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Day 10

#AyodhyaCase

A five-judge bench comprising CJI Ranjan Gogoi, Justices S A Bobde, D Y Chandrachud, Ashok Bhushan & Abdul Nazeer has assembled.

Senior advocate Ranjit Kumar (RK) resumes arguments for plaintiff in Suit No.1 (Gopal Singh Visharad)

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RK: What has been stated in the prayer is the place of Janmabhumi. I am adopting the argument of Mr. Parasaran and Mr. Vaidyanathan that the place itself is a diety and i have been worshipping it and it is civil right which should not be curtailed.

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Reading WS of defendants Muslim parties, Mr. Ranjit Kumar submits that the 1885 proceedings that they claim would be acting as res judicata was only limited to Ram Chabutra.

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RK: On the question of res judicata i have pointed this out that their stand was this only at that time that the 1885 suit was limited to the chabutra. I am seeking my right of worship, not only the place.

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Reading written statement (WS) of Sunni Central Waqf Board, RK reiterates that the 1885 suit was filed by Mahant Raghubar Das only with regard to Ram Chabutra and was limited to that. He also submits on the basis of WS that upto 16.12.1949 only Friday prayers were being offered.
Ranjit Kumar now referring to pleadings in Suit No. 4 (Sunni Waqf Board) and the Written Statement filed by Gopal Singh Visharad in the suit. G. S. Visharad was Defendant No. 1 in the 1961 suit.

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Reading the WS of GS Visharad in Suit 4, RK submits that muslims have not performed worship since 1934 in the structure wrongly called as Babri Masjid. He also submits that the suit was filed in personal capacity and not in representative capacity.

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RK: There are a few more pages with regard to applicability of waqf and validity. I am not going into that for now.

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RK: In Suit No. 5 i did not file a reply because i am adopting their submission. Now having read the pleadings I'll refer to certain relevant documents in the 145 Cr. PC proceedings. Notice was issued in general for both muslims and hindus to have their say.

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RK: Affidavits were filed but the trial court has not accepted them. My submission is that they ought to be accepted since they relate to the same deity, same place that we are concerned with.

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RK: The only ground that these affidavits were not accepted since the objection was raised that the parties were not available for cross examination.

J. DYC: If you want to prove a statement of fact in the affidavit,the person should be available to prove the statement.
RK: The trial happened later and these deponents were not available.

CJI: When these affidavits were dismissed you did not challenge?

RK: It was in the judgment, no seperate order.

CJI: Show us the part of judgment... do it at your pace.

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RK now Reading translated copies of the affidavits filed in S. 145 proceedings. (After placing of idols in 1949, an order was passed under Section 145 Cr. P.C. attaching the property and appointing a receiver)

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RK: Upon the order under Section 145 these affidavits were filed my lords by both hindus and muslims.

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J. DYC: How many people filed these affidavits.

RK: These are by 20 people in all, since some of these are joint affidavits.

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RK reading affidavits of Muslim parties to the effect that several muslims had given Affidavits stating that Muslims have not being performing namaz since 1935 and that they have no objection if land is given to hindus.

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J. Bobde: The magistrate in S. 145 proceedings also did not say anything?

RK: No, I'll read what the magistrate said.

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J. Bobde: The magistrate in S. 145 proceedings also did not say anything?

RK: No, I'll read what the magistrate said.

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RK relies on the High Court finding that the affidavits were filed and some of the persons who had filed affidavits also filed written statements and they were taken on record.

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CJI: What happened to these proceedings.

RK: reading order passed in S. 145 proceedings, where it has been noted that since a temporary injunction was granted in GS Visharad's case, the file in S. 145 proceedings was consigned to record room till finality of civil suits.
J. Bhushan: These Affidavits can be said to be filed but cannot be relied upon, ehat is your submission?

RK: These persons presented themselves before magistrate and then they were taken on record.

J. Bhushan: But they were in S. 145 Cr. pC

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RK: Section 35 Cr. P.C. & these are judicial proceedings. Now they have not been cross examined but these affidavits say something, they are all residents of the place and none opposed these statements. It was a general statement in 3 newspapers, people came and gave statements
J. Bobde: Thats all, that these persons are real, that they came, that they were verified, thats all. No court can say that the facts of these Affidavits are proved.

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RK: If a person gives an affidavit on oath and are not opposed then inference can be taken, i am not saying that this is gospel of truth.
Bobde: Had these been filed in High Court it would have been different.

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RK: These Affidavits were brought on record by my father who died in 1986.

CJI: There are 14 Affidavits in 145 proceedings and these were filed by you and form part of record, that is your argument?

