Indexed OCR Text

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صلى الله said that he heard Allah's Messenger رضى الله عنه Sayyiduna Ya'la ibn Murrah .2959
Ale say. "If anyone takes any land to which he has no right then he will be
charged on the day of gathering with carrying (all) its earth (on his head)."1
COMMENTARY: Different kinds of punishment are mentioned for people who appropriate
land of anyone else unjustly. We have seen the hadith # 2938 earlier and two traditions (#
2958 and 2959) here. Another (# 2960) follows.
Different wrongdoers will get punishment of a different kind.
(٢٩٦٠) وَعَنْهُ قَالَ سَمِعْتُ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ يَقُولُ أَيُّمَا رَجُلٍ ظَلَمَ شِبْرًا مِنَ الْأَرْضِ كَلَّفَهُ اللَّهُ
عَزَّوَجَلَّ أَنْ تَخْفِرَهُ حَتى يَبْلُغَ اخِرَ سَبْعِ أَرْضِيْنَّ تُوَّ يُطَوِّقَّهُ إِلَى يَوْمِ الْقِيَامَةِ حَتّى يَقْضِىَ بَيْنَ النَّاسِ-(رواه احمد)
2960. Sayyiduna Ya'la ibn Murrab usa+, narrated that he heard Allah's Messenger
, Ale à o say, "If anyone takes a span of land unjustly then Allah, Mighty and
Glorious, will impose on him the task of digging it till he comes to the end of seven
earths. Then He will get it tied round his neck (leaving him in this manner) till the
day of resurrection when the people have gone through judgement."2
CHAPTER - XII
ASH SHUF' AH RIGHT OF PRE-EMPTION
بَابُ الشُّفْعَةِ
Ash-Shuf' ah is derived from Shafa (gis) which is 'to complement, join, double, couple.' In
the terminology of fiqh (Islamic jurisprudence) it means 'neighbourhood or sharing.' This
gives right to a neighbour or partner to buy the land or house of his neighbour or partner
that is being sold and it is an exclusive right. This right is further specific with land or
house. The person who enjoys this right is called shafi (As) (one possessing the right of
premption). This right is called Shuf'ah because this specific right joins the land or house
being sold to the land or house of the shafi.
Imam Shafi'I at , Imam Maalik at , and Imam Ahmad al-, hold that the right of
Shuf'ah is available only to a partner. It is not allowed to the neighbour. Imam Abu
Hanifah ales, said that like a partner, a neighbour too is entitled to this right.
A sound tradition affirms that Imam Ahmad al , too subscribes to this contention.
Ahadith are narrated establishing the right of Shuf'ah for the neighbour and they are of the
rank of sahih. In the light of that, it is meaningless to deny the right of shuf'ah to the
neighbour.
According to the Hanafis, there are three ranks of Shafi':
(1)
meaning that many people are partners in the ownership of the (خليط فى النفس المبيع)
house that is being sold. They may all have inherited the house. Or, they may
have all bought it jointly. Or, someone may have given it to all of them jointly
as a gift.
(2)
(chle) meaning that they are not partners in the ownership of the house
or land that is being, sold. Rather, they are partners in the rights to this land or
1 Musnad Ahmad 4-172.
2 Musnad Ahmad 4-173.

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house, like the right to come to it and to go out of it, the right to draw water
from it and the right to irrigate its fields through channels. Etc.
(3)
(1) meaning the neighbour whose house adjoins the house that is being sold.
The walls of these two houses are attached (or common) and their doors have a
common path.
There can be no other shafi' apart from these three. Therefore, the right of Shuf'ah is
deserved first of all by the person who is a partner in the ownership of the house or land
that is being sold. If he is there, then the right will be available neither to the partner in
rights nor to the neighbour. If this partner withdraws from the right of Shuf'ah, then this
right of pre-emption will go to him who is a partner in rights. If he too chooses to
withdraw, then the right of Shuf'ah will belong to the neighbour. If this person also
abandons his right, then no one else has the right of Shuf'ah.
SECTION I
الفضلُ الآول
RIGHT OF SHUF'AH ONLY FOR PARTNER OR NEIGHBOUR TOO
(٢٩٦١) عَنْ جَابِرٍ قَالَ فَقَى النَّبِىُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ بِالشُّفْعَةِ فِي كُلِّ مَالَمْ يُقْسَهُ فَإِذَا وَقَعَتِ الُْدُوْدُ
وَصُرِ فَتِ الْظُرُقُ فَلَا شُفْعَةَ- (رواه البخارى)
2961. Sayyiduna Jabir رضى الله عنه narrated that the Prophet صلى الله عليه وسلم gave a ruling that
the right of pre-emption to neighbouring property applied to everything that is
undivided. However, when boundaries are defined and separate `roads curved out,
no option available. (No one has the right of Shuf'ah.)1
COMMENTARY: When a land or house has many joint owners, each of them as a partner
has a right or Shufah till so long as the land or house is not divided among them. If the
partners have divided it and defined everyone's portion with a separate path to each
portion, then none of them enjoys the right of shuf'ah. In this sense, this hadith is evidence
that only partners own this right but not neighbours. This is with what Imam Shafi'I als,
abides.
Imam Abu Hanifah ales, holds that the neighbour also enjoys the right of shuf ah and he
cites other ahadith and he interprets this hadith to mean that shuf'ah for the partners lapses
after the division of the land or house. So if this meaning is taken of the hadith then it does
not imply denial of the neighbours right of shufah.
SHUF'AH ONLY APPLIES TO HOUSE AND LAND
(٢٩٦٢) وَعَنُ جَابِرٍ قَالَ قَفِى رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ بِالشُّفْعَةِ فِ كُلِّ شِرُكَةٍ لَمْ تُقْسَمْ رَبْعَةٍ أَوْ حَائِط
لَا يَجِلُّ لَهْ آْ تَبِيَُّ حَتَّى يُؤْذِنَ شَرِيْكَهُ فَإِنْ شَاء أَخَذَّ وَإِنْ شَاء تَرَكَ فَإِذَا بَاءَ وَلَمْ يُؤْذِنَّهُ فَهُوَ أَحَقُ
په- (رواه مسلم)
2962. Sayyiduna Jabir رحمه الله narrated that Allah's Messenger صلى الله عليه وسلم gave a ruling
that the right to pre-emption applied to all that is shared, be it a house or a garden,
as long as it is undivided. It is not lawful (to any of the partners of such jointly
1 Bukhari # 2213, Abu Dawud # 3513, Tirmidhi # 1370, Ibn Majah # 2499, Musnad Ahmad 3-399.

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shared land) to sell his share before informing his partner. Then he may take it or
leave it as he choose. If, however, he sells without informing his partner, then he
(the partner) is most rightful to it (to buy the portion sold)."1
COMMENTARY: This hadith make it clear that the right to Shufah applies only to
immovable property. Besides, it is not restricted only to Muslim, but may be concluded
between a Muslim and a dhimmi.
It is also clear that if a partner of land or house jointly owner wished to sell his share then at
the time of selling, he must inform his partner(s) so that he might buy it if he wishes to buy.
If he does not inform then the partner has the right to acquire the portion through Shuf'ah.
NEIGHBOUR HAS A RIGHT TO SHUF'AH
(٢٩٦٣) وَعَنْ أَبِيْ رَافِعٍ قَالَ قَالَ رَسُولُ اللهِ صَلَى اللّهُ عَلَيْهِ وَسَلَّمَ الْجَارُا حَقُّ بِسَقَبِهٍ- (رواه البخارى)
2963. Sayyiduna Abu Rafi رضى الله عنه said that Allah's Messenger صلى الله عليه وسلم said, "The
neighbour enjoys more right because of his nearness."2
COMMENTARY: The neighbour has more right to Shuf'ah if he is near and adjacent.
This hadith is evidence that the right of Shuf'ah is not only for a partner. It also is for
a neighbour.
RIGHT OF NEIGHBOURHOOD
(٢٩٦٤) وَعَنْ آنٍ هُرَيْرَةَ قَالَ قَالَ تَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ لَايَمْنَّهُ جَارْ جَارَه آَ يَّغْرِزَ خَشَبَةً فِى
جِدّارٍه- (متفق عليه)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Abu Hurayrah .2964
said, "Let no neighbour forbid his neighbour to fix a beam in his wall."3
COMMENTARY: This command not to forbid is on condition that fixing the beam will not
cause damage. Imam Ahmad al-, and the scholars of hadith hold that the command is of
the level of wajib (obligatory) (obligatory). Imam Abu Hanifah &m), Imam Maalik ames, and
Imam Shafi'I a>, hold that it is of the level of mustahab (desirable) (recommended).
