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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 147

Translation · EN

Therefore, we draw an analogy to it for the subject of dispute. Also, because ownership of all other forms of property is not extinguished by abandonment, as evidenced by all other types of property when they are abandoned until they deteriorate. What they have cited is invalidated by dead land that a person revives and then sells, and the purchaser abandons it until it returns to being dead land; and by lost property (luqata) when one takes ownership of it and it is then lost from him; and it differs from river water, for that is consumed. The second type is that in which traces of ancient, pre-Islamic ownership are found, such as the ruins of the Romans, the dwellings of Thamud, and the like; this is owned through revival because that ownership has no sanctity. It has been narrated from Tawus, from the Prophet (peace and blessings of Allah be upon him), that he said: "Ancient land (adiyy al-ard) belongs to Allah and His Messenger, then it is yours afterwards." It was recorded by Sa'id [ibn Mansur] in his Sunan, and by Abu 'Ubayd in Al-Amwal. He said: "Ancient land is that which had inhabitants in the ages of time, then they became extinct, and no human remained among them. He only attributed it to 'Ad because, despite their antiquity, they were people of strength, might, and many monuments, so every ancient ruin was attributed to them." It is possible that everything containing traces of ownership whose cessation before Islam is unknown cannot be owned; because it is possible that the Muslims took it while it was cultivated and thus became entitled to it, so it became [subject to] the endowment of 'Umar and cannot be owned, just as if its owner were known. The third type is that for which ownership occurred during Islam for a Muslim or a non-specific Dhimmi; the apparent [meaning of the] statement of al-Khiraqi is that it is not owned through revival. This is one of the two narrations from Ahmad, as transmitted from him by Abu Dawud, Abu al-Harith, and Yusuf ibn Musa, based on what Kathir ibn 'Abd Allah ibn 'Awf narrated from his father, from his grandfather, who said: I heard the Messenger of Allah (peace and blessings of Allah be upon him) say: "Whoever revives dead land, in that which is not the right of a Muslim, it belongs to him." Thus, he restricted it to being in that which is not the right of a Muslim. Also, because this land has an owner, it is not permissible to revive it, just as if it were a specific person; for if its owner has heirs, it belongs to them, and if he has no heirs, the Muslims inherit it. The second narration is that it is owned

Notes

(7) Dropped from: the original. (8) Recorded by Abu 'Ubayd, in: The Chapter on Iqta' (Granting Land), from the book Ahkam al-Aradin fi Iqta'iha... [The Laws of Lands regarding their Grants], Al-Amwal, 272. It was also recorded by al-Bayhaqi, in: The Chapter on Not Permitting a Dhimmi to Revive [Land]..., from the book Ihya' al-Mawat (Revival of Dead Land), Al-Sunan al-Kubra, 6/143. (9) Recorded by al-Bukhari, in: The Chapter on Whoever Revives Dead Land, from the Book of Cultivation, Sahih al-Bukhari, 3/139, 140. And by al-Bayhaqi, in: The Chapter on Whoever Revives Dead Land that Belongs to No One..., from the book Ihya' al-Mawat, Al-Sunan al-Kubra, 6/142.

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