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Day 19

#Ayodhya case.

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

Senior advocate Rajeev Dhavan (RD) resumes his arguments for Sunni Waqf Board.

RD: With some regrets i have to tell you that Iqbal Ansari, one of the litigants, Md. Hashim's son in this case was attacked by a shooter. Whether this requires investigation or not i do not know, sometimes a simple word from the bench is enough.

RD: I do not want security, my life will alter. My gates are always open, i do not need security. Its about what security is attacked.

CJI says he'll look into it.

Dhavan started on arguments.

RD: I can really understand their (Nirmohi) appeal. They are fighting for their existence. But even then they are out of the case. I am finding the link between 1885 and prrsent. Because first they denied Raghubar Das and later accept him.
J. Nazeer: You do not dispute their shebaiti rights?

Dhawan: No. I do not.

J. Bhushan: When you accept them as shebait you also accept a part of land is theirs.

RD: Yes, maybe, but what part my lords. Thats what fell from My Lord J. DYC that they had access. Shebaitship is fine, that is their status, their juristic status. But what does shebaitship entitle them to. When i read their appeal its really about the section 145 proceedings.
RD: Consistent with my argument that the Plaintiff in Suit 3, is asking for management rights. They are entitled to management rights, question is of what. Where was the idol and where were prayers taking place. On Ram Chabutra and not in inner courtyard.

DYC points out that in the pleadings of Suit 4, it is the both the inner courtyard and outer both that have been claimed in relief.

RD: Our case is that in 1885 they sought a right of prayer and that was for the Chabutra and at that time there was no title sought. Its an easementary right.

J. DYC: Dr. Dhavan even that the right of shebait is about management of the deity but the right of the deity is more than easementary.

RD: I have already submitted that the deity has limited rights. In 1885 shebait filed suit but title was not claimed.

RD: By 1858, India was filled with places side by side. In modern anglo Mohamedan law we have to go by we cannot say that if they were good people or bad.

J. Bhushan: Are you saying that quranic law will not be applicable to a masjid.
RD: Quranic law as accepted by Indian law. You cannot ofcourse ignore quranic law.

J. DYC: so your case at the highest is of mutual co-existence by long user.

RD: my case is waqf by user. We may co-exist, because its my property. Some people come and say they have been praying here, i do not stop them. Its the title question that i am answering.
RD: Mr. Jain's argument was that outer courtyard os his and he was not open to sharing. This is their claim. They now say you made a terrible mistake by combining the deity with us as far as outer courtyard.
RD: The pleading is about management and charge, nothing else.

Dr. Dhavan is taking the bench through Judgment of the High Court to indicate that the Suit of Nirmohi Akhara has not been found to be entitled to any reliefs.
RD: It is not for me to tell them you are not what you are and it is what the court told them, you are not what you are.
RD: (Referring to claim of Nirmohi Akhara to outer courtyard) You didn't claim outer courtyard. You only claimed inner courtyard, you only were against the 145 proceedings, you only were against govt. defendants, the rest were all conspirators.
Dr. Dhavan says he is also supporting the arguments of Mr. Sushil Jain with regard to maintainability of Suit 5 through next friend Devki Nandan Agarwal. "The next friend has to be a worshipper", submits Dhavan.
RD: Supposing my lords were to decree Suit 5. Can possession of the property found to be of the Deity be delivered to the next friend.
Dr. Dhavan gives the following conclusions derived from pleadings in Suit 3 filed by Nirmohi Akhara:
i. Claim is only against the State and Section 145 proceedings.
ii. Claim is only for management and charge.
iii. Suit restricted to inner courtyard.
iv. Earlier worship was at Ram Chabutra in outer courtyard.
v. in 1949, the idol was shifted from chabutra to the inner courtyard under under central dome.
vi. No averment that central dome was place of birth.
vii. Nirmohis as shebait have been deprived of management and charge.
viii. Shebaitship has been denied to Nirmohis.
ix. Even if there is a new temple, Nirmohi will remain shebait.
x. Nirmohi first claimed that word janamsthan was meaningless but later accepted the same to be juridical entity.
xi. Mahant Raghubar Das was first disowned and later accepted.
xii. Though Nirmohi Akhara has been held to be not entitled to any relief and yet outer courtyard has been given to them.
Dr. Dhavan is now addressing the bench on arguments regarding the swayambhu and ownership by a deity. He submits that swayambhu is when God manifests itself in some form.

RD: (Referring to submissions of Mr. Jain in Suit 3) What is the shebait entitled to. what do they say. The office of shebait is heritable. Law of perpetuity is not applicable as well. The personal interest of a shebait is appurtenant to the deity.
RD: He is not the owner, he is a trustee. As far as representing the idol/deity, its the shebait that has the right. The beneficiaries are the people who have a right to pray.
RD: Consider the comsequences to litigation if next freinds popped up and they were not shebaits. Consider the havoc in India. Therefore the rights of a worshipper are very strongly guarded.
RD: There can be no compromise between shebait and next friend without one of them giving up their right to sue.
RD: My lords i do not know if i am going slow or they went faster.

CJI: You are going okay.
Dr. Dhavan is taking the bench through exhibits relied upon by the Nirmohi Akhara one by one to indicate that all the exhibits either pertain to land outside the disputed site and are therefore of no help to the case of Nirmohi Akhara or were not exhibited.
Bench rises for the lunch.

Post lunch session.


J. Chandrachud asks that if the exhibits filed by Nirmohi Akhara have been taken aid of in establishing their Shebaiti rights and if Dr. Dhawan accepts their statis as Shebaits, to what consequence are the exhibits being referred to.
RD: In a sense we are not claiming the graves, they are destroyed.

Dr. Dhavan submits that certain Documents referred to in Suit 3 have not been exhibited.
Justice Bobde asks Sr. Adv Sushil Jain to clarify. He says that whether documents referred by him during arguments were exhibited or not he will have to check.
CJI: If any document has been mentioned or relied upon but not exhibited we will not look into it.
Sushil Jain: The Documents have been produced and proved.

CJI: Will you allow us to hear the matter the manner we want to or do you want us to hear the manner you want it?

RD: My friend is in appeal for something which was not given to him. Second is what evidence has been relied and i have shown that practically none of them support his case.

Dhavan submits that while Justice Sudhir Agarwal in his Judgment has held most of the documyou presented by Nirmohi Akhara to be not helpful for their case, Justice Dharam Veer Sharma throws them out in entirety.
RD: (Relying on a number of documents to indicate that Nirmohi Akhara was limited to Ram Chabutra in outer courtyard) The theory of Nirmohi Akhara that there has always been a temple and no babri masjid cannot be subsist.
Dhavan also submits that documentary evidence clearly indicates that worship was continuing by Hindus at Ram Chabutra in outer courtyard and that that place was believed to be birthplace of Ram.

RD: Our argument is going to be that even assuming there were no prayers (from 1934) you cannot claim adverse possession by saying there were no prayers so its not a mosque.
Dhavan submits that all Gazetteers from before 1858 cannot be relied upon by the Court. He submits that before 1858 Gazetteers were being compiled by the East India Co. and were made in a particular manner and additions were made for disputes.
Dhavan further submits that P. Carnegy has recorded in his account that the pillars in the structure resembled Budhist pillars and that joint possesion of Hindus and Muslims was also mentioned.
Dhavan: He also indicates that from Carnegy's account it is clear that Muslims were praying in the inner courtyard mosque and Hindus were outside.
Bench rises for the day.
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