Advocate Ranjit Kumar, representing plaintiff Gopal Singh in the original civil suit, began the argument urging the apex court to accept affidavits filed in 1950 by some Muslims in Faizabad and Ayodhya, claiming the mosque was constructed after demolishing a temple.
Kumar relied on the exhibits, which were produced by his client in the trial court under Section 145 CrPC proceedings. Under this, the Executive Magistrate can ask the parties concerned in dispute to attend his court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims with respect to actual possession of the subject of dispute.
Kumar said the affidavits were brought on record by his client's father, and then relied on an affidavit filed by one Abdul Ghani. According to Ghani, mosque was built by demolishing the Ram temple, but the Hindus didn't give up possession and continued to worship.
Kumar cited more similar affidavits by Muslims under Section 145 proceedings. When the court asked whether they were ever cross-examined to establish the veracity of the affidavit's contents, Kumar responded in negative and said they had come forward on their own and recorded the statements. Therefore, it was possible to draw out an inference, he added.
"I'm not saying their statements should be taken as gospel truth. But nobody has objected to what they said", argued Kumar.
The Bench remarked, no court could say facts of these affidavits, filed before a Magistrate, were proved. Had they been filed in a high court, it would have been different, it said.
Post-lunch, the court took up the Nirmohi Akhara's stance on its title. If you claimed to be shebait, a person who serves the deity, could you give up your claim on the one-third part as per the Allahabad High Court judgement, the Bench asked the Nirmohi Akhara's counsel.
Fourteen appeals have been filed in the top court challenging the 2010 Allahabad High Court judgment, delivered in four civil suits. According to the judgement, the 2.77-acre land in Ayodhya was equally partitioned among the three parties the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla.
Sushil Jain, appearing for the Nirmohi Akhara, submitted as shebait the Akhara had the rightful possession over the inner and outer courtyard of the temple at the disputed site and no namaz had been offered there since 1934. "I have the right as a shebait and I have been looking after the property from the beginning. Nobody has taken exception to my plea on shebait rights", argued Jain. Jain also presented documentary evidence to this effect.
Opposing the argument, advocate K Parasaran said shebait was a protector of the temple.
Jain said, the Ram Lalla's idol was under the management of the Akhara. "Temple is important, pooja is done by pujaris appointed by the Akhara, which is not a single person. It's a panchayat. A shebait is directly connected to the management of the deity", submitted Jain.
When the Bench contested this line of argument saying, "You are denying the juridical character of the deity (which is subject to law)," Jain said, "I am claiming my shebait rights."
When the court observed the statement was contrary to his claim saying, "Are you trying to imply that janamsathan or birthplace is not a juridical person, subject to law," Jain said the deity was juridical and he never denied that.
Making an observation the Bench said the Jain's argument apparently appeared incoherent. On this Jain said only one person, identified as Umesh Chand Pandey, had challenged his client's shebait right, but he never appeared as a witness nor was cross-examined.
"Is there a contradiction in the stance taken by them earlier in the high court and now? CJI Gogoi asked Jain to respond.
The hearing will continue on Friday.
(Sumit saxena can be contacted at sumit.s@.in)
( With inputs from IANS )