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Day 23

Ayodhya case hearing.

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

Senior advocate Zafaryab Jillani commences arguments for Sunni Waqf Board.

ZJ: Referring to a 1942 suit between the Nirmohis, Mr. Zafaryab Jilani points out that the disputed property had been identified as a mosque.
Referring to grant of permission to access the building to Muslims, Mr. Jilani submits "It cannot be said that that building was being used as anything except mosque."

Mr. Jilani is now referringto an application by the mutawalli (trustee) of Babri Masjid dated 5th June 1934 made in connection with riots in Ayodhya and damage caused to mosque by the Bairagis.
He submits, "This shows that the building was being used as a mosque by Muslims and that is why only Muslims approached (the authorities) regarding damage."
Mr. Jilani is also referring to other orders with regard to compensation and repairing of damage to the structure in 1934 and points out that it was on the basis of application by Muslims after the 1934 riots that the compensation was granted...
..and the structure was caused to be repaired by the authorities.
Mr. Jilani also points out that the word "Allah" placed in the mosque was also damaged and was also replaced.
ZJ now referring to an inspection report prepared after the restoration of the mosque post-1943 riots.
ZJ further refers to an agreement between Syed Mohd. Zaki and Abdul Gaffar on
25th July 1936 with respect to payment of arrears of salary of
Abdul Gaffar who is said to have worked as Pesh Imam in the Babri Mosque.
Justice Bhushan points out that the document is a private document and has not been proved and that it cannot be said to be a public document.
Mr. Jilani replies that the document was filed in the 1945 suit and a certified copy has been obtained therefrom and therefore it can said to be a public document.

Justice Chandrachud points out that the agreement in question ties up to another application made by the Pesh Imam to the Waqf Commissioner for payment of salary which refers to the agreement.

Referring to other documentary evidence Mr. Jilani submits that the structure had been a mosque and namaz was being offered thereat even after 1934.
Pointing to the statement of P.W. 2 Devki Nandan Agarwal, Mr. Jilani submits that the plaintiffs in suit 5 are bound by their statements where the reports of the Waqf Commissioner pf 1949 have been not only mentioned but are admitted.
Pointing to the statement of P.W. 2 Devki Nandan Agarwal, Mr. Jilani submits that the plaintiffs in suit 5 are bound by their statements where the reports of the Waqf Commissioner of 1949 have been not only mentioned but are admitted.
Mr. Jilani is now pointing out excerpts from the statement of P. W. - 1 Mohammad Hashim who has stated in his statement that he had offered last namaz in the disputed structure on 22nd December 1949.
ZJ: Since my lords had asked if any Muslims had made any efforts, this witness was jailed in 1954 for attempting to offer namaz in the disputed site.

Mr. Jilani also refers to statement of Haji Mehboob who also states that he had offered namaz in the disputed structure on 22nd December 1949.
Mr. Jilani is reading out statements of various witnesses in order to indicate that Namaz was being offered between the period from 1934 and 1949.
Bench rises for the lunch.
Post lunch session.

Bench has assembled.

Senior advocate Rajeev Dhawan on behalf of Sunni Waqf Board: Today is Friday, the 13th, a good day to conclude these two suits.

Dr. Dhavan points out that he will reply to Suit 1 and Suit 3 and thereafter will reply to Suit 5. After Replication he will be starting Suit 4.
Dr. Dhavan has started now, Mr. Jilani was assisting the court in morning with regard to statements of witnesses.

RD: It was stated (by Nirmohi Akhara) that if the plaintiffs in Suits 1 and 5 do not oppose the shebaiti right of Nirmohis in Suit 3, then in return Nirmohi won't challenge the maintainability of Suit 5.
RD: This opportunity was given to parties in Suit 5 and that they have not availed and therefore it should be assumed that status quo with regard to opposition is continuing.
From the pleadings and arguments of Nirmohi Akhara, Dr. Dhavan culls out the following points:
-The only claim is against the state and section145 Cr. PC order.
- Suit is only for charge and management.
- Suit was for inner courtyard only.
- Earlier Hindus were performing worship in outer courtyard but idols were shifted illegally in the inner courtyard during the intervening bight of 22-23.12.1949
- No averment that central dome was the birthplace of Lord Ram.
- Nirmohi Akhara is the shebait and has been deprived of its management rights.
- Even if a new temple is made, Nirmohis will be shebaits of the same.
- Mahant Raghubar Das, who filed a suit in 1885 was first disowned by Nirmohi Akhara but has later been accepted to be a mahant of Nirmohi Akhara.
- First Nirmohi Akhara had said that the term "Janmasthan" is a meaningless phrase but has later accepted it as a juridical entity.
RD: In case of a trustee of a trust, would it not create havoc if that singular right to sue is available to everyone. One cannot treat it as an unlimited right belonging to everyone.
RD: Ours is a country of religious endowments, everywhere. If your lordships decide on Next friend basis without proof, what will the consequence be? The consequence will be that next friends will be suing everywhere. This is a dangerous proposition.
RD: The shebait even if not able to maintain Suit No. 3 would continue to be shebait until removed as shebait by lawful procedure.
Referring to Array of Parties in Suit 5 Dr. Dhavan points out that Plaintiff No. 2 was Asthan Sri Ram Janmabhumi and was mentioned for the first time in 1989.
The bench is now questioning Dr. Dhavan as to how the belief of persons can be challenged with regard to existence of Janmasthan.
Justice Bobde points out that what were the occasion to prove juristic personality of Plaintiff 2 in suit 5 before 1989. The bench is also questioning Dr. Dhavan as to what, according to him, would be the features necessary for juristic entity.
Bench rises for the day. Hearing to continue on Monday.

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