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[Ayodhya Hearing][Day 38] :' Belief Will Not Give Title', Submits Sr Adv Rajeev Dhavan

Nilashish Chaudhary
14 Oct 2019 4:24 PM GMT
[Ayodhya Hearing][Day 38] :
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The Ayodhya land dispute hearing resumed for the 38th day after the Dussehra break with Senior Advocate Rajeev Dhavan, on behalf of the Sunni Waqf board, submitting a written note in response to certain questions raised by the bench regarding the central dome and adverse possession.

Replying to a question posed on an earlier occasion by Justice SA Bobde regarding the central dome, Dhavan submitted that nothing in 1989 could be said to be within limitation. Justice DY Chandrachud had earlier asked what the result of plea of adverse possession would be. Dhavan answered by saying "nothing", since they never admitted title.

He went on to address the ASI report, and admitted that it was indeed an expert opinion, as opposed to an earlier argument from the Muslim side calling the report a social science which was merely an opinion. Dhavan said he agreed with Senior Advocate CS Vaidyanathan's argument that archaeological findings can be corroborated but added that extracts from certain judgments did not have factual backing. Citing the ASI report, Dhavan pointed out that there was no evidence of destruction of a temple where the mosque stood.

He went on to argue that "custom is not a mind game" and it cannot be mixed with belief. Since 1854, the British government had given grants for maintenance of the mosque and Hindu parties never claimed title till 1989, he submitted while asserting that the Muslims have been in possession throughout. Possession creates a bar to claim of title against owner, it was stated.

Justice Chandrachud intervened to ask about the Hindus' possession of the outer courtyard as there was documentary evidence since 1858 showing the setting up of the Ram Chabutra. Dhavan responded saying Hindus came in from the eastern gate which was opened for them to pray as the only right they had was the right to pray and nothing else. Justice Bobde then asked if that admission did not dilute his claim of exclusive possession. "Not at all", responded Dhavan, and submitted that Hindus had only claimed prescriptive rights. Dhavan then asserted that there was nothing on record, no evidence to show the Hindus to be the proprietors of the disputed land. They claimed rights, but were only granted right of prescription by the district court, yet they claim the right to build a temple he argued.

After stressing that there was no evidence to show anything more than a prescriptive right, Dhavan added that the British had opened the eastern door for Hindus to enter the mosque complex to maintain public order. "It is a public order situation, which signifies nothing more", he said.

After answering some questions posed by the bench, the senior advocate said he had "noticed something very interesting during this hearing...All your lords questions have been directed towards me, not them (Hindu parties)." CS Vaidyanathan immediately objected and called the comments "unwarranted". "It's not unwarranted at all...I am bound to answer...But perhaps your lordships could have asked them some questions too", he replied.

Moving on Dhavan submitted that "Belief does not give you title, ancient travelers don't give you title, ancient texts like Skanda Purana does not give you title." Claiming that their possession throughout had never been in doubt, Dhavan said the Hindus had sought permission to pray, they trespassed and are now claiming title. Concluding his point on title, Dhavan added that "we have been shrunk to this measure though our title has never been assailed", while refering to the Allahabad High court's judgment dividing the land which "effectively only gives us 433 sq yards".

Dhavan then argued on limitation saying that the "argument against us is Section 120 of the Limitation Act applies since we filed in 1961...Our case is that it does not." Questioning the Hindu sides' expertise on Islamic law, Dhavan stated that they had taken extracts from the Quran and what it says on aspects of Islam to argue that "our title trumps yours". This is not a tenable argument, was Dhavan's case. With respect to limitation, it was submitted that the Limitation Acts of 1908 and 1963 were complete codes.

Dhavan then threw light on the events of December 6, 1992 to say that "we cannot keep pretending that (the demolition) didn't happen." It was submitted that status quo be restored at the site, as it was on December 5, 1992 (a day before the demolition of Babri Masjid).

It was submitted that the suit filed in 1950 by the Hindus was only for the right to pray. Dhavan stated that an interim order by a magistrate does not guarantee possession. "Final order is passed by the magistrate...Article 47 does not apply to me", he argued. He then informed that the outer courtyard was attached in 1982, "after we had filed suits against officials and Hindu parties". Dhavan claimed that their title was beyond dispute and there was never any adverse possession. Justice Chandrachud however said the installation of idols in the mosque during December 22-23, 1949 was an ouster of the worshipper and enquired if Dhavan accepted that after the ouster, there was no prayer there. Dhavan's response was that there was still a mosque there, and "a mosque is a mosque...Untill I dispossess myself, I cannot be dispossessed".

Moving on to rebut the opposite side's arguments which referred to the Quran, Dhavan said Islamic law had developed over centuries and it is wrong to pick some lines from the Quran to say they were acting against it. In that case, he asked, "what law would you apply to Babur?" "Let's not open Pandora's box", urged Dhavan as he argued that if Babur or Aurangzeb were to be invoked, so would Emperor Ashoka, as wars and conquests in India were more complicated than Europe. He further urged that it was not for the court to rewrite history and alluded to a change in history books when a new government was formed. History books could be written based on the court's understanding and interpretation, warned Dhavan, while citing the Uniform Civil Code as an example of something the court needed to be careful about.

Furthering his argument, Rajeev Dhavan rebutted the claim of the Hindu side that over 500 mosques had been built on the remains of temples. He asked whether they were proposing to dig up all those sites where the mosques were, and moreover whether mosques could be invalidated after 450 years even if something was found.

As the day's hearing concluded, CJI Ranjan Gogoi mentioned that he had received communication from Senior Advocate Sriram Panchu, who is a member of the court appointed mediation panel. The letter had been written by Panchu after the Chairman of UP Central Sunni Waqf Board, Zufar Ahmed Farouqi, had approached him to express concerns regarding a threat to his life. The bench, through the CJI, accordingly ordered the UP government to ensure that adequate security measures are provided.

Before rising, CJI Gogoi hinted that the hearing could conclude on Wednesday, October 16 itself.

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