Author: S Gurumurthy
Publication: The New Indian Express
Date: October 3, 2010
URL: http://expressbuzz.com/opinion/columnists/division-will-escalate-dispute/212091.html
The otherwise legally proper and judiciously
sound Ayodhya verdict has suffered serious legal haemorrhage by the decision
of Justice Khan and Justice Agarwal to divide the disputed land into three
parts and give one-third each to Hindus, Muslims and the Nirmohi Akhara. This
article 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
judgment 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 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 evidence tendered by them. The
principal issues decided on that basis by the Allahabad High Court, unanimously
or by 2:1 majority, in the present case are: one, the rights of the Hindus
over the Ram Janmabhoomi 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
16.12.1949; 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 denying any relief. While, Justice 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
(1/3) and the Akhara (1/3); 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 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 courts in Patna, Kolkata, and the Madras High Court itself have ruled
this principle earlier. As far back as 1991 the Supreme Court (Om Prakash
V Ram Kumar (1991) 1 SCC 441) had ruled that even if a party asks for reliefs
outside his pleadings the court can never allow them; by doing so it 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 have been 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 judgment, the
judges will have to write a decree in accordance with the judgment. Assume
that the judges can write a decree in the Hindus' suit giving them less than
their claim of 1/3 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 1/3 share at all. And
no decree could be passed in the suits of the Hindus in favour of Muslims
and Akhara! Therefore, the 1/3 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-thirds of the disputed land in favour
of the Muslims and the Akhara whose suits stand dismissed.
The legal unsoundness aside, the decision
to divide the disputed land and award 1/3 each to the Muslims and the Akhara,
stands out contrary to the spirit of the otherwise judicious judgment. It
has put roadblock on the temple construction; how could a temple to which
a million people come on Ram Navami day be accommodated in one acre of land
(a third of the disputed area) 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 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 judgment has, thanks
to this fatal defect, now less potential to resolve the dispute and more potential
to escalate it.
(This is the final of a three-part series
on the Ayodhya judgment)
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- About The Author: S Gurumurthy is a well-known
commentator on political and economic issues.