The Supreme Court Wednesday asked Muslim parties whether they will agree that Nirmohi Akahara has been in possession of the outer courtyard of the disputed Ram Janmbhoomi-Babri masjid land at Ayodhya as they have accepted the Akahara to be a devotee of Ram Lalla.
A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi was told by senior advocate Rajeev Dhavan, appearing for Muslim parties including Sunni Waqf Board and one of the original litigants M Siddiq, that Nirmohi Akhara being the 'shebait' (devotee) was only seeking right to manage and offer puja and was not claiming title.
"You do not dispute their (Akhara's) shebaiti rights," the bench asked Dhavan on the 19th day of the hearing in the case.
"No. I do not," Dhavan replied to the bench, also comprising justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S A Nazeer.
"If you accept that Akahara as 'shebiat' then do you also accept that it was in possession of the outer courtyard," the bench asked.
Dhavan said rights of Akahara as a devotee may be "fine", but they did not change its juristic status and moreover, as a 'shebait' it was only seeking right to management and not the title.
Consistent with the submissions (Muslim side), Akahara has been asking for management rights of outer courtyard where at 'Ram Chabutara', Hindus claimed to have been worshipping and it has nothing to do with the inner portion, he said.
The Akahara was allowed to perform puja in the outer courtyard and it did not entitle the Hindu body to claim ownership of inner courtyard.
The bench then referred to pleadings of the lawsuit of Sunni Wakf Board and said it had sought title over entire disputed area.
It said by accepting that Akahara has rights as 'shebait' "then you are necessarily giving up your claim over 'Ram Chabutara' and 'Sita Rasoi' of outer courtyard...Therefore, the outer courtyard cannot be a mosque."
"Our case is that in 1885, Akahara had sought enforcement of the right of prayer at 'Ram Chabutra' and not title over the property," he said, adding that it was merely an easementary right.
"Technically, your lordships can say that some portion may be given," he said.
The court then said the right of 'shebait' may be related to management only, but "so far as the deity (Ram Lalla Virajman') is concerned, its right is more than the easementary one."
Dhavan objected and said people can say that Hindus were allowed to go to near the railing inside the place to offer prayers, but it did entitle them to the title right.
Then bench asked Dhavan as to whether there was any difference in the concept of mosques in Gulf countries and here as referred to by senior lawyer P N Mishra, counsel for Ram Janmbhoomi Punruddhar Samiti, that religious places of two religions cannot co-exist on one plot.
"Can you say that Quranic law will not apply," it asked.
Dhavan, who is assisted by lawyer Ejaz Maqbool, said, "Quranic law as accepted by Indian law will apply."
The bench said at the highest, the case of Muslim was of "mutual co-existence by long user".
The case of Muslims was of 'Wakf' by user and the people can co-exist as it the property of Muslims, he said, adding, "Some people came and say they have been praying here, I do not stop them. It is the title question which I have been answering."
Dhavan extensively dealt with alleged contradictions in the pleadings of Akahara and said it had made government officials as parties and never claimed title as it was challenging the attachment of the disputed site by the receiver in 1950 following the placing of idols inside on the intervening night of December 22-23, 1949.
The high court had granted one third of disputed site to Akahara as nobody with the better title came up to claim the outer courtyard and said Justice Agrawal had said that Akahara was "not entitled to any relief" and the HC, by majority of 2:1, had dismissed their suit, he said.
He said the concession of Akahara that it does not oppose the deity was not of much help as the deity cannot own the property.
Taking note of submissions that several documents, relied upon by Akhara, have not been exhibited in high court records, the bench said, "We will not rely on any documents which have not been exhibited".
Dhavan gave the list of documents of Akahara which were rejected by the high court by terming them as "irrelevant" and "inadmissible".
"Merely because Mosque was landlocked and could not be reached except by passing through the places of Hindu worship, does not mean that it would cease to be a mosque," he said, adding that Akhara was seeking entire property on this strange ground.
"I am supporting the plea of Akahara opposing maintainability of suit of the deity through next friend Devki Nandan Agarwal," he said, adding, "The next friend has to be a worshipper".
It would create "havoc" if court allows the plea of "next friend" of deity to stake claim over property. Dhavan would continue his submissions tomorrow.
The Allahabad High Court, in its judgment of 2010 on four civil lawsuits, had partitioned the 2.77-acre disputed land equally among Sunni Waqf Board, Nirmohi Akhara and Ram Lalla.
Fourteen appeals have been filed in the Supreme Court against the verdict.
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