Ayodhya

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October 07, 2010 2:30:44 AM

[url="http://www.dailypioneer.com/288218/An-otherwise-judicious-verdict.html"]An otherwise judicious verdict --S Gurumurthy[/url]

Despite the Sunni Waqf Board’s failure to prove its possession of any part of the disputed site in Ayodhya, dividing the land into three parts may make resolution of the conflict that much more difficult



The otherwise legally proper and judiciously sound Ayodhya verdict has suffered serious a legal haemorrhage by the decision of Justice SU Khan and Justice Sudhir Agarwal to divide the disputed land into three parts and give one-third each to Hindus, Muslims and the Nirmohi Akhara. This final part explains that fatal infirmity. An issue where law is mixed with facts, it calls for some strenuous reading to know what the deadly defect in the judgement is. To recall, the short facts are: In their two suits, the Hindus claim the disputed site as exclusively their own; in their suit, the Muslims claim it exclusively as their own; in its suit, the Nirmohi Akhara too claims it as exclusively its own. None of them had asked for nor would accept to share the disputed land with any other or the others.



To simplify for the law for the uninitiated, the law says that a person filing a suit has to plead his case properly and clearly, and also ask for reliefs in clear terms. The court will look only what suitor says in his plaint and his opponents in response, nothing else, to know what is the case. It will then frame the contentious issues and decide them on the basis of the pleadings of the parties and evidences tendered by them. The principal issues decided on that basis by Allahabad High Court, unanimously or by majority 2:1, in the present case are: One, the rights of the Hindus over the Rama Janma Bhoomi never ceased at any point in time; two, the Muslims were never in possession of the disputed premises at any point in time; three, the Muslims failed to prove their possession of any part of the disputed land; four, the last time the Muslims did namaz on the disputed property was on December 16, 1949; five, the Hindus never admitted possession by Muslims at any time, even in the suit of 1885; six, Muslims never acquired title even by adverse possession; seven, the Akhara never had possession nor acquired title by adverse possession; eight, the suits of Muslims and the Akhara, having been filed beyond the limitation period, are dismissed. On this basis, the court dismissed the suits of Muslims and Akhara, thus disentitling to any relief. While, Justice DV Sharma allowed the suits of Hindus in full, Justice Agarwal and Justice Khan allowed the Hindus’ suit partly.



On why they ruled partitioning of the disputed land, Justice Agarwal and Justice Khan have said that under a provision (Order 7 Rule 7) in the Civil Procedure Code they had the authority to give less relief than what the Hindus had prayed for in their suits. So by assuming that they had the power to reduce the share of the Hindus, the two judges seem to have thought that they had also the power to give the balance to Muslims and Akhara ; in the process what the two Judges have done is to give Muslims and Akhara rights, which Justice Sharma and Justice Agarwal have separately declared they do not have. Also none of the three parties had asked for what the High Court has done. The first principle is that, any relief beyond what the suits set out in pleadings and prayers can only be given at the instance of one of the parties; not by the court on its own motion like it has done in this case. If parties themselves had not asked for anything outside the pleadings, the court cannot go beyond their pleadings at all. The law on this point has never been in doubt. The Madras High Court has ruled in 1998 (Arunachalm Pillai Vs Ramu Mudaliar and others) that where each party claims exclusive title to the property and none of them accept the right of the other (exactly as in the Ayodhya case) the question of partitioning the property between them does not arise at all (under the very provision of law cited by the two judges in Ayodhya case). The Patna, Calcutta, and Madras High Court itself have ruled this principle earlier. As far back as 1991 the Supreme Court (in Om Prakash Vs Ram Kumar (1991) 1 SCC 441) had ruled that even if a party asks for reliefs outside his pleadings the court can never allow it when doing so will prejudice rights of the other party.



So the settled legal position is this: Even if parties, like the Ayodhya parties, who have filed suit asserting exclusive rights against one another, ask for partition, the court cannot grant it; and in no event the court can do it without the parties asking for it. None of these judicial rulings seem to be noticed by the two judges. Had one of the parties asked for partition, the other party would have brought the case laws to the court’s notice. That is why law requires that the court should decide no issue that is not put to the parties. An order contrary to this principle is, in law, without jurisdiction. Civil law pundits would cite the old maxim of ‘Coram Non Judici’ to say that the courts — read Justice Khan and Justice Agarwal — have no jurisdiction to do what they have done.



Now, that they have passed the judgement, the judges will now have to write a decree in accord with the judgement. Assume that the judges can write a decree in the Hindus’ suit giving them less than their claim of one-third share. The suits of Muslims and Akhara having been dismissed, how could a decree be written in their favour? If no decree could be passed in their favour in their suits, they cannot get the one-third share at all. And no decree could be passed in the suits of the Hindus in favour of Muslims and Akhara! Therefore, the one-third gift by the two judges to them each will be only on paper. So, a new battle will start only at the point if the two judges attempt to write the decree for two-third of the disputed land in favour of the Muslims and Akhara whose suits stand dismissed.



The legal unsoundness aside, the decision to divide the disputed land and award one-third each to the Muslims and Akhara, stands out contrary to the spirit of the otherwise judicious judgement. It has put roadblock on the temple construction; how could a temple to which a million people come on Ram Navami be accommodated in one acre of land (a third of the disputed area) along with a mosque beside. It will be an invitation to a law and order disaster. Many idealists welcome this action of the two judges as an ideal solution. But, in sensitive issues like relations between Hindus and Muslims (many among whom still share bitter memories of past) the ideal is not practical; only what is practical is the ideal. This sense of Idealism without practical sense is that what seems to have led the two judges into the judicially erroneous decision to divide the disputed land. QED: The historic Ayodhya judgement has, thanks to this fatal defect, now less potential to resolve the dispute and more potential to escalate it.