Flaw in Ayodhya Judgement - SC Rejected Division of Disputed Site But Based Decision On Divisions

11/11/2019 Flaw in Ayodhya judgement: SC rejected division of disputed site but based decision on divisions
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AYODHYA VERDICT
Supreme Court rejected

division of Ayodhya site –
but based its decision on
such divisions
Had the question of possession been tested on a composite
site, would the Hindu side have succeeded?
Sruthisagar Yamunan
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14 hours ago
https://scroll.in/article/943271/supreme-court-rejected-division-of-ayodhya-site-but-based-its-decision-on-such-divisions 1/16
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The Babri Masjid in Ayodhya, Nov, 1990. | PTI
14 hours ago
Sruthisagar Yamunan
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What tilted the scales in favour of the Hindu side in the Ayodhya case was the
Supreme Court’s willingness to consider “exclusive possession” by the Hindus of
just one part of the disputed site as valid grounds for awarding a title over the
entire site. Its decision was not based on the case made by the Muslim side for
“adverse possession” as reported by sections of the media.
In this piece,Hard
Home weTimes
explain both The
Video these aspects
Latest as well
The Reel Theas the flaws
Field in theTrending
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reasoning.
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First, a look at what the court said about exclusive possession.
Partial possession, full title

In 1857-’58, after a communal riot broke out between the two communities, the
British administration decided to build a railing that divided the inner and outer
courtyards of the disputed land. The inner courtyard contained the three-domed
mosque that would be demolished by Hindutva mobs in 1992. The outer courtyard
contained several Hindu shrines.
In its judgement delivered on Saturday, the Supreme Court held the Hindus were
able to show they held exclusive possession of the outer courtyard before 1857,
whereas the Muslims were not able to show similar exclusive possession of the
inner courtyard before 1857.
Using the civil law tenet of “preponderance of probabilities”, the court declared
that since the Hindus had possession of the outer courtyard and were in contest
with the Muslims over the inner courtyard, the disputed site should be assumed to
be inHome
possession of the Video
Hard Times Hindus. InLatest
The other words,
The Reel the
Theprobability
Field that the
Magazine Hindus
Trending  may
have been in possession of the entire land originally is higher.
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However, if the inner courtyard was always under contest, why should the land
title not be divided between Hindus and Muslims as the Allahabad High Court had
ruled in 2010? Rejecting the High Court’s judgement, the Supreme Court said that
the land could not be divided because it is a composite entity. The suits filed by
both sides were not for partition of the site. The five-judge bench said:
“In the absence of historical records with respect to ownership or title, the court
has to determine the nature and use of the disputed premises as a whole by
either of the parties.”
“The grill-brick wall did not constitute either a subdivision of the disputed site
which was one composite property, nor did it amount to a determination of title
by the colonial administration.”
But here is the problem: while awarding title over the land, the court took the view
that it was a composite entity that could not be divided, but in its analysis to
determine possession, it looked at the land as two different parts. That is, the
possession claims of Hindus and Muslims are determined individually over the
inner and outer courtyards of the disputed land. The court said:
“(iv) Despite
Home Hardthe existence
Times Video of the
The railing,
Latest The the
Reel exclusion
The Field ofMagazine
the Hindus fromthe
Trending
inner courtyard was a matter of contestation and at the very least was not
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absolute;
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(v) As regards the outer courtyard it became the focal point of Hindu worship
both on the Ramchabutra as well as other religious structures within the outer
courtyard including Sita Rasoi. Though, the Hindus continued to worship at the
Ramchabutra which was in the outer courtyard, by the consistent pattern of
their worship including the making of offerings to the ‗Garbh Grih‘ while
standing at the railing, there can be no manner of doubt that this was in
furtherance of their belief that the birth-place of Lord Ram was within the
precincts of and under the central dome of the mosque; and
(vi) The riots of 1934 and the events which led up to 22/23 December 1949
indicate that possession over the inner courtyard was a matter of serious
contestation often leading to violence by both parties and the Muslims did not
have exclusive possession over the inner courtyard. From the above
documentary evidence, it cannot be said that the Muslims have been able to
establish their possessory title to the disputed site as a composite whole.”
The last sentence in the quote above is significant because its purpose is to show
that Muslims have not established possession of the site as a “composite whole”
even after 1857. But if the land is treated as a composite whole, neither can the
Hindus establish their possessory title after 1857.
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The Babri Masjid being demolished on December 6, 1992, by Hindutva activists. Credit: Douglas
E.Curran/AFP
This is because post-1857, there is clear evidence that the inner courtyard was used
by the Muslims to offer prayers in the mosque, with the Hindus trying to assert
their claims through both violent and non-violent means. Since the inner courtyard
was clearly contested after 1857 by the court’s own admission, when the land is
treated as a composite, even Hindus fail to establish exclusive possession of the
disputed site after 1857.
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No role of adverse possession

