½

rkSj ls bldk eryc gS& dqjku] gnhl] btek] d;kl ls tks elk;y

fudys gSa] mUgsa 'kfj;r dgrs gSaA - - - - -'kfj;r esa uekt ls igys

vtku dk i<+uk lqUur gSA** ¼ist 6½

“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)

^^fQdsg dh cgqr vge fdrkcsa dbZ gSaA - - esjs fglkc ls cgqr

vge fdrkcksa esa & jn~nqyeq[rkj e'kgwjs 'kkeh ds uke ls e'kgwj gSA

blds ys[kd dk uke&eksgEen vehu bcus vkchnhu 'kkeh gSA - -

'kfj;r vkSj fQdsg esa dksbZ cqfu;knh QdZ ugha gSA fQdsg esa 'kfj;r dks

rjrhc nh xbZ gSA 'kfj;r dks i<+dj gh vkSj bl ij xkSj djds fQdsg

esa rjrhc nh xbZ gSA fgnk;k esa efLtn dh ckcr dkQh dqN dgk x;k

gSA ysfdu mlesa efLtn dh 'kDy dh ckcr dksbZ cqfu;knh fgnk;r ugha

gSA- - - ;g Bhd gS fd fdlh xSj dh tehu ij tcjnLrh efLtn cukus

dh eqekfu;r Hkh gSA vxj fdlh nwljs dh tehu lkfcr gks rks mlds

ekfyd dh ethZ ds cxSj ogkWa ij efLtn dk;e ugha gksxhA - - -vxj xSj

eqflye dh ;k pkgs eqfLye dh Hkh vius dksbZ tk;nkn gks rks mls fdlh

Hkh lwjr esa rksM+dj ;k rjehe djds ogkWa ij tcjnLrh efLtn ugha

cukbZ tk ldrhA vxj ,slk lkfcr gks tkrk gS rks og efLtn tk;t

ugha ekuh tk;sxhA ;g ckrsa tks eSa cryk jgk gwWa] ;g fQdsg dh gS vkSj

,slk fgnk;k eas ik;k tkrk gS vkSj Hkh dbZ fdrkcksa esa ik;k tkrk gSA ,slk

Qrkok vkyefxjh esa Hkh ik;k tkrk gSa Qrkok fgUnh;k vkSj

vkyexhjh ,d gh fdrkc ds uke gSaA - - de ls de 10&12 mysekvksa us

vkSjaxtsc dh jguqekbZ esa ;g fdrkc fy[kh gSaA ftu ckrksa dk eSaus ftdz

fd;k gS] ;g phtsa Hkh ml fdrkc esa vkbZ gSaA** ¼ist 7&8½

“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 else’s 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)

^^lqUuk vkSj gnhl rdjhcu ,d gh pht gSaA gtjr eksgEen lkgc us tks

dke fd;s ;k tks mUgksaus ckrs QjekbZ ;k tks ckrsa mUgksaus nwljs vknfe;ksa

dks djrs gq, ns[kk vkSj mudks euk ugha fd;k ;k ftu ckrksa dks mUgksaus

eUtwjh ns nh og lc lqUuk esa vkrh gSaA QSyh] dkSyh vkSj rdjhjh bl

rhu 'kk[kkvksa esa lqUuk dks ckWaVk tk ldrk gSA mudks cksyrs gSa& lqUurs

Qsyh] lqUurs dkSyh vkSj lqUurs rdjhjhA bu ij lSdM+ksa fdrkcsa fy[kh xbZ

gSaA blh dsk gnhl dgrs gSaA gnhl fy[kus okyksa esa lcls igys vCnqyk

bCus ve vkSj bCus vkl vkSj vcwc bcus gTe vkSj gtjr vul ds uke

vkrs gSaA - - - - tks yksx igys eq[krfyQ gnhlksa dks tckuh ;kn dj ysrs

3183

Fks] mudk fupksM+ lcls igys rjrhc nsus okyksa esa beke Fks] ekfyd

ftudh fdrkc vkt Hkh ikbZ tkrh gSA - - - - -mlesa efLtn dh cukoV

;kuh 'kDy o lwjr ds ckjs esa dksbZ ftdz ugha gSA** ¼ist 8½

“’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)

^^eSaus dHkh dksbZ dukrh efLtn uke dk 'kCn ugha lqukA vxj

dksbZ txg rhu rjQ ls xSj eqfLye bcknrxkgksa ls f?kjh gqbZ gks rks ogkWa

ij uekt i<+h tk ldrh gS] fdlh gnhl esa bl ij eqekfu;r ugha gSA

- - - - - vxj fdlh bekjr esa flQZ nks njokts tkus ds fy, gksa] iwjc

vkSj mRrj dh rjQ vkSj mUgha nksuks njoktksa ij fgUnqvksa ds iwtu LFky

gksa] rks Hkh vUnj uekt i<+h tk ldrh gS] c'krsZ fd vUnj tkus dk

jkLrk gksA ,slk ftdz fQdsg esa vk;k gS] gnhl esa ,slh rQlhykr ugha

gSaA** ¼ist 9½

“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)

^^vxj otw u fd;k gqvk gks vkSj efLtn esa otw djus dk

bUrtke Hkh u gks vkSj nwj&nwj rd ikuh nLr;kc u gks rks r;eqe djds

uekt vnk dh tk ldrh gSA - - - -eSaus Hkh ,slh efLtnsa ns[kh gSa] tgkWa

otw ds fy, ikuh dk bUrtke u jgk gksA** ¼ist 9½

“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)

^^fdlh tekus ds myek ,d elys ij tc ,d jk; gks tk;sa rks

og btek dgykrk gSA - - - efLtn dh cukoV ;k 'kDy lwjr ds ckjs esa

dksbZ btek ugha gqvkA ,slk elyk vc rd mBk gh ugha fd ftl

efLtn ds pkjks rjQ dfczLrku gks rks ogka uekt i<+h tk;s ;k ughaA - -

bl ckr ij Hkh dksbZ b[krykQ ugha gqvk fd ftl bekjr ds nks rhu ;k

pkjksa rjQ Hkh dksbZ xSj eqfLye bcknr xkg gks rks ogkWa ij uekt i<+h

tk ldrh gS ;k ugha] njvly ogkWa ij uekt Hkh i<+h tk ldrh gSA ;s

eqn~ns gky ds gSa bUgha fnuksa esa bUgsa mBk;k x;k gS bu ij vHkh xkSj gks

jgk gS D;ksafd vHkh rd b[krykQ fdlh us ugha fd;kA** ¼ist 10½

“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)