BREADTH OF ROAD
(٢٩٦٥) وَعَنْ أَبٍ هُرَيْرَةَ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ إِذَا خُتَلَفْتُمْ فِي الطَّرِئْقِ جُعِلَ عَرُضُهُ
سَبْعَةً اذرُعٍ- (رواه مسلم)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Abu Hurayrah .2965
said, "when you differ concerning a road, let its breadth be seven cubits."4
COMMENTARY: If a road exists on a piece of land and some people wish to erect a house
and a difference of opinion crops up on the width of the road, then it should be left seven
cubits wide. No kind of construction should be raised on it.
1 Muslim # 134-1608.
2 Bukhari # 2258.
3 Bukhari # 2463, Muslim # 36. 1609, Tirmidhi # 1358, Abu Dawud # 3634, Ibn Majah # 2335,
Muwatta Maalik # 32 (Aqdiyah), Musnad Ahmad 2-463.
4 Bukhari # 2474, Muslim # 143-1613, Tirmidhi # 1361, Abu Dawud # 3633, Ibn Majah # 2338.

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However, if a road is already more than seven cubits broad, no one should raise anything
on it. Its breadth should not be narrowed under any circumstances
· SECTION II
الفضل الثَّانِى
BETTER NOT TO SELL IMMOVABLE PROPERTY
(٢٩٦٦) ◌َنُ سَعِيْدٍ بُنِ حُرَيْثٍ قَالَ سَمِعْتُ رَسُولَ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ يَقُوْلُ مَنْ بَاءَ مِنْكُمُ دَارًا
اوُ عَقَّارًا فَمِنْ آَ لَّا يُبَارَكَ لَهُ إِلَّ اْ يَجْعَلَهُ فِي مِثْلِه- (رواه ابن ماجة والدارمى)
2966. Sayyiduna Sa'eed ibn Hurayth as a >, narrated that he heard Allah's
Messenger صلى الله عليه وسلم say, "If anyone of you sells a house or piece of land, then it is
appropriate that he has no blessing (in its price) unless he uses what he gets (by
way of its price) on (buying) something like it (of on immovable property)."1
COMMENTARY: It is not advisable to sell immovable property unnecessarily. There is
much profit in it and it is a safe investment. Only if other immovable property is bought
from its proceeds may it be sold."
NEIGHBOUR HAS RIGHT OF SHUF' AH
(٢٩٦٧) وَعَنْ جَابِرٍ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الْجَارُاَ حَقّ بِشُفْعَتِّهِ يُنْتَظُرُ لَهَا وَإِنْ كَانَ
غَائِمًّا إِذَا كَاَ طَرِيقُهُمَا وَاحِدًا-(رواه احمد والترمذى وابوداود وابن ماجة والدارمى)
2967. Sayyiduna Jabir رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said, "The
neighbour has a greater right of Shuf'ah. If he is absent, its operation must be
deferred if both properties have the some path."2
SHUF' AH APPLIES TO ALL IMMOVABLE PROPERTIES
(٢٩٦٨- ٢٩٦٩) وَعَنِ ابْنِ عَبَّاسٍ عَنِ النَّبِيِّ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ قَالَ الشَّرِيْتُ شَفِيْهُ وَالشُّفْعَةُ فِيْ كُلِّ شَهِىءٍ-
رَوَاهُ التِِّ مِذِىُّ قَالَ وَقَدْرُوِىَّ عَنِ ابْنِ آَتِيْ مُلَيِّكَةَ عَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مُرْسَلًا وَهُوَ اَصَُّ۔
2968. Sayyiduna Ibn Abbas رضى الله عنه narrated that the Prophet صلى الله عليه وسلم said. The
partner is shafi (being a right holder to buy neighbouring property) and shuf'ah
(the option to buy) covers everything (that is immovable)."3
2969. Sayyiduan ibn Abu Mulaykah narrated from the Prophet صلى اللهعليه وسلم (the same
hadith) in a mursal form. It is more sahih.4
DO NOT CHOP DOWN LOTE TREE
(٢٩٧٠) وَعَنْ عَبْدِ اللَّهِ ابْنٍ حُبَيْشٍ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ مَنْ قَطَعَ سِدْرَةٌ صَوَّبَ اللّهُ رَأْسَهُ
فِي الثَّارِ - رَوَاهُ أَبُوْدَاؤدَ وَقَّالَ هُذَا الْحُدِيْثُ مُخْتَصَرْ يَهْنِيْ مَنْ قَطَةَ سِدْرَةً فِيْ فَلَاةٍ يُسْتَظِلُّ بِهَا ابْنُ الشَّبِئْلِ
1 Ibn Majah # 2490, Darimi # 2625, Musnad Ahmad 4-307 (3-303)
2 Tirmidhi # 1374, Abu Dawud # 3518, Ibn Majah # 2494, Musnad Ahmad # 14257.
3 Tirmidhi # 1376.
4 Tirmidhi # 1376.

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وَالْبَهَائِمُ غَشْمًا وَظُلُمَّا بِغَيْرٍ حَقٍ يَكُونُ لَّهُ فِيْهَا صَوَّبَ اللَّهُ رَأْسَهُ فِي النَّارِ۔
صلى الله عليه narrated that Allah's Messenger رضى الله عنه Sayyiduna Abdullah ibn Hubaysh .2970
-, said, "He who chops down a lote tree, Allah will fling him face down in the fire."
Abu Dawud transmitted it saying that this hadith is shortened, meaning.
"He who chops down a lote tree in a desert cruelly, unjustly without right to it, and
in whose shade the travellers and animals get rest, Allah will cast him in the Fire
head first."1
COMMENTARY: The words in the hadith (غشما وظلما بغير حق) are emphatic (ظلما بغير حق) lay stress
on (غشما) (cruelly). Or, (ظلما) (unjustly) emphasizes (غشما) while (بغير حق) means shaf'ah.
It is stated in the book Mirqat as-Sa'ood of Abu Dawud that Tabarani has explained in his book
Awsat that this warning applies to one who chops down a lote tree in the limits of the Haram.
Some others say that here reference is to the lote tree of Madinah. Some describe it as the lote
tree in a desert under which travellers and animals get shade. Some ulama (Scholars) say that
the warning is to the person who cut down a lote tree of another cruelly and unjustly.
SECTION III
الفَصلُ الثَّالِثُ
SHUF'AH APPLIES TO EVERY IMMOVABLE PROPERTY
(٢٩٧١) عَنْ عُثْمَانَ بُنِ عَقََّ قَالَ إِذَا وَقَّعَتِ الُْدُوْدُ فِي الْأَرْضِ فَلَا شُفْعَةً فِيْهَا وَلَا شُفْعَةَ فِي بِكْرٍ وَلَّا
فَحْلِ النَّخْلِ- (رواه مالك)
2971. Sayyiduna Uthman ibn Affan us à+, said, "There is no pre-emption when
boundaries are fixed on land (meaning the joint and is divided among the partner
and shares of each have been determined separately). And, pre-emption (or shuf'ah
or option) does not apply to a well, or to male palm trees."2
COMMENTARY: The well cannot be divided. Shuf'ah applies only to the land that can be
divided (usefully), so there is no Shuf ah with a well. Imam shafi'I alda>, abides by it but the
Hanafis hold that shuf'ah is known and confirmed in every land whether divisible like
houses. Gardens etc. or indivisible like wells baths, Hand mills. They cite the prophet's
.(Shuf'ah applies to every thing - immovable) (الشفعة فى كل شئى) words الله عليه وسلم
A male palm tree is indivisible and it is not a piece of land. Hence, Shuf' ah does not apply
to it. The partners have no right of pre-emption with it.
1 Abu Dawud # 5239.
2 Muwatta Maalik # 4-35. 2.

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CHAPTER - XIII
بَابُ الْمُسَاقَاةِوَالْمُزَارَعَةِ
AL-MUSAQAH WA AL-MUZARA'AH
TENDING PALM-TREES & TILLING LAND
AGAINST SOME PRODUCE (CROP SHARING)
Musaqah is that one person hands over his palm-trees to another to tend them and water
them on condition that they could share the fruit at an agreed proportion, half and half, one
third and two thirds, or one fourth and three fourths, etc.
Muzara'ah is to hand over one's land to another to cultivate it on condition that the owner
would receive a fixed share of the produce (as agreed between them: half, one-fourth, etc).
In other words, both musaqah and muzara'ah have a common significance which is a
division of crop between cultivator and landlord. The only difference that the former has to
do with trees and the latter with land. The same command of fiqh (Islamic jurisprudence)
applies to both of them.
