Supreme Court of India
The Hindu parties on Tuesday rebutted the Muslim side's contention that they never made claim on the title of the disputed land in Ayodhya between 1885 to 1989, by citing the observations of a judge who visited the disputed site on March 17, 1886.
Senior advocate K. Parasaran, appearing for Hindu side, while advancing his arguments against the Sunni Waqf Board lawsuit, said: "The burden is on them (Muslim parties) to prove that the mosque was not built on a spot which was the birthplace of Lord Ram."
He cited the excerpt from the Allahabad High Court judgement before the five-judge bench headed by Chief Justice Ranjan Gogoi hearing the matter.
The passage said: "From the judgement of the judge deciding the first appeal, it appears that he visited the spot on March 17, 1886 and in the light of what he noticed on spot inspection, he recorded certain facts in the judgement, namely the Masjid built by Emperor Babar... he expressed his anguish that it is most unfortunate that a Masjid should have been built on a land especially held sacred by Hindus."
The judge also observed that as the event (construction of the Babri Masjid) occurred 358 years ago, he found it too late in the day to reverse the process and reckoned that parties should maintain status quo, as any interference would cause more harm and damage than benefit.
Parasaran told the bench this observation was recorded in 1886 is in favour of the Hindus, who have claimed title of the entire disputed site. "The entire claim of title and possession of the Muslim side is tainted at its source.... no claims can be made on the basis of initial conquest by Emperor Babar and the subsequent conquest by the British," he submitted before the bench. In 1888, in its verdict, a district court denied permission to Mahant Raghubar Das to construct a temple at the disputed site. Das had filed a suit in 1885.
On Monday, senior advocate Rajeev Dhavan, representing the Muslim side, claimed: "There is no claim of title of the disputed site by Hindus till 1989. And, between 1885 to 1989, no claim on the title of the land has been made.... our claim for possession is first, than their (Hindu parties) claim for title. In 1885, their claim for title was denied and till 1989 there was nothing in between."
He told the court that Hindu side claimed adverse possession from 1934. "I have not lost title at all. Hindus have only exercised prescriptive right (by offering prayers), but never the title," he contended.
Parasaran also contested the Muslim side's argument on continuity of grant, which supports their arguments on the title, for the upkeep and maintenance of the mosque in Mughal era and then under the British rule. "It is submitted that the cash grant or grant of revenue-free land is not recognition of the title of the mosque. The HC judge's findings are that no inquiry was conducted by the Commissioner before any grant certificate was issued regarding the revenue-free land," he contended.
He insisted that after considering all the evidence, Justice Agarwal (one of the judges of HC) observed that the grant in question did not prove that the Muslims visited the place, dispute site, and offered namaz. "On the contrary, Hindus continued to visit the disputed site and offered worship," he submitted.
Contesting Muslim side arguments on no claim for title in over 100 years, Parasaran said the suit 1 by Gopal Visharad, claiming title as a worshipper, was filed before the Constitution came into force (January 16, 1950) and suit 2 was filed thereafter, which was withdrawn in 1990. "This new sovereign (Indian Constitution) could have refused to recognize the claim of the Hindus that the disputed property was the birthplace of Lord Ram. However, this did not happen, as the dispute pending adjudication before this court," he submitted.
The arguments in the case will continue on Wednesday.