^^efLtn cuus ds ckn dHkh [kRe ugh gksrhA vxj efLtn otwn

esa vk x;h rks ogkWa ij pkgs uekt i<+h tk;s ;k u i<+h tk;s og ges'kk

efLtn ekuh tk;sxhA vxj ogkWa ij tekrh uekt u Hkh i<+h x;h gks rks

Hkh ogkWa ij efLtn jgsxhA vxj efLtn cukus okys us rkehj eqDdey

djds mls yksxksa ds gokys dj fn;k rks Hkh og efLtn ekuh tk; sx h

pkg s ogk W a ,d ckj Hk h uekt u i< +h x;h gk sA vxj rkehj

djus okys dh fu;r efLtn dh Fkh vkSj yksxksa dks efLtn cukdj ns nh

rks efLtn cu x;hA** ¼ist 11½

“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)

^^vxj dk sb Z n wlj s yk sx efLtn dk s fxjk n s a rk s H k h og

txg efLtn dgyk; sx h , slk bTek g S A , slk gj fdrkc e s a

fy[k k g S A y sfdu , slh dk sb Z [k kl felky n su s d s fy, e sj s

bYe e s a ugh a g S tgk W a bl rjg dh ckr gk s ;k tgk W a efLtn

fxjkb Z x;h gk sA - - - fxjk;h gqbZ efLtn ds LFkku dks efLtn ekuk

3186

tk;sxk bl ckcr bTek gj nkSj esa gqvk gSA vxj dgha efLtn fxjrh gS

rks og efLtn gh jgsxh bl ij gj tekus ds ekSykukvksa dk bfRQkd jgk

gS ,slk eSaus i<+k gSA , slk e S au s fQdg e s a i< +k g SA ;s bTek blfy,

Hkh tkjh gqvk fd vkus okys nkSj ds cgqr ls elk;y ij Hkh xkSj gksrk Fkk

vkSj blh rjg ls bl bedku dk Hkh bTek cukA**

¼ist 12½

“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)

^^;s ftdz fQdg dh fdrkcksa esa vk;k gS fd vxj fdlh bekjr

dh nhokjksa ij ;k [kEHkksa ij ;k flok;s fdcyk okyh fnokj ij i'kq i{kh

nsoh nsork ;k vkSj tho tUrqvksa dh rLohjsa gksa rks Hkh uekt gks ldrh gS

vkSj vxj ,slh bykekr fdcyk okyh fnokj ij gks rks Hkh uekt gks

ldrh gS gykafd oks ed:g gks tk;sxhA vxj ltns okyh fnokj vkSj

uekth ds chp esa dksbZ [kEHkk gks ftl ij ,sls bykekr gks rks Hkh uekt

gksxh ysfdu vxj ;s vykekr uekth ds fcydqy lkeus gksaxs] rks ;s

uekt ed:g gks tk;sxhA** ¼ist 12½

“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)

^^'kjh;r ds vgdke dh ikap fdLesa gSa os gSa& 1- QtZ 2- gjke 3-

ed:g 4- eUnwc 5- tk;tA budks /kkfeZd gqDe dgk tk ldrk gSA - -

- - gjke dh fdLe esa oks dke vkrs gSa ftudh eukgh dh x;h gSA oks

eukgh cgqr l[rh vkSj iDdh nyhyksa ls dh x;h gSa ed:g esa fn;s x;s

dkeksa dh eukgh dh x;h gS ysfdu mruh l[rh ls ughaA tk;t dh

fdLe esa oks dke vkrs gSa tks fd;s Hkh tk ldrs gSa vkSj u fd;s Hkh tk

ldrs gSaA muds djus ij dksbZ lckc ugha vkSj u djus ij dksbZ xqukg

ughaA** ¼ist 14½

“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)

^^;g lHkh fdrkcksa esa vkrk gS fd vxj fdlh nwljs etgc dh

bcknrxkg dks ;k fdlh nwljs vkneh dh txg dks tcjnLrh rksM+dj

3188

efltn cuk yh x;h gks rks og Bhd ugha gSA** ¼ist 14½

“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)

^^oDQ dHk h [kRe ugh a gk sr kA* * ¼ist 18½

“A Waqf never terminates.” (E.T.C)

^^iSxEcj lkgc us bLyke ugha pyk;k ;kuh bLyke dh 'kq:vkr

ugha dh bldk vkxkt rks vkne vysgqlyke ls gSA eksgEen lkgc

vkf[kjh iSxEcj Fks vkSj mUgksaus bLyke dks vkf[kjh eqDdey 'kDy nhA

muls igys bLyke dh eqDdey 'kDy ugha FkhA** ¼ist 24½

“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)

^^esjs bYe esa ,slk ugha gS fd eksgEen lkgc ls igys eDdk esa

dqnjr dh bcknr gksrh FkhA ysfdu ;g Bhd gS fd cqr dh bcknr gksrh

FkhA** ¼ist 24½

“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)

^^bLyke ds fglkc ls ekfydksa dh ethZ ds f[kykQ eafnj rksM+uk

uktk;t gSA** ¼ist 27½

“According to Islam, demolition of temple without

the consent of owners, is illegal/unjustified.” (E.T.C)

^^cqrijLrh bLyke ds f[kykQ gSA ;g dguk xyr gS fd tgkWa

ewfrZ;ka LFkkfir dh x;h gks ogkWa ij efLtn ugha cu ldrh c'krsZ oks

tehu eqlyekuksa us tk;t rjhds ls gkfly dh gqbZ gksA tk;t rkSj ls

gkfly djus dk eryc gS ekfyd us viuh ethZ ls ns nh gks] fgck dj

fn;k gks ;k mlus csp nh gks c'krsZ fd ml tehu dk dksbZ ekfyd

3189

FkkA ;g tehu [kqnk dh Hkh gks ldrh gS] gkfde dh gks ldrh gS gdwer

dh Hkh gks ldrh gS vkSj fdlh izkbosV vkneh dh Hkh gks ldrh gS vxj

tehu gqdwer dh gS rks ml ij gkfde dk iwjk vf[r;kj gSA vxj

ljdkjh tehu gS vkSj gkfde eqlyeku gS vkSj tk;t gkfde gS rks ml

tehu ij gkfde efLtn cuk ldrk gSA vxj ,d gkfde ij nwljk

gkfde vlwy ds eqrkfcd Qrg gkfly dj ysrk gS rks og tehu

Qrsgvkc gkfde dh gks tk;sxhA** ¼ist 27½

“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)

^^dk sb Z H k h e qlyeku tk s efLtn cuok; sx k mld s

vUn:uh ;k ckgj oky s fdlh fgLl s e s a fdlh rLohj dk s

ugh a cuok; sx k ok s tkunkj pht dh rLohj ugh a cuok; sxkA

fdlh lqvj dh rLohj cuokus dk loky gh ugha iSnk gksrkA eqfLtn dh

pkjnhokjh ds ckgjh fgLls ij vxj fdlh tkunkjpht dh lwjr cuok

nh tkrh gS rks og tk;t ugha gSA**

¼ist 29½

“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)