Some media reports had suggested that the Muslim side lost out because it was not
ableAyodhya
to prove “adverse
verdict is silentpossession”. This
on why Muslims is prove
must incorrect.
exclusive possession of site – but not
Hindus
TRENDING
In itsHome
title suit,
Hardthe Sunni
Times WaqfThe
Video Board
Latest indeed made
The Reel TheaField
case of adverse Trending
Magazine possession,

which is essentially occupation of a land for a particular period without challenge
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from the actual owner. But it set this up as a secondary claim. The disclaimer was
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that it would seek adverse possession if it was established that a temple was
demolished to build the mosque in 1528.
Adverse possession can be claimed only after acknowledging that the land title
belonged to someone else. There should also be a record of unimpeded and
exclusive adverse possession. Did this legal necessity derail the board’s claim?
The Supreme Court said there was no clear evidence that a Hindu structure
Hard
beneath theTimes: This family
mosque in Delhi
had been has not replaced
demolished its toothbrushes
to pave the way forbecause of an income of
the construction
squeeze
the Babri Masjid on the orders of the Mughal emperor Babur. This rules out the
possibility of the Sunni Waqf Board’s adverse possession claim to manifest. The
court, in fact, dismissed the claim of adverse possession for multiple reasons,
stating:
“The plaintiffs have failed to adopt a clear stand evidently because they are
conscious of the fact that in pleading adverse possession, they must necessarily
carry the burden of acknowledging the title of the person or the entity against
whom the plea of adverse possession has not been adequately set up in the
pleadings and as noted above, has not been put-forth with any certitude in the
course of the submissions. Above all, it is impossible for the plaintiffs to set up a
case of being in peaceful, open and continuous possession of the entire
property.”
This shows that the decision of the court to award the land to the Hindus was not
based on an adverse possession claim by the Muslim side, which was dismissed.
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Flawed logic
The court’s decision was based on a contested right over the disputed land. It
No, the Supreme Court did not uphold the claim that Babri Masjid was built by
looked demolishing
for elements of exclusive possession because when there are two claimants
a temple
to a land, this becomes a civil law necessity.
The problem with the court’s order is not that it sought evidence for exclusive
possession, but that it put this burden on the Muslim side alone. Even though the
Hindus were not able to show exclusive possession of the inner courtyard, they
were still awarded title over the entire disputed site using the concept of
preponderance of probabilities.
The court may have invoked the concept of a composite site, but its reasoning
rested on a divided site.
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11/11/2019 Flaw in Ayodhya judgement: SC rejected division of disputed site but based decision on divisions

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Monday, November 11th 2019

Supreme Court rejected

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The Babri Masjid in Ayodhya, Nov, 1990. | PTI

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Renaissance From ₹ 5,448

First, a look at what the court said about exclusive possession.

Partial possession, full title

Exchange The Plus

India to United Kingdom

New Delhi to London

Exchange The Plus

New Delhi to London

No role of adverse possession

Kolkata to London Exchange The Plus

from Rs41,336 Search

New Delhi to London

from Rs32,492 Search

to a land, this becomes a civil law necessity.

Support our journalism by subscribing to Scroll+ here. We welcome your comments

Ayodhya Babri Masjid Supreme Court

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Have you ever noticed

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Oct 31, 2019

From posters of favourite bands to paintings by favourite artists

Exchange The Plus

From milk chocolate to bitter dark chocolate

Exchange The Plus

From jungle gyms to fitness gyms

Exchange The Plus

From colas to cold-pressed juices

HEALTH REPORT CARD

Even after 30 years of

Sadhika Tiwari, HealthCheck.in

Exchange The Plus

Polio vaccination drive. File photo. | Noah Salem/AFP

Mission Indradhanush, launched in December 2014, aimed to ensure 90% of

Exchange The Plus

Ayodhya: Muslim personal board will decide on review of SC verdict on November 17

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