land containing plantings, his partner shall be compelled to it, as is the case with the building. If one of them requests assigning the ground floor to one of them and the upper floor to the other, and they draw lots between them, the other shall not be compelled to it for three reasons. The first is that the upper floor is an accessory (tabaʿ) to the ground floor, which is why if they are both sold, the right of pre-emption applies to both, whereas if the upper floor is sold individually, the right of pre-emption does not apply to it; when it is an accessory to it, the thing followed (matbūʿ) should not be made into one share and the accessory (tabaʿ) into another share, such that the accessory becomes a principal. The second is that the ground floor and upper floor are treated as two adjacent houses, because each of them can be inhabited independently; even if there were two houses between them, neither of them would have the right to demand that each house be made into a single share, and it is the same here. The third is that the owner of the foundation (qarār) owns its foundation and its air space; if the ground floor were made a single share, its owner would be alone in possessing the air space, and this is not a fair division. This is the position of Al-Shāfiʿī. Abū Ḥanīfah said: The judge shall divide it, making one cubit of the ground floor equal to two cubits of the upper floor. Abū Yūsuf said: One cubit for one cubit. Muḥammad said: [He shall divide it according to value.] They argued that it is a single house, so if he divides it as he sees fit, it is permissible, just like one that has no upper floor. Our argument is what we have mentioned of the three reasons, within which is a refutation of what they mentioned, and what they mention regarding the method of division is arbitrary (taḥakkum), and some of it refutes the rest. If one of them requests the division of the upper floor alone, or the ground floor alone, his request shall not be granted, because division is intended for separation, and with the persistence of joint ownership [in one of them], separation is not achieved. If he requests the division of the ground floor separately, or the upper floor separately, he shall not be granted this, because each of them might end up with the upper floor or ground floor of the other, so each of them would be harmed, and the two rights would not be distinguished.

Section: If there is a house or a large inn (khān) between them, and one of them requests the division of that,