Babri Masjid Issue

“Muslim claim would lie even if all Muslim plaintiffs withdraw”

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Mushtaq Ahmed Siddiqui is confident that justice would certainly be done, to the Muslim side, in the Apex Court of the country.
Mushtaq Ahmed Siddiqui is one of the main figures behind the Babri Masjid case since Feb 1, 1986, when the Babri Masjid locks were opened up. He was present in the Faizabad Court then, and is thus, privy to the most primary nuances to all what makes the imbroglio of the Ramjanambhumi/Babri Masjid dispute. He is too overtaken by the shock and disbelief after the Sep 30 verdict at the Lucknow bench of Allahabad High Court. Counsel to Misbahuddin and Hashim Ansari etc, the plaintiffs in the case, is also otherwise, known as a hard core constitutionalist whose zeal towards the case is just unflagging. Arduous and persistent in his endeavour he has never let his attitude skip a waiver. Eight hours a day, he is devoting to 'read' the 8500 pages order and is confident that justice would certainly be done, to the Muslim side, in the Apex Court of the country. MG’s Haider Abbas spoke to him in Lucknow to know as to what had happened inside Court No. 21 and on other ensuing issues.

Please tell us about the atmosphere inside the Court?
Ans. As a built up to Sept 30, there was a canard spread against me by some mischievous elements that I had called Lord Rama an imaginary figure. Pamphlets were stamped all over the High Court. I had an inkling that Muslim side counsels were to be manhandled. But, that did not happen.

Q-What happened inside Court No. 21?
Ans. Never could I have in the wildest of dreams conceive that the three judges bench of Justice SU Khan, Justice Sudhir Agarwal and DV Sharma could give such a judgement. I was too overtaken by emotions and broke down well inside the court. Faith had pervaded all evidence. Religious belief had overtaken all concepts and canons of law. In my exasperation I sought for Certificate of Fitness (COF) from the court for the appeal.

What is this certificate like. Please elaborate this aspect?
Ans. It is a legal term. The Constitution of India, under Article 132, 133, 134(A) empowers the grant of COF by the HC to appeal in the superior court. But, the Court gave an undertaking that the Muslim side can appeal in the Supreme Court (SC) under section 96 of Code of Civil Procedure (CCP).

Q-How was it to help?
Ans. Thankfully, this has added a fillip to our position. Now it can be safely argued that impliedly the HC was of the opinion that the matter involves important questions of law which need to be decided by the SC. Appeal under section 96 of CCP is a continuation of suit as provided in Section 107 of CCP and each and every even the smallest point concerning facts can be raised. Pleading can be amended, further evidence, can also be led. This is much better than COF.

Q-Sunni Central Waqf Board case has been declared barred by time as per the verdict. Would you contest this?
Ans. It is not so at all, as per the judgement of SU Khan, our suit is not barred by limitation. He has held that our suit is within limitation. The legal position is a matter of continuing cause of action. Conclusion of J. Agarwal and J. Sharma that there was no necessity of seeking a relief of possession because the property was custodia-legis (under attachment by the courts order) and the suit for declaration was barred by time is self-contradictory as once the property is custodia-legis, which as per judges, ensures the benefit of true owner, meaning thereby, our right continues, and once the right continues, there can be no bar of limitation. If such a suit is dismissed, on account of limitation then the aggrieved party has the right to file a fresh suit as per provisions contained in Order 7 Rule 13 (CCP). It is indeed ironic that the 1996 order of the SC, filed by us to support our stand, was overruled. In that 1996 case the SC has held that once a fresh suit is filed there is no question of the suit being barred by the limitation.

Q-What exactly is the case of limitation in this suit?
Ans. In order to avoid undesirable litigation the legislature has provided a time limit that 'within such time' a suit of this nature has to be filed and once the suit is filed it has to stand the test of the law of limitation, thus saying, that the law helps the vigilant and not indolent. The period for a suit of recovery of possession is 12 years. The period for suit of declaration today is three years. In 1961, when SCWB had staked its claim, it was six years and this is also to be seen that from which day the period of limitation, will start running, in a particular matter.