^^dksbZ eqlyeku tc u;s fljs ls efLtn cuok;sxk rks mlds

vUnj oks dksbZ tkunkj pht ugha cuok;sxk pkgs og i'kq i{kh gks pkgs

uj ukjh gks pkgs dksbZ nsoh nsork gks vkSj vxj og ,slk djsxk rks og

xqugxkj gksxkA ysfdu og efLtn fQj Hkh dgyk;sxh vxj vkSj 'kjk;r

iwjh gksrh gksa rksA^* ¼ist 30½

“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)

^^eSaus nsocUn ds nk:y mye esa gnhl] fQdg] rQlhj] eafrd]

QkylQk mlwysgnhl] i<+sA eSaus vkfye dk ntkZ Hkh ikl fd;k FkkA

vkfye dh i<+kbZ es esjs etkehu uskg] lQZ] cykxr] mlwysfQd] mlwys

rQlhj] vnc] fQdg] gnhl] rQlhj FksA** ¼ist 31½

“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

^^uekt ds fy, otw t:jh gSA** ¼ist 33½

“’Vazoo’ is essential for namaz.” (E.T.C)

^^,slk elyu frjfeth gnhl dh fdrkc esa Hkh fy[kk gSA vkerkSj

ls bl rjg dh ckrsa ckcqy otw esa fy[kh gksrh gSaA** ¼ist 34½

“It is so written in the book of ‘Tirmiji Hadis’ as well.

Usually such facts are mentioned in ‘Babul

Vazoo’.”(E.T.C)

^^bLyke dh 'kq:vkr vkne vysgqbLyke ls gqbZ ftuds ckjs esa

e'kgwj gS fd og lcls igys yadk esa vk;s FksA bLyke dh vkf[kjh

eqDeey 'kDy vkf[kjh iSxEcj lkgc us nh vkSj mUgksaus bls cM+s iSekus ij

QSyk;kA gtwj lkgc vjc esa gh iSnk gq, Fks vkSj ogha ls mUgksaus bLyke

dks Qsykus dk dke 'kq: fd;k FkkA

efLtns gjke ,d eqdn~nl eqdke gS oks vjc ds eDdk 'kgj esa

gSA gj oks eqlyeku tks ekyh rkdr j[krk gks ftLekuh rkdr j[krk gks

vkSj ftls lokjh gkfly gks mlds fy, ;g QtZ gS fd og mez esa ,d

ckj ogkWa tkdj gt djsa ;g QtZ ckfyx eqlyekuksa ds fy, gSA**

¼ist 41½

“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)

^^enhuk 'kjhQ ls pyus ij Qrsg gkfly djus ds ckn tc eDdk

'kjhQ gtwj r'kjhQ yk;s rks dkck 'kjhQ ij [kM + s gk sdj igyh

vtku n su s dk :rck Hk h gt wj u s gtjr s fcyky dk s lk S ai

3192

Fk kA - - - - -tekr dh uekt i<+us ds fy, uekft;ksa dks cqykus ds

fy, vtku nh tkrh gS bl ckr dks en~nsutj j[krs gq, gtwj us

;g :rck gtjrs fcyky dks blfy, cD'kk Fkk D;ksafd mudh vkokt

cgqr cqyan FkhA cqyan vkokt blfy, ilan dh x;h rkfd nwj nwj ls

lqudj uekth vk ldsa D;skafd mij p<+dj vkokt nsus ls nwj nwj rd

tkrh gS blfy, gtjrs fcyky us Nr ij [kM+s gksdj vtku nh FkhA**

¼ist 49½

“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)

^^oDQ dh tk;nkn dks tks fd [kqnk dh cu tkrh gS] dksbZ Hkh

vkneh pkgs fdruk NksVk vkSj pkgs fdruk cM+k gh D;ksa u gks] ekfydkuk

rkSj ij gkfly ugha dj ldrkA** ¼ist 54½

“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)

^^ftldk dkck uke gS ml bekjr ij dksbZ ehukj ugha gS vkSj u

gh igys FkhA dkck d s pkjk s a rjQ tk s efLtn g S ml ij

ehukj s a g S aA * * ¼ist 58½

“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)

^^fgnk;k esa ;g fy[kk gqvk gS fd tgka ij ,d nQk efLtn cu

tk;s og gVkbZ ugha tk ldrhA og txg ges'kk gh efLtn jgsxhA**

¼ist 62½

“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)

^^oDQ ds fy, okfdQ gksuk t:jh gSa - - - - -vxj tcjnLrh

gfFk;kb Z txg dk oDQ fd;k tk; s rk s og gjke g S og

oDQ gh ugh a gk sx kA - - - - esjs bYe esa fdlh gnhl esa uekt i<+us

ds oDr jaxhu ;k csy cwVs okys diM+s iguus ij eukgh ugha Mkyh xbZA**

¼ist 63½

“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)

^^fook fnr tk;nkn d s vykok gekj s ;gk W a l aH ky e s a ,d

efLtn g S ftldk uke ckcjh efLtn d s uke l s e'kg wj g SA

mlds ckjs esa eSaus dksbZ rkjh[k dh fdrkc ugha i<+h gS efLtn ds dnck

ij fy[kk gS ogh i<+k gSA** ¼ist 66½

“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

^^dqjku 'kjhQ esa bl ckr dk ftdz ugha gS fd efLtn fdl rjg

dh tehu ij cukbZ tk;sA - - - - -dqjku 'kjhQ esa ewfrZ rksM+us dk gqDe

ugha gSA cgjky mlesa gtjr bczkfge dk ftdz gS ewfrZ rksM+us dh ckcrA

ftls ilan fd;k x;k gSA

fdlh efLtn esa Hkwr ;k 'kSrku dks ;k fdlh Hkh tkunkj pht dh

'kDy vkSj lwjr cukuk tk;t ugha gSA fdlh Hkh efLtn dh nhokjksa ij

pkgs vUnj dh rjg gks ;k ckgj dh rjQ gks fdlh tkunkj pht dh

'kDy vkSj lwjr cukuk tk;t ugha gSA** ¼ist 67½

“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)

^ ^e S a e q fLye yk W a d s ckj s e s a crk S j ,DliV Z c;ku n su s

d s fy, gk ftj g qvk g wW aA ** ¼ist 70½

“I am present to depose as an expert in Muslim

law.” (E.T.C)

^^vxj ;g lkfcr gks tk;s fd ekfydku us [kq'kh ls jtkeUnh ugha

nh gS] rks og efLtn tk;t ugha ekuh tk;sxhA** ¼ist 71½

“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)