RK: Yes.

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RK: With regard to my lordships' query that what order was filed on my application,I request that i will inspect record&reply

J. Bobde: More significant question is that if any person has testifiedas to who filed theseAffidavits&that theyknewsuch person?

RK- I will read that.
RK: Now i want to place other exhibits in my suit. Though they are not on chronological order, I'll show them chronologically. Right from 1858 how the proceedings went on.

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RK reading first Document of November, 1958 which is the complaint with regard to one sikh Nihant Singh Fakir having entered the mosque and performed worship of Guru Gobind Singh and established the deity.

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RK reads next exhibit which is the application filed by the Muezzin of the Babri Masjid in 1958 complaining about Nihant Singh having entered the mosque and constructing a chabutra and putting up lights and....
...and that Ram Ram has been written and complaining of high-handedness of the Hindus and requesting Hindus to be evicted and writing on the walls to be washed.

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Next exhibit being referred to by RK is the report of the Thanedar with regard to same incident. The report mentions that Fakir Nihant Singh is residing inside the Masjid Janmasthan...
...That he was explained the order of the Court but the said Fakir insisted that the entire place belongs to Nirankar and did not leave the place.

Referring to next Document in the same line RK submits that the Fakir appeared and the Parwana (Challan) was given to him.
RK: This i am showing to submit that the place was always called Janmasthan, everywhere Masjid Janmasthan has been mentioned and that Guru Gobind Singh puja was going on and there was a chabutra with idols.

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RK: I am submitting that my right to worship, which I claimed in 1950 was there and ensured since before 1958.

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RK: My case is that Pooja, worship has been continuing and even after injunction was granted and receiver appointed, pooja was allowed.

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RK: These exhibits are being shown to establish my right of worship which is continuous. The Documents i have placed from 1858 it is established that worship continued. I would now place two Judgments in support of right to worship and how it flows in Hinduism.
First case being referred is 2016 (2) SCC 725. (Para 32 and 33)

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RK is also relying on 1966 3 SCR 242 which is also quoted in para 36 of 2016(2) SCC 725

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Here are those relevant paras cited by Ranjith Kumar.

Bench rises for the lunch.

Hearing to resume at 2 pm.

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#AyodhyaHearing

Post lunch session.

Bench has assembled.

Ranjit Kumar (RK) resumes his arguments.
RK is citing relevant paras from SC decision in 2005 (11) SCC 45

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RK: The context in which this judgment is that of public trust and private trust. My lords may have para 5.

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RK is now refering to para 9, 10, 12 & 19

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Here is para 19 of the 2005 Judgment (see above)

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RK: I am relying on this judgment only for the purpose that the right to worship existed at least from 100 years before and the documents indicate that worship has been continuing. Now i am referring to 1995 Supp 4 SCC 286

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RK from quoting para 30 of the 1995 Judgment (see above) submits the subject matter of the controversy here was Section 9 of Limitation Act and Explanation 1.

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RK from quoting para 36 of 1995 Judgment submits, right to worship is a civil right, interference with which raises a civil dispute.

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J. Bobde: Where is the observation with regard to church being juridical person?

RK: Its not there.

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RK: Last judgment that i place is 1952 SCR 849, this is in relation to badrinath temple.

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RK: Last judgment that i place is 1952 SCR 849, this is in relation to badrinath temple.

RK is reading the order dated 03.03.51 passed in Suit No. 1 by Civil Judge Faizabad, that continued the interim injunction.

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RK:order also discusses affidavits by Muslims in S. 145 proceedings & it is recorded that nothing has been pointed out to discredit these affidavits&that on the basis of these affidavits there appears a prima facie case& thereafter extended interim injunction granted on 16.01.50.
RK: My lords may please notice that all the affidavits are extracted (in High Court judgment). All of the affidavits. That they were not performing (Namaz) since 1934.

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RK: Apart from the fact that Suit No. 5 is decreed, my right to worship remains and that right continues to flow since years. and i am respectfully adopting the arguments of Mr. Parasaran and Mr. Vaidyanathan and that my right ro worship should continue.

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RK has concluded.

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Senior advocate K Parasaran is making submissions in suit 5.

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Senior advocate VN Sinha: Yesterday i submitted that this appeal is filed on behalf of Def. 11 in suit 5.

V N Sinha commences his arguments for for All India Hindu Mahasabha.

