Day 23 Arguments: 7 August 2019
The court resumed hearing Senior Advocate SK Jain on behalf of the Nirmohi Akhara. The Nirmohi Akhara is a Hindu religious establishment, which claims not only the Ayodhya land title, but also the exclusive right to manage the Ram Jamnasthan (Hindu temple at Babri Masjid). It filed its original suit in 1959.
After lunch, it began hearing Senior Advocate K Parasaran for Lord Ram. In 1989, senior advocate DN Agarwal had filed a suit (Suit no. 5) on behalf of Lord Ram and the Ram Janmabhoomi site itself.
The court is hearing a set of appeals to the 2010 Allahabad High Court judgment that divided the Ayodhya title equally between three parties: the Sunni Waqf Board, the Nirmohi Akhara and Lord Ram.
Since March 2019, hearings were suspended so that the parties could attempt mediation. The mediation proceedings were unsuccessful and on 6 August, day-to-day hearings resumed.
Yesterday, SK Jain presented oral arguments for the entire day. Relying on the 2010 Allahabad High Court judgment, he attempted to establish the history of the akhara's possession of the disputed land. He argued that a mosque ceased to exist at the site, after daily namaz ceased in 1934. He concluded the day on the statute of limitations issue: it is unclear whether the akhara's original suit was filed after the limitation period had ended. SK Jain relied on Articles 47 and 142, and Section 23 of the 1908 Limitation Act to argue that the suit was not barred by limitation.
The bench assembled at 10.37 AM. SK Jain resumed arguments on the limitation issue. Yesterday, he argued that suit 3 (Nirmohi Akhara's suit) is not barred by limitation.
On 29 December 1949, the Additional City Magistrate of Faizabad directed the disputed property to be given 'in the receivership' of the municipal board. The Magistrate issued a preliminary attachment order under Section 145, Criminal Procedure Code. On 5 January 1950, the state received the property. In 1959, the Nirmohi Akhara filed a title suit over the dispute property.
SK Jain contended that despite the fact that the suit was filed 10 years after the property went into the state's receivership, the suit is not barred by limitation. Relying on Article 47 of the Limitation Act 1908, he argued that the limitation period never began because no final order was passed in the Section 145 CrPC matter.
He then submitted that under section 9 of Civil Procedure Code, a suit can be filed unless it is 'expressly barred'. Justice Bobde questioned this reasoning, stating that if the suit is claimed to be filed within the limitation period under Article 47, it can only be tested within Article 47.
Justice Chandrachud stated that under section 146 of the Criminal Procedure Code there are two separate issues with regard to attachment. Section 146 deals with the power of a magistrate to attach property and make a reference. By contrast, section 145 deals with procedure, such as for example section 145(4) which outlines the process for an inquiry into possession.
At this point, Chief Justice Gogoi stated that the bench had understood SK Jain's argument and summarised it as follows. The preliminary order gave cause of action, but the suit is under A 47 and is not barred by limitation. He asked SK Jain to proceed to the next issue.
SK Jain made a second argument for contesting the limitation period. Under Article 142 of the 1908 Act, the limitation period is twelve years. Nirmohi Akhara filed the suit within 10 years. Article 142 applies to the dispossession of immovable property. Yesterday, Justice Chandrachud questioned whether losing property under Section 145 Criminal Procedure Code amounts to dispossession.
Next, SK Jain expanded on the notion that a deity has proprietary rights in an endowed property, citing, among other cases, the litigation between Manohar Mookerjee and Raja Peary Mohan Mookerjee. He made submissions on the right of shebaitship.
SK Jain argued that the 1949 order of attachment under Section 145 of Criminal Procedure Code only attached the physical property. He cited how the magistrate explicitly allowed Hindus to continue performing religious ceremonies. SK Jain submitted that nevertheless, the Nirmohi Akhara's right to manage the property was curtailed on with its right to posses it.
Justice DY Chandrachud interjected that the argument of possessory right and management right being distinguishable would imply that section 142 Criminal Procedure Code does not apply to the case. Justice Chandrachud clarified the Article 142 deals with possession and management. SK Jain responded by stating that the management of deity worship and the management of property are different.
Justice Bobde suggested that a better argument might be that Nirmohi Akhari could not manage the property, upon lacking access to the property. SK Jain added that obstruction of prayer has been held to be a wrong. He also relied on the reasoning on the 1933 Sri Hukumchand v. Maharaj Bahadur Singh case.
The bench then briefly discussed the right to sue, when it accrues and the timeline of decrees. Justice Bhushan clarified that the right to sue and right of execution are very different and accrue differently.
