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, we explain both these aspects as well as the flaws in the court’s reasoning.
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 in possession of the Hindus. In other words, the probability that the Hindus may have been in possession of the entire land originally is higher.
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 the existence of the railing, the exclusion of the Hindus from the inner courtyard was a matter of contestation and at the very least was not absolute;
(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.
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.
No role of adverse possession
Some media reports had suggested that the Muslim side lost out because it was not able to prove “adverse possession”. This is incorrect.
In its title suit, the Sunni Waqf Board indeed made a case of adverse possession, which is essentially occupation of a land for a particular period without challenge from the actual owner. But it set this up as a secondary claim. The disclaimer was 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 beneath the mosque had been demolished to pave the way for the construction of 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.
The court’s decision was based on a contested right over the disputed land. It looked for elements of exclusive possession because when there are two claimants 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.