^^esjh le> esa vkSj e sj s bYe e s a bl oDr fgUn q Lrku e s a

e sj s l s T;knk e q fLye yk d s ckj s e s a tkudkjh j[ku s okyk

dk sb Z vk fye ugh a g S ] e sj s cjkcj d s gk s ldr s g S a y sfdu

e q>l s c sgrj ugh a g S aA ** ¼ist 73½

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)

^^eSa fQd dh rkyhe nsrk gwWaA** ¼ist 77½

“I teach ‘Fiqh’.” (E.T.C)

^^;gk a efLtn l s eryc efLtn d s fy, oDQ dk g S

u fd bekjr dkA njly vxj bekjr fxj Hkh tk;s rks oDQ dk;e

jgsxkA eq'kk tehu ij efLtn ugha cu ldrhA vxj fdlh nwljs vkneh

dk Hkh tehu esa fgLlk gks ;k gd gks vkSj og mls efLtn ds fy, oDQ

djus dh btktr u ns rks ogka efLtn ugha cusxhA** ¼ist 81½

“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)

^^rLohj okyh ckr dbZ fQdg dh fdrkcksa esa ekStwn gS elyu

cg;j jkbZd] jnnqy eq[rkj] cnk; vluk;A e q> s bl oDr ;kn

ugh a fd fdl [k kl fdrkc e a s e S au s ;g i< +k F k k fd efLtn

ij ehukj s a ;k x q Ecnk s a dh t:jr ugh a ;k ogk a ij ot w d s

b artke dh t:jr ugh aA ;g ckr eSaus eq[rfyQ fdrkcksa dks i<+dj

eqteqbZ rkSj ij le>h gSA esjs ;g c;ku lgh gS fd dqjku 'kjhQ vkSj

gnhl esa efLtn dh 'kDy lwjr ;k rtsZ rkehj ij dksbZ [kkl fgnk;r

ugha gSA** ¼ist 84½

“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)

^^ysfdu ;g ckr Bhd gS fd utk;t rkSj ij ;kuh 'kjbZ dkuwu

ds fglkc ls uktk;t gjdr dj ds tks tehu gfFk;kbZ tkrh gS ml ij

efLtn cuk;s tkus dh eukgh gSA mlesa i<+h uekt ed: gks tk;sxhA

;g Bhd gS fd guQh dkuwu ds eqrkfcd vxj dksbZ ekfyd

fdlh tehu ;k tk;nkn dk oDQ djs rks mlds fy, ;g t:jh gS fd

og [kqn ekfyd gksA** ¼ist 85½

“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)

^^;g Bhd gS fd gekjs vdhns ds eqrkfcd tk s d qN

dqj ku'kjhQ e s a dgk x;k g S vk S j tk s d qN gtjr ek sg Een

lkgc Qjek x; s g S a vk S j eUl wl ugh a g qvk g S mle s a dk sb Z

deh c s' k h ugh a dh tk ldrhA** ¼ist 91½

“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)

^^ge ljdkj dk ugha 'kjh;r dk dkuwu i<+krs gSaA eSa ugha dg

ldrk fd gekjs nk:ymywe dk iSlk dgkWa ls vkrk gS vk;k fd fons'kksa

3197

ls vkrk gS ;k ugha D;ksafd ;g esjk etewu ugha gS eSa ekyh ekeykr dk

ftEesokj ugha gwWaA - - - -ysfdu ;g eq>s ekywe gS fd ge ljdkj ls dksbZ

benkn ugha ysrsA** ¼ist 92½

“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:

^^eqfLye dky ds igys 'kkld eks0 fcu dkfle gq, FksA - - - -

eks0 fcu dkfle dh jkt/kkuh flU/k esa FkhA - - - - - ,slk ugha gS fd ekS0

fcu dkfle jktk nkfgj ls gkjus ds ckn ykSV x,A [kqn dgk & og

thrs Fks vkSj [kyhQk ds cqykus ij ykSV x,A - - - - blls igys eqfLye

rkftj fgUnqLrku vk pqds Fks vkSj lkfgy ij mudh vkckfn;ka FkhaA bu

rkftjksa dh vkcknh ekStwnk dsjy jkT; ,oa xqtjkr jkT; esa FkhA**¼ist 6½

“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.)

^^vYykg dk lcls igyk ?kj dkck ;gha cuk;k x;k FkkA gtjr

eksgEen lkgc dh ogka iSnkb'k Fkh ;g Hkh ,d dkj.k FkkA ;g dguk

Bhd ugha gksxk fd dkck eksgEen lkgc ds ckn cuk cfYd og muls

3198

cgqr igys cu pqdk FkkA** ¼ist 8½

“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.)

^^Qkfty dh fMxzh ,d ,e0,0 dh fMxzh dh rjg gSA Qkfty esa

tqxjkfQ;k oxSjg ugha i<+k;k tkrk vkSj [kkl rkSj ls bLykeh mywe ij

i<+k;k tkrk gSA eSaus Qkfty] gnhl] rQlhj] fQdg oxSjg esa fd;kA**

¼ist 9½

“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.)

^^eqvLrk lcls iqjkuh gnhl dh fdrkc gSA blds ys[kd beke

ekfyd FksA

fgnk;k vkSj 'kjsZodk;k uked fdrkcksa esa efLtn dh cukoV ds

ckjs esa dksbZ rQlhy ugha nh x;hA** ¼ist 10½

“‘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.)

^^bLyke esa dkuwu /keZ dk fgLlk gSA** ¼ist 11½

“In Islam, law is a part of religion.”(E.T.C.)

^^bl ,sdsMeh dh vkf[kjh eh fV ax tk s 13 l s 16 vi z Sy ]

2001 e s a g q b Z mlesa efLtn dh 'kj;h gSfl;r ds ckjs esa ckrphr gqbZ

Fkh vkSj ;g QSlyk g qvk fd efLtn ge s' k k efLtn jgrh g S

mldk s fxjk n su s dh otg l s efLtn dh g S fl;r [kRe ugh a

gk s tkrhA** ¼ist 17½

“In the last meeting of this academy which was

3199

held between 13th to 16th 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.)

^^yk s/ k h o a' k dh g qd wer d s nk S j ku my se kvk s a dk

g qd wer e s a dk sb Z [k kl n[ky ugh a gk sr k Fk k ] ij vnkyrh futke

esa mudk n[ky gksrk FkkA** ¼ist 19½

“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.)

