The Hindu plaintiffs before the Varanasi civil court have filed a reply in the Supreme Court opposing the special leave petition filed by the Masjid Committee against the orders passed by the Civil Court for survey and sealing of the mosque property(Committee of Management of Anjuman Intezamia Masajid Varansi & Ors. v. Rakhi Singh).
In the reply filed through Advocate Vishnu Shankar Jain, the plaintiffs assert that the property vest with deity Lord Adi Visheshwar and contend that Gyanvapi is not a mosque as Aurangazeb did not create an Waqf by dedicating the property. It is stated that the property vests with Adi Vishweshwar since thousands of years ago and has been forcibly taken by Aurangazeb.
"The property in question does not belong to any Waqf. The property had already vested in deity Adi Visheshwara lakhs of years before the start of British Calendar year and is continuing to be the property of deity. No Waqf can be created on the land already vesting in a deity. In the historical books written during the Mughal regime and thereafter even Muslim historians have not claimed that Aurangzeb after demolishing the temple structure of Adi Visheshwara had created any Waqf or thereafter any member of Muslim community or Ruler was dedicated such property to Waqf", the reply states.
Disputing that the structure is a mosque, it is said :
"The alleged Gayan Vapi Mosque is only a structure and same cannot be regarded as Mosque. The another aspect is that the disputed construction has not been erected over any Waqf property. The principle Waqf by user cannot be applicable as the alleged Gyan Vapi Mosque was constructed after demolishing a Hindu temple after 1669 at the same very place and the date of construction of alleged Mosque is well known".
The plaintiffs say that there are hisorical records establishing the fact that Aurangzeb built the structure after demolishing the temple. It is argued that a construction raised under the orders of any Muslim ruler or by any Muslim over the land of a temple cannot be construed as Mosque. "A Waqf can be created only on the land dedicated to Waqf by wakif who is owner of the land. In the instant case it is clear that from the time memorial the land and property belong to the deity and therefore there can be no Mosque there", the plaintiffs say.
Arguing that the religious character of the property has always been that of a Hindu temple and that it can never be construed as a mosque, the plaintiffs state that the bar under the Places of Worship (Special Provisions) Act 1991 is not applicable as there is no question of changing the religious character of the structure through the suits.
"That to find out the religious character of the property in question, one has to take into consideration the historical and religious background of the entire Avimukt Area and also the nature of construction raised by Muslims thereat and the fact that deities continued to exist within the building complex were being worshiped by devotees and the sentimental attachment of the devotees with the deities and the Asthan and fact that worshippers have been undertaking Panch Koshi Parikrama daily around the entire building complex performing all the rituals".
"The property in question is not a Waqf property for the simple reason that as per Hindu Law the property vested in the deity shall continue the deity property. A mosque can be constructed only on a Waqf property. Waqf can be created by a waqif who is the owner of the property. In this case Aurangzeb, did not create any Waqf and did not bequeath the property in question to the God. Therefore, the construction in question cannot be even presumed to be a mosque".
In this backdrop, the plaintiffs argue that the property in question continues to be a Hindu place of worship.
"...it is abundantly clear that the property in question has uninterruptedly continues the character of Hindu place of worship. Therefore, section 4 of the Places of Worship Act can be applied in favor of temple and devotees", they say.
"In Section 4 of the P.W. Act the Parliament has purposely used the word "religious character", to mean that the Temple, Mosque, Church, Gurudwara etc. should have been constructed according to tenets of the religion without encroaching upon the land of another faith", the reply states.
They have argued that the religious character of the property has to be determined first before deciding the application filed by the Mosque management under Order 7 Rule 11 CPC for rejection of plaint.
It has been submitted that Mughal emperor Aurangzeb had issued orders to destroy many temples and complying with his orders, his administration had demolished a portion of temple of the Adi Visheshwar at Varanasi and later constructed the 'alleged Gyanvapi Mosque'.
"The remnants of the Hindu temple can be seen on the walls of the alleged Gyan Vapi Mosque which is standing on the destroyed original Kashi Vishwanath Temple.' the reply states
It has been submitted that the worshippers of Lord Shiva and Hindus in general are continuously worshipping the deities existing within the property in question.
"The Muslims never got proprietary right over the property in question. None of the Muslim has so far dedicated the land to the God for the simple reason that the property belongs to deity. The deity will not lose its rights only for the reason that during foreign rule the temple was substantially damaged as the right of the deity over the property is never lost and the right of worshippers to perform pooja of the deity and the Asthan is protected under Hindu Law." the plaintiffs have stated
They also state that on 30th December 1810 the then District Magistrate Mr. Watson had sent a letter to the president council suggesting to hand over Gyan Vapi area to Hindus forever.
A 3-judge bench comprising Justices DY Chandrachud, Surya Kant and PS Narasihma will consider the matter today at 3 PM. On May 17, the Supreme Court had clarified that the Civil Court's order for protection of the spot where a Shivling is stated to be found would not impede the rights of Muslims to access the mosque for offering namaz and religious observances.