Musaqah and muzara'ah - that is, using one's trees and land between oneself and cultivator
by dividing the crop - is invalid according to Imam Abu Hanifah aus), but it is permitted
according to Imam Shafi'I aw., Imam Malik ales), Imam Ahmad ales, and the two disciples
.رحمه الله and Imam Muhammad رحمه الله Imam Abu Yusuf (رضى الله عنه of Abu Hanifah)
The argument of Imam Abu Hanifah ales, is that each of these is such a contract or lease in
which the return is unkown and non-existent. Besides, the prophet Ly lea o is known to have
rejected al-mukhabarah (muzara'ah). But, the Hanafis go by the verdict of Imam Abu Yusuf
and Imam Muhammad ata), so they too regard musaqah and muzara'ah as permitted.
SECTION I
الفضل الآۇَّلْ
ARRANGEMENT AT KHAYBAR FIELDS
(٢٩٧٢) عَنْ عَبْدِ اللهِ ابْنِ حُمَرَ آَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ دَفَّعَّ إِلَى يَهُوُدَ خَيْبَرَ تَخُلَ خَيْبَرَ وَأَرْضَهَا
إِلَى أَنْ يَكْتَمِلُؤُهَا مِنْ أَهْوَ الِهِمْ وَلِرَسُوْلِ اللّهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ شَظْرَ ثَّمَرِهَا- رَوَاهُ مُسْلِمٌ وَفِعْ رِوَايَةٍ
الْبُخَارِيِّ أَثّ رَسُولَ اللّهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ أَعْلَى خَيْبَرَ الْتَّهُوْدَ أَنْ يَعْمَلُؤُهَا وَيَزُرَ عُهَا وَلَّهُهُ
شَطُرُ مَا يَخْرُ جُ مِنْهَا-
صلى الله عليه narrated that Allah's Messenger رضى الله عنه Sayyiduna Abdullah ibn Umar .2972
, entrusted to the Jews of Khaybar the palm - trees and land of Khaybar on the
condition that they exert their selves and use their properties in toiling on them.
And for Allah's Messenger صلى الله عليه وسلم should be half of its fruit. (This is as in
Muslim. The version in Bukhari is:) Allah's Messenger صلى الله عليه وسلم gave (the land
and trees of) khaybar to the Jews that they should work on it and cultivate it and
collect half of what it produces (the other half being for him).1
1 Bukhari # 2285, Muslim # 5-551, Tirmidhi # 1388, Abu Dawud # 3409, Ibn Majah # 2467, Darimi #
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COMMENTARY: Khaybar is a habitation about sixty miles from Madinah to the north, It
used to be a famous place where the Jews resided. Today, it is made up of a few villages.
People do not lie to reside there because its climate is not suitable. Its prime produce is dates.
The hadith is cited by all those scholars who say that musaqah and muzara'ah are
permitted. Imam Abu Hanifah &t>, (who is the lane dissenter) says that the entrusting of
the land and trees of Khaybar to the Jews has nothing to do with musaqah and muzara'ah
because they did not belong to the Prophet صلى الله عليه وسلم that he would give to the Jews by
way of musaqah and muzara'ah. Rather that land and those trees were the properties of the
Jews. The Prophet صلى الله عليه وسلم entrusted to them their properties and fixed half of the
produce as Kharaj (homage revenue) for himself.
Kharaj (homage revenue) is of two kinds:
(1)
Kharaj (homage revenue) (wazifah or) muwazzif
(2)
Muqasamah.
The first kind is that the ruler specifies some amount to be taken every year from those on
whom the Islamic state imposes kharaj (homage revenue). For example, the people of
Najran were made to pay one thousand two hundred pairs of clothing each year.
The second kind, muqasamah, is that when kharaj (homage revenue) is imposed on some
people, the produce of their land is divided between them and the Islamic state in a
specified manner. This is as with the people of Khaybar produce of whose land and trees
was divided between them and the Prophet صلى اللهعليه وسلم half and half.
·
MUKHABARAH DISALLOWED
(٢٩٧٣) وَعَنْ عَبْدِ اللَّهِ بْنِ عُمَّرَ قَالَ كُنَّا تُخَابِرُ وَلَّا نَزِى بِذُلِكَ بَأْسًا حَتَّى زَّعَمَ رَافُِ بْنُ خُدِيْجٍ آثَّ النَّبِىِّ
صَلَى اللهُ عَلَيْهِ وَسَلَّمَ تَى عَنْهَا فَتَرَكُنَاهَا مِنْ أَجْلِ ذُلِكَ- (رواه مسلمٍ)
2973. Sayyiduna Abdullah ibn Umar us & +, said that they used to observe
makhabarah and found nothing wrong in it. However, when (Sayyiduna) Rafi ibn
Khadij رضى الله عنه informed them that the Prophet صلى الله عليه وسلم had forbidden it, they
gave it up for that reason.1
COMMENTARY: Mukhabarah is what is mentioned in the hadith (2972) preceding this.
Imam Abu Hanifah aha, cites this hadith to establish his point that muzara'ah is forbidden.
RANTING LAND FOR PRODUCE
(٢٩٧٤) وَعَنْ حَتْظَلَةَ بُنِ قَيْسٍ عَنْ رَافِعْ بُنِ خَدِيْجٍ قَالَ آَخْبَرَنِيْ عَمَّاىَ أَنَّهُمُ كَانُوا يُكُرُؤُكَ الْآَرْضَ عَلى
عَهْدِ الشَّيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ بِمَا يَنْبُتُ عَلَى الْأَرْبَعَاءِ أَوْ شَهِيٍ يَسْتَغْنِيْهِ صَاحِبُ الْأَرْضِ فَنَهَانَا النَِّىُّ صَلَّى
اللَّهُ عَلَيْهِ وَسَلَّمَ عَنْ ذُلِكَ فَقُلْتُ لِرَافِعٍ فَكَيُّفَ هِىَ بِالذَّرَاهِمِ وَالدَّنَانِيْرِ فَقَالَ لَيْسَ بِهَا بَأْسٌ وَكَانَ الَّذِى
◌ُهُىَّ عَنْ ذلِكَ مَا لَوْ نَظَرَ فِيْهِذَوُوا الْفَهْمِ بِالْخُلَالِ وَالْخُرَامِ لَمْ يُحِيْزُؤْهُ لِمَا فِيْهِ مِنَ الْمُخَاطَرَةِ - (متفق عليه)
2974. Sayyiduna Hanzalah ibn Qays al-, reported on the authority of Sayyiduna
Rafi ibn Khadijacal+, that his two paternal uncles narrated to him that, in the time
of the Prophet صلى الله عليه وسلم they used to rent land and receive (for that) the produce
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(that was) along the streamlets, or (the produce) of the (portion of) land set aside by
the landlord. (Those to whom they rented out the land retained the produce of the
remaining portion of the land.) The Prophet صلى الله عليه وسلم forbade them to do that
(because it was an uncertain proposition).
He (Hanzalah) رحمه الله asked Rafi رضى اله عنه, "How it would be if dirhams and dinars
were paid?" He said, "There would be no harm in that (payment)."
That which was disallowed (meaning, the two forms of muzara'ah) are such that
anyone with some knowledge of the lawful and unlawful would not allow, if he
gave some thought to it realizing the risk factor in it.1
COMMENTARY: The ulama (Scholars) who maintain that muzara'ah is allowed are also
among those who agree that these two forms of renting out one's land for cultivation are
not permitted.
Both sides of the ulama (Scholars) who regard muzara'ah as permitted and who consider it
as disallowed cite ahadith as evidence for their points of view, there being different ahadith
on this subject.
As stated earlier, most of the ulama (Scholars) hold that muzara'ah is allowed. Imam Abu
Hanifah als, disagrees, but his two students Abu Yusuf als, and Muhammad alas, are
among those who say it is allowed. Besides, it is a necessary practice, so the Hanifah give
the verdict that Muzara'ah is allowed.
