Islamic Fiqh > Endowments (waqf) and property > Ghasb: usurpation > Second case: the value of the usurped item decreases without anything happening to it
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Updated on 25 September 2026 at 6:57 PM
This part belongs to the full section: All sections of this part.
This chapter of the encyclopedia of Islamic jurisprudence examines what happens to a usurped item after the usurpation (ghasb): what becomes of the guarantee (daman) when the value falls, when the item is damaged or destroyed, transformed, increased or made to grow? The four schools are quoted with their internal disagreements, their classical references and their proofs drawn from the Quran and the Sunna. The near-unanimous baseline rule: the usurper guarantees the item itself (the ayn), while mere value, which fluctuates with the markets, does not in principle enter the guarantee.
The jurists of the four schools agree, with the exception of Abu Thawr: if the value of the usurped item falls between the time of usurpation and the time of return, because of market depression and not because of anything that happened to the item, the usurper does not guarantee this loss. Example: the item was worth one thousand dinars on the day of usurpation and five hundred on the day of return; the usurper owes nothing of the decrease. The reason: the usurper guarantees what he usurped, but value does not enter into usurpation; the victim has no right to the value so long as the item (the ayn) subsists, his right lies in the item, and the item has remained as it was, so nothing is imposed on the usurper.
Al-Imrani (may Allah have mercy on him) reports that Malik, Abu Hanifa and all the scholars, with the exception of Abu Thawr, said this. Abu Thawr holds that he must return the item and make up what has decreased of its value through the collapse of its price. Our argument: he returned the item with nothing of its substance or qualities having disappeared, so he owes nothing of its value, exactly as if its price had not fallen in the market (Al-Bayan, 7/12; Al-Muhadhdhab, 1/367).
Ibn Qudama (may Allah have mercy on him) says: the usurper does not guarantee the loss of value produced by price fluctuations; Ahmad stated this explicitly, and it is the view of the majority of the scholars.
It is reported from Abu Thawr that he guarantees this loss because he guarantees the item in case of destruction: he must therefore also make up its diminution, just like the simen (the lost fattening). We reply: he returned the item in its state, with no diminution of substance or quality, so nothing is imposed on him, as if the value had not fallen; and we do not concede that he guarantees the item in case of destruction.
Even if we concede this point, the comparison fails: there the value is owed only because it exceeded the item's original value and entered the appraisal, which is not the case when the item is returned, value not being owed. The fattening is different: it is part of the substance of the usurped item, just as knowledge of a craft is a quality in it, whereas here neither substance nor quality has disappeared. Moreover, the victim has no right to the value so long as the item subsists: his right lies in the item, which has remained whole as it was. And the usurper guarantees what he usurped, value not entering into usurpation, unlike the increase of the item, which is usurped and has disappeared (Al-Mughni, 5/151-152; Al-Mubdi', 5/165; Tahrir al-Mukhtasar, 4/397).
Among the Malikis, the well-known view is that market-driven decreases are not taken into account in usurpation, unlike transgression (ta'addi) where they are. The meaning: whoever usurps a mount that its owner later finds with a fallen price takes it back without claiming anything from the usurper, whether its stay with him was long or not; and if the price rose while with the usurper, the owner has all the less to claim. But if it is the animal's body that has diminished, the owner may fine the usurper with its value on the day of usurpation; unlike transgression: the owner who finds his animal with a fallen price may hold the transgressor liable for its value on the day of the transgression, because he kept it away from its markets.
From the Mudawwana: whatever the usurper has usurped and its owner recovers in nature, with no change in the body, gives rise only to the recovery of the item itself. The loss of value caused by market fluctuations is not considered, whether this situation lasted years or a single hour; only a change in the body is considered.
Malik said: the case differs from that of the transgressor who detains the animal of a hirer or a borrower and returns it in the best condition; the owner then chooses between taking the rent and holding the transgressor liable for its value on the day of the transgression, because he kept it away from its markets; except in the case of a brief detention, with no change either in the market or in the body.
