Ready to forgo one third share in disputed Ayodhya land to Hindus: Shia body tells SC

A five-judge Constitution bench headed by Chief Justice Ranjan Gogoi, which concluded hearing of arguments from the Hindus' side, was told by the Shia Board that Mir Baki, a commander of Babur, was a Shia and was first 'Mutawalli' or caretaker of the Babri mosque as he had constructed it.

"I am supporting the Hindu side," lawyer M C Dhingra, appearing for Shia Wakf Board, told the bench, also comprising justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S A Nazeer, on the 16th day of the hearing in the Ram Janmbhoomi-Babri Masjid land dispute case.

He said the high court, while dividing the disputed land into three equal parts, had given one third share to Muslims and not to Sunni Wakf Board and hence, it wanted to give its share to Hindus on grounds including that Babri mosque was a Shia Wakf property.

He said that without prejudice to what Hindus have argued, Shias do not claim their right over the property under the doctrine of adverse possession as Shias were in possession of it till 1936 and moreover, the first and the last 'Mutawalli' were Shias and no Sunni was ever appointed caretaker.

Dhingra, however, said the disputed property was registered as Sunni Wakf without giving any notice to Shias and later the Shia Board lost the case in court in 1946 on the "slim ground" that it had appointed a Sunni Imam.

"What is going to follow from this? Do we need to see all this," the bench then asked.

"I am seeking leave to challenge the decision of the high court denying the right of Shia Wakf over the property," Dhingra argued.

"You have filed a Special Leave Petition (appeal) challenging more than a 70 year old order," the bench said.

Earlier in the day, senior advocate P N Mishra, appearing for Akhil Bhartiya Sri Ram Janam Bhoomi Punarudhar Samiti which is a defendant in a lawsuit filed by a Muslim party, summarised his submissions and alleged interpolations in land records of the disputed site.

He said "according to the settlement report of 1861 AD, interpolations/ additions have been put into effect in certain columns of Khata kistwar folios."

He said in column number 2 of records, the words 'Abadi Janmsthan' are in written in thick handwriting and as there was "no space below this, for writing in similar way, a small 'wa' has been put to the right of 'Janmsthan'" and words 'Juma masjid' were added.

"The crude construction of the sentence shows that the later insertions of the above words of 'wa' and 'juma masjid'," Mishra said, adding the high court had ordered an inquiry after an application was filed.

Mishra said Muslims have no case regarding their claim over the land and added, "The 'wakif' (the person who executes 'Wakf') must be the owner of land. Here Babur was not the owner of the land."

There must be the a valid "dedication" of the property to 'Allah' under Islamic law and practices and Babur could not have dedicated the mosque through Mir Baki as Islam prohibited "dedication through an agency", he said.

For being a place to be a mosque, 'namaz' should be offered twice in a day following 'azan' (the call for Muslims to offer the namaz'), which was not the case at disputed place, Mishra said.

"A mosque should must have a water reservoir for doing 'wazoo' (ablution) and here there was no such arrangement," he said.

There should not be any picture, floral designs and sketches of living beings in a mosque and all these were present at the disputed place, he said.

There should not be any bell in mosque and as per Islamic belief, places where such bells ring, 'shaitan' (devil) lives and the angels cannot come there, he said.

"On one plot, there cannot be two religious places of two religions under Islamic law and beliefs," he said, adding that mosques cannot be used as residences and here, there was a place called 'Sita rasoi' having all types of household objects.

No feasts are allowed in mosques, but here people have been taking 'prasadam' since time immemorial, he said.

The mosque cannot be built on usurped land and cannot have graves on all its sides which is the case at Ayodhya, he said, adding mosques should not be in custody of 'kafirs' (non-believers).

After he finished his submissions, lawyers Gopal Shankar Jain and Vishnu Jain argued on behalf of one of the two factions of 'Hindu Mahasabha'. Later, lawyer  Varinder Sharma argued for another group.

Gopal Shankar Jain said the temple has been existing since time immemorial and the Hindus had been enjoying right to worship, though curtailed one, during the periods ruled by Muslims and Britishers.

Referring to constitutional provisions, he said after independence, Hindus should be given complete right over the land and the dispute can be decided under Hindu laws.

"In 1828, there was no whisper that there was a mosque at the site" and it was the handiwork of Britishers who wanted to divide the communities and they instigated Muslims, he said.

The court would resume hearing on September 2 when the Muslim side commences arguments.