Understanding the Islamic Rulings on Pathways, Land Disputes, and Wrongful Seizure
What has come concerning the rulings, 17th Lesson | Benefits from Muntaqaa Ibn Al-Jarood
بســـم اللــه الرحــمــن الـرحـــيــم
◾Benefits from Muntaqaa Ibn Al-Jarood, Chapter: what has come concerning the rulings, 17th Lesson◾️
By Shaykh, the ‘Allaamah, the Trustworthy Advisor, Abu ‘Abdirrahman Yahya bin ‘Ali Al-Hajoori – may Allaah preserve him
The width of the pathway which is disputed over
1017 – Muhammad bin Yahya narrated to us, he said Yahya bin Hammād informed us, he said Abu Awwānah and Abdul-Aziz bin Mukhtār informed us, both of them on the authority of Khālid Al-Hithā, on the authority of Yusuf bin Ukht ibn Sīrīn, on the authority of his father, on the authority of Abī Hurairah may Allaah be pleased with him, on the authority of the Prophet ﷺ he said: “If you differ with each other concerning a pathway, then it’s width is seven cubits.”
1018 – Mahmūd bin Ādam narrated to us, he said Wakī’ narrated to us, on the authority of Al-Muthanna bin Saīd Adh-Dhuba’ī, on the authority of Qatādah, on the authority of Bashīr bin Ka’b Al-Adawi, on the authority of Abī Hurairah may Allāh be pleased with him said: The Messenger of Allāh ﷺ said: “Make the pathway seven cubits.”
1019 – Muhammad bin Yahya narrated to us, he said Abdurrazāq narrated to us, Ma’mar informed us, on the authority of Az-Zuhri, on the authority of Talhah bin Abdillah bin Awf, on the authority of Abdurrahmān bin Sahl, on the authority of Saīd ibn Zaid bin Amr bin Nufail may Allāh be pleased with him said: “I heard the Prophet ﷺ saying: “Whoever steals a piece of land will be caused to sink into the seven earths.”
The hadith of Abī Hurairah may Allāh be pleased with him (if you differ with each other concerning a pathway then make it seven cubits)
In the narration of Bukhari if you dispute with each other.
So it is the width of the pathway when differing amongst each other occurs, as for when they are in agreement with each other then they can increase or decrease.
So it is four states:
- That the land belongs to a person and he makes a pathway, the choice is his concerning its width and it is better to make it spacious.
- That a group of people share the land and they are in need of a pathway, then it is upon what they agree on whether it be narrow or spacious.
- The occurrence of differing* The ruling is according to what the hadeeth states and that is to make it seven cubits.
- That there is already a narrow or spacious, then it is not allowed for him to narrow it but he can build around it on the dead land.
↪️ And likewise what is joint with this is the pathways in the markets, the merchants leave a pathway the width of seven cubits.
Benefit: seven cubits/armspans is to be measured by the length of an arm of an ordinary man
The wisdom behind this is for the pathway of the people carrying things and delivering goods to the people to be spacious.
The hadeeth: whoever oppressed someone by a hand span of land.. (Al-Hāfidh said this is an indication to that small or large amount of wrongfully seizing is the same)
The definition of Al-Ghasb:
It is seizing the wealth of another wrongfully..
Benefit: the one who seized the wealth of someone else wrongfully is compelled to return what he seized, so if the condition of it changed the guaranty is upon him, so if he has the likeness of it he give the likeness of it, and if he doesn’t have the likeness he pays the value of its likeness.
The meaning of he will be caused to sink into the seven earths: The scholars differed concerning its meaning upon five statements and from them is that he will be swallowed by the earth until he reaches the seventh and what he seized wrongfully will encircle his neck like a neckband and this is a correct meaning.
Al-Ardhūn: with a fathah on the raa and there is a dialect of the Arabs with kasrah
▪️Benefit:
Whoever possesses the outer surface of a land possesses the inner until what Allāh wills (of its depth) and he can prevent someone from digging a hole underneath his land or building a pathway under his land, and he own what is underneath it of natural resources and the likes of it.
Issue: whoever plants or sows or builds on a stolen land then verily it is upon the perpetrator to extract and destroy his works on that stolen land and pay the rent of the time he used on that land and that the guaranty of what was damaged is upon him, and this is the statement of the majority of scholars and it is the correct opinion.
Issue:
Whoever enters a house without the permission of its owner if he didn’t intend full possession of it, if he damages anything on it then upon him is the guarantee upon the correct opinion, and this is the opinion of Shāfi’ē.
↪️ The scholars unanimously agreed the perpetrators hand is not severed but verily he is punished by the ruler.
↪️ The earnings of the things stolen and whatever stems from it is returned to its rightful owners and there is nothing for the perpetrator, nor does he receive a wage in return for his efforts or his maintenance because he seized it wrongfully.
▪️Benefit:
They mentioned that making ablution and praying on a stolen land is accepted with the bearing of sin (of stealing) upon the perpetrator.
And Allāh knows best
Transcribed to Arabic and summarised by:
By Hamood Ath-Thawaabi
may Allah reward him with good
on the 3rd, Jumāda Al-Oulā, 1440H
Translated by:
Abu ‘Abdillah ‘Omar bin Yahya Al-‘Akawi