The Shafee is
not entitled
to any remuneration
for
buildings
ereöed or
trees planted
on land which
proves the
property of
another:—-
but he may
remove them.
as holds in cafes of claim o f right * ;— in other words, if a perfon
purchafe land, and plant or build upon it, and it afterwards prove the
right of another, the purchafer recovers the price of the land and the
value of the trees and buildings from the feller, and not from the
-claimant o f .right; and in the prefent inftance the Shafee Hands as the
claimant o f right. Analogy would fuggeft that grain alfo ffiould be
removed from the land; but, by a more favourable conftrudtion of the
l aw in this particular, it is not to be removed; becaufe the term of
its continuance is limited and afcertainable; and as the delay may be
recompenfed to the Shafee by a rent or hire, it cannot therefore be
very grievous to him.
If a Shafee, having obtained poffeffion of his Shaffa, land, erect
buildings, or plant trees upon it, and it afterwards appear that the
land was wrongfully fold, being the property of another, the Shafee
recovers the price,— from the feller, where he had taken the land from
him,—or from tht purchafer, -where he had taken it from him', becaufe
it is evident that it was wrongfully taken. He is not, however, entitled
to recover from either party the value of his buildings or trees,,
but is at liberty to carry them wherever he pleafes.— It is recorded
from Ahoo Yoofaf that the Shafee may alfo recover the value of the
buildings or trees from the perfon from whom he received the ground;
becaufe that perfon, under fuch circumftances, is confidered as t,he
feller, and the Shcfee as the purchafer; and it is an eftablifhed rule
that the purchafer may recover from the feller the value of fuch
buildings as he has erected on the ground, if it appear that the ground
fold to him was not the property of the feller, but of another perfon.
There is, however, a difference, in this cafe, betwixt a Shcfee and
an ordinary purchafer; for the latter is deceived by the feller, and is
empowered by him to take the ground,— whereas the Shcfee is not
* Arab. IJlihkat, meaning, a claim fet up to the fubjeft o f a (ale, (S e eV o l. I I . p. 503.)
deceived
deceived by the purchafer, nor can he be faid to be empowered by
him to take the ground, fince the purchafer himfelf is compelled, thé
Shafee taking poffeffion of the ground without his confent.
I f a man purchafe a houfe or garden fubjedl to a claim of Shaffa, If the pro-
and the building (owing to fome unforfeen calamity) be deftroyed, faftamedany
or the trees decay, it refts in the option of the Shafee either to refign j j^ ™ in ju ° r
the houfe or garden, or to take it and pay the full price; becaufe, as aft« Ale,
j c - - . . ftill the Shafee
buildings or trees are mere appendages or the ground, ( whence it is cannot take it
that they, are included in the fale of land without any particular men- /atf'jt;«.
tion being made of them,) no particular part of the price is fet againfh
them,— unlefs where they have been wilfully deftroyed by the purchafer,
in which cafe it is lawful for him [the purchafer] to fell the
appendages fo deftroyed, and make a profit by them, exclufiveof the
full price of the ground. It is otherwife when one half of the
«■ round is inundated ; for in fuch cafe the half t> of the' thinOg itfelf
being deftroyed, the Shafee may take the remainder, paying only half
the original price,
- I f the purchafer wilfully break down the eredlions, the Shafee I f the injury
may either refign his claim, or may take the area of ground for a pro- byXTur-
portionable part of the original price; but he is not entitled to the the *■ ■ ohafee may
ruins, becaufe they are become a feparate property, and are no longer take the
appendages of the ground; and the right of Shaffaextends only to the ztitsefti*
o-round, and to things fo attached to it as to be appendages. mated value'
I f a man. purchafe a piece of ground, having date trees upon it Cafe o f a
bearing fruit at the time, the Shafee is entitled to take the fruit,— ffomd'whh8'
provided particular mention have been made of it in the fale, for ftuit trees'
otherwife it is not comprehended. What is here advanced proceeds
upon a favourable conftruction. Analogy would fuggeft that the
Shafee is not entitled to take the fruit; becaufe, as the fruit is a dependant
both of the tree and of the ground, (whence it is not included
i - in