Day 22 Arguments: 6 August 2019

Today, the court resumed day-to-day hearings in Ayodhya. The bench comprising Chief Justice R Gogoi and Justice S Bobde, DY Chandrachud, A Bhushan and Abdul Nazeer is hearing an appeal to a 2010 Allahabad judgment. The 2010 judgment divided the Ayodhya title equally between the Sunni Wakf Board, the Nirmohi Akhara and Lord Ram. 

 

Senior Advocate SK Jain presented arguments on behalf of the Nirmohi Akhara. His primary claim is that the akhara has wrongfully been deprived of the possession and management of the Ram Janmasthan (Ram birthplace temple). He relied primarily on two arguments. First, he argued that the site ceased to be a mosque when day-to-day namaz halted in 1934 (and Friday namaz in 1949). Second, he submitted that temple worshippers cannot claim possession over a temple.

 

Background

Since March, the parties have been unsuccessfully attempting to reach a settlement via mediation proceedings. The court had ordered the parties to attempt mediation, while their counsels reviewed official translations of thousands of court documents. Some of the parties objected to mediation, submitting that it would be fruitless. Nevertheless, the court ordered them to attempt it and appointed a mediation panel composed of retired Supreme Court Justice FM Kalifulla (Chairman), spiritual leader Sri Sri Ravi Shankar and Senior Advocate Sriram Panchu.

 

Initially, mediation proceedings were set to end in early May, however the court extended the mediation period until 15 August upon the request of some of the parties. However, in mid-July, one of the parties (Gopal Singh Visharad) filed an application to resume day-to-day hearings, citing that no progress was being made in mediation. After reviewing the mediation panel's report, the court ordered an end to mediation proceedings on 2 August.

 

Today's hearing

The bench assembled at 10.30 AM. Before hearings began, the counsel for RSS ideologue KN Govindacharya urged the court to provide audio recordings of proceedings or at least offer official transcripts. Chief Justice Gogoi declined to consider the plea. 

 

Chief Justice Gogoi announced that the bench would begin by hearing the appeals in suit number 3, filed by the Nirmohi Akhara. The Nirmohi Akhara owns and manages many temples across Uttar Pradesh and other states. At Babri Masjid, it manages various Hindu religious structures in the outer courtyard, such as the Chaputra. In 1949, they filed a suit seeking possession of the disputed Ayodhya site. In the present appeal, they are represented by Senior Advocate SK Jain.

 

SK Jain’s main argument is that the Nirmohi Akhara has historically possessed the dispute land and that it is the rightful manager of the temple. 

 

He opened arguments by defining what the Nirmohi Akhara is and what its possession claims are. He submitted that it is a religious establishment of a public character and a registered society. He further submitted that they are a Panchayati math of the Ramand sect practising their own specific religious customs. He then proceeded to read sections of the Allahabad High Court judgment, to establish the history of the Akhara's possession of the inner and outer courtyards at Ayodhya. However, he clarified that the present suit was only for the possession of the inner courtyard and not the outer courtyard. 

 

First, he brought to the attention of the court a map delineating the boundaries of Babri Masjid. Referring to it, he submitted that the Nirmohi Akhara has been in possession of the outer courtyard since 1886. Note that the 1961 suit filed by the Sunni Waqf Board disputes the possession claim of the outer courtyard.

 

SK Jain then focused on the inner courtyard (sections E, F, G, H, I, J, K on the map). He submitted that the temple (inner courtyard) was in the Nirmohi Akhara's possession since at least the 1934 suit. He emphasised possession of the Bhandara, Chaputra and Sita Rasoii.

 

Then, he traced the genealogy of the site to pre-history, ‘before the living memory of man’. He submitted that Lord Ram was born at the site of the temple, which the Allahabad High Court has recognized as a legitimate ‘Hindu belief’. He added that religious idols of Ram, Laxman and Hanuman were also at the site.

 

At this point, Justice DY Chandrachud asked whether their suit is for a mandatory injunction or a declaration. Injunction and declaration are different types of relief. In this instance, Justice Chandrachud was asking SK Jain whether he was asking the court to direct a third party (the State receiver, the Sunni Wakf Board or Lord Ram) to cease doing something; or whether he was asking it to declare that the Nirmohi Akhara has the right to the title. SK Jain responded that he was seeking an injunction, but stressed that it in effect becomes a declaration for wrongful possession in the process of seeking a mandatory injunction.

 

Next, SK Jain focused his attention to title suit 4 filed by the Sunni Wakf Board. He contended that it is barred by limitation. In other words, he was arguing that the suit was filed too long after the original cause of action (when namaz ceased due to the appearance of Hindu idols). He submitted that the Allahabad High Court ruled that the last evidence of namaz taking place was in December 1949. The suit was filed in 1961. The limitation period is six years under Article 120 of the Limitation Act, 1908, which the Allahabad High Court to bar it. SK Jain added that even if Article 142 applied (12 year limitation period), the suit would still be barred. He concluded that the site plan submitted in the Muslim suit is 'totally false', 'arbitrary' and made with 'mala fide intent'.