^^eSa bl er ls lger ugha gwWa fd bZ'oj dks fdlh Hkh uke ls

iqdkjk tk ldrk gS] cfYd og mlh uke ls iqdkjk tk ldrk gS] tks

mlus [kqn vius fy, ilUn fd;kA - - - - - eq>s ;g ckr ekywe ugha gS

fd [oktk eksbfumn~nhu fpLrh us vtesj ds ikl vUu lkxj ds rV ij

,d fgUnw jktk dh dU;k ls 'kknh dh FkhA eq>s ;b ckr Hkh ekywe ugha

gS fd muls tks yM+dh iSnk gqbZ csxe gQhtk] mls ns'k&fons'k lwQh er

dk izpkj djus ds fy, Hkstk x;kA** ¼ist 20½

“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.)

^^dqjku esa N% gtkj N% lkS lksyg vk;rs gSaA - - - - d qj ku e s a

, slk dk sb Z g qDe ugh a g S fd fdlh n wlj s dh tehu ij

3200

tcjnLrh efLtn cukb Z tk; sA - - ;g Bhd gS fd dqjku vkus ds

igys cqrijLrh gks jgh FkhA - ;g Bhd gS fd vjc esa tks yksx cqrijLrh

djrs Fks dqjku vkus ds igys mUgsa dkfQj dgk x;kA dqjku esa dksbZ ,slk

gqDe ugha gS fd dkfQj dks ekj fn;k tk;sA ;g Bhd gS fd bLyke /keZ

vkus ds igys fgUnw ewfrZ iwtk Hkh djrs FksA - - - - dqjku esa erb;;u

rkSj ls fgUnw ewfrZ;ks dks rksM+us dk dksbZ ftdz ugha gSA** ¼ist 25&26½

“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.)

^^iSxEcj lkgc dh ftUnxh esa fdlh fgUnw nsoh&nsorkvksa dh ewfrZ

dks rksM+us dh dksbZ ?kVuk ugha gq;hA - - -;g Bhd gS fd vxj dksbZ

efLtn fdlh nwljs dh tehu ij tcjnLrh cuk;h tkrh gS rks ,slk

djuk gjke gksxk vkSj og efLtn ugha gSA** ¼ist 27½

“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 another’s land, such an act will be

‘Haram’(a forbidden thing) and it (such a construction) is

not a mosque.” (E.T.C.)

^^;g Bhd gS fd uekt dk lEcU/ k [k qnk l s g S A tehu l s

ugh a g SA - - - - vkSj ;g ykteh g S fd oDQ dju s okyk ml

tehu dk ek fyd gk sA ** ¼ist 28½

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.)

^^fp= la[;k&20 - - - -& blesa ;g dguk eqf'dy gksxk fd blesa

lcls Åij dksbZ 'ksj dk fp= cuk gqvk gSA nks vka[ks cuh ekywe gksrh gSA

fp= l a=;'k &32 dk s n s[ kdj xokg u s dgk fd %& ble s a

e wfr Z;k s a fn[k k;h iM + jgh g S aA , slh e wfr Z;k s a d s jgr s g q, ;fn

uekt gk s rk s og uekt ed:g gk sx hA ewfrZ;ksa ds jgrs gq, ogka

ij uekt i<+uk tk;t ugha gksxkA** ¼ist 29½

“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.)

^^vxj efLtn ds ckgjh lsgu esa ?k.Vk ?kfM;ky 'ka[k Hktu

dhrZu vkfn gksrk jgs rks Hkh ml le; efLtn ds vanj uekt vnk dh

tk ldrh gSA efLtn ds vanj dq;sa dk gksuk t:jh ugha gSA** ¼ist 31½

“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.)

^^bTek ;g gS fd fdlh tehu ij tks nwljs dh fefYd;r gks ml

ij tcjnLrh dCtk djds efLtn cukuk tk;t ugha gSA bTek ljhg

esa ,slk dksbZ n"Vkar ugha feyrk gS fd vxj fdlh bekjr esa fp= gks ;k

ekuo vkd`fr gks rks mu dks <ddj uekt i<+h tk ldrh gS ij

mYekvksa esa rdjhcu ,slk bfRrQkd gS fd ml lwjr dks <ddj dj

uekt i<+h tk ldrh gSA** ¼ist 33½

“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.)

^^esjs bYe esa ,slk ugha gS fd m0iz0 esa ;k fgUnqLrku esa dksbZ ,slh

efLtn gks ftlds rhuksa rjQ nwljs /keZ ds bcknr xkg eafnj ;k ewfrZ;kWa

gks D;ksfd eSaus ,slk dksbZ losZ ugha fd;k gSA - - - - esjs bYe esa bl rjg

dh dksbZ txg ugha gS tgkWa efLtn ds rhu rjQ nwljs etgc eafnj ;k

ewfrZ gksA** ¼ist 34&35½

“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.)

^^eqroYyh vkSj beke esa QdZ gSA^* ¼ist 36½

“There is difference between ‘Mutvalli’ and

‘Imam’.”(E.T.C.)

^^ckcjukek esa fookfnr LFky ;kuh ckcjh efLtn cuokus dk dksbZ

ftdz ugha gSA - - -;g lgh g S fd efLtn e s a e afnj ugh a cuk;k

tk ldrkA** ¼ist 37½

“‘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.)

^^dk sb Z H k h e qlyeku bl ckr dh btktr ugh a n sx k

fd efLtn d s vUnj fgUn w n so h&n sorkvk s a d s fp= cuk n sA

loZizFke igys uch vkne vySfgLlyke bLyke /keZ ysdj vk,A

3203

- - - - - eksgEen lkgc gh ugha cfYd vYykg ds gj uch us ;g iSxke

fn;k fd cqrijLrh dks [kRe fd;k tk, vkSj flQZ vYykg dh bcknr dh

tk,A - - - - blh otg ls efLtnksa esa dgha Hkh cqr ugha cuok, x,A**

¼ist 40½

“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.)

^^bLyke dh fgnk;r rk s ;gh g S fd efLtn e s a e wfr Z u

cuk;h tk, ij ;g gk s ldrk g S fd mldh f[kykQrh djr s

g q, efLtn e s a e wfr Z cukr s gk s aA - - - - eSa blls lger ugha gwWa

fd ,sls LFkku tgka efLtn esa ewfrZ gks ogka eqlyekuksa us eafnj esa

tcjnLrh dCtk djds efLtn cuk fy;k gksA - - - - - -eq>s ;kn ugha gS

fd dksbZ ,slh efLtn gS ftlesa iM+s gq, iRFkjksa ftu ij nsoh&nsorkvksa ds

fp= gksa mBkdj efLtn esa yxk fn, x, gksaA** ¼ist 41½

“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.)

^^;g lgh g S fd fdlh e afnj e s a tgk a n so h&n sorkvk s a

d s fp= gk s a ;k LFk ku gk s ogk a dk sb Z e qlyeku uekt i< +u s

3204

ugh a tk,xkA* * ¼ist 41½

“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.)

