Litigants turn to 80-year-old court ruling to press claims in Gyanvapi case

Both parties in the suit rely on the ruling in Din Mohammad and Others versus Secretary of State to support their claims.

The plea by five Hindu women seeking the right to worship Maa Shringar Gauri on the outer wall of the Gyanvapi mosque complex claims that statements of witnesses in 1937 “prove” that Hindu idols were worshipped in the disputed premises.

The Muslim side – the Anjuman Intezamia Masajid which manages the mosque has challenged the maintainability of the suit filed by the women — argues that the Court had declared that the land on which the mosque is built is Waqf property.

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“In para 16, the Hon’ble Court has held that the property in suit was not a Waqf property,” states the civil suit Rakhi Singh v State of Uttar Pradesh.

This reference is to the Din Mohammad and Others versus Secretary of State. It was an appeal by three “Hanafi or Sunni Musalmans” against a 1937 ruling of the Varanasi District Court seeking a declaration from the Court that apart from the mosque itself, the area around the mosque is also property of the Waqf.

The ruling by Sir James Joseph Whittlesea Allsop and Kamalakanta Verma held against the Muslims.

While the Hindu side quotes the ruling to support a historical claim that questions the ownership of the Gyanvapi mosque, the ruling suggests otherwise.

The Allahabad HC agreed with the civil judge that the mosque itself is Waqf property, but said the area around the mosque where the namazis (the faithful) would “spill over” during prayers on the last Friday of Ramzan could not be claimed as Waqf property.

The then Muslim side also made a second claim that “Musalmans had acquired a customary easement over the land” — a paved pathway outside the mosque and its plinth (raised platform on which the mosque is built). However, the Court disagreed with this, too, holding that the claim was fairly recent — made since 1929 — to be considered a customary right.

In the present civil suit, the petitioners have listed nine statements that witnesses in the 1937 civil suit “have proved” that “the images of Goddess Maa Shringar Gauri, Lord Ganesh, Lord Hanuman and visible and invisible deities and also performance of daily Puja at the same very place.” They also argue that these statements “were not challenged from the Muslim side.”

But in its ruling then, the High Court had held that “some of the witnesses are perhaps of some respectability but, on the other hand, they are undoubtedly interested, and they give no definite evidence.”

Lawyers from the Muslim side argue that individual statements of witnesses cannot be relied upon now since the Court had held conclusively that the land on which the mosque exists is Waqf property.

The 1942 ruling had noted: “The learned Civil Judge has gone into the history of this mosque and has come to the conclusion that it was built on the site of a Hindu temple which was demolished by Emperor Aurangzeb in the seventeenth century. I do not think that it is necessary to go into the question of the origin of the mosque. It is sufficient to go back to the year 1809 when there was a serious riot between Hindus and Musalmans in that part of Benares where the mosque is situated.”