TWO INTERPRETATIONS of the phrase ‘possession of land’ are being forwarded by the Supreme Court of India – first, that the ‘land’ and the ‘structure’ built over it are two separate entities, and second, that the ‘land’ and the ‘structure’ built over it should be considered one and the same.
The second understanding, that ‘land’ includes things embedded in the earth such as scaffoldings for a building, has been a well settled principle of property law for centuries. The first formulation, however, is a recent development stemming from novel interpretations by the Supreme Court without any prior judicial basis.
In the Babri Masjid-Ram Janmabhoomi(2019) decision, the Supreme Court adopted the first logic that separates a ‘structure’ from its ‘place’. Elsewhere, one of us has highlighted this as the ‘Ayodhya logic’. The Court tacitly accepted the argument that since the ‘place’ belongs to the Hindus and the ‘structure’ belongs to the Muslims, the latter could be shifted to a different location.
The argument that the ‘place’ belonged to the Hindus was accepted on three grounds – that Muslims could not furnish a “specific grant of the land underlying the mosque as a foundation of legal title” (para 783), that between 1528 and 1856-1857 Muslims could not provide evidence to establish “possessory control over the disputed site” (para 786), and, that there was no evidence of Muslims “offering namaz in the mosque” during the said period (para 786). The argument that the ‘structure’ belonged to the Muslims was anyways evident.
