A Matter of Possession: Where the Ayodhya Verdict Was Won and Lost

Here’s why the Supreme Court ordered the disputed site to be given to the Hindus rather than the Muslims.

Possession of the site has proved to be the deciding factor.

(Photo: Arnica Kala/The Quint)

The Ayodhya verdict was delivered by a five-judge Constitution Bench of the Supreme Court on Saturday, 9 November.

In a unanimous 1,045-page judgment, the apex court held that the disputed site should be vested in ‘Ram Lalla Virajman’ – Lord Ram himself – represented through his next best friend. In effect, this is a decision in favour of the Hindu community, and their right to continue to worship Lord Ram at a location where they have done so for a long time.

The Centre has to set up a Trust to take possession of the disputed site – considered to be comprised of an inner and outer courtyard – which can then engage in the construction of a Ram Mandir. Thus, the suit filed by Ram Lalla Virajman in 1989 has been ‘decreed’.

Using its powers under Article 142 of the Constitution (to do ‘complete justice’) and recognising the wrongs done to the Muslim community by the placing of idols in the Babri Masjid in 1949 and the destruction of the mosque in 1992, the Sunni Waqf Board is to be allotted 5 acres of land by the Central or Uttar Pradesh government. Thus, the suit filed by the Sunni Waqf Board in 1961 has been ‘partially decreed’.

The third major suit was that of the Nirmohi Akhara, filed in 1959. The apex court found that this suit was barred by limitation, and held that the Akhara did not hold the shebaitship of the site for Hindu worship either.

But how exactly did the court come to its decision to decree the land in favour of Ram Lalla and the Hindus? Where was the legal battle for the disputed site won and lost? Here are the key foundations of the landmark verdict:

‘One Composite Whole’

One of the crucial decisions made by the judges in this case was to not consider the possibility of splitting up the land between the parties. The Allahabad High Court had done this in its 2010 judgment, a move which was not just a disappointment for the parties, but also unjustifiable in law.

There had been no plea for partition of the land, and so the high court’s judgment had gone beyond the pleadings, which is not possible in a civil suit before a lower court or high court.

But the Supreme Court’s approach went beyond recognising this technical point – one which it was not bound by like the high court given its wide powers under Article 142 of the Constitution.

After examining the evidence on how the site had been used over the years, the judges unanimously held that the site was “one composite whole”, even though different parties had had control over different segments of it, and following the riots of the 1850s, a railing was set up between where the Hindus and the Muslims were worshipping.

This decision would play a major role in determining who was able to prove title over the disputed land.

The Crux of the Judgment: Possession of the Inner and Outer Courtyards

None of the parties were able to show ownership of the site in terms of a purchase or grant or any other such formal acquisition of the land.

The Hindus never sought to make such an argument as the land was supposed to have been the birthplace of Lord Ram and a site of worship since ‘time immemorial’. But the Sunni Waqf Board had tried to establish they had been given a grant for this land in Mughal times, and that this had been recognised in British-era land records.

The court, however, did not find the evidence they submitted to be convincing enough. The judges also rejected the Sunni Waqf Board’s alternate claim of adverse possession over the mosque and the site until 1857, as the requirements for this – continuous, visible possession – were not fulfilled.

Which meant that it all came down to which party could prove ‘possessory title’. To put it simply, ownership by virtue of possession, as the documents or deeds to the land in question are lost or destroyed.

What the Muslim Parties Were Able to Prove

The Sunni Waqf Board was unable to provide any evidence of “possession, use or offering of worship in the mosque prior to 1856-7” – something admitted to by their lawyer, Rajeev Dhavan (see para 741 of the judgment).

This would prove to be a serious blow to the Waqf Board’s case as it meant that the court held that “no conclusion can be drawn that prior to 1857, the disputed site was used for worship by the resident Muslim community.”

With the construction of a railing by the British administration around the mosque, a distinction arose between the inner and outer courtyards – this was not about proprietary rights, but expediency in maintaining law and order.