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VN Sinha now showing written statement filed by AIHM in Suit 5 and submits that the WS indicates that they completely supported the case with only one caveat that we may be included in construction of temple. argument advanced by Mr. Parasaran and Mr. CSV are being adopted.
VNS: I want to rely upon a register of 1858, i have been informed that it is not exhibited. Another handicap is that my AoR died in October this year and we do not have necessary documents. So i had sought alittle time to trace the Documents.They may reply&after that i can argue.
Dhawan (from other side): I will not be leading the reply I'll come in a little later.

CJI accepts VN Sinha's request: Yes, Mr. Jain.

Senior advocate Sushil Jain is back for Nirmohi Akhara.

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J. Bobde: What is the pint you will argue?

SKJ: I will argue on shebaitship rights, Limitation.

CJI: You already lead arguments on that. do not repeat.

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J.DYC: Mr. Jain one thing we should make clear. The moment you say you are a shebait, yiur title goes away and your claim to 1/3rd goes away.

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SKJ: I have mentioned that i am only claiming my rights to worship. I will show Judgments to effect that only shebait can file the suit and need not make deities a party. The next friend that has come in 1989, 30 years later, is not an idol worshipper himself & has come on 1989.
J. Bobde: So your points are shebaitship and possession. what else?

SKJ: Section 11 does not come into play in my suit since there was no attachment of outer courtyard.

J. Bobde: Nezt Point?

SKJ: That namaz has not happened at least since 1934.

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SKJ: I will take minimum time my lords thats why i prepared the note.

J. Bobde: All right, start with 1st point.

SKJ: In the pleadings except impleaded party no. 10 noone has taken a stand against my shebaitship rights.

J. Bobde: Who is 10?

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SKJ: Umesh Chandra Pandey. secondly, Hindu witnesses have accepted my possession.Thirdly, this plea has been taken in 1989, before that all pleas were that i have possession.Gopal Singh Visharad's case is also from beginning that the Murti was inside and not moved in from outside
J. Bobde: Can you complete today?

SkJ: Not possible my lords. I have to point out too many things.

J. Bhushan: Ok begin.

SKJ: My lords i cannot finish today.

CJI: You start first.

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SKJ: Oral Evidence as well as documentary evidence has been submitted by the plaintiff, those should be tested on following issues. First, whether the Nirmohi Akhada had Shebaitship rights. Second, whether the NA was in possesion of inner courtyard.

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SkJ: Thirdly whether NA was performing rights.

I am pleading another aspect that Suit 4 is barred by Limitation, when their right was infringed so severely in 1934, their limitation would start from that time and not 1949.
J. Bobde: Has anyone admitted in WS that you are a shebait?

SKJ: As far as muslims they have denied everything and in Hindus, except Defendant 10, noone denied. And in their cross examination too they did not question.

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SKJ again suggests that he has to show evidence and will require time.

CJI: If you start, only then you will take time, continue.

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SKJ: Shebait rights have been challenged only by Umesh Pandey and he did not take the stand, was not cross examined. I am also relying on 1999 (3) SCC 457.

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SKJ: And finally para 29, so an adverse inference is to be taken against defendant no. 10 for failing to get examined.

J. Nazeer: To draw an adverse inference where is the stand? where is the WS? you cant ask for adverse inference without showing us the stand.

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SKJ: I'll show my lords, my apology. I'll show.

SKJ reads WS of Def No. 10 to indicate that he was the only party that had made averments against the Shebait rights of Nirmohi Akhara.

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SKJ: In suit 5, they have referred to my Suit, but wherever it relates to my shebait rights, there is nothing. Please see. Now reading plaint in Suit 5, to show that in the plaint, plaintiffs have not challenged shebait rights of NAdespite referring to the case of Nirmohi Akahara
SKJ submits that the Plaintiff No. 3 in Suit 5 has not claimed that he is a worshipper.

CJI: Who isn't a worshipper?

SKJ: Plaintiff 3 in suit 5 who claims to be next friend. He is not even a temple worshipper.

J. Bobde: How?
SKJ: I'll show he doesn't even believe, he is a believer of another ashram.

J. DYC: Are you denying the juridical character of deity? because your WS says so.

SKJ: I am making a statement that i am not denying juridical character.
Bobde: How can you orally deny or not deny.
J. DYC: Para 18 of your WS saha that RJB is not a juridical entity
SKJ: At present i am on my suit, not about written statement.

J.DYC: When parties are same, plaint in one case is defense in other. You have said plaintiff in Suit 5 has no title and it belongs to you. Do we take it that argument is not being pressed?

SKJ: No
CJI: Mr. Jain we will continue tomorrow, plz prepare your case as ro how in a first appeal we can allow you ro argue different from your pleading and if you cannot satisfy we will not hear you.

SKJ: My client is a poor client.

Bench rises for the day.

#AyodhyaHearing
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