Q-The central dome of Babri Masjid has been assigned for deity as a 'perpetual minor'. Your stand on it?
Ans. This is the stand of the first friend of Bhagwan Shri Ram Lala Virajman. It was first pleaded by (late) Justice Deoki Nandan Agarwal. One third of Babri Masjid has been given to this party. As regards the deity to be perpetual minor, in this case, the primary question is whether there was a deity and this question in itself is highly debatable. There is no finding still that there was a deity, and at which place since when, however, the saying that a Hindu deity is a perpetual minor and its right never comes to an end is absolutely incorrect.

Q-Why incorrect?
Ans. As regards question of minor, the limitation act, conceives of a minor who is expected to attain majority, sometime-thereafter. The protection to such a minor is afforded by law. A deity which is never expected to attain majority is not covered by this provision. On this point judgements of Privy Council of 1904 and 1910 were cited by us. One of the judges had agreed with the same that a Hindu deity is not a perpetual-minor.

Q-Please elaborate more?
Ans. Going to the root cause of the matter as per doctrines of Hindu Law, vis-à-vis BK Mukherjee and Others, a Hindu deity is not a perpetual-minor, in accordance with the concept of Shastras. There are disadvantages also of being a perpetual-minor, as making a Hindu deity a perpetual-minor, amounts to reducing its status like anything almost nothing and as such the considered opinion of jurists is also that vesting of the property in a Hindu deity and treating it as a perpetual-minor is only for the namesake.

Q-Why was this argument forwarded in the first instance?
Ans. In 1528 in order to save the suit from bar of limitation the argument that Hindu deity is a perpetual minor was advanced by the other side. One learned counsel took a little different path to get rid of the same. He argued that after enforcement of the Constitution, the religious right of the Hindus got revived and all acts from 1528 to Jan 25, 1950, including judicial orders became a nullity by virtue of Article 13 of the Constitution of India. This was not accepted by any of the judges. We had cited many number of decisions that provisions of Article 13 were not at all retrospective. They operate from Jan 26, 1950.

Q-How do you consider partition of the disputed site in three parts? What actually has to be trifurcated? What is the Muslim position to it?
Ans. As regards partition of the property allowing one-third to Muslims by the two judges, it is within the area, including outer courtyard of Babri Masjid, comprising approximately 120 by 80 feet. Mention of 2.77 acres by certain persons, at this stage, is absolutely a misconception. This 2.77 acres was acquired by Kalyan Singh in 1991 which was quashed by the full bench on my writ petition and at this stage it has got absolutely no consequences.

What about Muslims getting one-third despite SCWB claim dismissed?
Ans. This has to be seen in the light that amongst the three judges J. Sharma has dismissed the claim of Muslims in entirety. J. Khan has upheld the suit in time and decreed for one-third. The third judge J. Agarwal held the suit barred by limitation but allowed one-third has to be justified on the premise, as the judges, had held the suit to be a suit of partition under their inherent powers. The judges converted the suit for declaration into a suit of partition. J. Agarwal dismissed our case on limitation and allowed one-third as a defendant in the other suit-filed by the Hindu side. In a partition suit even the defendant stands on a position of plaintiff and as per this proposition of law the allotment of one-third has to be seen.

There have been efforts for an out-of-court settlement. What is the legal position to it?
Ans. There are six plaintiffs in this case. Misbahuddin, Hashim Ansari, Mehfooz-ur-Rehman, Muhammed Farooq, SCWB and Hafiz Siddiq. If anyone withdraws then there are others. Even if all the plaintiffs withdraw the Muslim claim would still lie as duty would be cast upon the Court to invite other persons to conduct the suit. This is because of the fact that the suit is of representative nature. Law permits such suits to be filed by two persons and to be defended by two persons if the right of innumerable persons is involved.

How do you look forward for the case in the SC?
Ans. We are drafting the memo of appeal as per principle of pleadings and at the time of hearing, the facts as well as law, will be placed before the SC. It is solely the prerogative of the Chief Justice of India (CJI) to constitute a particular bench, for a particular work and assign the case to such a bench. CJI also reserves the sole power to assign a particular time limit for the case to he heard and be decided. All eyes are now on CJI. But, let me also add. In 1993 we had initiated a contempt petition against the (late) PM Narsimha Rao for his involvement in the Babri Masjid demolition and the case is yet to be listed.

This article appeared in The Milli Gazette print issue of 1-15 November 2010 on page no. 5

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