Ibn al-Qasim said: everything whose basis is a trust (amana) and in which there has been transgression by coercion or by riding, whether a deposit, a loan for use or a rental, follows this rule, unlike the usurper. Ibn Yunus says: the analogy is that there is no difference between them in this respect, and the usurper cannot be in a better position than the transgressor: just as he guarantees in the minor offence, he must guarantee in the market decrease. Ibn al-Qasim inclined to equality between them, were it not for fear of contradicting Imam Malik (Al-Mudawwana al-Kubra, 9/69; Al-Taj wa-l-Iklil, 4/317-318; Sharh Mukhtasar Khalil, 6/141; Tahrir al-Mukhtasar, 4/397-398).
Third case: the usurped item itself diminishes. The jurists differ when the usurped item suffers a defect with the usurper without being totally destroyed: does the usurper return it while paying the arsh (compensation) for the damage, or does the owner choose between surrendering it to him and taking its value, or keeping it and taking the arsh?
The Hanafis: the usurped item, a non-ribawi movable, which diminishes in the usurper's hand, carries the guarantee of the decrease; for it entered his guarantee with all its parts, and whatever cannot be returned in kind is paid in value. This guarantee bears on the lost part, not on the price, for the price expresses only the fluctuation of appetites, not the loss of parts. As for ribawi goods (measured and weighed), compensation for the decrease is impossible if the original is returned, because that would lead to riba.
If the item changes slightly in the usurper's hand, like a slightly torn cloth, he guarantees only the decrease, and the cloth remains with the owner: the item remains valid in every respect; a defect has entered it, so he guarantees the defect.
If the change is major, tearing it badly to the point of nullifying most of its benefits, the owner may hold him liable for the entire value, for this amounts to destruction from that aspect; and whoever guarantees the value becomes its owner, for when the owner acquired the value, the usurper acquired its replacement, so that the two replacements do not combine in the victim's estate.
If the owner of the cloth wishes, he holds him liable for the decrease, for there has been neither total destruction nor a conjoined increase, and equivalence is not required here; he may therefore hold him liable for the decrease and keep the item, the item having become defective from one side only, its substance and part of its benefits subsisting.
The later Hanafis differed on the gross tear: some say it is what nullifies a quarter of the value, everything below being slight; others say what nullifies half the value; it is also said: what renders the remainder unfit to serve as cloth.
The Hidaya suggests that the gross case is what nullifies most of the benefits; the sound view is that it is what causes the loss of part of the item and part of the benefit, the slight being what causes no loss of benefit and entails only a decrease. The Muhit specifies: the gross case is what makes people of middling rank recoil from wearing it nonetheless (Al-Hidaya, 4/16-17; Al-'Inaya, 13/374-375; Al-Ikhtiyar, 3/78; Al-Jawhara al-Nayyira, 4/123, 126; Al-Lubab, 1/632-633; Al-Fatawa al-Hindiyya, 5/122).
The Malikis: whoever usurps something that deteriorates with the usurper through a heavenly cause, small or great, sees its owner choose between holding the usurper liable for its value on the day of usurpation or taking it back defective without claiming anything. The same applies if the deterioration stems from the usurper's offence or that of a third party.
However, if the usurper has damaged the item, or a third party has: in the usurper's offence, the owner chooses between taking its value on the day of usurpation, or taking the defective item with what it has lost under the regime of transgression, that is, the arsh of the decrease. In a third party's offence, the owner chooses between holding the usurper liable for the value, pursuing the offending usurper for the arsh of the offence, or taking his property and pursuing the offender for the arsh; he may not take his property and pursue the usurper for the arsh (Al-Taj wa-l-Iklil, 4/319; Sharh Mukhtasar Khalil, 6/142; Al-Qawanin al-Fiqhiyya, 1/217; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/177; Tahrir al-Mukhtasar, 4/399).
The Maliki Qadi Abd al-Wahhab (may Allah have mercy on him) divides the offence (jina') into two kinds:
Example: a man owns a slave he intends for certain benefits; another cuts off his hand or blinds him, and the purpose sought becomes null in common usage. Likewise a mount sought for its beauty and for riding, whose ear or tail is cut off, nullifying the intended purpose, even if it remains usable for carrying loads or transporting earth. The reason: he has destroyed for the owner the benefit sought in the merchandise; its value therefore becomes due to him as destruction of its essence, for the item's survival with the destruction of the intended purpose prevents deriving the intended benefit, which amounts to the destruction of its essence (Al-Ma'una, 2/189; Al-Ishraf 'ala Nukat Masail al-Khilaf, 3/119-120, no. 976).
