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Was Babri Structure a Mosque?
"Islamic law on mosques" Fallacies in Muslim Board's
stand on Ayodhya case By B.P.Singhal Indian Express, April 24, 1993, New
Delhi Edition.
The All India Muslim Personal Law Board has reportedly come up with the
plea that "If the Government constructs an alternative mosque in
lieu of the Babri Masjid at some other place the same under the rule of
Shriat will not be a mosque and no Muslim can participate in a trust created
for this purpose." According to the Board, "a place remains
a masjid no matter if that masjid had been demolished and idols placed
on that spot." There are two serious fallacies in the stand of the
Muslim Law Board.
Firstly, the structure that was demolished was not a mosque. At the time
of destruction and for 43 years previously the place had been a functioning
temple recognized as such not merely by the Hindus who have been worshipping
there ever since December 23, 1949 but also acknowledged by the law courts
which not only permitted the continuance of the pooja of Ram Lala but
even restrained the Muslims as well as the administration from interfering
with the pooja in any way whatsoever.
The High Court rejected an appeal against this injunction in 1955. All
these facts are a part of court records. It possibly cannot be a mosque
just because the BMAC began to call it the "Babri Masjid." Nor
can it become a mosque on the basis of frivolous case filed by the Sunni
Waqf Board laying claim to it.
The case has gone on for 32 years precisely because the Sunni Waqf Board
has no case and if the case was to be decided against the Muslim, the
Congress was afraid that it would seriously erode its vote-bank. Had the
case the slightest chance of going against the Hindus it would have been
decided a long time back -perhaps in one of the pre-election years.
It also does not and cannot become a mosque just because the Prime Minister
decided to call it a "mosque" in his television speech of December
7, 1992. The truth at last triumphed and the Government's very own white
paper did not dare call it a "mosque" on any of its 122 pages.
All along it had been termed either as a "disputed structure"
or a "shrine" or the "RJB-BM Complex" etc. etc.
Secondly, even if it was a mosque till December 22, 1949, it ceased to
be a mosque after the expiry of six years from the day of the alleged
adverse possession specially after the dismissal of the appeal by the
High Court in 1955. (While limitation period for individual rights is
12 years, the same for corporate bodies and organizations like the Sunni
Waqf Board is only six years).
The law has already been laid down on this very point as far back as
1938. In a case where a mosque was adversely possessed by Hindus for a
period of 12 years, the Muslims had filed a case as beneficiaries of the
Mosque (having a right to pray therein) for its restoration. A Full Bench
of the Lahore High Court (reported in AIR 1938, Lahore 369, and Indian
Cases 945) had laid down as follows: "When a mosque is adversely
possessed by non- Muslim, that is to say Hindus, the Muslims lose all
the right in the land and the building, including the right to worship.
The building cannot maintain the character of a mosque, and no duty is
cast upon the persons in possession thereof to maintain its original character
or to maintain it even as a building. All the rights of the Muslims being
thus extinguished, including the right to pray, the persons in possession
commit no wrong, much less a continuing wrong, by not permitting, or refusing
the right of the Muslims to pray therein.
A suit instituted by a Muslim as a beneficiary for the exercise of his
right to pray at a mosque is suit for the enforcement of an individual
right and is not covered by the provisions of Order-1, Rule-8 of the Code
of Criminal Procedure." This judgment of the Lahore High Court was
appealed against and the Privy Council, while confirming the judgment,
added: "There is no analogy between possession in law of a building
dedicated as a place of prayer for Muslims and the individual deities
of the Hindus.
The land and building of a mosque is ordinary property and not a jurist
person. A suit could not be brought by or against a mosque in its name.
This right of a Muslim worshipper at a particular mosque may be regarded
as an individual right.
It is not a sort of easement in gross, but an element in the general
right of a beneficiary to have the Waqf property recovered by it proper
custodians and applied to its purpose. Such an individual may, if he sues
in time procure the ejectment of a trespasser and have the property delivered
to the Muttawalli for the purpose of the Waqf. But if the title conferred
by the settler has come to an end by reason that for the statutory period
no one has sued to eject a person possessing adversely to the Waqf, the
rights of all the beneficiaries are gone, the land or the place cannot
be recovered by or for the Muttawalli and the endowment, or its terms
can no longer be reinforced.
The individual character of the right to go to a mosque for worship matters
nothing when the place is no longer a Waqf and the right is no ground
for holding that a person born long after the property has become irrecoverable
can enforce the ancient dedication, if any, or any part of it.
The right of worshippers at a mosque stand or fall with the character
of the property being Waqf and do not continue apart from their right
to have the property recovered for the Waqf and applied to its purpose.
As the law stands, notice of rights of individual beneficiaries does not
modify the effect under the Limitation Act, of possession adverse to Waqf."
That then is the law, which the All India Muslim Personal Law Board should
have known. The Board should gracefully accept the law. Likewise all those
who swear by the Rule of Law should accept this position.
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