The Suit of 1885 was instituted by Mahant Raghubar Das, describing himself as “Mahant Janamsthan situated at Ayodhya”. The suit was initially instituted only against the Secretary of State for India. The plaint in the suit of 1885 is as under:
“IN THE COURT OF MUNSIF SAHIB BAHADUR
Mahant Raghubar Das
Mahant Janamsthan
Situated at Ayodhya Plaintiff
Versus
Secretary of State of India
in the Session of Council Defendant
The plaintiff above named Submit as under:
Suit for grant of permission for construction of Mandir, i.e., prohibition to the defendant that plaintiff should not be restrained from construction of Mandir on Chabootra-Janmashtan situated at Ayodhya, North 17 feet, East 21 feet, South 17 feet, West 21 feet and the value of the suit cannot be fixed as per market rate therefore as per Item No. 17, paragraph 6, Appendix-II, Act, 1870, court fee was affixed and the position of the site can be known very well from the attached map/sketch.
Section 1: That the place of janmsthan situated at Ayodhya City, Faizabad is a very old and sacred place of worship of Hindus and plaintiff is the Mahant of this place of worship.
Section 2: That the chabootra janmasthan is East-West 41 feet and North-South 17 feet. Charan Paaduka is fixed on it and small temple is also placed which is worshipped.
Section 3: That the said chabootra is in the possession of the plaintiff. There being no building on it, the plaintiff and other faqirs are put to great hard ship in summer from heat, in the monsoon from rain and in the winter from extreme cold. Construction of temple on the chabootra will cause no harm to anyone. But the construction of temple will give relief to the plaintiff and other faqirs and pilgrims.
Section 4: That the Deputy Commissioner Bahadur of Faizabad from March or April 83, because of the objection of a few Muslims opposed the construction of the mandir, this petitioner sent a petition to the local government regarding this matter where no reply received about this petition. Then the plaintiff sent a notice as required under Section-444 of the Code (of Civil Procedure) on 18th August, 1883 to the office of Secretary, Local Government but this too remained un-replied. Hence the cause for the suit arise from the date of prohibition at Ayodhya under the jurisdiction of the Court.
Section 5: That a well-wishing subject has a right to construct any type of building which it wishes as the land possessed and owned by it. It is the duty of fair and just government to protect its subjects and provide assistance to them in availing their rights and making suitable bandobast for maintenance of law and order.
Therefore the plaintiff prays for issue of the decree for construction of temple on chabootra – Janmasthan situated at Ayodhya North 17 feet, East 41 feet, South 17 feet and West 41 feet and also to see that the defendant does not prohibit and obstruct the construction of mandir and the cost of the suit should be ordered to be borne by the defendant.
I Raghubar Das Mahant Janmasthan, Ayodhya Certify that the contents of the plaint and all five points are true and correct to the best of my knowledge and belief.
Signature of Mahant Raghubardas
in Hindi script.”
The plaintiff averred that the place of the Janmabhumi is ancient and sacred and is a place of worship for the Hindus. The plaintiff claimed to be the Mahant of this place of worship. The ‘chabootra janamsthan’ was described as admeasuring ‘East-West 41 feet and North-South 17 feet.’
It was pleaded that there was a Charan Paduka fixed on it and that there was a small temple which was worshipped. The plaintiff claimed to be in possession of the Chabutra. The plaintiff averred that he and other faqirs were inconvenienced in inclement weather and that the construction of a temple ‘on the Chabutra’ would not cause harm to anyone else.
However, it was stated that the Deputy Commissioner of Faizabad had opposed the construction of the temple and despite a notice under the Code of Civil Procedure dated 18 August 1883, the government had not taken any action. The basis of the claim was that a ‘subject’ has a right to construct a building on land which is possessed and owned by him.
