NEW DELHI: The Nirmohi Akhara's claim that Muslims cannot have a valid title over the disputed land at Ayodhya as they were not offering regular namaz there from 1934 to 1949 was rubbished by Muslim bodies on Thursday in the Supreme Court saying benefits of illegal acts cannot be reaped.
The Akhara, which was granted one-third of the disputed 2.77-acre Ram Jamanbhoomi-Babri land by the Allahabad High Court, had told the five-judge Constitution bench headed by Chief Justice Ranjan Gogoi that its possession was "exclusive" as after the 1934 riots till 1949, Muslims were allowed to offer Friday prayers only, that too under police protection.
Offering Friday prayers under police protection would not change the legal character of Akhara's possession and it cannot lead to a conclusion that Hindus and Muslims both had the "joint possession", the Hindu body had said.
Senior advocate Rajeev Dhavan, appearing for Sunni Waqf Board and others including original litigant M Siddiq, rebutted the submissions saying that the Muslims did not pray because they were not allowed to.
"You (Akhara) cannot commit illegality and seek to reap benefits from it. Even if you do not create illegalities, still you cannot reap benefits of such illegal acts of others," he told the bench also comprising justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S A Nazeer.
"This is across board (arguments). Why Muslims did not come to pray? They did not come to pray because you did not let them," he said.
Dhavan then referred to the demolition of the disputed structure on December 6, 1992 and said that the Supreme Court had observed that some "miscreants" did it.
Even then Nirmohi Akahara and others cannot claim benefits, he said.
At the outset, Dhavan said that Akhara cannot overcome the legal hurdle that its 1959 lawsuit to re-claim alleged possession over the site from the government authorities after its attachment was time-barred under the limitation law.
He dealt with the submissions of the Akhara that its lawsuit was not time-barred as the cause of action, such as taking over of the possession by the receiver, was of the nature of "continuous wrong".
Muslim bodies have said that Akhara filed the lawsuit in 1959, almost nine years after the disputed site was attached by a court-appointed receiver on January 5, 1950 following alleged placing of idols under the central dome of the building by some miscreant on December 22-23, 1949.
The lawsuit should have been filed within six years of the alleged cause of action which arose in 1950 and hence, the 1959 lawsuit of 'Akhara' was time-barred, Dhavan said.
He said Akhara cannot claim relief against the magistrate who attached the property and gave it to receiver.
"You had the right is not enough. A party should must have a legal right on the basis of 'continuous wrong'," he said, adding that the terms like 'continuous wrong, belongs, belonging to and possession" have been used by Akhara to overcome the Limitation aspect.
He said Akhara was allowed to pray in the outer courtyard of the site in 1885 and they were not in the possession of the inner courtyard till 1949 when trespass happened and idols were placed under the central dome.
He then dealt with the aspect of adverse possession of the site by Akhara from 1934 to 1949 and said that such a plea has to be set up on "legal" basis.
He said there should be specific pleadings in the case by Akhara as to when it became owner of the site under the doctrine of adverse possession.
Under the doctrine of adverse possession, a person, who is not the title holder, can become the owner if his possession is not challenged in courts for a period of 12 years.
Dhavan said so far as the inner courtyard was concerned, trespass took place on December 22-23, 1949 after idols were placed there and Akhara remained in illegal possession only till January 5, 1950 when the property was attached.
"The period is small so far as possession of inner courtyard is concerned," he said adding that this adverse possession doctrine cannot come in for Akhara's help.
Dhavan, however, supported the submission that Akhara was the 'shebait' of 'Ram Lalla' and said that it was competent to initiate the suit on behalf of the deity.
He asked as to what will happen if Akhara wins the case and the question would be as to who will own the property either Akhara or the deity through its next friend.
He was referring to another lawsuit filed by the deity through next friend Deoki Nandan Agrawal seeking the ownership of the same property.
The advancing of arguments would commence on Friday.
The Allahabad High Court, in its judgment of 2010 on four civil lawsuits, had partitioned the 2.77-acre disputed land equally among Sunni Waqf Board, Nirmohi Akhara and Ram Lalla.
Fourteen appeals have been filed in the Supreme Court against the verdict.