Varanasi/New Delhi: Wondering how a district court can overturn a High Court’s decision, the Anjuman Islamia Masjid has decided to approach the Allahabad High Court against the Varanasi district judge’s verdict that dismissed the Gyanvapi mosque’s managing committee’s plea (filed under Order 7 Rule 11 of the Code of Civil Procedure or CPC) — challenging the maintainability of the suit filed by five Hindu women who have sought worshipping rights in the Mughal-era mosque compound.

In a significant development on Monday, Varanasi District Judge AK Vishvesha ruled that the suit filed by the plaintiffs is not barred by The Places of Worship Act, 1991 or the Waqfs Act, 1936.

“From the perusal of the above-mentioned provisions of the Act, it is clear that no bar has been imposed by the Act regarding a suit claiming the right to worship idols installed in the endowment within the premises of the temple, or outside. Therefore, defendant no. 4 failed to prove that the suit of the plaintiffs is barred by the UP Sri Kashi Vishwanath Temple Act, 1983,” read the operative part of the judgment.

“In view of the above discussions and analysis, I have come to the conclusion that the suit of the plaintiffs is not barred by the Places of Worship (Special Provisions) Act, 1991 (Act no.42 of 1991), The Waqf Act 1995 (Act no.43 of 1995) and the U.P. Shri Kashi Vishwanath Temple Act, 1983 (Act no.29 of 1983) and the application 35C filed by the defendant no.4 is liable to be dismissed,” ruled the district judge.

Reacting to the judgment, Syed Mohammad Yaseen, the general secretary of the mosque committee, told reporters: “In civil suit number 62 of 1936 (Din Mohammad and others Vs Secretary of State for India in Council and others), the then additional civil judge of Benares (on August 25, 1937) had declared that the mosque and the courtyard with the land underneath are Hanafi Muslim Waqf. The judgment was upheld by the Allahabad High Court in 1942.”

“How can a verdict of the high court be overturned by a lower court,” he wondered.

He said the case will continue in the district court, and they will use all judicial remedies available to them.

Advocate Akhlaque Ahmad, representing the mosque committee, told reporters that he and his team would review the 2,400-page judgment and then make a decision on the further course of action.

“We had submitted before the court very strong evidence — the August 25, 1937 judgment of the Din Mohammad case and the gazette notification dated February 26, 1942 by which the Gyanvapi mosque was registered as a waqf property. The then civil judge had himself visited the mosque twice before delivering verdict in the civil suit number 62/1936. With the implementation of the Waqf Act, 1936, a survey was conducted across the country and a number was allotted to the properties under waqf — including the Gyanvapi mosque,” he said.

“What can be stronger evidence than the two documents we had brought on record in support of our pleas?” asked the mosque panel lawyer.

Terming the verdict a “foundation stone for the Gyanvapi temple”, Sohanlal Arya, a petitioner in the case, was quoted by the media as saying: “It’s not only a victory of the Hindu community but also a foundation stone for the Gyanvapi temple. The next hearing is on September 22. We appeal to people to maintain peace.”

Advocate Vishnu Jain, who is representing the Hindu plaintiffs, told the media that they would seek for a survey of the mosque by the Archaeological Survey of India (ASI) and carbon dating of the ‘Shivling’.

The verdict, as per Asaduddin Owaisi, chief of the All India Majlis-e-Ittehadul Muslimeen (AIMIM), will fail the purpose of the Places of Worship Act 1991.

“I believe that after this order, the purpose of the Places of Worship Act, 1991, will fail and have a destabilising effect,” he told reporters adding that “we are going on the same path as that of the Babri mosque issue. When the judgement on Babri Masjid was given, I warned everyone that this will create problems in the country as this judgement was given on the basis of faith”.

He said he hoped that the msoque committee would appeal against this order. “There should be an appeal in the high court against this order, and I hope the Anjuman Islamia Masjid will appeal against this order,” he added.

BACKGROUND OF THE CASE

The plaintiffs have essentially sought year-long access to offer prayers of Goddess Shringar Gauri behind the western wall of the Gyanvapi mosque complex (located next to the Kashi Vishwanath temple).

The Hindu worshippers had claimed that the present mosque premise was once a Hindu temple, which was demolished by Mughal emperor Aurangzeb and thereafter the mosque was built.

On the other side, the maintainability of the suit was challenged by the Anjuman Islamia Masajid (which managed the Gyanvapi mosque) — arguing that the Hindu worshippers’ suit is barred by the Places of Worship Act.

The mosque committee in its objection and application under the Order 7 Rule 11 had argued that the suit is specifically barred by the Places of Worship Act.

Having heard the two parties at length, the district judge had reserved his judgment on August 24.

To provide a better context regarding the case, the Varanasi civil court preside over by Justice Ravi Kumar Diwakar (civil judge, senior division) had earlier appointed a survey commission to submit a report by visiting the mosque.

The court commissioners thereafter submitted their report in a sealed envelop on May 19. However, even before the submission of the survey report, the court of the civil judge — on a submission made by a court-appointed advocate commissioner that a Shivling had been found in the mosque premise during the survey — had ordered to seal the spot (wazukhana or place of ablution).

The district magistrate of Varanasi was ordered to seal the area where a cylinder black structure (purported Shivling) was allegedly discovered and bar entry of any individual in the area inside the mosue.

Meanwhile, a petition was filed by the mosque committee in the Supreme Court, challenging the survey order issued by the Varanasi civil court.

Hearing the plea on May 17, the apex court clarified that the order passed by the civil judge (senior division) to protect the place where the alleged Shivling is claimed to have been found during the survey will not restrict the right of Muslims to access the mosque to offer prayer and other religious activities.

Further on May 20, the top court had transferred the suit filed by the Hindu devotees to the district court of Varanasi. The court had also ordered that the application filed by the mosque management committee before the trial court under Order 7 Rule 11 of the CPC for rejection of the suit filed by the Hindu worshippers shall be decided on priority by the district judge.

Meanwhile, it was also ordered that the interim order dated May 17 shall continue to be in place till the application is decided. With this, a Supreme Court bench comprising Justice DY Chandrachud, Justice Surya Kant and Justice PS Narasimha adjourned the matter to October 20.