Senior Advocate Sushil Kumar Jain resumed his arguments for Nirmohi Akhara before the 5-Judge Constitution bench headed by the Chief Justice of India, Justice Ranjan Gogoi. Today he focused on oral evidence and documentary evidence.
Relying on witness testimonies, Mr. Jain submitted that there have been no allegations that Nirmohi Akhara misused its rights or did anything adverse the deity. He said that these are the only grounds on the basis of which Shebaitship rights of a shebait can be taken away. He submitted that shebait is like Karta of a family.
Justice Bobde seeking clarification, said that Nirmohi Akhara is not claiming ownership in the normal sense, they are claiming management rights, but what all do they manage?
Mr. SK Jain said that puja-aarti at the disputed site is to be done and controlled by them.
Mr SK Jain further submitted that only shebait can file that suit, but as far as construction of temple is concerned, they’ll take help of other Hindu parties as well, they don’t want monopoly in construction.
Relying upon oral evidence, Mr. Jain stated that nobody has disputed their Shebaitship and possession of over 150 years, of both inner and outer courtyard.
Mr. Jain said that giving 1/3rd of the disputed property to Ram Lalla and Sunni waqf board was ‘wrong’, he said that they cannot be given possession, decree should have been passed in favour of Nirmohi Akhara only.
He went on with submissions stating that when digging was by the Archaeology Department, under the chabootra another chabootra was found exactly beneath it. Relying on witness testimonies he submitted that the disputed structure was never used as a mosque till 1856-57, and no historic evidence has been found to show that namaz was offered there.
Justice Bobde told Mr. Jain to focus on those evidences which support his case and prove his right of Shebaitship.
Mr. Jain stated that “There were tons of documents establishing the right of shebaitship, but in dacoity they all have got stolen.”
After quoting a number of witness testimonies, Mr. Jain submitted that presence of Nirmohi Akhara and its possession has never been doubted, there is no dispute about it. He stated that the Allahabad High Court has also recognised in its impugned judgement that Nirmohi Akhara was managing the affairs even after idols were placed under the central dome of the disputed structure.
Justice Chandrachud told Mr. Jain that he has categorically denied thatPlaintiff No. 1 and Plaintiff No. 2 in Suit 5 are juridical persons, however in his oral submissions he says that they are juridical persons, but, the moment he accepts that they are juridical persons, they have right to be represented by counsels.
Justice Chandrachud asked him that if the suit of the deity fails, who will he be shebait for? “You stand together, you fall together” Justice Chandrachud added.
Mr. Jain said that his only endeavour it to get his suit accepted. This prompted Justice Bobde to ask, “Should we take it then that you are not seeking dismissal of Suit 5?” Mr. Jain stated that in this regard he will be able to make a statement tomorrow.
Justice Chandrachud told Mr. Jain that there is no boundary between his claim as a shebait and claim of Plaintiff No. 3 as next friend, because even if the case is decreed in their favour, Nirmohi Akhara can independently claim shebaitship.
Justice Chandrachud further explained that the moment he said that Plaintiff No. 1 and Plaintiff No. 2 are juridical persons, there is no conflict between his suit and their suit, and even if the suit is decreed in their favour, he will still be entitled to assert his cause of action.
Justice Chandrachud told him that he is unnecessarily entering an area of conflict which does not belong to him, it belongs to Sunni Central Waqf Board.
Mr. Jain was further told Justice Chandrachud that his case is that Suit no. 5 cannot be maintained, then the only consequence would be dismissal of the Suit, and if the Suit no. 5 is dismissed, he should consider what the consequences would be for him, he cannot be shebait for a mosque.
Justice Chandrachud said that his submission should be to independently accept his suit, without opposing to Suit no. 5.
Agreeing, Mr. Jain submitted that his endeavour is this only, but the possession has to be handed over to him.
Quoting from precedents, Mr. Jain stated that an idol is certainly a juridical person, who can hold property, has power to sue, be sued in respect of the property, but its personality is linked with physical personality of Shebiat.
Relying on caselaws, Mr. Jain further submitted that it has been held that shebait can maintain a suit on behalf of the deity in his own name and need not implead the deity as a party to any case.
Justice Chandrachud pointed out that in the suits in which deity is vitally interested, it has to be heard. Mr. Jain said that the personality of idol is merged with the shebiat, and the shebiat is suing on behalf of the deity. However, Mr. Jain said that plaintiff in the suit of next friend has mentioned that Shebiat is not acting in the interest of deity.
Justice Chandrachud explained that if a claim is brought by debtor or there is a suit for recovery of property belonging to the deity, then you will not implead the deity, because in such a situation shebait may represent the deity, but in a situation where it has to be established whether a person is his or her shebait, then the deity clearly has right to implead and ascertain whether this person has the shebaitship.
Mr. SK Jain will continue his submissions tomorrow, 27th August 2019.