DISALLOWED FORM OF MUZARA'AH
(٢٩٧٥) وَعَنْ رَافِعِ بْنِ خَدِيْجٍ قَالَ كُنَّا أَكْثَرَ أَهْلِ الْمَدِيْنَةِ حَقْلًا وَكَانَ آَحَدُنًا يُكْرِئُ اَرْضَه فَيَقُولُ هذِه
الْقِطْعَةُ لِيُ وَهُذٍ لَكَ فَرُبَّمَا أَخْرَ جَتُ ذِهُ وَلَمْ تُخْرِ بْ ذِهُ فَتَهَاهُمُ النَّبِىُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ - (متفق عليه)
2975. Sayyiduna Rafi ibn Khadija a>, narrated that most of them, the people of
Madinah, were cultivators. Some of them let out their land agreeing (with the
tenant) that they would have what was produced in a certain portion (towards their
rent) while the produce of the other portion should go to him (to whom it was
rented). Sometimes, there was production on one portion but none on the other. So,
the Prophet صلى الله عليه وسلم disallowed them to do that.2
BETTER TO RENT OUT LAND
(٢٩٧٦) وَعَنُ عَمْرٍ قَالَ قُلْتُ لِطَاؤسِ لَوْتَّرَكْتَ الْمُخَابَرَةَ فَإِنَّهُ يَزْعُمُوْنَ آَكَّ النَِّنَّ صَلَّى اللهُ عَلَيْهِ
وَسَلَّمَ تَى عَنْهُ قَالَ أَىْ عَمْرُو إِِّ أُعْطِيْهِمْ وَأُعِيْنُكُمُ وَإِنَّ أَعْلَمَهُمْ آَخْبَرَنِ يَمْنِى ابْنَ عَبَّاسِ آَتَّ النَّبِيَّ
صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ لَمْ يَنْهَ عَنْهُ وَلَكِنْ قَالَ أَنْ يَمْنَعَ أَحَدُكُمْ آَخَاهُ خَيْرٌلَهُ مِنْ آَنْ يَأْخُذَ عَلَيْهِ خَرُبًا
مَعْلُؤْمًا- (متفق عليه)
.رضى اله عنه said that he said to Sayyiduna Tawus رحمه الله (Sayyiduna Amr (ibn Dinar .2976
"If you abandon muzara'ah that would be better, because the ulama (Scholars)
assert that the Prophet صلى الله عليه وسلم had forbidden it." He said, "O Amr! I give them
1 Bukhari # 2332, Musnad Ahmad 4-142, Muslim # 115-1547.
2 Bukhari # 2332, Muslim # 117-1547.

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my land and help them (thereby). The most learned of men, Ibn Abbas que an (+)
informed me that the Prophet صلى الله عليه وسلم had not forbidden it, but has said, 'It is
better for any of you to lend to his brother (his land) to cultivate) than to receive
from him a specified sum (of revenue)."1
C
·
COMMENTARY: Muza'ra'ah is to give something and get something. But, if someone is
shown favour by giving him one's land as a concession so that he might earn something
from it then it is better.
CULTIVATE OR LEND YOUR FIELD
(٢٩٧٧) وَعَنْ جَابِرٍ قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَنْ كَانَتُ لَهْ أَرْضْ فَلْيُزُرَ عُهَا أَوْ لِيَّمْنَحُهَا آَخَاهُ
فَإِ آَى ذَلْيُمُسِتْ آَرْضَه۔ (متفق عليه)
2977. Sayyiduna Jabir رضى الله عنه narrated that Allah's Messenger صلى الله عليه وسلم said, "If
anyone has land then he should cultivate it (himself), or (if he cannot do it then) he
must lend it to his brother, If he refuses then he must keep it with himself."2
COMMENTARY: Shaykh Mazhar a >, says that this hadith calls upon man to put his
property to profitable use. If he does not cultivate his own land then he may land it to a
Muslim brother to earn a livelihood for himself and his family. If the owner does not
choose either of the two courses, then he may keep his land with himself but not give it
to anyone by way of muzara'ah. This also is a warning to those who do not use their
property for their own good nor give benefit to others from it (and earn reward from
Allah for themselves).
Some people interpret the hadith to mean that if no one is willing to take the land on loan,
then he may keep his land with himself. In this case, the command is to show that it is
permissible to do so. (This is a sin hadith # 2632 or Bukhari.)
WORKING TO CULTIVATORS WHO ABANDOM JIHAD
(٢٩٧٨) وَعَنْ أَبِيْ أُمَامَةً وَرَأىْ سِكَّةٌ وَشَيْئًا مِنْ الَةِ الْخُرْثِ فَقَالَ سَمِعْتُ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ يَقُولُ
لَا يَدْخُلُ هُذَا بَيْتَ قَوْمٍ إِلَّا أَدْخَلَهُ اللهُ الذُّلَّ-(رواه البخارى)
2978. Sayyiduna Abu Umamah us a +, saw a ploughshare and some agricultural
implements, and said that he had heard the Prophet صلى الله عليه وسلم say, "This will not
enter the house of a people but Allah will make shame to enter it."3
COMMENTARY: The Prophet صلى الله عليه وسلم did not condemn agriculture but he meant that
jihad should not be neglected because of agriculture.
If anyone engages in cultivation for a livelihood the that is not a disliked thing.
Some ulama (Scholars) say that it applies to those who have their fields along the borders
with the enemy. If they concentrate on cultivation and neglect jihad, then the enemy will
invade and overpower them, thereby disgracing them.
1 Bukhari # 2330, Muslim # 120. 1550, Abu Dawud # 3389, Nasa'i # 3873, Musnad Ahmad 1-234.
2 Bukhari # 2340, Muslim # 89. 1536, Nasa'i # 3874, Ibn Majah # 2451, Musnad Ahmad 3-373.
3 Bukhari # 2321.
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SECTION II
DO NOT SOW IN FIELDS OF OTHER WITHOUT PERMISSION
الفضلالثانی
(٢٩٧٩) عَنْ رَافِعْ بُنِ خَدِيْجٍ عَنِ النَّبِيِّ صَلَّى اللُّهُ عَلَيْهِ وَسَلَّمَ قَالَ مَنْ زَّرَءَ فِىِ آَرْضِ قَوْمِ بِغَيْرِإِذْهِمْ فَلَيْسَ لَئ
..
مِنَ الزَّرُعِ شَىِّ وَلَهُ نَفَقَتُه- رَوَاءُ التِّزْمِذِىُّ وَأَبُوْدَاوُدَ وَقَالَ التِّرْ مِذِىُّ هُذَا حَدِيْثُ غَرِيُبْ-
2979. Sayyiduna Rafi ibn Khadij رضى الله عنه narrated that the Prophet صلى الله عليه وسلم said,
"He who sows on a land belonging to other people without their permission, has no
right to any of its produce, but he may take his cost from it."1
COMMENTARY: If anyone sows on' someone's field without his permission, then all the
production on it belongs to the owner of the land. Of course, he will get his expenses on
sowing the field, nothing more. Imam Ahmad goes by this hadith.
Other ulama (Scholars) say that he who sows will get all its crop, but will have to pay to the
owner of the land the loss of the land. Some ulama (Scholars) of the Hanafis say the same thing.
Ibn Maalik ales, said that he will have to bear, as a wajib (obligatory), the reimbursement of
the land from the day of took over the land till the day of cultivation when he clears the
land. The produce will belong to him.
.
SECTION III
الفَصلُ الثَّالِثُ
PROOF OF VALIDITY OF MUZARA'AH
(٢٩٨٠) عَنُ قَيْسِ بُنِ مُسْلٍِ عَنْ أَبِيُ جَعْفَرٍ قَالَ مَا بِالْمَدِيْنَةِ أَهْلُ بَيْتٍ هِجْرَةٍ إِلَّا يَزْرَ حُوْنَ عَلَى الشُّلُثِ
والُّبُعْ وَزَارَعَ عَلِىٌّ وَسَعْدُ بُنُّ مَالِكٍ وَعَبْدُ اللّهِ بْنُ مَسْعُوُدٍ وَعُمَّرُ بْنُ عَبْدِ الْعَزِيزِ وَالْقَاسِمُ وَعُرُوَةُ وَالُ آنٍ
بَكُرٍ وَالُّ عَلِيٍّ وَابْنُ سِيْرِيْنَ وَقَالَ عَبْدُ الرَّحِمْنِ بْنُّ الْأَسْوَدِ كُنْتُ أُشَارِكُ عَبْدَ الرَّحُمْنِ بُنَّ يَزِيْدَ فِي الزَّرُعِ
وَعَاهَلَ محُمَرُ النَّاسَ عَلَى إِنْ جَاء ◌ُمَرُ بِالْبَّذُرِ مِنْ عِنْدِهِ فَلَهُ الشَّطْرُ وَإِنْ جَاءُوًا بِالْبَذْرِ فَلَهُمْ كَذَا- (رواه
البخارى)
2980. Sayyiduna Qays ibn Muslim wÅn +, reported on the authority of Sayyiduan Abu
Ja'far us in», that there was not any house of the muhajirs (emigrants) in Madinah that
did not cultivae land (for the ansars) for one third on one fourth of the yield.
(Sayyiduna) Ali, Sa'd ibn Maalik, Abdullah ibn Mas'ud, Umar ibn Abdul Aziz, al
Qasim, Urwa, the family of Abu Bakr, the family of Umar, the family Ali and Ibn
Sirin », cultivates the land against a part of the produce.
Abdur Rahman ibn al Aswad als, said that he was partner of Abdur Rahman ibn
Yazid als, in cultivation. Umar usano, contracted with people that if he supplied
the seed, he would receive half of the produce and if they provided the seed they
would get a certain share.2
COMMENTARY: Mirak Shah al , said that it is clear even from Bukhari's text that
1 Tirmidhi # 1371, Abu Dawud # 3404, Ibn Majah # 2466, Musnad Ahmad 3-465.
2 Bukhari (Book 41, Chapter 8 - Heading, sub-heading before hadith # 2328).
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Sayyiduan Abu Ja'far's رضى الله عنه words end at (والربع) (and one fourth of the yield). This is
apparent also from its expositions. The words after that are Bukhari's own, and are all
aathar, meaning words of the sahabah and the tabi'un. Bukhari has reproduced them
without a chain of transmission, so has placed them as a sub-heading.
