What is the ruling regarding compensation for improvements made on divided property if one share is later recovered by a third party?
General Chapter
Al-Mughni
Book of Judiciary
Primary text
If two houses or two lands are divided such that each partner takes one, and one partner builds or plants on his share, then his share is recovered by a third party, and the building or planting is demolished or uprooted, he must return to his partner half of the cost of the building and planting. This is the view stated by Al-Sharif Abu Jaafar and narrated by Abu Al-Khattab from Al-Qadi. The justification is that this partition is equivalent to a sale because the division of the two properties is not obligatory but rather achieved through mutual consent (Tiradhi), making it operate like a sale. If the entire property had been sold and later recovered, the builder would return for the entire construction; thus, in a partition, he returns for half. This applies to all partitions that operate as a sale, such as partitions involving the return of consideration or those that cannot be forced due to harm.
Supporting text
Abu Yusuf and Muhammad ibn al-Hasan hold that the partner has no right to compensation because he built and planted of his own volition and cannot claim recompense from the other partner, similar to building on one's sole property. Regarding partitions by compulsion (Ijbār), if one share is recovered after improvements, and if the partition is not considered a sale, there is no return because the partner did not deceive him nor transfer a sale interest; rather, he merely separated his due right from his own right, thus bearing no guarantee for the expenses incurred.