If exclusive ownership is claimed but joint ownership is proved, a suit can be decreed for joint ownership, Justice S.U. Khan held in his separate judgment, broadly agreed to by Justice Sudhir Agarwal in a separate judgment in the Ayodhya title suits case.

Quoting a Bombay High Court ruling, he said a suit for exclusive possession could be turned into a suit for partition and possession of such share as might be determined to belong to the plaintiff if it was found that the plaintiff was not entitled to the whole share but only a part of it.

Justice Khan, quoting an earlier judgment, said that though there was no specific prayer made by the plaintiff seeking partition, this should not come in the way of granting a decree for partition and separate possession of the share of the plaintiff. Denial of such a relief would only lead to another suit. Multiplicity of proceedings should normally be avoided as the same tends to delay justice.

The judge said that in view of the finding rendered by him, “all the three parties (Muslims, Hindus and the Nirmohi Akhara) are entitled to a declaration of joint title and possession to the extent of one-third each and a preliminary decree to that effect is to be passed.”

He said: “In the matter of actual partition it is only desirable but not necessary to allot that part of property to a party which was in his exclusive use and occupation. Accordingly, in view of peculiar facts and circumstances it is held that in actual partition, the portion where the idol is presently kept in the makeshift temple will be allotted to the Hindus, and the Nirmohi Akhara will be allotted land, including Ram Chabutra and Sita Rasoi. However, to adjust all the three parties at the time of actual partition, slight variation in the share of any party may be made to be compensated by allotting the adjoining land acquired by the Central government.”

Justice Khan, in his 285-page judgment, said: “My judgment is short, very short. Either I may be admired as an artist who knows where to stop, particularly in such sensitive, delicate matter or I may be castigated for being so casual in such a momentous task. I have not delved too deep in the history and the archaeology. This I have done for four reasons. First, this exercise was not absolutely essential to decide these suits. Second, I was not sure as to whether at the end of the tortuous voyage I would have found a treasure or faced a monster (treasure of truth or monster of confusion worst confounded). Third, having no pretence of knowledge of history I did not want to be caught in the crossfire of historians. Fourth, the Supreme Court, in Karnataka Board of Waqf Vs. Government of India, has held as far as a title suit of civil nature is concerned, there is no room for historical facts and claims.”

Justice Khan said:

“As this judgment is not finally deciding the matter and as the most crucial stage is to come after it is decided by the Supreme Court, I remind both the warring factions of the following. The one quality which epitomised the character of Ram is tyag [sacrifice].

“When Prophet Mohammad entered into a treaty with the rival group at Hudayliyah, it appeared to be abject surrender even to his staunch supporters.

“However the Koran described that as clear victory and it did prove so. Within a short span therefrom Muslims entered the Mecca as victors, and not a drop of blood was shed.

“Under the sub-heading of demolition, I have admired our resilience. However we must realise that such things do not happen in quick succession. Another fall and we may not be able to rise again, at least quickly. Today the pace of the world is faster than it was in 1992. We may be crushed.

A unique position

“Muslims must also ponder that at present the entire world wants to know the exact teaching of Islam in respect of relationship of Muslims with others. Hostility, peace, friendship, tolerance, opportunity to impress others with the Message, opportunity to strike wherever and whenever possible, or what? In this regard Muslims in India enjoy a unique position. They have been rulers here, they have been ruled and now they are sharers in power (of course junior partners). They are not in majority but they are also not a negligible minority (after Indonesia, India has the highest number of Muslims in the world). In other countries, either the Muslims are in huge majority, which makes them indifferent to the problem in question, or in negligible minority, which makes them redundant. Indian Muslims have also inherited huge legacy of religious learning and knowledge. They are therefore in the best position to tell the world the correct position. Let them start with their role in the resolution of the conflict at hand.”

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