The defence in 1885
Though the Muslims were originally not impleaded as parties to the suit, Mohd Asghar, in his capacity as a Mutawalli applied to be impleaded and was made a party to the suit. In his written statement, Mohd Asghar set up a plea that the mosque was constructed by Babur. He stated that ownership could not be claimed by the plaintiff who had not produced any material originating in the emperor or the ruler of the time in support of the plea. Essentially, the defence was that:
(i) The plaintiff had no title to the Chabutra;
(ii) Ingress and egress for the purposes of worship does not prove ownership;
(iii) The Chabutra came up in 1857; and
(iv) The construction of the Chabutra did not confer any right of ownership and new construction on it had been restrained by the government as a result of which a hut which was set up by a faqir had been demolished.
It was argued that the spot was disputed between the Hindus and Muslims resulting in a communal incident.
Findings
In his judgment dated 24 December 1885, the Sub-Judge at Faizabad accepted the possession and ownership of the Hindus of the area surrounding the wall of the Masjid. However, the Sub-Judge held that if permission for the construction of the temple were granted, a serious situation endangering law and order would arise between the two communities. The Sub-Judge held:
“Over and above this, on the temple situated on the chabootra an idol of Thakurji is kept which is being worshipped. The chabootra is in the possession of the plaintiff and whatever is offered on it is taken by the plaintiff. The possession of plaintiff is proved by the witnesses of the plaintiff and railing wall separating the boundary of Hindus and Muslims exists from a long period…
In the year 1855, after the quarrel between Hindus and Muslims a wall in the form of the railing was erected to avoid controversy. So that Muslims may worship inside it and Hindus may worship outside it. So the outside land with chabootra which is in the possession of the plaintiff belongs to Hindus. Though the place where Hindus worship they hold its possession since old because of which there cannot be objection to their ownership and the area surrounding around the wall of the Masjid and on the outer door word Allah is engraved.”
Despite the above findings on possession by and ownership of the Hindus, the suit was dismissed because a serious breach of law and order was apprehended.
In appeal, the judgment of the trial court dismissing the suit was affirmed by the District Judge, Faizabad on 18/26 March 1886. The District Judge held that while it was unfortunate that a mosque had been constructed on land held sacred by the Hindus, an event which had occurred over three centuries earlier could not be remedied:
“It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindu, but as that event occurred 356 years ago it is too late to remedy the grievance all that can be done is to maintain that parties in status quo.”
The District Judge noted on a site inspection that the Chabutra had been occupied by the Hindus on which there was ‘a small superstructure of wood, in the form of tent’. The Chabutra was said to indicate the birth-place of Lord Ram. While maintaining the dismissal of the Suit, the District Judge came to the conclusion that the observations on possession and ownership in the judgment of the trial judge were redundant and were hence to be struck off.
The judgment of the first appellate court was carried before the Judicial Commissioner, Oudh in a second appeal, who affirmed the dismissal of the suit on 2 November 1886. The Judicial Commissioner observed:
“The matter is simply that the Hindus of Ajudhia want to erect a new temple of marble … over the supposed holy spot in Ajudhia said to be the birthplace of Sri Ram Chandar. Now this spot is situate within the precincts of the grounds surrounding a mosque constructed some 350 years ago owing to the bigotry and tyranny of the Emperor Baber-who purposely chose this holy spot according to Hindu legend- as the site of his mosque.
The Hindus seem to have got very limited rights of access to certain spots within the precincts adjoining the mosque and they have for a series of years been persistently trying to increase their rights and to erect building over two spots in the enclosure.
(1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi. The executive authorities have persistently repressed these encroachments and absolutely forbid any alteration of the “status quo”. I think this a very wise and proper procedure on their part and I am further of opinion that Civil Courts have properly dismissed the plaintiff’s claim. The pleas on appeal to this … are wholly unsupported by facts in the case or by any document that appears to me … some of the reasoning of the Lower Appellant Court as to the limitations of the Civil Court jurisdiction.
However I approve of their final conclusion to which it has come – and I see no reason to interfere with its order modifying the wording of part of the judgment of the Court of First Instance. There is nothing whatever on the record to show that plaintiff is in any sense the proprietor of the land in question. This appeal is dismissed with costs of all Courts.”