What is the ruling if a third party cultivates land that a staker has claimed but left uncultivated?
General Chapter
Al-Mughni
Book of Reviving Dead Land
Primary text
If a third party cultivates land that was previously staked (Tahajur) but left idle, there are two views regarding who gains ownership. The first view holds that the cultivator gains ownership because cultivation establishes ownership, whereas staking alone does not. The second view holds that the original staker retains the right, inferring from the Prophet's statement, "Whoever revives barren land that does not belong to anyone," and another narration indicating the land belongs to the cultivator only if a Muslim does not already have a right in it. Furthermore, the right of the original staker is prior, similar to how the right of the pre-emptor supersedes the buyer's purchase.
Supporting text
A report from Saeed in his Sunan indicates that 'Umar (may Allah be pleased with him) ruled that if a person staked land but left it fallow for three years, and others came and cultivated it, the cultivators would have the greater right. This implies that staking without cultivation for three years does not secure ownership.