The Shafi'is and the Hanbalis: if the usurped item suffers damage with the usurper, a torn cloth, food gnawed by mice, a demolished building and the like, he must return it to its owner and pay the value of the arsh of the decrease that occurred with him; for it is an offence against property whose arsh is less than its value, which does not give right to the claim for the entire value, as if the tear were slight; and because it is an offence that diminishes the value, as if the owner's purpose had not been destroyed.
As for the ewe, it is the destruction of the whole of it that counts; for the criterion in destruction is the object attacked, not the owner's purpose: what no longer suits this use suits another (Al-Bayan, 7/14; Al-Mughni, 5/144).
The jurists of the four schools agree: the usurped item, other than real estate, that perishes with the usurper is guaranteed by him. It is either of the category of items having likes (fungibles), or not.
a. The destroyed usurped item is a fungible: the jurists agree that the usurped item that perishes with the usurper, whatever the cause, carries its like if it is fungible; by the word of Allah:
"Whoever transgresses against you, then transgress against him in the same manner as he transgressed against you"
Surah Al-Baqarah, 194
Arguments: the return of the item having become impossible, what replaces it financially becomes due. The like is closer to the victim than the value: it resembles it through form, direct observation and meaning, whereas value resembles it only through conjecture and effort of judgment. What proceeds from observation is therefore prior, as the text is prior to analogy, the text proceeding by hearing and analogy by conjecture and effort.
Ibn Abd al-Barr (may Allah have mercy on him): every consumption, food or drink, is subject to agreement: whoever consumes it owes its like, not its value (Al-Tamhid, 14/288; cf. Al-Jawhara al-Nayyira, 4/117; Al-Lubab, 1/629; Mukhtasar al-Waqi'a, 2/137; Al-Ikhtiyar, 3/74; Al-Ma'una, 2/188; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/163; Sharh Miyara, 2/177; Tahrir al-Mukhtasar, 4/383-384; Al-Mubdi', 5/181; Rawdat al-Talibin, 3/648, 650; Mughni al-Muhtaj, 3/297; Al-Najm al-Wahhaj, 5/182).
Ibn Battal (may Allah have mercy on him): Malik, the Kufans, al-Shafi'i and Abu Thawr agree that whoever consumes gold, silver or a measured or weighed foodstuff owes its like in quality, weight and measure. Malik adds that the work performed distinguishes gold, silver and foodstuffs, on the one hand, from animals and manufactured goods, on the other. Ibn al-Mundhir declares: I know of no disagreement on this question (Ibn Battal's Sharh Sahih al-Bukhari, 6/610; cf. 'Umdat al-Qari, 13/37).
Ibn Hubayra (may Allah have mercy on him): they agree that measured and weighed items usurped and then destroyed are guaranteed by their like if it exists, except in one of the two narrations from Ahmad: he then guarantees by the value (Al-Ifsah, 2/12).
Ibn Qattan al-Fasi (may Allah have mercy on him): they agree that he must return the like if it exists (Al-Iqna' fi Masail al-Ijma', 3/1590, no. 3106).
Ibn Qudama (may Allah have mercy on him): whatever has resembling parts and close qualities, such as dirhams, dinars, grains and oils, is guaranteed by the like, without disagreement (Al-Mughni, 5/140; Manar al-Sabil, 2/251).
He adds: as for the rest of the measured and the weighed, the apparent meaning of Ahmad's words is that they are also guaranteed by the like; he says in the narration of Harb and Ibrahim ibn Hani': "whatever is of dirhams and dinars, and everything measured and weighed, its like is owed, not its value". Except what involves craftwork: objects of iron, copper and lead (vessels and instruments), gold and silver jewelry and the like, cloths of silk and linen, cotton, wool, hair and spun yarns of these materials; then he guarantees the value, for the craftwork affects the value, which varies; value is therefore more restrictive and makes it resemble non-measured items.
