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[Ayodhya Hearing] [Day 2] 'Faith Itself Is Evidence That Sthan Is Lord Ram's Birth Place' : Deity Begins Arguments In SC

7 Aug 2019 4:03 PM GMT
[Ayodhya Hearing] [Day 2] Faith Itself Is Evidence That Sthan Is Lord Rams Birth Place : Deity Begins Arguments In SC

On Day 2 of the hearing in the Ram Janmabhoomi-Babri Masjid dispute, Senior Advocate Sushil Kumar Jain, for the Nirmohi Akhara (the plaintiff in Suit no. 3) resumed his argument that the suit is not barred by limitation. "In December, 1949 (after idols were installed inside the mosque), there was the preliminary order under section 145, Cr. P. C. of the City Judicial Magistrate,...

On Day 2 of the hearing in the Ram Janmabhoomi-Babri Masjid dispute, Senior Advocate Sushil Kumar Jain, for the Nirmohi Akhara (the plaintiff in Suit no. 3) resumed his argument that the suit is not barred by limitation.

"In December, 1949 (after idols were installed inside the mosque), there was the preliminary order under section 145, Cr. P. C. of the City Judicial Magistrate, Faizabad directing the attachment of and giving the charge of the inner courtyard of the main temple to the receiver. Then on January 19, 1950, there was the ex-parte interim order that the idols shall not be removed, which became final on March 3, 1951. The appeal against it was also dismissed by the High Court on April 26, 1955 and the temporary injunction became final. My suit came to be filed on December 17, 1959 when the 145 proceeding was still pending...even if Article 120 (of the old Limitation Act of 1908) applies, my suit is still within limitation...145 proceedings continue and are not disposed off till today. Under Article 47 of the Limitation Act, the limitation period starts running from the date of the final order. My argument is that since there was no final order here, the suit is not barred...", he submitted.

"You don't get a cause of action till a final order is passed. Also, Sec.47 says 3 years from the date of the final order. If there is no final order, then 47 cannot be invoked. How can the limitation period begin to run when the event specified in the Article has not happened? If the Article says that the sit has to be filed within 3 years of detecting the fraud, can you file it even before the fraud has been detected?", Justice S. A. Bobde had observed on Tuesday.

Since Article 142 of the old Limitation Act deals with the limitation for 'possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession', both Justices Bobde and D. Y. Chandrachud had asked whether the Akhara could be said to have been dispossessed by virtue of the appointment of the receiver as the attachment order was to only secure the property.

Responding to that Jain said,  "The cause of action is not the same as limitation. The cause of action accrued to me with the preliminary order under section 145, Cr. P. C. I can file a suit even on an order, and not just the final order. It is only the limitation which starts to run from the date of the final order..."

"You are coming close to saying that a suit can be filed without a cause of action. The cause of action for you is the control of the property being taken away. But if you say the suit is within limitation from the viewpoint of 47, then it will be tested on touchstone of only 47, which is, a final order", noted Justice Bobde.

"Also, while 145 (procedure where dispute concerning land or water is likely to cause breach of peace) contemplates notice, hearing and a decision as to who was in possession, under 146 (which speaks of immediate attachment), the moment the order of attachment is passed, a suit can be filed", added Justice Chandrachud.

Next, Jain discussed the position of the Akhara as a 'shebait' in respect of the temple, quoting from a judgment of the top court to the effect that "though a shebait is a manager and not a trustee in the technical sense, it would not he correct to describe the shebaitship as a mere office", that "the shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property", and that "even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right".

"My right to manage the temple was curtailed. Stopping 'sewa-pooja' is dispossession to the extent of shebaitary rights", he argued.

"There is a difference between possessory rights and management rights. Article 142 speaks of possession of immovable property and not the management by shebait", commented Justice Chandrachud.

"But the right to do pooja is attached to the possession of the immovable property. It is inherent in it", advanced Jain.

"You cannot manage the temple unless you have access to it", rephrased Justice Bobde.

"You are deprived of management (by the attachment order). It led to your dispossession also. That gives you the right to sue, regardless of what happens in appeal. If the appellate court reversed the attachment, your right to sue also disappears. We have to see where it had first accrued", continued Justice Bobde.

Finally, the bench insisted Jain to take the court through oral and documentary evidence to establish the incidence of the shebait to sustain the case.

"My suit is not on title but possession...section 110 of the Evidence Act comes into play", asserted the Senior Counsel.

"Is any land revenue payable on this land? That is one of the points of adverse possession revenue is payable unless it is exempted as Nazul land. If it is payable, who has been paying it?", demanded Justice Bobde.

"Proof of payment of land revenue would be a very good proof in your favour", added Chief Justice Ranjan Gogoi.

"What about the records of rights?", asked Justice Ashok Bhushan.

"Everything has been stolen. We produced what we could. We are in a handicapped position", said  Jain.

"The existence of the Akhara is different and to when the incidence of the shebait of the Janma Sthan dates back is different...evidence like travellers' and historians' records, revenue service, accounts is needed", remarked Justice Chandrachud.

When the admitted original documents could not be produced, the bench chose to hear Senior Advocate K. Parasaran for plaintiff Gopal Singh Visharad.

"There is reference in the Valmiki Ramayana to a temple in Ayodhya where Lord Ram was born. The Janma Sthan has become a personification of the deity and hence, an object of worship. It is believed that the God's spirit lives in the Sthan. This faith is itself evidence that the Sthan is where Lord Ram was born", began Mr. Parasaran.

"Has a similar question ever arisen before any court in the world regarding the birth of a Prophet? Whether a religious figure, say Jesus Christ, was born in Bethelhem?", inquired Justice Bobde.

The veteran lawyer replied that he would find out.

Further, he submitted that if the placing of the idols of the Hindu deities was a "continuing wrong", it was "snapped" by the order of the court for attachment and the appointment of the receiver. "When the court takes the property into its custody, it is an act of court to preserve the rights of all parties", he added.

The Chief Justice asked if the starting point of the limitation was the court order.

Mr. Parasaran said that act of placing the idols was a complete act and could be a continuing consequence of a wrong, in view of the subsequent attachment and injunction.

"It is like trespass", observed Justice Bobde, asking if the idols have been carbon dated.

The hearing will continue on Thursday. 

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