CHAPTER - XIV
AL-IJARAH - HIRE
◌َابُ الْإِجَارَةِ
Ijarah means to give something on rent. In the terminology of Shari'ah (divine law), it
means to make someone owner of the use of something belong to oneself.
From the point of view of fiqh (Islamic jurisprudence), since profit is lacking from Ijarah, it
should not be permitted. However, in view of the need of the people, Shari'ah (divine law)
has declared it to be lawful. Also it is established through ahadith and aather.
SECTION I
الفَضل الآوَلْ
IJARAH IS ALLOWED
(٢٩٨١) عَنْ عَبْدِ اللَّهِ بْنِ مُتَقَّلٍ قَالَ زَعَمَ ثَابِتُ بْنُّ الشَّخَّاتِ آَّ رَسُولَ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ تَى عَنِ
الْمُزَارَعَةِ وَآَمَرَ بِالْمُوَاجَرَةِ وَقَالَ لَّا بَأْسَ پِهَا- (رواه مسلم)
3
2981. Sayyiduna Abdullah ibn Mughaffal al to-, said that (Sayyiduna) Thabit ibn
Dahhak رضى الله عنه said that Allah's Messenger صلى الله عليه وسلم forbade muzara'ah but
commanded that Ijarah should be observed. He said, "There is no harm in it."1
COMMENTARY: The disallowance of Muzara'ah is of its two forms that are mentioned in
hadith # 2974. (They are the land along streamlets and setting aside portion of the land,
both whose produce is reserved for the owner.)
(٢٩٨٢) وَعَنِ ابْنِ عَبَّاسِ آََّ النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ إِحْتَجَوَ فَأَعْلَى الْحَجَّامَ أَجْرَهُ وَاسْتَعَطَ - (متفق عليه)
2982. Sayyiduna Ibn Abbas رضى الله عنه narrated that the Prophet صلى الله عليه وسلم had himself
cupped (once) and paid the cupper his wages. And, he poured medicine into his nose.2
COMMENTARY: This hadith clarifies that the profession of the cupper is lawful. To pay
wages is permissible and so it is to use medicine.
THE PROPHET صلى الله عليه وسلم GRAZED SHEEP AGAINST WAGES.
(٢٩٨٣) وَعَنْ آَبٍ هُرَيْرَةَ عَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ مَا بَعَثَ اللّهُ نَِّيًّا إِلََّرَ عَى الْغَنَمَ فَقَالَ أَصْحَابُهُ
وَأَنْتَ فَقَالَ نَعَمُ كُنْتُ آرْغَى عَلَى قَرَارِيطَ لِآمْلِ مَگَّةً۔(رواه البخارى)
2983. Sayyiduna Abu Hurayrah رضى الله عنه narrated that the prophet صلى الله عليه وسلم said,
"Allah has not sent such a prophet who has not grazed sheep." The sahabah
(Prophet's Companions) رضى الله عنهم asked, "And you too?" He said, "Yes, I was a
shepherd for the people of Makkah for a payment of (some) qararit."3
1 Muslim # 119-1549.
2 Bukhari # 5691, Muslim # 65-1202, Abu Dawud # 3423, Ibn Majah # 2162, Musnad Ahmad 1-258.
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COMMENTARY: Given the responsibilities of a prophet, he has to experience every kind of
life and profession to be able to propagate religion effectively. The shepherd's profession is
one such. This seems to be very lowly but if we examine it, this profession promotes love
and compassion, hard work and toiling, mutual cooperation and well wishing, and
' supervision. Those qualities are essential for a guide and reformer. Every Prophet had this
experience to be able to lead his people. It enables him to endure hardship and obstinacy of
his people. Besides, this life enables him to go through attitude which is necessary during
the initial life of prophethood.
WARNING FOR NOT PAYING WAGES TO LABOURER
(٢٩٨٤) وَعَنْهُ قَالَ قَالَ رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ اللَّهُ تَعَالى ثَلَاثَةُ أَنَا خَصَمُهُمْ يَوْمَ الْقِيَامَةِ رَجُلْ
آحُلِى بِيْ ثُمَّ غَدَرَ وَ رَجُلْ بَاءَ حُزَّأَ فَاَ كُلَ تَّمَنَّهُ وَرَجُلْ اسْتَاجَرَ أَجِيْرًّا فَاسْتَوْفَى مِنْهُ وَلَمْ يُعْطِهِ أَجْرَه- (رواه البخارى)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Abu Hurayrah .2984
said that Allah, the exalted, says, "Three there are against whom I shall initiate
action on the day of resurrection: a man who holds out an assurance in my name,
but then fails to fulfil it, a man who sells a free man and devours the proceeds. And
a man who hires a labourer and gets the work done by him but does not pay him
.
his wages."1
COMMENTARY: To break a promise is wrong and when it is given in Allah's name, it is
extremely bad to break it.
To sell a freeman is wrong too. The words 'devours the proceeds' are to stress that it is
very bad.As for not paying the wages, it is very sinful and cruel. The perpetrator
deserves to be punished.
WAGES FOR INCANTATION
(٢٩٨٥) وَعَنِ ابْنِ عَبَّاسِ آَرَّ نَفَّرًّا مِنْ أَصْحَابِ النَِّيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَرُّوْا بِمَاءِ فِيْهِمْ لَدِيٌْ أَوْسَلِيْهْ
فَعَرَضَ لَهُمْ رَجُلْ مِنْ أَهْلِ الْمَاءِ فَقَالَ هَلْ فِيُكُمُ مِنْ رَاقٍ إِّ فِي الْمَاءِ لَدِيُغًّا أَوْسَلِيُمَّا فَانْطَلَقَ رَجُلْ مِنْهُمُ
فَقَّرَأَ بِفَاتِحَةِ الْكِتَابٍ عَلَى شَاءٍ فَبَرَأَ ذَجَاءَ بِالشَّاءِ إلى أَصْحَابِهٍ فَكَرٍ مُوْا ذْلِكَ وَقَالُوا أَخَذْتَ عَلَى كِتَابِ اللّهِ
أَجْرًّا حَتَّى قَدِمُوا الْمَدِيْنَةَ فَقَالُوا يَا رَسُولَ اللّهِ أَخَذَ عَلَى كِتَابِ اللهِ أَجْرًا فَقَالَ تَسُولُ اللّهِ صَلَّى اللَّهُ عَلَّهِ
وَسَلَّمَ إِنَّ أَحَقَّ مَا أَخَذْتُمُ عَلَيْهِ أَجْرًا كِتَابُ اللَّهِ- رَوَاءُ الْبُخَارِىُّ وَفِعْ رِوَايَةٍ أَصَبْتُمْ إِقْسِمُوْا وَاضْرِبُوا لِ
مَعَدُّمُ سَهُمَّا.
2985. Sayyiduna Ibn Abbas ws a +) narrated that some of the sahabah (Prophet's
Companions) رضى الله عنهم of the Prophet صلى الله عليه وسلم came to a watering place or a
village) where someone had been stung by a scorpion or by a snake. One of the
dwellers of that place came to the sahabah (Prophet's Companions) رضى الله عنهم and
asked, "Can anyone of you invoke (to cure snake bite), for a man at the watering
place is stung by a scorpion or a snake?" One of the sahabah accompanied him and
1 Bukhari # 2227, Ibn Majah # 2156, Musnad Ahmad 3-83.

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recited surah al-fatihah against some sheep. The man was cured. However, when he
came with the sheep to his colleagues, they did not like it and complained. "You
have taken payment for Allah's Book." On coming to Madinah, they complained to
Allah's Messenger صلى اله عليه وسلم that he had collected payment for Allah's Book. He
said, "The most rightful thing for which you receive wages is Allah's Book."
According to a version, he also said, "you did the right thing. Divide the sheep
(among yourselves) and let me have a share along with you."1
COMMENTARY: Some ulama (Scholars) say that the sahabi who had recited surah al-
Fatihah was Sayyiduna Abu Sa'eed Khudri As an (+). There were thirty sahabah in that
group. So he had taken thirty sheep.
The Prophet صلى الله عليه وسلم asked for his share too because that would make clear to the
sahabah (Prophet's Companions) ,a >, that it was correct to collect wages for the recital.
It is correct to apply charm with the verses of the Quran and get wages for it. So, there is
nothing wrong in asking for payment to apply charm or make talisman with verses of the
Quran or other known supplication.