Al-Qadi mentions that the naqra (melted lump) and the sabika (cast ingot) belong to the currencies, and that grapes, dates and pears are guaranteed by their value; the apparent meaning of Ahmad's words supports our statement, and what involves craftwork is excluded from it for the reasons given. It is possible that he guarantees the naqra by the value, given the impossibility of finding its like, except by breaking struck dirhams and melting them again, which is destruction.
On this basis, if the property guaranteed by value belongs to the currencies, its value is due in the dominant currency of the country; if it is of another kind, its value is due unconditionally; if it is of its kind and weighed, its value is due; if it is less or more, it is appraised outside its kind, in order to avoid riba. Al-Qadi says: if it involves a lawful craftwork that increased its value, it may be appraised within its kind, for that is its value, craftwork having a value of its own. Likewise, if he breaks the jewelry, the arsh of the breaking is due, by contrast with sale: in contracts, the craftwork is not covered by the counter-value, whereas it is in destruction; do you not see that it cannot be the sole object of a contract, whereas it can be claimed alone in the guarantee by destruction? (Al-Mughni, 5/140)
Some of al-Shafi'i's companions say: this is al-Shafi'i's madhhab; others report the first view, the one Abu al-Khattab mentions; for value is taken as counter-value, so an increase would be riba as in sale, and likewise a decrease. Ahmad says in the narration of Ibn Mansur: if he breaks the jewelry, I prefer that he repair it. Al-Qadi: this is understood as mutual consent between the two, not as a path of obligation; and this when the craftwork is lawful; if it is unlawful, like vessels and men's jewelry, guaranteeing it by more than its weight is not valid in one respect: the craftwork has no value under the Law, it is as if nonexistent (Al-Mughni, 5/140).
The Malikis: the usurper who usurps a measured, weighed or counted fungible, then damages or destroys it, guarantees its like; and this even if the like was expensive at the time of usurpation and cheap at the time of judgment, on the well-known view.
Al-Lakhmi (may Allah have mercy on him): rather, its value on the day of usurpation is due; for the usurper is more apt to be charged with it, by way of takhrij upon the view that the usurper is fined the highest of values (Al-Taj wa-l-Iklil, 4/304; Sharh Mukhtasar Khalil, 6/133; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/163; Tahrir al-Mukhtasar, 4/383-384).
The Hanafis say: if he usurps a fungible in its time and season, the like disappears from people's hands and he cannot procure it:
The Malikis, on the well-known view: if the like becomes unobtainable, the victim must wait for its possible existence; if the like existed and then disappeared, he must wait for its reappearance. Ashhab says: the owner chooses between waiting for the fungible to appear and taking its value now (Al-Taj wa-l-Iklil, 4/304; Sharh Mukhtasar Khalil, 6/133; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/163; Tahrir al-Mukhtasar, 4/384).
The Shafi'is: if the like cannot be found in the country or its surroundings, its value is due; the like become impossible is assimilated to what has no like at all. It is said: the value of the usurped item. If the like appears after the payment of the value, neither of them may return it nor claim it, on the soundest view.
The victim may wait for the like to appear; he cannot be compelled to take the value, for it is not specified to him, unlike other debts: if the debtor pays them while they are in his liability and the creditor refuses to take delivery, he is compelled.
The soundest view: the highest value of the like between the time of usurpation and the impossibility of the like is considered; the existence of the like is equivalent to the survival of the usurped item: he was required to return it as he was required to return the usurped item; if he does not, he is fined the highest value of the two periods, just as appraised items are guaranteed at their highest value for this meaning.
The opposite of the soundest view has eleven aspects: it is said that the value of the day of the claim is guaranteed; it is said: that of the day of destruction; it is said: that of the day of the loss of the like (Rawdat al-Talibin, 3/650; Kanz al-Raghibin, 3/75; Al-Najm al-Wahhaj, 5/184-185; Mughni al-Muhtaj, 3/298-299; Al-Dibaj, 2/388).
The Hanbalis, in the madhhab: if the usurped item is a fungible and it perishes, its like is due; if the like is lost in the country or its surroundings, through absence, distance or high price, its value falls upon the usurper; for it is one of the two replacements and therefore becomes due when the original is impossible, like the other; it is fixed on the day of the disappearance of the like, the value having become due in the liability from that disappearance, like the destruction of an appraised item.
