While holding a title suit praying to hand over the possession of the Gyanvapi Mosque premises to Lord Adi Vishweshwar Virajman (Swayambhu) and others as MAINTAINABLE, the Varanasi Court today observed that the religious nature of the Gyanvapi Mosque premises is 'doubtful' and therefore, the Places Of Worship Act won't be a bar to such a suit.
Importantly, dismissing the Order 7 Rule 11 CPC Plea (rejection of plaint) moved by the Anjuman Masjid Committee (which manages the Gyanvapi Mosque in Varanasi) challenging the maintainability of the suit in question, the Fast Track Court of Civil judge (senior division) Mahendra Kumar Pandey observed that the suit moved by the Hindus raises the following question:
"...whether the religious character of a temple changes with the forceful demolition of the only upper portion of a temple ( in case if the base of the temple is intact) and on merely imposing a superstructure thereon"
It may be noted that the Varanasi Court was dealing with a challenge made to the suit filed by Lord Vishweshwar Virajman (Swayambhu) through the next-friend Kiran Singh, who is the international general secretary of Vishwa Vedic Sanatan Sangh.
The suit prays that the possession of the entire Gyanvapi complex be handed over to the Hindus and the plaintiffs be allowed to offer their prayers to Swayambhu Jyotirlinga Bhagwan Vishweshwar and worship the 'Shiva Linga' reportedly found inside the Mosque premises on May 16.
It is important to note that this is a different suit not connected with another suit pending before the Varanasi Court filed by 5 Hindu women worshippers seeking all-year-round rights to pray inside the Gyanvapi Mosque premises.
The primary arguments of the Plaintiffs in the suit
It may be noted that the suit, which seeks the possessory right over the disputed land, claims that the Gyanvapi Mosque premises belong solely to Lord Adi Vishweshwar Virajman (Swayambhu) since time immemorial and it is immaterial that in 1669, a part of the temple was demolished by Mughal Ruler Aurangzeb and a mosque was superimposed upon the temple's demolished structure.
The Suit also submits that the nature of a temple does not change merely by imposing a superstructure thereon after demolishing its upper portion because the invisible deities which were existing at that time, are continuously existing there and these deities were worshiped by the devotees till 1993.
In other words, plaintiffs in the suit claim that the core structure of the old temple remained intact even after Aurangzeb destroyed the upper portion of the old temple and since the character of the temple did not change, ever, therefore, the Places of Worship (Special Provisions) Act, 1991 won't act as a bar to the suit.
Varanasi Court's order
At the outset, the Court, while dealing with the Order 7 Rule 11 application of the Masjid Committee, seeking rejection of the plaint of the Hindu party, noted that if the allegations in the plaint prima facie show a cause of action, the court can not embark upon an inquiry whether the allegation are true in fact. The court also noted that at the stage of Order 7 Rule 11 of CPC only the averment made in the plaint should be considered
The Court further noted while dealing with an O7 R11 plea, the plaint has to be read as a whole to locate the cause of action and if the averments reveal the cause of action, the same should not be rejected.
Now, against this backdrop, the Court perused the plaint which states that the cause of action for filing the suit is accruing continuously every day as the plaintiffs and devotees are not been allowed to enter into the old temple complex to have Darshan and Pooja of Shri Jyotirling.
The Court further took into account the averments made in the plaint stating that the plaintiffs were worshipping Maa Sringar Gauri, Lord Hanuman, Lord Ganesh at the disputed place incessantly for a long time till 1993 and after 1993, they were allowed to worship the above-mentioned Gods only once in a year under the regulation of State of Uttar Pradesh.
In view of this, the Court observed that it is doubtful as to what was the religious character of the disputed place as on 15th August 1947.
"It is the place where plaintiffs are claiming that the Core structure of the temple remained intact and only the upper portion was demolished and superstructure was imposed thereon. Defendant no. 4 is claiming that they are offering Namaz at this place, where a mosque was built 600 years ago after demolishing the temple. But at this stage it is very difficult to determine what is the reality, it can not be determined without substantial evidence. It may be proved after following the due course of the trial of the case. It is the legal right of every party to prove their case with help of the best evidence available to them. If facts stated by the plaintiff is true the suit is not barred by the provisions of Places of worship Act,1991. Therefore, at this stage and in a situation of the doubtful religious nature of the disputed property, this court is of the view that The Places of Worship (Special Provisions) Act, 1991 does not operate as a bar on the suit of the plaintiffs. The Suit is liable to be tried accordingly," the Court remarked.
Further, the Court also noted that since no bar has been imposed by The Uttar Sri Kashi Vishwanath Temple Act 1983 regarding instituting a suit claiming the right to worship idols installed in the endowment within the premises of the temple, or outside, therefore, the suit of the plaintiffs is not barred by 1983 Act. In its analysis, the Court found the suit to be not barred by Limitation Act or the Waqf Act.
Consequently, the application filed by defendant no.4 (Anjuman Committee) under Order 7 Rule 11C.P.C. was dismissed and the matter was posted on December 02, 2022, for filing of the written statement and framing of issues.