The query, made by Justice S.A. Bobde, who is the second seniormost judge on the Constitution bench headed by Chief Justice Ranjan Gogoi, bears crucial significance.
Last week, Rajeev Dhavan, a senior advocate representing Muslim parties, conceded shebait rights to the Nirmohi Akhara, accepting that they have been praying in the outer courtyard in the disputed site, but in a new development, also challenged the maintainability of Akhara's suit in the title dispute in accordance with the limitation law, which prescribes the time-limit within which an aggrieved person can approach the court for redress or justice in different suits.
"The Akhara could not overcome the legal hurdle that its 1959 lawsuit, which intended to reclaim alleged possession over the disputed site, was actually time-barred under the limitation law," said Dhavan.
He reiterating that the disputed Ram Janmbhoomi-Babri Masjid land at Ayodhya "never belonged" to the Nirmohi Akhara, under the law on trusteeship or due to its right as shebait of Ram Lalla.
The Muslim parties contested that the lawsuit by the Nirmohi Akhara was filed in 1959, almost nine years after a court-appointed receiver on January 5, 1950 attached the site. The court acted after it was alleged the idols have been placed under the central dome of the structure by some identified persons on the night of December 22-23, 1949.
As the court said the Nirmohi Akhara had made an assertion for possession of the disputed land, having consistently maintained that the one-third portion, of the disputed 2.77 acre land, granted to it by the 2010 Allahabad High Court order has always belonged to it, Dhavan said it has failed on three major fronts of its arguments - dispute site belonging to it, claiming possession without foundation and the continuing wrong.
Dhavan also told the court that Muslims could not pray due to illegal acts of others.
"There can't be this kind of land-grabbing. If it is illegal then it is illegal... they illegally demolished the mosque, then why should they be allowed to derive benefit out of it," he submitted.
Dhavan had opposed the Nirmohi Akhara's submission that its lawsuit was not time-barred. It had argued that the cause of action, which includes a court-appointed receiver taking over possession and then denying it the right to worship, were particularly of a wrong, continuous in nature.
Dhavan queried as to what was the continuous wrong when an officer of the court ordered attachment of the site. In fact, the officer followed the law, and the High Court, in its judgement, said the law officer cannot be sued, he submitted.
The court told Dhavan that the Nirmohi Akhara was claiming possession in anticipation. At a point in the hearing, attacking the Nirmohi Akhara, Dhavan said: "Idol has a title, but you (Akhara) are no idol, how can you claim title?"
He also pointed out that the quarrel is between the Nirmohi Akhara and Ram Lalla.
Justice Bobde queried Dhavan, "They (Akhara) claiming shebait... has any party controverted it?"
"Their case is of continuous shebait. If the Akhara is shebait, then who will get the property," he said, citing a fictitious scenario as to who will claim the title of the property. He insisted that Akhara has no title to the inner courtyard.
The arguments will continue on Friday.
(Sumit Saxena can be contacted on email@example.com)