^^;g Bhd gS fd eksgEen lkgc ds vykok cgqr ls jlwy vYykg

us Hkstk gS ij mudh lgh rknkn gedks irk ugha gSA muesa ls dqN

jlwyksa ds uke eSa tkurk gwWaA ;g Bhd gS fd gtjr ewlk vYykg ds ,d

jlwy FksA mu ij rkSjsr ukfty gqbZ tks vYykg dh ,d fdrkc FkhA ;g

Hkh lgh gS fd gtjr bZlk vYykg ds jlwy Fks vkSj mu ij tgwj ukfty

gqbZA eq>s ugha ekywe fd osn Hkh vYykg dh fdrkc gS ;k ughaA ;k og

fdu ij ukfty gqbZA ukfty dk eryc gS fd fdlh pht dk Åij ls

uhps vkukA^* ¼ist 55½

“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.)

^^gtwj eksgEen lkgc ds igys dkcs esa cqr j[ks gq, Fks vkSj mudh

iwtk gksrh FkhA** ¼ist 56½

“Statues had been kept in Kaba prior to Prophet

Mohammed and they were worshiped.” (E.T.C.)

^^;g lgh gS fd eksgEen lkgc fy[kuk ugha tkurs Fks blfy,

nwljksa ls fy[kokrs Fks ;g Hkh lgh gS fd yksx lqurs Fks] ;kn djrs Fks

vkSj fy[k ysrs FksA eSa blls lger gwWa fd dqjku ikd lquus ;kn djus o

vey djus dh Js.kh esa gSA vFkkZr lquus ;kn djus ,oa vey djus

dh ,d fdrkc gSA^* ¼ist 58½

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.)

^^gqtwj us ,slk dksbZ gqDe ugha fn;k gS fd fdlh nwljs etgc

ds /keZLFky dks rksM+dj mlds eycs ls efLtn cuk;h tk;hA ;g Bhd

g S fd vxj fdlh /ke Z LFky ij cuh bekjr dk s rk sM +dj

mld s eyc s l s dk sb Z efLtn cuk;h tkrh g S rk s , slk djuk

ed:g g S g qt wj d s bgdke d s fglkc l sA** ¼ist 59½

“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.)

^^vDlk dh efLtn bl le; btjkby ds dCts esa gSA cSrqy

eqdn~nl efLtns vDlk dk gh nwljk uke gSA ;g lgh gS fd 'kq: esa

eks0 lkgc dk gqDe Fkk fd uekt cSrqy eqDdnl dh vksj eqag djds i<+h

tk;sA mudk ;g gqDe ogh ds cqfu;kn ij FkkA** ¼ist 61½

“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.)

^^eSa dqjku dk gkfQt ugha gwWaA** ¼ist 61½

“I am not a ‘Hafiz’ (one who memorizes the complete

Quran) of Quran.” (E.T.C.)

^^;g lgh gS fd gqtwj ds oQkr ds ckn gtjr vcw odj

3206

fln~nhdh ds tekus esa dksbZ 'k[l dksbZ fy[kh gqbZ pht nsrk Fkk vkSj ;g

dgrk Fkk fd gqtwj us fy[kok;k Fkk] rks 'kgknr ;kuh nks xokgksa dh

xokgh ij mls eku fy;k tkrk FkkA - - - - bl dqjku ikd dks gtjr

vcw cdj ds tekus esa tSn bCus lkfcr us eqjRrc fd;k FkkA** ¼ist 63½

“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.)

^^;g Bhd gS fd fgnk;k e s a , slk dgk x;k g S fd if Cyd

Iy sl ij efLtn ugh a cuk;h tk; sA ^* ¼ist 70½

“It is true that it is contained in the ‘Hidayas’ that

mosque be not built at a public place.” (E.T.C.)

^^gnhd esa 'kksgnk uke dh fdrkc eSaus i<+h rks ugha gS ij ns[kh

gSA - - - - mlds eqlfUuQ dk uke 'kk;n fetkZ tku gSA - - - - -

e S a ;gk a xokgh n su s efLtn 'kj;h g S fl;r d s ckj s e s a

,DliV Z dh g S fl;r l s xokgh n su s vk;k g wW aA ** ¼ist 71½

“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.)

^^ckcjh efLtn fookfnr LFky ij ehjckdh us cuok;k FkkA ij

ckcj ds gqDe lsA ckcjh efLtn ij og dRck yxk gqvk Fkk mlesa ;g

ckr fy[kh gqbZ Fkh fd ;g efLtn ehjckdh us ckcj ds gqDe ls cuokbZ

gSA og dRck eSaus [kqn ugha ns[kk ij mijksDr fdrkc ckcjh efLtn esa

mldk gokyk gS dRcs ds vklkj mlesa fNis gq, gSA** ¼ist 76½

“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.)

^^fookfnr <kapk ftl tehu ij fLFkr Fkk mldh feYdh;r ds

ckjs esa eSaus tkudkjh dh - - - - - -tehu dh uobZ;r D;k Fkh mldh

rQlhy eq>s ugha ekyweA pwWafd efLtn cgqr iqjkuh Fkh blfy, ml

tehu dh feyfd;r ds ckjs esa gesa ugha irkA eSaus bruh tkudkjh dh

fd ;g ,d iqjkuh efLtn Fkh ij ml tehu dh D;k ucbZ;r Fkh]

efLtn ls cuus ls igys D;k Fkh] bldh tkudkjh ugha dhA** ¼ist 77½

“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.)

^^Mk0 vehj vyh - - - - eSa mudh bl ckr ls lger ugha gwa fd

fdlh fookfnr tehu ij efLtn ugha cu ldrhA** ¼ist 78½

“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.)

^^e sj s bYe e s a dk sb Z , slh fdrkc ugh a g S ftle s a efLtn

d s <k ap k vk S j efLtn cuku s d s rjhd s d s ckj s e s a dk sb Z

fgnk;r nh x;h gk sA - - - - - - 'kfj;r ds fglkc ls og tehu tks

[kkyh gks ml ij dksbZ fcfYMax u gks og Hkh efLtn gks ldrh gS ;fn

mls efLtn ds fy, oDQ dj fn;k x;k gksA^* ¼ist 79½

“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:

“dqjku ds yqxoh ek;us i<+uk ds gSaA dqjkus 'kjhQ dh O;k[;k

dqN bl izdkj dh tk ldrh gS dqjkus ikd vYykg dk ukfty djnk

vkf[kjh fdrkc gS tks eksgEen (l0v0o0) ij 23 lky dh eqn~r esa

gtjr ftczjhy (v0l0) ds okLrs ls eDds vkSj enhus es ukfty

gqbZA---------------vxzsath ek;us es Hkh dqjku dks [kqnk dh fdrkc dgk tk

ldrk gSA ” (ist&3)

“ 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

“dqjku s ikd d s d qy 30 ikj s g sS S aA gj ikjs es vyx vyx

lwjk ;kuh psIVj gSa vkSj gj lwjs es vk;rs gSaA” (ist&4)

“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:

“dqjku ikd e s a , slk dgh a ugh a dgk x;k g S fd fdlh

dh tehu ;k tk;nkn dk tcju dCtk ;k vfrdze.k dj

fy;k tk; sA fdlh dh tehu ij tcju vkSj cxSj mldh jtkeanh ds

vke gkykr esa ugha tk;k tk ldrk gSA lqUur mls dgrs gSa ftls gtwj

eksgEen lkgc us dgk gks ;k” ( ist&6)

“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.)

