The Babri Masjid was built after demolishing a Ram temple at the disputed site in Ayodhya and Hindus kept worshipping there without giving up its possession, a Hindu litigant Thursday told the Supreme Court, while seeking enforcement of right to worship there.
Devotee Gopal Singh Visharad, who filed the lawsuit in the lower court in 1950 seeking right to pray, died in 1986 and is now represented by his son Rajendra Singh.
The five judge Constitution bench headed by Chief Justice Ranjan Gogoi heard the arguments on the 10th day in the decades-old politically sensitive land dispute.
"The mosque was built after demolishing the Ram temple, and despite that Hindus continued worshipping there and did not give up possession...Moreover, Muslims were never in possession of the site," senior advocate Ranjit Kumar told the bench which also comprised Justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S A Nazeer.
"I am making my submissions with reference to Parasaran's and Vaidyanathan's submissions (both lawyers represented the deity) that the place is itself a divine site and that I being the worshipper, my right to worship, which is a civil right, should not be curtailed," he said.
Referring to records, the senior lawyer said magistrate Markandey Singh on December 29, 1949 had initiated proceedings to attach the disputed structure under the Code of Criminal Procedure (CrPC) following communal disturbances.
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The magistrate had sought responses from Hindu and Muslim parties in support of their claim and counter claim over the property.
Twenty affidavits were filed in 1950 by persons from both sides before the magistrate and they are also part of the judicial records of the Allahabad High Court.
"Filing affidavits, per se, is not enough to prove them. The deponents will have to appear to prove them... No court can say that the facts of these affidavits are proved," the bench said.
These affidavits were filed in 1950 and the trial on lawsuits took place "much much later", the lawyer said.
The high court did not accept the affidavits saying that the deponents were not available for cross examination, he said, adding that they are part of the judicial records and be accepted by the apex court as the magistrate had verified the statements and identity of the deponents (makers of the affidavits).
Reading from the affidavit of one Abdul Gani, the senior lawyer said that he had stated that the the Babri Masjid was built after demolishing the temple, the birth place of Lord Ram, where Hindus continued worship and never gave up the possession.
Gani had further said that while Muslims were reading 'namaz' only on Fridays, Hindus had been offering 'puja' on the site regularly and the offering of 'namaz' at the site was "against the Sharia" of Muslims.
Referring to the affidavit, filed in 1950, of another Muslim, Wali Mohd, the lawyer said he had deposed that Muslims had no objection if the government gave the disputed land to Hindus as the temple was destroyed to build mosque and Muslims have not been offering 'namaz' there since 1935.
Kumar, who adopted the submissions of lawyers of the deity to lay claim over the entire 2.77 acre of disputed land, said the certified copies of affidavits of 20 people were brought into records of the high court during hearing of the land dispute.
"These affidavits have been exhibited in the (law)suits by Visharad," he said to the response of the query posed by the bench.
He then referred to the exhibited documents to establish a sequence of events from 1858 and said that a complaint by the mosque's 'muezzin' was filed then to allege that one Sant Nihang Singh Fakir Khalsa, who was living at the 'Masjid Janmsthan', had raised the height of 'Ram Chabutra' there.
The complaint, which had sought eviction of Fakir Khalsa from the place, further talked about the high-handedness of Hindus who had written 'Ram-Ram' on the walls of the site.
"In support of my right to pray, all I want to say that the place even in 1858 was known as 'Masjid Janmstahan' where 'Ram Chabutara' existed then and prayers were being offered by Hindus," the lawyer said when the bench asked as to what he wanted to prove by submitting all this.
"As the worship has been continuing since time immemorial, it is my submission that it must be continued and it is my right to continue, as a worshipper, to keep worshipping at that place," the senior lawyer said.
Kumar then referred to judgements which have held the right of worship. He also said that temple worship is a part of the Hindu way of offering prayers.
After Kumar concluded his submissions, senior advocate Sushil Kumar Jain, appearing for Nirmohi Akahara, re-commenced the arguments.
Jain would resume advancing arguments on Friday.
Fourteen appeals have been filed in the apex court against the 2010 Allahabad High Court judgment, delivered in four civil suits, that the 2.77-acre land in Ayodhya be partitioned equally among the three parties -- the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.
Babri Masjid was demolished by right-wing activists on December 6, 1992 in Ayodhya, leading to the protracted legal battle.