New Delhi: A court commission appointed to hold a local investigation of a disputed site will bring on record the actual and factual status of the property for just and proper adjudication of a civil suit, the Allahabad High Court said Thursday.
Based on this, a single-judge bench of Justice Mayank Kumar Jain allowed the application filed on behalf of Bhagwan Shri Krishna Virajman and seven other Hindu parties to appoint a court commission for the ongoing Krishna Janmabhoomi-Shahi Idgah Masjid dispute.
According to the Hindu side, the Mathura Idgah mosque stands on 13.37 acres of land that was Lord Krishna’s birthplace and where a temple stood once, which was destroyed by Mughal Emperor Aurangzeb.
Justice Jain rejected the mosque administration’s argument that the court must first decide its application for rejection of the suit before taking a call on the Hindu side’s application for appointment of the commission.
The application was filed in a pending suit filed by the Hindu side, including the deity, in which they have sought a declaration that the land in dispute, which covers the area of the Shahi Idgah Masjid, belongs to the deity. The suit also wants a direction for the removal of the said mosque.
“It is a settled law that order XXVI Rule 9 of the Code (Civil Procedure Code) enables the court to appoint a commission to hold local investigation for the purpose of elucidating a matter in dispute and to bring on record the actual and factual status of disputed property for just and proper adjudication of the dispute,” Justice Jain noted in his 30-page order.
He added that the defendants — the Muslim side — can participate in the proceedings for appointment of commission by the court, and if they feel aggrieved by the commission’s report, they would get an opportunity to file their objections against it.
According to the court, the commission’s report is always subject to evidence from the parties and would not affect the merits of the case.
Moreover, the commissioners, who are a part of it, would be treated as competent witnesses under the law. They may be called for evidence during the trial and both parties would have an opportunity to cross-examine them, the court added.
The bench also said that, during the execution of the commission, the court can direct to maintain the “sanctity of the campus,” besides ordering that no “harm or injury” be caused to the structure.
Holding that the representative of both sides “may accompany” the commission to assist them, the court said, the panel may also “submit its discovery as to the existence of particular signs at the property as referred by the plaintiffs.”
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‘Number of signs to establish mosque is a temple’
The Hindu side has instituted a suit, claiming the entire area, including the land where the mosque is built, is known as ‘Katra Keshav Dev’, which is the birthplace of Lord Krishna.
The suit wants the court to declare a compromise deed, which was decreed in July 1973, as null and void.
According to it, Krishna Janmasthan Seva Sangh Mathura had entered into a compromise to maintain the status quo with the Shahi Masjid Idgah Trust, Mathura. However, the Sangh, the suit alleged, was not entitled to sign this compromise agreement, as the temple management was at that time with the Krishna Janmabhoomi Trust.
In its application for the appointment of the commission, the Hindu side claimed that Lord Krishna lies beneath the present structure, which is the mosque. They claimed that the commission can only bring forth the evidence based on which trial can be conducted.
According to them, there are a number of signs that establish the mosque is a Hindu temple, and all of this can be placed before the court only through photography or videography, which may be conducted by a court-appointed commission.
Some of the instances cited by the petitioners are that, at the top of the building, one can observe a Kalash and a Pinnacle that exemplifies Hindu architectural style, which is not present in any Islamic structure.
Just above the main gate, there exists a pillar with a lotus-shaped top, which is a classic characteristic of Hindu temple, the application mentioned.
Also, it claimed the image of Sheshnaag, one of the Hindu deities, is etched on the wall of the current structure. According to Hindu scriptures, Lord Sheshnaag protected Lord Krishna.
Photography or videography of the premises in question would enable the court to properly and correctly understand the issue, and also help it to decide the question present before it on the dispute, the plaintiffs argued in the court.
Hindu ‘application false, imaginary’
In its opposition, the Muslim side described the cause of action behind the application as “false” and “imaginary.”
It said the plea for the commission was moved three years after the suit was filed in 2020. It further questioned the plaintiff’s move to challenge the 1976 judgment on the ground that such a move was made 46 years later.
Urging the court to first adjudicate its application for rejection of the suit, the Muslim side maintained that the Shahi Idgah Mosque is not part of the Katra Keshav Dev, nor does the place of birth of Lord Krishna lie beneath the mosque.
“The claim of plaintiffs is based on guesswork and is not substantiated by any documentary evidence,” it said.
Rather, the claim made by the Hindu side, it added, amounts to an admission of the existence of the mosque.
“The disputed land has been in continuous possession of the Muslim community since then and prayers are regularly offered till date,” it argued, calling the application a “publicity stunt”.
However, the court rejected the arguments to hold that the cause of action for filing of the suit is an issue that would be determined during the trial and not at the present stage.
The delay in filing the application of the commission, it concluded, was due to the transfer of the suit from the trial court to the HC.
“Moreover, the application for appointment can be moved by any party to the suit at any stage and any time during the pendency of the suit,” the court added.
It, however, added that the “commission is duty bound to submit its fair and impartial report based on the actual status of the property.”
(Edited by Richa Mishra)
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