Post 1857, the Muslims were only able to show possession of the inner courtyard, not the outer courtyard. Even this was not exclusive and unimpeded, and there were several incidents between 1857 and 1949 which showed this area was contested, including the riots of 1934 which caused damage to the Babri Masjid itself.

What the Hindu Parties Were Able to Prove

The Hindu parties, on the other hand, were able to establish access to the whole of the site including the the mosque’s precincts for worship prior to 1857, based on evidence including:

• The ASI report which indicated the presence of a Hindu religious structure till around the 12th century;
• Historical records of travellers that indicated specific places of worship, circumambulation (parikrama) at the site, and presence of worshippers at the site.

After 1857 – the inner courtyard-outer courtyard watershed – the Hindus gained unimpeded possession of the outer courtyard, where they offered prayers at the Ram Chabutra, Sita Rasoi, etc, and had new openings made with the approval of the administration to the outer courtyard.

Crucially, the Hindus were able to prove that they also had access to the inner courtyard before and after 1857. This was established by evidence including:

• Testimonies of witnesses about the offering of ‘darshan’ at not just the Ram Chabutra and the Sita Rasoi, but the ‘Garb Grih’, which was within the three-domed structure;
• Testimonies of Hindu witnesses about the offering of prayers by Hindus at the Kasauti stone pillars inside the mosque;
• Testimonies of Muslim witnesses that acknowledge presence of symbols of Hindu significance inside and outside the mosque.

A Questionable Balancing Act?

Paragraph 800 of the judgment describes how the judges assessed what the Hindu and Muslim parties had proved before them:

“... on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims ...”

This is why the decision to treat the site as a composite whole becomes so important. If the site had been treated as divisible between the inner and outer courtyards, then the evidence could possibly have supported a conclusion that the Hindus had proved possession of the outer courtyard, and the Muslims of the inner courtyard.

Because the site is considered a whole, the court had to see on balance who had shown possession, and found that:

1. Pre-1857: Only the Hindus had provided any evidence of possession – though not exclusive possession.
2. Post-1857: The Hindus proved unimpeded possession to the outer courtyard AND proved they were contesting possession of the inner courtyard. The Muslim parties proved possession but not exclusive possession of the inner courtyard thanks to this.

This is why the possessory title was decreed in favour of the Hindus, not the Muslims.

There are some questions to be asked about this balancing act, including whether the same standards were applied while assessing the claims of possession by both parties. Here’s how Nizam Pasha, a Supreme Court advocate who was part of the team representing the Muslim parties in the case, describes it:

“The Court found that Hindus were in exclusive possession of the outer courtyard and were worshipping the area in the inner courtyard from across the wall. There are also recorded instances when they tried to challenge the possession of Muslims to the inner courtyard as well.

This, the court held, established their right over the entire undivided property, as the court chose to disregard the wall. While Muslims were offering namaz in the inner courtyard and had repelled each of the challenges to their possession of the inner courtyard by the Hindus, their possession was held not to be exclusive and therefore not good enough to establish title.

Hence by applying completely different standards and wishing away the dividing wall, the Court granted the Hindus possessory title by virtue of their continued worship from across the wall and ousted the Muslims completely despite their worship within the precincts.”

At the same time, the court is not blind to the fact that the Muslims were dispossessed of their mosque, and that they didn’t abandon it. The court acknowledges that the mosque was “desecrated” by the placement of the idols in 1949, following which the administration took over, and then the Muslims were deprived of their mosque thanks to the unlawful demolition of the Babri Masjid in 1992.

This is why the judges use Article 142 of the Constitution to provide some remedy for this wrong, even though the Hindu claim ‘stands on better footing’. They write on page 923:

“Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.”

As a result, the judges ordered the allotment of five acres of land to the Sunni Waqf Board either within the land acquired by the Central Government in 1993 around the disputed site, or by the UP Government at some other prominent place in Ayodhya.