However, we cannot say because of this it is allowed to get a payment for reciting the
Quran. Reciting the Quran is a form of worship for which it is not permitted to get wages.
To blow on a patient who is cured because of it is not a worship, so wages may be collected
for that. This also makes clear that wages may be had for writing down the Quran and
other religious books and to buy and sell them.
The letter day (or succeeding) ulama (Scholars) have given an identical ruling about
teaching the Quran. However, the preceding ulama (Scholars), like Imam Abu Hanifah >,
à had said that it is unlawful to seek wages for teaching the Quran.
SECTION II
الفضلُ الثَّانِى
INCANTATION NOT SANCTIONED BY SHARI'AH (DIVINE LAW) IS UNLAWFUL
(٢٩٨٦) عَنُ خَارِجَةَ بْنِ الصَّلْتِ عَنْ عَهِّهْ قَالَ أَقْبَلْنَا مِنْ عِنْدِ رَسُوْلِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَأَتَيْنَا عَلى حَيّ
مِنَ الْعَرَبِ فَقَالُوا إِنَّا أُنْبِقْنَا أَنَّكُمُ قَدْجِئْتُمُ مِنْ عِنْدِ هِذَا الرَّجُلِ بَخَيْرٍ فَهَلْ عِنْدَكُمُ مِنْ دَوَاءِ أَوْرُقْيَّةٍ فَإِّ
عِنْدَنَا مَعْتُوُهًا فِى الْقُوْدِ فَقُلْنَا نَعَمْ قَالَ فَجَاءُوْا بِمَمْتُوُهٍ فِي الْقُوْدِ فَقَرَأْتُ عَلَيْهِ بِفَاتِحَة الْكِتَابِ ثَلاثَةَ آَيَّامٍ
◌ُدُوَّةً وَعَشِيَّةٌ أَجْمَعُ بُزَاقٍ ثَُّّ أَتْقُلُ قَالَ فَكَأَّمَا أُنْشِطَ مِنْ عِقَالٍ فَأَعْتُوْنِي جُمْلًا فَقُلْتُ لا حَتَّى أَسْأَلَ النَّبِيَّ
صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ فَقَّالَ كُلُ فَلَعُمُرِئْ لَمَنْ آَكُلَ بِرُقُيَّةِ بَاطِلٍ لَقَدُ آگلْتَ بِرُقُيُةٍ حَتٍّ-(رواه احمد وابوداود)
2986. Sayyiduna Kharijah ibn Salt (as in sullt) reported from his paternal uncle that
he said, "When we departed from Allah's Messenger , à . we met a tribe of
the Arabs (on the way) who said to us that they had learnt that we had brought from
this man (Allah's Messenger) صلى الله عليه وسلم what is good and had we a medicine or a
charm because they had a mad man in chains? We confirmed that we had and they
brought (to us) a mad man in chains and I recited surah al-Fatihah over him for
three days, morning and evening, I a such a way that I collected my saliva (while
1 Bukhari # 5737, Ibn Majah # 2156, Musnad Ahmad 3-83.

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reciting) and (after I finished) I spat on him."
The narrator reported that his paternal uncle continued to say, 'After that (he
' recovered quickly so that) be seemed to have been released from fetters. They paid
me something but I said, 'Not till in have asked the Prophet إصلى الله عليه وسلم' He said,
'Take it (or eat it)! By my life, he who accepts for a wrong (invalid) incantation (does
bad). You have taken for a true charm.'1
COMMENTARY: A wrong or invalid incantation or charm is what refers to the stars, evil
spirits, jinns and other things besides Allah. Help is sought from them. They are not
approved by Shari'ah (divine law). It is not allowed to use them and to get wages for them.
The true incantation or charm is mention of Allah and verses of the Quran and they are
either recited and blown or written down as talismans or amulets.
The words (syalt) (by my life) are not an oath. Rather, the Arabs use the words (Arabic) in
their speech. Perhaps when the Prophet , Ale & o spoke these words there was no
disallowance to take oath on others besides Allah at that time (but was disallowed later).
Allamah Teebi رحمه اللهsaid that perhaps Prophet صلى الله عليه وسلم. It may have been one of those
things permitted to him but not to the others.
DO NOT DELAY PAYMENT OF WAGES
(٢٩٨٧) وَعَنْ عَبْدِ اللَّهِ بْنِ عُمَرَ قَالَ قَالَ تَسُولُ اللّهِ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ أَعْمُوْا الْآَجِيْرَ أَجْرَهُ قَبْلَ آَنُ
◌َِّفَ عَزُقُد-(رواه ابن ماجة)
صلى الله عليه narrated that Allah's Messenger رضى الله عنه Sayyiduna Abdullah ibn Umar .2987
said, "Pay the wages to the labourere before his perspiration dries."2
(٢٩٨٨) وَعَنِ الْحُسَيْنِ بْنِ عَلِيٍّ قَالَ قَالَ رَسُولُ اللّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لِلشَّائِلِ حَقْ وَاِ جَاء عَلَى فَرَس۔
رَوَاهُ أَحْمَدُ وَأَبُوْ دَاؤدَ وَفِى الْمَصَابِحِ مُرْسَلْ۔
صلى الله عليه وسلم said that Allah's Messenger رضى الله عنه Sayyiduna Hussain ibn Ali .2988
said, "The begger has a right even if he comes on a horse."3
COMMENTARY: This hadith means to say that a beggar must not be returned empty
handed. Qadi ales, said that if anyone begs though his apparent condition shows that he is
well-off, he must be given something, for without need he would not have disgraced himself.
This hadith has no bearing with this chapter unless that which is given to the beggar is
regarded as his wages.
The ulama (Scholars) have questioned the Isnad of this hadith. Imam Ahmad al-, has
rejected it as without base. But, Abu Dawud ales, has adopted silence which means that he
considers it worthy of reference.
1 Abu Dawud # 3420, Musnad Ahmad 5-210.
2 Ibn Majah # 2443.
3 Abu Dawud # 1665, Musnad Ahmad # 1-201, Muwatta Maalik # 58. 1-3.

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الفَضلُ الثَّالِثُ
SECTION III
PROPHET MUSA plade AS A LABOURERE
(٢٩٨٩) عَنْ مُتْبَةَ بُنِ الْمُنْذِرِ قَالَ كُنَّا عِنْدَ رَسُولِ اللّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ فَقَرَأَ ظِسَّةٌ حَتَّى بَلَغَ قِشَّةً مُؤْسِى قَالَ
إِثَّ مُؤْسِى عَلَيْهِ السَّلَامُ أَجَرَ نَفْسَهُ ثَّمَانَ سِنِيْنَّ أَوْ عَشْرًا عَلَى عِقَّةِ فَرُجِهِ وَطَعَامِ بَطْنِه - (رواه أحمد وابن ماجة)
2989. Sayyiduna Utbah ibn Mundhir us a >, narrated that they were with Allah's
Messenger صلى الله عليه وسلم when he recited (قسم) (Ta seen meem, 28:1-28). As he came to
the story of (Prophet) Musa عليه السلام, he said, Musa عليه السلام had submitted himself to
manual labour for eight or ten year to be able to preserve his chastity and till his
belly with food."1
COMMENTARY: Ta seem meem is the surah al-Qasas. Prophet Musa (>Jule came to
Madyan where he met Sayyiduna Shuayb (> Jule who married his daughter to him and he
hired himself with Sayyiduna Shu'ayb (M. Jule in return.
To preserve his chastity means to marry. Prophet Musa , Jule married the daughter of
Sayyiduna Shu'ayb > Jiale on the terms that he would tend his sheep for eight or ten years.
He described that as her dower. This practice was allowed in their Shari'ah (divine law).
The service of a free man was declared as the dower of his wife. In this case of Prophet
Musa (XJILle, however it is possible that he may have determined something else as his
wife's dower and agreed to act as a shepherd as a gesture of goodwill.
HUSBAND'S SERVICE AS WIFE'S DOWER: The jurists differ on this question. The
Hanafis say that it is not allowed for a woman to be married on condition that her husband
who is a free man (not a slave) would serve her for some time (like a year). However, it is
permitted for her to marry him on condition that his slave would serve her for a certain
time, say one year.
The Shafi'is hold that it is permitted to marry against some kind of service provided the
work done by the servant and the service offered are known and specified.2
REMUNERATION FOR TEACHING RELIGION
(٢٩٩٠) وَعَنُ عُبَّادَةً بْنِ الشَّامِتِ قَالَ قُلْتُ يَارَسُولَ اللّهِ رَجُلْ أَهْذِى إِلَىَّ قَوْسًا مِمَّنْ كُنْتُ أُعِلِّمُهُ الْكِتَابَ
وَالْقُرْآنَ وَلَيْسَتُ بِمَالٍ فَأَزْمِ عَلَيْهَا فِى سَبِيْلِ اللَّهِ قَالُ إِنْ كُنْتَ تُحِبُّ أَكْ تُقَوِّقَ طَوْقًّا مِنْ
نَارٍفَاقْتَلُها۔ (رواهابوداود وابن ماجة)
-
.
