The majority of scholars hold that the crop belongs to the usurper, while the landowner may pull it up before harvest; once it has been harvested, he is entitled only to the land’s rental value.
Their proof is the report found in the Sunan of Abū Dāwūd and others in which the Prophet ﷺ said, “There is no right for a tyrannical root.” In contrast, Imām Aḥmad and Isḥāq maintain that the landowner acquires the crop by reimbursing the usurper with the equivalent of the seed and the costs of ploughing, irrigation, and the like; he may also let the crop remain with the usurper until harvest in return for a fair rent.
This applies when the crop is still standing and has not yet been cut; after it has been harvested, the landowner is entitled only to the rent. The hadith under discussion is among the evidences supporting the position of Imām Aḥmad and his followers.
Shaykh Taqī al-Dīn said: “If someone sows his partner’s land without permission, and local custom grants a set share to the cultivator and a share to the owner, then the produce is divided between them in that same proportion.”
He added: “If one partner asks the other to farm the land together or to take turns using it and the latter refuses, the first partner may cultivate an amount equal to his share without paying rent. The same ruling applies to a jointly owned house containing two rooms: if one of them occupies one room, he owes nothing.” This view was endorsed in al-Inṣāf, which states, “People could not manage otherwise.”
Benefits
- Shaykh Taqī al-Dīn said: “When a usurper works seized property until it yields profit, scholars offer several opinions. Is the profit the sole right of the original owner, should it be given away in charity, or should it be divided between the two as it would be in a profit-sharing partnership (muḍāraba)? This last solution was adopted by ʿUmar when Abū Mūsā lent his two sons money from the treasury: ʿUmar hesitated, but some Companions advised, ‘Make it a muḍāraba between them and the Muslims: they receive half the profit and the Muslims receive half,’ and ʿUmar followed that course.” This is the ruling relied upon by the jurists in muḍāraba, for the profit was generated by the capital of the original owner