“fdlh bekjr dks rksM+dj Hkh tcju efLtn gtwj eksgEen

l0v0o0 us ugha cuok;hA” (ist&8)

“ Muhammad Sahib(S.A.V.) did not forcibly build any

mosque even by demolishing any building.” (E.T.C.)

“efLtn ds rkYyqd ls eSus ,slk i<+k gS fd efLtn tc cuk;h

tk;s rks og fd+cyk :[k gks] fdlh ,slh tehu ij cuk;h tk;s ftls

tk;t rjhds ls gkfly fd;k x;k gks [kkg fefYd;r ;k oDQ ds

tfj;s@fdlh ,slh txg ij tks nwljs dh gks] t qYe vk S j tcjnLrh

3210

djd s ml txg ij efLtn ugh a cuk;h tk ldrh

g S A”(ist&18)

“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.)

“;g Bhd g S fd fdlh etgc dh bcknrxkg dk s

tcju rk sM +dj efLtn ugh a cuk;h tk; sxhA blh izdkj fdlh

nwljs et+gc dh bcknrxkg ij tcju d+Ct+k djds efLtn ugha cuk;h

tk ldrh gSA” (ist&18)

“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.)

“Lo;a dgk fd bl c;ku dh otkgr ;wa dh tk ldrh gS fd

tgkWa efLtn cuk;h tk;s vkSj tks cuk;s og lPpkbZ ds lkFk vYykg ds

fy, cuk;s vkSj fdlh dh tehu ij t+kyhekuk ;k xklhckuk dCtk djds

u cuk;sA” (ist&32)

“(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.)

“;g Bhd gS fd og tehu pkgs ftlds bLrseky es gks ysfdu

vxj og ml ij lgefr ns ns rks efLtn cuokbZ tk ldrh

gSA”(ist&36)

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:

“;g dguk Hkh lgh gS fd efLtn f'k;k cuk, ;k lqUuh] ml

tehu dks efLtn ds uke oDQ djuk t+:jh gksxkA ;g dguk lgh gS

fd tk s tehu dk s o +DQ + dj sx k ] og efLtn okyh tehu dk

ek fyd gk su k t:jh g SA” (ist&21)

“ 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.

“esjh tkudkjh ds eqrkfcd ckcjh efLtn ftl tehu ij

cuh Fk h og tehu efLtn cuu s d s igy s ;kuh 1528 l s

igy s [k kyh tehu Fk h ] ml ij dk sb Z fuek.k Z ugh a Fk sA

esjh ;g tkudkjh fd 1528 ls igys fookfnr LFky [kkyh tehu Fkh

1986 ds ckn Nih NksVh fdrkcksa ls gqbZA” (ist&22)

“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.)

“tgka rd eq>s ;kn gS lckg qnnhu vCn qy jgeku lkgc u s

viuh i q Lrd e s a db Z gokyk s a dk ftdz bl e qrfyd fd;k g S

3212

fd efLtn l s igy s fook fnr LFky [k kyh tehu Fk hA blh

lEcU/k esa mUgksus ,ysDtsaMj dfua?ke dh fjiksVZ dk gokyk fn;k gS tks

bl le; ges ;kn gS vkSj nwljs lanHkZ ;kn ugha gSA” (ist&23)

“ 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.)

“;g dguk lgh gS fd fdlh Hkh /keZ dh bcknrxkg dks ;fn fxjk

fn;k tk;s rks og mlh /keZ dh bcknrxkg jgsxh ;g dguk lgh gS fd

;fn e afnj dk s rk sMdj efLtn cuk nh tk; s rk s mldh

g S fl;r ugh a cny sxh vk S j og e afnj gh jg sxk vkSj ;fn efLtn

dks rksMdj eafnj cuk fn;k tk;s rks og efLtn gh jgsxhA ;fn ;g

lkfcr gk s tk; s fd fook fnr LFky ij e afnj Fk k ftl s

tcju rk sMdj efLtn cuk;h x;h rk s og e afnj gh ekuk

tk; sx kA e sj h eky qekr e s a 1528 d s igy s fook fnr LFky

e qlyekuk s a dh fefYd;r Fk hA ;g tkudkjh eq>s eTdwjkckyk

fdrkc ls gqbZ A ----------dk nwljk izdk'ku 1977 esa izdkf'kr gqvk FkkA”

(ist 25&26)

“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:

“e Su s a bl flyfly s e s a dk sb Z fo'k s" k Kku vft Zr ugh a

fd;k fd efLtn dk vkdkj o Lo:i D;k gk sA fQdg dh c+kt

fdrkcks esa eSus ;g i<+k gS fd efLtn ds vknkc vkSj vgdke D;k gksA

ijUrq mldh cukoV ds ckjs esa dgha ugha i<+k gSA vkSj u gh mlds rtsZ

rkehj dk dksbZ rjhdk crk;k x;k gSA” (ist&27)

“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:

“;g dguk lgh gS fd pawfd eS dHkh v;ks/;k ugha x;k blfy,

eq>s bl ckr dh tkudkjh ugha gS fd fookfnr LFky dgka ij gS vkSj

fdl fLFkfr esa gSA” (ist 24&25)

“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:

“ehj ckdh v;ks/;k esa jgrk FkkA ckcjh efLtn cuku s dh

t:jr blfy, Fk h fd ogk W a ij e qlyekuk s a dh dlhj

vkcknh Fk h vk S j blfy, tgk W a e qlyekuk s a dh vkcknh gk sr h

g S ogk W a efLtn cukb Z tkrh g SA vkcknh dh rknkn ( la[;k) dk

bYe eq>s ugha gSA” (ist 11&12)

“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.)