SK Jain once again returned to the limitations issue citing Bhagwati Prasad v. Shri Chandramaul (AIR 1966 SC 735) and other cases. He re-iterated that the Faizabad magistrate never passed any final order after the injunction of dispossession, therefore the limitation period never began.
At this point, the bench asked SK Jain to take them through the evidence of revenue payments or land records. The issue at hand is: (i) whether the Nirmohi Akhara owned the property; (ii) whether this right was extinguished by the 1949 order.
SK Jain started reading extracts from the 2010 Allahabad judgment on evidence of Nirmohi Akhara’s possession of the inner courtyard. Chief Justice Gogoi interrupted and stated that while it is reasonable to rely on the judges' reasoning, providing documentary evidence of possession or oral evidence would sustain the claim of possession. Justice Chandrachud emphasised the need for providing oral evidence and documentary evidence to sustain the claim.
SK Jain was unable to provide evidence. He went back to reading Justice Sharma's opinion, wherein he said that Hindus owned all the relevant areas (that the Nirmohi Akhara are now claiming possession of). Justice Sharma made no distinction between Hindus and the Nirmohi Akhara.
Justice Chandrachud stated that there is difference between the existence of the Janmasthan and whether the Nirmohi Akhara has possession of it. He inquired whether there was evidence to demonstrate when the akhara began possessing the temple. Justice Chandrachud emphasised the value of revenue payments, land records, historical accounts and traveller’s accounts.
Chief Justice Gogoi requested SK Jain to take them through the evidence after lunch.
At 12.55 PM, the bench rose for lunch
After lunch, the court briefly heard SK Jain on the issue of evidence of possession. SK Jain sought to rely on extracts of the 2010 Allahabad High Court judgment’s assessment of evidence. The bench requested SK Jain to provide all documentary and oral evidence, and stated that the bench will begin hearing the appeal in suit 5 while SK Jain prepares to provide evidence.
Senior advocate K Parasaran began presenting arguments on behalf of Ram Lalla (Lord Ram). He began by emphasising the importance of determining limitation, by quoting from Section 3 of the 1908 Limitation Act which states that every suit after the limitation period shall be dismissed.
First, he stated that he must establish the nature of the deity, Lord Ram, and the relevant history of events. Parasaran submitted that the spirit of Lord Ram is present at Janmabhoomi and can be experienced by those who pray there, reasoning that the presence of idol is not necessary for the presence of deity.
On the issue of whether Ram was born at Ayodhya, he submitted that Valmiki’s Ramayana states that Lord Ram's place of birth is Ayodhya. He further submitted that what has to be proven is that the custom of worshipping at the site (on the belief that Ram was born there) has existed for a significant number of years. He added that the unshakeable faith of millions of believers is itself evidence.
He began citing historical documents, purporting to document the existence of a Ram temple. He quoted extracts from the British District Judge’s writing that a Masjid had been built on land bordering the Janmasthan. He emphasised that this conclusion was arrived at not by a Hindu judge, but by a British judge to emphasise its fairness. He also stated that in 1885, the British had established a railing to bi-furcated the inner and outer courtyard.
Justice Bobde inquired whether any other court of law has dealt with the issue of the birth of a religious figure or prophet. He gave the example of the following claim: Has any other court enquired into, say, deciding whether 'Jesus Christ was born at Bethlehem'. K Parasaran stated that he did not know, but would survey other jurisdictions.
At this point, K Parasaran addressed the question of whether the installation of idols in 1949 is a 'continuing wrong'. The Sunni Waqf Board has submitted that the installation of the idols and consequent desecration of the mosque is a continuous wrong. Parasaran argued that in 1950, the court’s receiver took charge of the property and that the continuous wrong ceased when the receiver took charge because a court's order, by its nature, cannot further wrong. He further submitted that the placing of the idols may have been the consequence of a wrong, but that it is not a continuing wrong.
Justice Bobde clarified whether one group placing an idol that prevented the other group from worshipping, as they do not believe in the idol, is a continuous wrong. After further back and forth, Justice Bobde drew an analogy between K Parasaran’s argument of a completed act (and not a continuous wrong) and trespass.
The court transitioned to looking at the site plan of the disputed judgment. K Parasaran relied on a map from the 2010 Allahabad High Court judgment to take the bench through the disputed site. He specified which parts of the site each party claims, where the idols are situated and what part was attached to the state receiver in 1950.
Justice Bobde asked whether the idols have been studied. In particular, he inquired whether they had been carbon dated.
K Parasaran provided the bench with archaeological details of the site, such as the existence of stone slabs and carvings.
The hearing concluded with the bench seeking clarifications about the placement of idols. Hearings will continue tomorrow.