Al-Qadi says: its value on the day of the disappearance of the replacement is due; for the like remains due until the delivery of the replacement, as shown by the fact that if the like appeared after its loss, what would be due would be less than the value.
If the usurper can procure the like after its impossibility, before paying the value and not after, the like is required; for it is the original and he could procure it before paying the replacement, even after the judgment condemning him to the value, like the one ordered to perform tayammum because of time constraints and the loss of water, and who finds water before the end of the prayer. If he procures it after paying the value, he does not return the value to take back the like; the replacement has become settled, like the one who finds water after the prayer (Al-Mughni, 5/162; Kashshaf al-Qina', 4/131-132; Sharh Muntaha al-Iradat, 4/159-160; Matalib Uli al-Nuha, 4/53).
Two reports introduce the question. First, from Anas (may Allah be pleased with him):
The Prophet (peace and blessings of Allah be upon him) was at the house of one of his wives. One of the Mothers of the Believers sent a servant with a bowl containing food; she struck it with her hand and broke the bowl. The Prophet gathered the pieces, put the food in them and said: Eat. He detained the messenger and the bowl until they had finished, then he gave back the sound bowl and kept the broken one.Narrated by al-Bukhari (2349) and Abu Dawud (3567)
The Prophet (peace and blessings of Allah be upon him) borrowed a camel and returned its like.Cited by Al-Jawhara al-Nayyira (4/118), Al-Lubab (1/630), Al-Ishraf 'ala Nukat Masail al-Khilaf (3/117, no. 975), Al-Bayan (7/12), Mughni al-Muhtaj (3/301), Al-Mughni (5/139), Kashshaf al-Qina' (4/132) and Sharh Muntaha al-Iradat (4/161)
When is value taken into account for what is appraised? The jurists differ on the appraised usurped item when it perishes: is its value that of the day of usurpation, of the moment of destruction, or the highest value between the day of usurpation and the day of destruction?
The Hanafis, the Malikis on the well-known view and Ahmad in one narration: its value on the day of usurpation is due. The Hanafis say: the value of the usurped item on the day of usurpation, with no consideration of the rise or fall of its price after taking possession; for usurpation is the cause of the guarantee and through it the thing enters his liability; no distinction between destruction by his act or by the act of another (Al-Jawhara al-Nayyira, 4/118; Al-'Inaya, 13/347; Al-Lubab, 1/630; Al-Ikhtiyar, 3/74).
The Malikis, on the well-known view: whoever usurps an appraised item, such as an animal, and destroys it is fined its value on the day of usurpation. Ashhab: the highest value it passed through from its usurpation to the day of its destruction is owed by him (Mawahib al-Jalil, 7/256; Al-Taj wa-l-Iklil, 4/307; Sharh Mukhtasar Khalil, 6/135; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/166; Tahrir al-Mukhtasar, 4/388).
The Maliki Qadi Abd al-Wahhab specifies in Al-Ma'una (2/188): the value considered is that of the day of transgression and offence, not that of the day of judgment; for the judgment depends on the claim born of the transgression, not on the judgment itself: the judge's demand concerns a matter whose obligation has already arisen, and the judgment only manifests it to the extent that his liability was engaged.
The Shafi'is (just like Ashhab among the Malikis and Ahmad in one narration): the appraised usurped item is guaranteed at its highest value between the time of usurpation and that of destruction; for when the value rises, the usurper is required to return it, and if he does not return it, he guarantees the replacement; unlike the case where he returns it after the fall: he then guarantees nothing, for the item subsisting, a future rise can be hoped for, the value therefore not having vanished entirely. No difference between a change of price and a change in the item itself; no consideration of the rise after destruction.
In the destruction of an appraised item without usurpation, the value of the day of destruction is due; for it had not entered his liability before, and after destruction the thing no longer exists. The guarantee of the higher value in usurpation rests on the transgression, which is absent here. The value is considered at the place of destruction, unless the thing has no market there (like the desert): then the nearest place is considered (Al-Najm al-Wahhaj, 5/189; Mughni al-Muhtaj, 3/301; Al-Dibaj, 2/389-390).
