Reliance on records of European travellers, lack of evidence from the Muslim side to prove continuous, uninterrupted and exclusive possession prior to 1856, treating the outer and inner courtyard of the disputed structure as one unit in a significant departure from the Allahabad High Court verdict — a combination of these factors tilted the Constitution Bench verdict in the Ayodhya title dispute against the Muslim side.
The court, while using the “preponderance of probabilities” as a standard of proof, picks the claim of the Hindu side as more plausible than the Muslim side.
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“The Muslim account of worship prior to 1856 is conspicuously silent as opposed to the accounts of worship being offered by the Hindus,” the court said.
Curiously, the court itself notes that contestations of the rival parties in fact begin from the 1860s while criticising the HC’s conclusions on the precise year of construction of the Babri Masjid but picks a pre-1856 timeline to determine possession of the disputed land.
In criminal cases, the established standard of proof is for the prosecution to prove the claim beyond reasonable doubt. “Preponderance of probability” is a lesser standard of proof required in civil cases — and is generally accepted as probability to lean towards one side being greater than leaning to the other side.
The court looks at three timelines to determine possession of the disputed area to award the title — prior to 1856; between 1856 and 1934; and after 1934.
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The possession of Muslims is accepted readily from 1856 — when Oudh was annexed by the British — relying on land revenue records, court documents and police reports during riots.
However, the court notes that the mosque was constructed in 1528 “by or at the behest of Babur, there is no account by them of possession, use or offer of namaz in the mosque between the date of construction and 1856-7.”
“For a period of over 325 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British, the Muslims have not adduced evidence to establish the exercise of possessory control over the disputed site. Nor is there any account in the evidence of the offering of namaz in the mosque, over this period,” the court said.
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On the contrary, the court notes the travelogues of Tieffenthaler, William Finch and Montgomery Martin in the 18th century — prior to the construction of the grill-brick wall in front of the mosque — to provide a detailed account both of the faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of the actual worship by the Hindus at the Janmasthan.
The bench observes that as regards the inner courtyard, there is “evidence on a preponderance of probabilities” to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857; it further points out that Muslims have offered no evidence to indicate they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century.
Since the Muslim side claimed adverse possession of the disputed site, the court held them accountable to prove uninterrupted, continuous and exclusive possession even before 1856. However, the Hindu side was not required to prove exclusive possession since the burden of proof lies on the party making the claim in a civil suit.
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Claiming of title through adverse possession, also known as squatter’s rights is when a party occupies a land for a period of time with the intention of possessing it as its own.
“In assessing the title of the Muslims, the physical structure of the mosque is one fact to be taken into consideration. But a claim to possessory title has to be based on exclusive and unimpeded possession which has to be established by evidence,” the court said.
Exclusive possession of a property requires a party to prove that no other claimant had access to the property. In the disputed site, Hindus had access by praying to idols under the dome or controlling the access doorways to the Babri Masjid.
There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that the offering of namaz was exclusionary of the Hindus, the court said.
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Lastly, the court treats the entire disputed site, the inner and outer courtyard as one “composite unit” to determine title.
In sharp contrast, the 2010 Allahabad High Court verdict made a clear distinction between the inner and outer courtyard while passing the decree on title. While the outer courtyard area was awarded to the Nirmohi Akhara, the inner courtyard to the deity Ramlalla and a one-third share to the Waqf board within the disputed site. However, the SC treats the entire 2.77 acre dispute as one unit.
“Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the Garbh-Grih being the birth-place of Lord Ram,” the ruling said.