One of the key legal questions the five-judge Constitution Bench on Saturday answered was related to “adverse possession”, raised by the Uttar Pradesh Sunni Central Waqf Board, in its suit filed in 1961.
In simple terms, adverse possession is hostile possession of a property — which has to be continuous, uninterrupted and peaceful. The Bench concluded that the adverse possession claimed by Muslims was not continuous and exclusive in nature, and hence they could not assert the right of adverse possession.
The Bench reached its conclusion after Hindus were able to establish that the outer courtyard was in their possession after the British erected a railing around the Babri Masjid in 1858.
Paragraph 11(a) of the pleadings of Sunni Central Waqf Board specifically asked for setting up a plea of adverse possession. The plea was based on the assumption that even if a Hindu temple had existed at the site on which the Babri Masjid was constructed about 500 years ago, the Muslims had “perfected” their title by adverse possession by “long, exclusive and continuous possession”, because of which the title of the Hindu parties, if any, stood extinguished.
This meant that the Muslim parties set up an alternate plea for adverse possession, if it was established by the Hindu parties that the mosque had been built at the site of the Hindu temple.
However, the Hindu parties argued that the disputed property was a juristic person, which cannot be acquired by adverse possession. It was argued that even if the image of the idol is broken, a deity is immortal — and thus the construction of the mosque on the land did not take away from its character as a deity.
The Bench held that the ingredients of adverse possession must be set up in the pleadings — and proved in evidence.
On evidence, the Bench said that the Muslim parties, “beyond stating” that they have been in long, exclusive and continuous possession beginning from the time when the mosque was built, have not been able to furnish any facts in support of adverse possession; importantly, the Bench pointed out that no records were made available by the Muslim parties with respect to possession for the period between 1528 and 1860.
On what constitutes the ingredients of adverse possession, the Bench relied on observations made by the former Supreme Court judge Justice S Rajendra Babu (in Karnataka Board of Wakf v Government of India). The Bench quoted the 2004 judgment: “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.”
Which effectively meant that the was onus on Muslims to prove with facts that the possession was undisturbed. Besides being unable to prove possession between 1528 and 1860, the Muslims also failed to establish that the possession was undisturbed.
The Bench observed: “…It is impossible for the plaintiffs (the Muslim parties) to set up a case of being in peaceful, open and continuous possession of the entire property. Dr Dhavan (counsel for Muslim parties) repeatedly asserted that the Muslims were obstructed in their offering worship at the mosque as a result of the illegalities of the Hindus…(Dhavan) refers to the incidents which took place in 1856-7, 1934 and 1949.
“The events which are associated with each of the above incidents constitute indicators in the ultimate finding that in spite of the existence of the structure of the mosque, possession as asserted by the Muslims cannot be regarded as meeting the threshold required for discharging the burden of a case of adverse possession.”
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