The Hanbalis, in the madhhab: the appraised usurped item that perishes is guaranteed at its value on the day of destruction in the land of usurpation; for that is the time and place of the guarantee. A narration extracted among them, attributed to Imam Ahmad: he guarantees at its value on the day of usurpation, which is the moment he withdrew his hand, the value being imposed as if he had destroyed it. Another narration from Ahmad: he guarantees at the greater of the two values between the time of usurpation and that of destruction.
Ibn Muflih (may Allah have mercy on him) reports from him that he guarantees the usurped fungible by its like without restriction, the view of Ibn Abi Musa and the choice of Shaykh Taqi al-Din, argued from the generality of the word of Allah:
"Give to those whose wives have gone the like of what they had spent"
Surah Al-Mumtahanah, 11
As well as by the report of the bowl. It is also reported from him: with its value; and from him: what is not an animal is guaranteed by its like, mentioned by a group; in Al-Wadih and Al-Mujaz, it decreases from it by ten dirhams (Al-Mubdi', 5/182; Al-Inasaf, 6/194-195; Kashshaf al-Qina', 4/132-133; Manar al-Sabil, 2/251-252).
The Hanafis: the fungible is everything measured, weighed or counted in similar units; the appraised is what is neither measured nor weighed, like the animal; the counted subdivides into varied counted (dissimilar individuals) and counted of the same stock (like poultry and eggs) (Al-Jawhara al-Nayyira, 4/117; Al-Lubab, 1/629; Mukhtasar al-Waqi'a, 2/137; Al-Ikhtiyar, 3/74).
The Malikis: the fungible is everything measured, weighed or counted whose units do not differ, like walnuts and eggs; everything else is appraised, like clothes, other goods, slaves and animals (Al-Taj wa-l-Iklil, 4/304; Sharh Mukhtasar Khalil, 6/133; Al-Sharh al-Kabir with the Hashiya of al-Dasuqi, 5/163; Tahrir al-Mukhtasar, 4/383-384).
The sound view among the Shafi'is: the fungible is what measure or weight confines, and in which salam is valid, like water, earth, copper, gold dust, musk, camphor, cotton, grapes and flour.
Al-Qadi Abu al-Tayyib: what has a like combines three qualities: being measured or weighed; being defined by description; permitting the sale of one part against another. Such is the case of dirhams, dinars, grains, oils, dates, raisins and salt.
Shaykh Abu Hamid: cotton is among the fungibles, for its parts are equal and do not differ in usage. Al-Saymari: spun thread, lead, copper and iron are fungibles; milk is fungible; what is cooked and whose parts are bound together has no like, the sale of one part against another not being permitted there. Likewise gems and pearls have no like, for they are not defined by description; animals and clothes are not fungibles, for they are neither measured nor weighed (Al-Bayan, 7/17; Rawdat al-Talibin, 3/648, 650; Mughni al-Muhtaj, 3/296-297; Al-Najm al-Wahhaj, 5/179-180).
The Hanbalis: the fungible is everything measured or weighed with no lawful craftwork, in which salam is valid by its like; everything else is appraised.
Al-Ruhaybani (may Allah have mercy on him) comments: a usurped fungible is guaranteed, that is, the usurper or whoever destroys it by his hand guarantees it; it is the currencies and everything measured, of grain, fruit, liquid or other, or weighed, like iron, copper, lead, gold, silver, silk and linen. "With no lawful craftwork": in the measured, unlike the harisa, or in the weighed, unlike jewelry and chains and the like; "lawful" excludes gold and silver vessels, guaranteed by their like because of the prohibition of their craftwork, as will come.
"Salam is valid in it", unlike the gem and the pearl; "by its like", attached to "he guarantees" explicitly, for the like is closer than the value, through its resemblance by form and direct observation; unlike the value, which approaches only through conjecture and effort of judgment; whether the parts of the fungible resemble one another or differ, like the currencies, even alloyed dirhams in circulation, like grains and oils and the like (Matalib Uli al-Nuha, 4/52-53; Kashshaf al-Qina', 4/130-131; Sharh Muntaha al-Iradat, 4/158-159).
