livered over the ground to the buyer, the taking evidence againft him
is not fufficient, he being no longer an opponent; for having neither
the pofieffion nor the property, he is as a ftranger. T h e manner of
claim by affirmation and taking to witnefs is, the claimant faying
“ Such a perfon has bought fuch a houfe, of which I am the Shafee;
“ I fiave already claimed my privilege of Shaffa, and' now again claim
“ i t : be therefore witnefs thereof.” (It is reported, from Aboo Toofaf
that it is requifite the. name o i the thing fold, and its particular boundaries,
be fpecified;. becaufe a claim is not valid unlefs the thing demanded
be precifely known.)
and III. T he third mode of claim to Shaffa is termed Talb Khafoomat; or
l‘~ elaim by litigation,— which is performed by the Shafee petitioning
the Kdzee to command the purchafer to furrender up the ground
to him;, the method, o f doing, which, will hereafter, he particularly
explained.
A delay ia If the Shafee delay making claim by litigation, ftill his right does;
the litigation not drop, according to Haneefa. Such alfo is the generally received
.does not in, r ’ ° J „ . . . . .
validate the opinion; and decrees pafs accordingly; There is likewile one opinion
recorded, from Aboo Toofaf to the fame effedt. Mohammed maintains
that if. the Shafee poftpone the litigation for one month after the. taking
of evidence, his right drops.. This is alfo the opinion.of Ziffer; and
it is related, as an opinion o f Aboo Toofaf, that the right of the Shafee
becomes null if he delay the litigation after the Kdzee has held.one
court; for, if he willingly, and without alleging any. exeufe, omit
to commence the litigation at the firft court, held by ths-Kdzee, it is a
preemptive proof of his having declined it. T h e reafoning on which
Mohammed.founds his. opinion in this particular is, that if the right of
the Shafee was never to be invalidated by his delaying the litigation,
it would be very vexatious to the buyer; for he would be prevented
from enjoying his property, in the appreheiifion of being deprived of
it by the claim of the Shafee.— “ I have therefore (fays Mohammed)
“ limited
“ limited the delay that may be admitted to one month, as being the
long-eft allowed term of procraftination.” — In fupport of the opinion,
of Haneefa;. it. is urged that the right of the Shafee. being firmly
eftabliffied by the taking of evidence,, it cannot be extinguifhed but by
his own rejection, openly declared;— in the fame manner as holds in
all other matters of right.— With refpedt to what is mentioned by
Mohammed, that “ ■ the delay would be vexatious to the buyer,” it is of
no weight; for in cafe of. the abfence of the Shafee, his right is not invalidated
by the litigation being delayed; and the vexation fuftained
b y the buyer from the. delay is equally the fame,, whether the Shafee
be. prefent or abfent.,
If it appear that'the Kazeewss not'.ih the city,-and that on that
account the litigation was delayed, the right is not invalidated, according
to the concurrent opinion of the three above-mentioned fages;, for
the litigation can only be made in the prefence, o f t he Kdzee; and the
delay is therefore excufed.
W h e n the Shafee goes to the & W 'and'claims his right',' alledging R u le s to b e
that “ fuch a perfon has purchafed a houfe, in which he has the
“ right of Shaffa” the Kdzee muft firft. queftion the purchafer (the ftrate 011 an
defendant-in the-caufe)-concerning the property.on.which the Shafee
grounds his right of Shaffa; and if he acknowledge it, this is a fufficient
ground for the Kdzee paffing a decreet— but if he deny it, .the
Kdzee muft-then order the Shafee todonng witneffes-to prove his property;
for the pofieffion, which is apparent,, may be owing to other
caufes than property; and a thing which is thus-doubtful cannot be
admitted as a proof to the detriment of another, Kadaoree alleges
that the Kdzee* before he applies to the defendant, ought to afk the
plaintiff regarding the fituation o f the houfe and its boundaries; becaufe
i f a man fue for the property of a, houfe, it is requifite that he de-
feribe .its fituation and boundaries;. and therefore he muft do the fame
in,claiming his right of Shaffa. When he. has done this, the Kdzee
muft
particularly;
i f it be* occa-*
lioned by the
ablencsofthe
magiftrate.