Which evidence (Bayyinah) is preferred when the claimant (Muddai) and the defendant in possession (Mudd'a alayhi) both present evidence in a dispute over property in possession?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
When a person claims property in another's possession, and the possessor denies it, and both parties present evidence, the evidence of the claimant (Bayyinat al-Kharij) takes precedence over the evidence of the possessor (Bayyinat al-Dakhil). This is the famous narration from Ahmad and the view of Ishaq. The Prophet, peace be upon him, commanded us to accept the claimant's evidence and the oath of the defendant. The claimant's evidence is prioritized because it establishes something new, whereas the possessor's evidence merely confirms what the possession already indicates. The claimant's evidence is considered more beneficial, so it must be prioritized, similar to prioritizing evidence of injury over evidence of integrity (ta'deel).
Supporting text
A second narration attributed to Ahmad states that the possessor's evidence is preferred if it testifies to the basis of ownership, such as stating the item was born in his possession, was purchased, or was woven by him, provided the weaving is of a type that is not frequently repeated, such as wool or fine silk. This view aligns with Abu Hanifa and Abu Thawr in certain cases of production (nitaaj) and weaving. A third narration states that the possessor's evidence is preferred in all circumstances. This position is attributed to Shurayh, Sha'bi, Nakha'i, Al-Hakam, Al-Shafi'i, and Abu 'Ubayd, and is said to be the view of the people of Madinah and Al-Sham. Those holding this view argue that the possessor has a stronger position because the original principle (presumption of ownership) is with him, and his oath precedes the claimant's oath, meaning his possession should be maintained.