2990. Sayyiduna Ubadah ibn Samit usd+, said that he submitted, "O Messenger of
Allah, a man has presented me with a bow. He is one of those whom I used to teach
the Book and the Quran. It cannot be deemed to be a property (so I think that there
is no harm in accepting it). I shall shoot (arrows) with it in Allah's path." He said,
"If you like that a necklace of fire be put on you, then do take it."3
COMMENTARY: Sayyiduna Ubadah as an , said that a bow was not a worthwhile
1 Ibn Majah # 2444, Musnad Ahmad.
2 See stories of the Prophet. Ibn Kathir English translation pp 1906, Dar ul Isha'at Karachi.
3 Abu Dawud # 3416, Ibn Majah # 2157, Musnad Ahmad 5-315.

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property. The Prophet , le &Lo worked him that it would wipe out his sincerity with
which he had taught those people religion and the Quran. So he should not accept it. Those
scholars who say that it is unlawful to ask for wages for teaching religion and the Quran
cite this hadith.
CHAPTER - XV
REVIVING BARREN LAND AND IRRIGATING
◌َابُ اِحْيَاء الْمَوَاتِ وَالشّرْب
It is stated in 'Nihayah' that (\Ji) Mawat (dead, barren) is the land that has no cultivation,
no house and no owner. And, it is written in 'Hidayah:1 "Mawat (rendered here as waste
land) signifies any pieces of ground incapable of yielding advantage either from want of
water, an inundation, or any other cause, such as prevents tillage. It is termed mawat or
dead because like the dead it is of no use."
It is described thus: Any piece of land that from a long time has lain waste without
belonging to any person, or which has been formerly the property of Muslim, who is not
then known, and is likewise so far removed from a village that, if a person call out from
thence his voice cannot be heard there.2 Such a land is termed mawat.
The word (Elyst-1) (ahya mawat) in the title in Arabic (literally 'revival of the dead,' in plural
form) mean 'to make the lands habitable.' This may be done by building homes on it, by
planting trees by sowing seeds, by cultivating it or by irrigating it or by ploughing it.
The command of Shari'ah (divine law) is that whoever revives it becomes its owner.
However, the scholars differ on it slightly. Imam Abu Hanifah ales, said that before doing
any revival work on it permission to proceed must be obtained from the imam (the relevant
authority). Imam shafi'I als, and the two disciples (of Abu Hanifah ale>), namely Imam
Abu Yusuf at , and Imam Muhammad) que ano, said that it is not necessary to obtain
permission. Shurb (-)) means 'drinking water' in the literal sense. It is a share of water,
riverside or place of drawing water. In the terminology of Shari'ah (divine law), the word
means: 'the right to seize advantage of water for drinking, using, watering field or garden
or watering the animals that is available to every person. As long as water is in its source
(like river, pond, etc), it is not anyone's personal property. Everyone, without distinction,
has a right to use it to his benefit and no one is permitted to prevent access to it.
However, there is a difference between water of rivers, streams, aqueducts on the one hand
and the water that is collected in vessels. The books of fiqh (Islamic jurisprudence) may be
consulted for details on this subject. It is enough to know here that according to the
Hanafis, every human being has an equal right to the water of the river, howsoever he may
use it. He may use it for drinking and irrigating and may channel it to the fields and
gardens. No one can prevent him from using it. It is like using to advantage the moon, the
sun and the air, Allah has placed these blessings at the disposal of everyone without
distinction. Their benefit is not for any specific person or group. All are equal partners in
taking advantage from them.
Similarly, everyone has a right to use the water of a well or river. However, if anyone
1 Vol 2 p 465, Darul Isha'at, Karachi.
2 ibid.

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wishes to irrigate his field or garden with the water of the well or river, then the people of
the area where they are situated have a right to forbid him and prevent him whether their
water will decrease or not. They have every right to the well and river because they are
situated in their locality.
The water that is filled in a vessels or tank belongs to the owner of these things and to none
else. It is like game that becomes, the property of the hunter who hunts it.
If a well or river lies in someone's private land then he is authorized to prevent entry and
access to other people, provided they are able to get water from the vicinity and not
belonging to anyone. If there is no water nearby, then the owner of that land will have to
bring them water from his well or river himself, or allow them to enter his land and get it
themselves, on condition that they cause no damage to the well or the bank of the river.
If a well had been dug in a mawat land already, then one who inhabits the land has no
right to prevent people from drawing water from the well because though the land comes
in his ownership when he make it habitable, the water of the well is not his property. If he
disallows a person who wants to drink the water himself or to water his animal and he or
his animal is liable to die of thirst, then he may get water by force even if he had to fight for
it and use weapons.
A well can be anyone's property but its water is not owned by him or by any one else.
Rather, it is allowed to everyone. This is in contrast to the water that a person fills in his
vessel, for that is his personal property. However, if anyone is dying of thirst and this
person refuses to give him water then he is within his right if he fights him and gets the
water by force, provided there really is threat to life if he does not get water and he does
not use a weapon against him. It is exactly like the case of a hungry man who may die of
hunger if he does not eat any food and another person with enough food refuses to oblige
him then he has a right to force the other person to give him to eat to save his life. He may
even fight but he is not allowed to use weapons.
Some ulama (Scholars) say that if an owner does not permit a thirsty person to collect water
then the least permitted to him is to fight against him without weapons. This is permitted
because it is a sin to stop a person from a general blessing of Allah like water. To fight such
a person is like enforcing Allah's limits on him.
SECTION I
الفَضلُ الأوَّلْ
DEVELOPING A LAND THAT HAS NO OWNER
(٢٩٩١) عَنُ عَائِشَةً عَنِ النَّبِيِّ صَلَّى اللّهُ عَلَيْهِ وَسَلَّمَ قَالَ مَنْ عَمَرَارُضًا لَيْسَثُ لِأَحَدٍ فَهُوَ أَحَقّ قَالَ عُرُوَتُ قَفى
1
پِهِ محُمّرُ فِي خِلَافَتِه- (رواه البخارى)
2991. Sayyidah Ayshah رضى الله عنها narrated that the Prophet صلى الله عليه وسلم said, "He who
habitates a land that has no owner has more right to it (than anyone else)."
Sayyiduna Urwah al, said that Sayyiduna Umar usd +, decided according to this
(saying) during his khilafah (caliphate).1
COMMENTARY: Urwah's usd +, words are evidence that his hadith is not abrogated.
1 Bukhari # 2335, Musnad Ahmad 6-120.
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CANNOT MAKE GRAZING LAND EXCLUSIVE
(٢٩٩٢) وَعَنِ ابْنِ عَبَّاسِ أَثَّ الشّعْبَ بُنَ جَثَّامَةً قَالَ سَمِعْتُ رَسُولَ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ يَقُوْلُ
i
لاحِمى إِلَّا لله وَرَسُولٍ- (رواه البخارى)
رضى reported that Sayyiduna Sa'b ibn Jath thamah رضى الله عنه Sayyiduna Ibn Abbas .2992
say, "There is no sanctuary صلى الله عليه وسلم narrated that he heard Allah's Messenger الله عنه
(or grazing land exclusive for anyone) except that which belong to Allah."1
COMMENTARY: Hima is a restricted grazing ground for animals to which other people
are not allowed to send their animals.
The hadith says that it is not proper to reserve pastures without permission of Allah and
.صلى الله عليه وسلم his Messenger
During the Jahiliyah (ignorance period), the chiefs of tribes disallowed animals of other
people to such lands that had much grass and profuse water and reserved these lands for
themselves. The Prophet صلى الله عليه وسلم disallowed this practice but did permit creation of
exclusive grazing grounds for such animals as were used in jihad and for the animals
received against zakah (Annual due charity). Now, however, after the death of the Prophet
no ruler is permitted to set aside a grazing ground for himself or for any صلى الله عليه وسلم
purpose. Some ulama (Scholars) do say that a grazing ground may be reserved when it is .
exigent for the general body of Muslims unless it causes difficulty to most citizens.