“fookfnr <kWapk@ckcjh efLtn rkehj djus ds le; v;ks/;k esa

vkSj Hkh efLtnsa FkhaA fdruh efLtnsa Fkha] ;g rQlhy ls ugh crk

ldrk gWwA” (ist&22)

“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

^^eS f'k;k er dk gwWaA eSaus f'k;k fQDgk ij dqN fdrkcksa dk

v/;;u fd;k gSA - - -f'k;k fQDgk dks fQdgs tkfQfj;k Hkh dgk tkrk

gSA

jktuhfr esa esjk rkYyqd jktuhfrd nyksa ls jgk gSA 'kq: esa eSa

eghuk nks eghuk dkaxzsl eas fQj lksf'ky"V xzqi us vius vkidks dkaxzsl

ikVhZ ls vyx dj fy;k rks eSa lks'kfyLV ikVhZ esa vk;k x;k vkSj rc ls

eSa jktujk;.k th ds lkFk yxk jgk] jktukjk;.k th dh eR;q ds ckn ls

eSa eqyk;e flag th dh ikVhZ esa rhu pkj lky igys rd jgkA eSa

vdcjijq uxj fudk; dk iz/kku jgk gwWaA eSa ogka dh vkf[kjh VkÅu

,sfj;k desVh dk ps;jeSu jgk gWwa vkSj igyh uxj ifj"kn dk Hkh ps;jeSu

jgk gwWaA eSa ,d bUVj dkyst vkSj ,d gkbZLdwy dk izca/kd gwWaA ;s nksuksa

ftyk vEcsndjuxj esa gSaA - - - eSa 1990 esa vYi la[;d foRr ,oa

fodkl fuxe m0iz0 dk ps;jeSu jgk gwWaA

eSa vky bafM;k f'k;k dkUQzsl dh lsUVªy desVh dk cgqr fnuksa

rd esEcj jgk gwWaA** ¼ist 2½

“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.)

^^vYila[;d foRr ,oa fodkl fuxe fy0] mRrj izns'k ljdkj us

xfBr fd;k gSA eSa bl ckMh dk ps;jeSu Fkk ij vktdy ftyksa esa

bldh 'kk[kk LFkkfir gks xbZ gSA eq>s ljdkj us euksuhr fd;k Fkk] vFkkZr~

1990 esa eqyk;e flag dh ljdkj us fd;k FkkA** ¼ist 10½

“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:

^^e S au s , slk l quk g S fd lu~ 1948 d s igy s H k h ckcjh

efLtn e s a uekt g qvk djrh Fk hA ** ¼ist 6½

“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:

“f'k;k vkSj lqUuh esa cgqr cM+k QdZ gSA - - - f'k;k vkSj lqUuh ds

uekt i<+us ds rjhds esa Hksn gSA** ¼ist 8½

“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:

^^pquko izpkj ds ckn 1948 esa ,d nks ckj fQj v;ks/;k x;k FkkA

eSaus v;ks/;k esa dHkh Hkh fdlh efltn esa uekt vnk ugha dhA^* ¼ist

15½

“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:

^^eSaus fookfnr efLtn esa eq[; njokts ds vUnj ?kqlrs fdlh dks

ugha ns[kkA - - - eSaus mUgsa uekt i<+rs ugha ns[kkA** ¼ist 16&17½

“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:

^^eSaus lqUuh fQdg dk v/;;u ugha fd;k blfy, eSa f'k;k vkSj

lqUuh yksxksa ds uekt i<+us ds rjhds esa D;k D;k QdZ gS iwjh rjg ls

ugha crk ldrkA ysfdu tkfgjk rkSj ij f'k;k gkFk [kksy dj uekt

i<+rs gSa vkSj lqUuh gkFk cka/kdj uekt i<+rs gSaA f'k;k vkSj lqUuh dh

vtku esa ;g varj gS fd f'k;k ftu dYeksa dks vtku esa dgrs gSa mu

lcdks lqUUh vtku esa ugha dgrs gSaA vkSj mruh ckj ugha dgrsA**

¼ist 26½

“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 ¼ 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 28th 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 15th 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 28th 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 ownership—in 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 7th of the month of Dai, Ilahi

year 6, corresponding to the 28th of Jumada II , year 1043

Hijri [28 December 1633].

Endorsement on Reverse of the Farman

....Sunday, the 28th of the month of Dai, Ilahi year 6,

corresponding to the 14th 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 17th

May, 1842 to 13th 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 God’s 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

Prophet’s 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 Prophet’s 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 Alau’ddin 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 daru’l-khilafat.

F. In (2008) 8 SCC 12, Faqruddin v. Tajuddin, the

Hon’ble 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 Hon’ble 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 Hon’ble 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. (20th

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 Moore’s 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 Moore’s Indian Appeals (1836-1837) 1 MIA 175

The Mayor of the City of Lyons Vs. the Hon’ble The

East India Company and His Majestry’s 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 Calvin’s 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 Calvin’s 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:-

^^;fLeUns'ks ; vkpkjks O;ogkj% dqyfLFkfr%A

rFkSo ifjikL;ks·lks ;nk o'keqikxr%AA343AA

fdap] vnk ijns'kks o'keqqikxrLrnk u Lons'kkpkjkfnudj% dkp% fda rq

vfLeUns'ks p vkpkj% dqYfLFkfrO;Zogkjks p%% rnSo izkIelhRroSnklkS

ifjikyuh;ks ;fn vk|fonnks u vnfrA ;nk ;{klqikxr% bUnznso

;nksixeukizkxfu;e bfr nf'kZre~A ;FkksDre~ ¼euq% 7@195½ &

mixfjeklhr jk"V~a pkL;ksiihM;srA rn;sokL; lrra vnlzkdksndsiue~AA

3260

bfr AA343AA

Hkk"kk& vius o'k esa vk tkos rks ftl ns'k esa tks vkpkj] O;ogkj vkSj

dqy dh e;kZnk gks mldk mlh :i esa og ikyu djsaAA343AA

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 didn’t 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 Ali’s 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 one’s 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.” (Da‘if)

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. (Da‘if)

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. Isma’ll 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:

^ ^15 - edcj s dk i zc a/ k

**blds i'pkr eSa lezkV dqrqcmn~nhu ds lekf/k&LFkku ds izca/k esa

nRrfpRr gks x;kA ;gka ij lezkV us bjkd ds lezkV xktka 'kkg ds xqacn

ls Hkh chl gkFk vf/kd ÅWpk ¼vFkkZr lkS gkFk dk½ xqacn fuekZ.k djus dh

vkKk nh( vkSj bl n so k sRrj laifRr dh vk; c<+kus ds fy, chl xkao

vkSj eksy ysus dh vkKk nhA mlesa nykyh ds n'keka'k dk ykHk djkus ds

fopkj ls bu xkaoks ds eksy ysus dk dk;Z Hkh esjs gh lqiqnZ dj fn;k x;k

FkkA**

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 3rd

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