 

At this point, Justice Chandrachud inquired whether the Akhara is claiming a title by ownership or a title by possession. SK Jain responded that they are claiming the title via possession [comment: unusual argument as claiming title conveys ownership and Justice Bobde was quick to point this out].

 

SK Jain then briefly touched on the Allahabad High Court's ruling on the question of whether there were idols present at the Janmabhoomi pulpit. The High Court had ruled that they were placed there in December 1949. The Nirmohi Akhara claims that they were present before the mosque was built. Mr. Jain said he would contest the judgment’s ruling in the afternoon.

 

Next, he argued that the site ceased to be a mosque, when the offering of five prayers in a day ceased in 1934. He submitted that Friday namaz continued until 1949, but that this was not sufficient for claiming the existence of a mosque. He cited judgments that suggest that a place is no longer a mosque, if the offering of five prayers a day has ceased.

 

Then, SK Jain touched on the issue of figures or images being present in a mosque. He submitted that while there cannot be any figures or images in a mosque, it was for the person offering prayers to decide whether they wish to continue offering prayers in a place where idols are present, citing the Allahabad High Court judgment.

 

Chief Justice Gogoi intervened, stating that the Allahabad High Court found no evidence to show that a Hindu idol has been present at the site since time immemorial. He requested SK Jain to provide evidence proving otherwise.

 

Mr. Jain submitted that one judge on the Allahabad High Court bench ruled in the akhara's favour on this issue. Note that two judges did not.

 

SK Jain then argued that the statute of limitations on his suit does not apply. The Allahabad High Court had ruled that the suit exceeded the statute of limitations under Article 120 of the 1908 Act. The suit was supposed to be filed within 6 years, which it was not.

 

Chief Justice Gogoi then asked Mr. Jain what he thought the relevant article(s) of Limitation Act were. He responded that it 'ultimately comes down to' Article 47 of the 1908 Act. He added that even if the remedy is extinguished, the right to the title remains. 

 

At 12:54, the court broke for lunch


 

SK Jain resumed arguments on behalf of the Nirmohi Akhara. He took the bench through the relevant issues in the Allahabad High Court 2010 judgment.

 

On the question of suit 3 (Nirmohi Akhara's suit) having exceeded the statute of limitations, he cited Justice Khan's opinion from the 2010 Allahabad High Court judgment: suits 3, 4 and 5 are not barred by limitation.

 

SK Jain then submitted that the Allahabad High Court did not decide on the issue of whether the suit fails maintainability for failing to join the necessary defendants.

 

Chief Justice Gogoi then asked what relief was in suit 5. Suit 5 was filed on behalf of Ram Lalla Virajman, the idol, and the Shri Ram Janmsthan. SK Jain submitted that the relief granted was the one third title divsion. They were guaranteed the dome and the Sita Rasoi. SK Jain focused on Justice Sharm's opinion, wherein Ram Lall was held a legal entity, capable of holding land.

 

Then SK Jain spoke on issue 14 in the Allahabad High Court's judgment: is the suit maintainable as a plaint? SK Jain submitted that Justice Sharma said yes, but Justice Agarwal said no.

 

SK Jain also flagged issue 17: Is the Nirmohi Akhara a Panchayati Matha of Ramananda sect of Bairagis and is as such a religious denomination following its faith and per suit according to its own custom? He submitted that the Allahabad High Court had decided the issue in favour of the Nirmohi Akhara. 

 

At this point, SK Jain re-asserted that his suit is not barred by limitation. He drew the court's attention to Article 47. Article 47 states that a limitation period begins on the date of the 'final order'. SK Jain argued that there was no final order in the Faizabad magistrate matter which placed the title under the receivership of the state in December 1949. Therefore, he submitted that the cause of action never accrued, meaning the limitation period never kicked in. 

 

He added that even if Article 120 applies, Article 47 continues to apply and hence the limitation period never began.


Justice Bobde inquired when a cause of action accrues. He inquired when the Nirmohi Akhara was dispossessed. 

 

Justice DY Chandrachud stated that under Article 142 of the 1908 Act, one has to prove either dispossession or discontinuation of possession. SK Jain submitted that the akhara was first in possession until it gave it up to the government receiver under court orders. Justice Chandrachud responded stating that disposession implies involuntariness. SK Jain responded by stating that the property was taken away from the akhara after the 1950 order. 

 

Chief Justice Gogoi reiterated, does this amount to disposession? With this, the bench rose for the day.

 

Hearings to resume tomorrow.