A DISPUTE ABOUT WATER
(٢٩٩٣) وَعَنْ عُرُوَةً قَالَ خَاصَوَ الزُّبَيْرُ رَجُلًّا مِنَّ الْأَنْصَارِ فِى شِرَاجٍ مِنَ الْخُرَّةِ فَقَالَ النَِّىُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ اسُقِ
يَارُ بَيْ ثُمَّ أَرْسِلِ الْمَاءِ إِلَى جَارِكَ فَقَالَ الْآَنْصَارِىُّ أَنْ كَاتَ ابْنُ عَمَّتِّكَ فَتَلَوَّنَ وَجُهُهُ ثُمَّ قَالَ اِسْقِيَازُبِيُِّ
تُؤَّ احْبِسِ الْمَاءِ حَتَّى يَرْجِعَ إِلَى الْجُدُرِ ثُمَّ أَزْسِلِ الْمَاء إِلَى جَارِكَ فَاسْتَوْعَى النَِّىُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لِلِزُّبَثْرِ حَقَّهُ
فِي صَرِيْحِ الْحُكُمِ حِيْنَ أَحْفَظَهُ الْأَنْصَارِىُّ وَكَانَ آَشَارَ عَلَيْهِمَا بِأَهْرٍ لَهُمَا فِيْهِ سِمَةٌ- (متفق عليه)
2993. Sayyiduna Urwah رحمه الله narrated that Sayyiduna Zubayr رضى الله عنه had a dispute
with an ansar about the streamlets originating form the mountains (to the fields) ..
The Prophet صلى الله عليه وسلم (when it was brought to him) said, "O Zubayr, water your.
field, the let it flow to your neighbour." The ansar complained, "Of course, he is
your cousin." That brought a change of colour on his face and he said,"Zubair!
Irrigate your land and hold in till it flows to the embankment. Then let it flow to
your neighbour/" Thus, the Prophet صلى الله عليه وسلم allowed Zubayr رضى الله عنه his right by
the clear judgement when the ansar angered him though he had offered them an
advice that could have made it convenient for each of them.2
COMMENTARY: Sayyiduna Urwah ibn zubayr ibn al-Awam al das, was a great glorious
tabi. He was one of the seven great jurists of Madinah. His mother was the famous
sahabiyah Sayyidah Asma رضى الله عنه daughter of Sayyiduna Abu Bakr رضى الله عنه His (Urwah's)
1 Bukhari # 2370, Musnad Ahmad 4-38.
2 Bukhari # 2359, Muslim # 129-2357, Tirmidhi # 1368, Abu Dawud # 3637, Nasa'i # 5407, Ibn Majah
.
# 2480, Musnad Ahmad 4-5. .

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Translation & Commentary of MISHKATUL MASAABIH
158
(the famous sahabi (Prophet's Companion رضى الله عنه father was Sayyiduna Zubayr رضى الله عنه
and son of Sayyidah Safiyah bint Abdul Muttalib, the aunt of the Prophet صلى اللهعليه وسلم one of
the chief distinctions of Sayyiduna Zubayr As an , is that he was among the earliest to
صلی الله عليه وسلم embrace Islam. He had embraced Islam in the very beginning of the Prophet's
call. At that time he was only sixteen years old, but his cruel paternal uncle gave him
different kinds of punishment for it, like throwing him in smoke. The young man did not
falter. Rather, he continued to stop forward. He participated in all battles with the prophet
and displayed exemplary bravery. He was one the ten fortunate sahabah صلى الله عليه وسلم
(Prophet's Companions) رضى الله عنهم whom the Prophet صلى الله عليه وسلم gave glad tiding of
paradise in this world and who are called the ashrah mubashshirah.
It is about Sayyiduna Zubayr us a+, that he had an nasar irrigated their respective fields
through the same channel. Once they had an altercation about who had right of water
before the other since they could not agree with one another, they took their case to the
Prophet صلى اللهعليه وسلم for a judgement.
He gave the judgment considering that Zubayr's an+, land was on a higher level and
nearer to the channel then the ansar's c a +). The latter, however, accused him of bias
and favouritism.
The result was that the Prophet صلى الله عليه وسلم withdraw the little concession he had given to
.رضى الله عنه the ansar
The concluding words of the hadith suggest that the Prophet صلى الله عليه وسلم had advised
Zubayr us an+) to forgo some of his rights as a matter of goodwill. On the reaction of the
ansar, he asked Zybayr wàn +, to seize all his right without consideration.
Some people say that the ansar was actually a hypocrite. Hypocrites never let an
opportunity go to hurt the Prophet صلى الله عليه وسلم. He was called and ansar because he
belonged to the tribe of ansars. Some of them were hypocrites like Abdullah ibn Ubayy.
If that is so, then why was he not punished? He ought to have been killed at that moment
for being rude to the Prophet صلى الله عليه وسلم.The answer is that either it was to get him to the
straight path by showing him leniency, or the Prophet's صلى الله عليه وسلم patience did not allow
him to kill him, for, he always endured and mischief of the hypocrites, and their taunts.
Besides the enemies would have said, "Muhammad kills his companions," for, the
hypocrites did call themselves Muslims and presented themselves as the Prophet's le a.
.companions وسلم
However, some ulama (Scholars) have dug up an unearthed that the ansar was really a
believer. Annoyance and impatience had made his mind restless and he blundered into
1. صلى اللهعليه وسلم misbehaving with the Prophet
DO NOT WITHHOLD EXCESS WATER
(٢٩٩٤) وَعَنْ أَيْ هُرَيْرَةً قَالَ قَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ لَا تَمْتَهُوْا فَضْلَ الْمَاءِ لِتَمْنَعُوْا بِهِ فَضْلَ
الْكَلَاءِ- (متفق عليه)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Abu Hurayrah .2994
1 See also Siratun Nabı, Shibli Nu'mani, Dar ul Isha'at Karachi, v7 p46, v1 p195 and v2 p78.

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Vol.3
said, "Do not withhold excess water (from the animals) lest it stop extra herbage
from growing."1
COMMENTARY: If animals are prevented from water, no one will get their animals there
to graze. Once who disallows water directly, prevents grazing. It is the main diet of the
animals, so it is not correct to disallow it. Of course, if there is no excess water then it is not
wrong to prefer one's needs.
(٢٩٩٥) وَعَنْهُ قَالَ قَالَ رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ ثَلَاثَةٌ لَا يُكَلِّمُهُمُ اللَّهُ يَوْمَ الْقِيَامَةِ وَلَّا يَنْظُرُ إِلَيْهِمُ
رَجُلٌ حَلَفْ عَلَى سِلْعَةٍ لَقَدْ أُعْيِىَ بِهَا أَكْثَرَ مِمَّا أُعْطِى وَهُوَ كَاذِبْ وَرَجُلْ حَلَفَ عَلَى يَمِيْنٍ كَاذِبَةٍ بَعْدَ الْعَصْرِ
لِيَقْتَطِةَ بِهَا مَالَ رَجُلٍ مُسْلٍِ وَرَجُلْ مَنَّ فَضْلَ مَاءٍ فَيَقُولُ اللَّهُ أَلْيَوْمَ أَمْتَعُكَ فَضْلِيُّ كَمَا مَنَعْتَ فَضْلِ مَاءٍ لَمْ
تَعْمَلُ يَدَاكَ- (متفق عليه)
صلى الله عليه وسلم narrated that Allah's Messenger رضى الله عنه Sayyiduna Abu Hurayrah .2995
said, "Three there are to whom Allah shall not speak on the day of resurrection and
shall not look at them (with mercy), (they are:)
1. A man who swears (falsely) about his goods (to the buyer) that he was getting a
better price than what he is being given, and he is a liar.
2. A man who swears a false oath after asr (salah (prayer) to cheat a Muslim of his property.
3. A man who denies (to others) excess water. So Allah will say (on the day of
resurrection)."Today, I deny you My favour just as you had denied excess water
that your hands had not produced."2
COMMENTARY: The time 'after asr' has been mentioned either because false swearing is
made at this time generally or it is more sinful to swear falsely after asr.
Allah will say to him that he acted unjustly though he had no hand in producing the water.
How would he have acted if the water was his product? He denied Allah's blessing to
other, so Allah will deny His blessing to him.
Though a well or stream may have man's effort in building them, yet the water therein is
Allah's blessing and favour. The owner cannot deny it to others.
وَذُكِرَ حَدِيْثُ جَابِرٍ فِيْ بَابٍ الْمَنِّهِيِّ عَنْهَا مِنَ الْبُيُوُعِ
(Jabir's us an », hadith is mentioned previously in the chapter of 'Sales and purchases that
are disallowed.' # 2857)
SECTION II
الفَصلُ الثَّانِى
WALL ROUND A BARREN LAND
(٢٩٩٦) عَنِ الْحُسَنِ عَنْ سَمُرَةَ عَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ مَنْ أَحَاطَ حَئًِّا عَلَّى الْآَرْضِ فَهُوَلَهُ.
(رواه أبوداود)
1 Bukhari # 2354, Muslim # 37-1566, Tirmidhi # 1276, Abu Dawud # 3473, Ibn Majah # 2478, Musnad
.
Ahmad 2. 244.
2 Bukhari # 2369, Muslim # 173-103, Abu Dawud # 3474, Nasa'i # 4462, Ibn Majah # 2207, Musnad
Ahmad 2-253.