Does merely staking a claim (Tahajur) on barren land grant ownership?

General Chapter

Al-Mughni

Book of Reviving Dead Land

Book 26 · Issue 1 · Bab 1

Open in Qurani

Primary text

Staking a claim on barren land, such as by erecting an earthen or stone boundary around it, does not immediately confer ownership because ownership is established only through actual cultivation (Ihya). However, the staker gains the right of first refusal (Ahaqqu bihi) over the land. This is supported by the report from the Prophet, peace be upon him, stating, "Whoever precedes another Muslim to what no Muslim has preceded him to, he has the greatest right to it." If the person who initially staked the claim transfers this right to another, the transferee assumes the same status. If the staker dies, the heirs inherit this right based on the saying of the Prophet, peace be upon him, "Whoever leaves behind a right or property, it belongs to his heirs."

Supporting text

The sale of the right established by staking a claim is invalid because ownership has not been attained, similar to the right of preemption (Shufa'a) before exercising it. However, Abu Al-Khattab suggests the sale might be permissible because the staker possesses a right, not full ownership.