T^e Shafee
may either
take the
buildings or
plantations
o f the pur-
chafer, (paying
the value)
or may caufe
them to be
removed.
afterwards appears, at a time when the feafon for green dates is paft,
in which cafe he muft take the houfe for the value of the dates,— and
fo likewife in. the prefent inftance, as wine is, in effed, non-exiftent
with refpect to Muffuhnans, they being prohibited, by the l aw , from
ufing it in any fhape.
S E C T I O N .
If the purchafer of ground fubjed to a claim of Shaffa ered buildings
or plant trees upon it, and the Kdzee afterwards order the o-round
to be delivered to the Shafee, it in this cafe refts with him [the
Shafee’] either to take the ground, together with the building or trees;
paying the value of both, or to oblige the purchafer to remove them.
This is the dodrine of the Zahir Rawdyei. It is- recorded from Aboo
Toofaf that the Shafee cannot oblige the purchafer to remove his
buildings-; but he muft either take the -ground, paying the value of
the trees or buildings', or relinquifli the whole. This is alfo the opinion
of Shqfe'i. He, however, admits that the Shafee may caufe the
buildings or the trees to be removed, on indemnifying the purchafer
in the lofs he may thereby fuftain. In fhort, according to him, the
Shafee has three things in his option; for- he may either take the land,
together with the trees and buildings, paying the value of thöfe,— or
he may caufe them to be removed, indemnifying the purchafer,— or,
laftly, he may relinquifli the whole. In fupport of the opinion of
Aboo Toofaf two arguments are urged. F i r s t , the purchafer was
juftifiable in ereding the buildings, fince the ground was his own
property, and it would therefore be unjuft to oblige him to remove
them;— in the fame manner as where ground is for a fhort time transferred
by a grant, or by a defedive fale, and afterwards taken back,—
in
Chap. II. S H A F F A . 587
in which cafe the granter or the feller has it not in his power to
oblige the grantee or the purchafer to remove any buildings he may
have raifed upon the ground whilft it-was in his poffeflion,— or (in
cafes of Shaffa) where the purchafer has raifed a crop of grain from the
ground,-in which cafe the Shafee cannot oblige him to remove it
until it be fit for reaping.— S e c o n d l y , in the prefent cafe one of two
grievances muft follow; for either the Shafee muft fuffisr a grievance
in being obliged to pay an enhanced price for his Shaffa on account of
the additional value of the buildings, or elfe the purchafer muft fuffer
a grievance in being compelled to remove them. 'Now the latter of
thefe grievances is the heavieft, for it is -a lofs without any recom-
penfe; whereas the increafe of price paid by the Shafee is not without
a confideration;—and where the Shafee either takesjhe ground, paying
for the trees and buildings, or relinquiflies the whole, the greater
of the two grievances is obviated, and the fmaller one only is induced.
T h e reafons urged in behalf of the opinion quoted from the Zdhir Ra-
■ wdyet are, that as the purchafer has planted trees or erecfted buildings
on ground over which the rights of another extend, without firft obtaining
the fanftion of that other, they muft be rem'oved, in the fame
manner as where a perfon who holds ground in pledge builds upon it
without the permiffion of the pledger.— Befides, the right of the
Shafee is ftronger than that.of the purchafer, as being of prior date;
whence it is that any aft of the purchafer, even fuch as the fellino- or
granting of the ground, may be diffolved. It is otherwife with°re-
fpe<ft to a grantee, or a purchafer under an invalid contraft, (according
to Haneefir,) becaufe they aft under a permiffion from the pof-
feffor of the right; and alfo, becaufe the right of refumption, in cafes
of gift or invalid purchafe, is but of a weak 'nature,— whence it dif-
continues upon the ereftion of buildings. The right of Shaffa, on the
contrary, ftill continues in force; and therefore the rendering abfo-
lutely obligatory the value of the trees or buildings, upon the Shafee,
in cafe of his claiming his right, would be abfurd; in the famp manner
4 F 3 as