The Muslim side, on the last day of hearing in the Ayodhya title dispute on Wednesday, refuted the Hindu side's claim that the observation of a District Judge in 1886 was in their favour.
Senior counsel Rajeev Dhavan, appearing for Muslim side, contended before the five-judge bench headed by Chief Justice Ranjan Gogoi, that counsel of the Hindu side wrongly relied on the decision of the District Judge on March 18, 1886, to indicate the title was not denied by the judge by "making an observation it was too late to go into the issue".
Dhavan submitted the fact remains that the Commissioner on November 1, 1886, specifically decided the Hindus had no title and that they only had a prescriptive title.
The Hindu side had said the Muslim parties chose not to file an appeal against these findings, which has attained finality.
"Therefore, burden of proof does not lie on the Hindu parties to show that they held the disputed property to be sacred. It is the duty of the Muslim parties to displace the said findings while dealing with facts nearer to their ken," they had argued.
To this, Dhavan said if a finding is in Muslims' favour, then an appeal does not need to be filed.
"Appeals do not have to be filed on observations where a finding has been made. The Commissioner firmly repudiated the decision of the District Judge, clearing ambiguities. This decision is binding on the Hindus who cannot derive succour from an overruled decision," he submitted.
He insisted that the illegal destruction of the building does not eliminate the right of the Waqf Board to demand the area.
Arguing on the aspect of Mughal conquest, Dhavan said there were massive conquests, thousands in recorded history, within India by various rulers against each other, even when they were of the same faith. "Were these conquerors different because they were Hindus?... The Muslims settled in India from 1206.
Babur fought an India-settled ruler (Sultan Ibrahim Lodi) and Muslims from outside and those who accepted Islam live here. If the argument is made that India can only be perceived Hindu, this argument is communal," he told the court.
Later, Dhavan argued on the historical wrong cited by Hindus. "Argument was made Indian people needed protection from conquerors who came from outside. Under the Constitution, the protection prioritized are for SC/ST/OBC, women and children, minorities, all religions and those under 5th and 6th schedule..," he contended.
The Muslim side, in its final argument, urged the court to grant it possession of the entire disputed site.
After concluding the hearing on Wednesday, the top court has reserved its judgement in the Ayodhya title dispute.