The jurists differ: is usurpation of real estate conceivable or not? And accordingly: if someone usurps it and it perishes under his hand without transgression or negligence, does he guarantee it or not? The majority of the scholars, Malikis, Shafi'is, Hanbalis and Muhammad of the Hanafis, hold that usurpation of real estate is valid and that it is guaranteed in his hand if it perishes, with or without transgression on his part.
From Said ibn Zayd (may Allah be pleased with him): I heard the Messenger of Allah (peace and blessings of Allah be upon him) say:
Whoever wrongfully usurps a piece of land, it will encircle him down to the seventh earth.Narrated by al-Bukhari (2320) and Muslim (1610)
In another version:
Whoever takes a span of land wrongfully will be encircled by it down to the seven earths.Narrated by al-Bukhari (3026) and Muslim (1610)
From Muhammad ibn Ibrahim: Abu Salama related that a dispute opposed him to some people; the matter was reported to Aisha (may Allah be pleased with her), who said: Abu Salama, keep away from land, for the Prophet (peace and blessings of Allah be upon him) said:
Whoever wrongfully usurps a span of land will be encircled by it down to the seven earths.Narrated by al-Bukhari (2321)
The Prophet thus indicated that land can be usurped and wrongfully taken. The arguments: every means that guarantees movable, transferable property also guarantees what is neither moved nor transferred, like taking possession in sale; real estate, palm trees and trees being property guaranteed by taking possession in the contract, they are therefore guaranteed by usurpation. Usurpation being a cause of guarantee, real estate is guaranteed by it as by destruction; and the right proper to usurpation, present in what is moved and transferred, is also found in real estate, so the guarantee attaches to it.
And because one can take control of it in a way that cuts it off from its owner, like inhabiting the house and preventing its owner from entering it: it is then assimilated to the one who takes the animal and the goods.
Ibn Qudama (may Allah have mercy on him): whatever perishes of the land by his act or because of his act, demolition of its walls, flooding, scraping of its soil, throwing stones into it, or a decrease resulting from his planting or building, he guarantees it, without disagreement in the madhhab or among the scholars; for this is destruction, real estate being guaranteed by destruction without disagreement, and usurpation not occurring without seizure (Al-Mughni, 5/140-141; cf. Sharh al-Zarkashi, 2/158-159; Mukhtasar Ikhtilaf al-'Ulama', 4/176; Al-Jawhara al-Nayyira, 4/122-123; Al-Ikhtiyar, 3/75; Mukhtasar al-Waqi'a, 2/136-137; Al-Lubab, 1/631; Al-Ishraf 'ala Nukat Masail al-Khilaf, 3/126-127, no. 983; Rawdat al-Talibin, 3/640; Mughni al-Muhtaj, 3/287-288; Al-Najm al-Wahhaj, 5/169-170; Al-Dibaj, 2/380).
Abu Hanifa, Abu Yusuf and Ahmad in one narration: usurpation of real estate is not conceivable; for usurpation consists in removing the owner's hand by an act upon the item itself, something inconceivable for real estate: the owner's hand is only removed by transport and transfer, impossible here; only the owner's being kept away is conceivable, and the keeping away is an act upon possession, not upon real estate; it is like keeping the owner away from his cattle until they perish.
And because real estate remains in the place where the owner's hand was established, it is not guaranteed: usurpation is only realized by transport and transfer. Hence, if it perishes under his hand without transgression or negligence, no guarantee; but if he destroys it by his act, he guarantees: if the building collapses through a heavenly calamity, through the disappearance of its soil or through a flood overwhelming the land, no guarantee.
If real estate perishes by his act or diminishes, through his dwelling in the house or his cultivating the field, guarantee by consensus; for it perished by his act, and real estate is guaranteed by destruction (Mukhtasar Ikhtilaf al-'Ulama', 4/176; Al-Jawhara al-Nayyira, 4/122-123; Al-Ikhtiyar, 3/75; Mukhtasar al-Waqi'a, 2/136-137; Al-Lubab, 1/631; Al-Mughni, 5/140-141; Sharh al-Zarkashi, 2/158-159).