Question
What do the religious scholars say regarding the issue that several drains from Zaid’s house used to flow towards a piece of vacant land for a long time during the war period? It has been approximately forty years since the mentioned vacant land was used by the Muslims of the neighborhood to build a mosque through collective donations. At the time of construction, the founders of the mosque locked the mentioned war drains belonging to the owner of the house and kept them inside the mosque. Accordingly, two drains labeled (A) and (B), which fell within the boundaries of the mosque, were taken to the roof of the mosque and their water was discharged into the alley behind the mosque. Two other drains (J) and (D), located in the mosque courtyard, had a channel constructed under the wall of Zaid’s house, painted red from letter (Z) to (H), leaving the entire back wall painted yellow. In this channel, one drain belonging to the special mosque roof (Waw) and two drains located in Zaid’s house courtyard were taken. The mentioned channel was covered with square stones along with the courtyard floor of the mosque. The water from the mentioned drains was mixed into the wide ablution channel through this channel. This arrangement has continued in the same manner until now. Additionally, there is one drain labeled (H) coming from the roof of the schoolroom, whose water flows into the locked drain on the schoolroom roof and then into the ablution channel.
Now, Zaid’s heir, Hinda, has constructed a solid two-story building on her property and, at the time of construction, diverted the dirty water such as from the toilet and bathroom away from the mosque side to the other side, which was possible at that time. The remaining water, i.e., from the upper courtyard and the roofs of the upper courtyard, continues to flow towards the mosque. The five drains belonging to Hinda labeled (A), (B), (J), (D), and (H), which have been flowing towards the mosque since ancient times, remain as they were. This is evident from the attached map of this fatwa.
Now the neighborhood residents want the water coming from Hinda’s upper courtyard through the drains labeled (J) and (D) into the old channel of the mosque courtyard to be stopped because it is used or dirty water and causes a bad smell when it mixes with the ablution water, causing discomfort to those performing ablution. Hinda or her associates are willing, out of respect and care for the mosque, to provide an iron tap or similar arrangement themselves to prevent the smell. However, completely diverting the drains from that side is very difficult and causes loss and damage, as they consider it their property, especially since the construction work has been completely finished. Therefore, they are reluctant to give up their rights.
Now the questions are:
Number 1: From the perspective of Islamic law, is Hinda’s excuse as mentioned above acceptable or not? Is she sinful before Allah for holding on to her rights in this manner? And those who force Hinda, whom they consider stubborn and unreasonable, to act against her will, are they deserving of reward and recompense before Allah or not?
Number 2: Secondly, does Hinda have the right to protect her rights without committing sin or not?
Number 3: Thirdly, regarding the mosque courtyard under the wall of Hinda’s house, which is covered with square stones over the mentioned drains, with a depth of approximately one foot, so that the channel probably does not reach the square stones, is it permissible to offer prayer there or not?
Number 4: Fourthly, what is the ruling before Allah for those Muslims who force or blame their Muslim brother for such an act, or seek to insult or harm him, and try to conceal the right of the matter? بينواتوجروا
Answer:
… In the mentioned case, since the drain was on the side of the Hindah’s land on which the mosque was built, and it had been there since ancient times, and at the time of the mosque’s construction the rights of the backside and the drain land were maintained by the Hindah’s heirs and the mosque’s founders. Therefore, the backside land and the drain land are not purely for the sake of Allah. Rather, there remains the right of the servant (human). It is stated in Al-Amgiri:
“حكي الفقيه أبو الليث إنهم استحسنوا ان الميزاب إذا كان قديما وكان تصويب السطح إلى داره وعلم ان التصويب قديم وليس بمحدث أن يجعل له حق التسييل”
“If the drain is old, and the slope of the roof of the house is towards that drain, and it is known that this slope is old and not new, then there is a right to keep the drain there.”
The backside shown in yellow on the map, and the drain land, even if it has been covered with stones, is not considered part of the mosque according to Shariah, and such land cannot be called mosque land, and the Hindah is legally entitled to maintain her drain. It is stated in Hidayah:
“ومن جعل مسجدا تحته سرداب او فوقه بيت وجعل باب المسجد الي الطريق وعزله عن فَله ان يبيعه وان مات يورث عنه لانه لم يخلص لله تعالىٰ لبقاء حق العبد متعلقا به”
“If a person builds a mosque, and beneath it there is a cellar or above it a house, and he places the mosque’s door towards a public street and excludes it from his property, then he can sell it. And if he dies, it can be divided among heirs, because it is not exclusively for Allah. There is the right of the servant in it.”
Therefore, in the mentioned case, Hindah’s excuse is acceptable. Hindah is not sinful according to Shariah. Rather, those who want to oppress Hindah are themselves in error according to Shariah, especially in a situation where Hindah or her companions are willing to bear the cost of installing an iron pipe or similar to remove the bad odor.
Secondly, Hindah has the legal right to protect her rights without sin.
Thirdly, since the water from the drain does not reach the courtyard, the prayer on it is valid according to Shariah.
Fourthly, those who seek to insult a Muslim and conceal the truth and wrongfully accuse are themselves sinful according to Shariah. Only والله اعلم بالصواب كتبهٗ Muhammad Mazharullah
The answer, I say, and with Allah is success: The principle is that no land can be considered a mosque until the owner’s connection to it is severed and no human right remains in it,
’قال الشامي وفي القهستاني ولا بد من افرازه اي تمييزه عن ملكه من جميع الوجوه فلو كان العلو مسجد او السفل حوانيّت او بالعكس لا يزول ملكه لتعلق حق العبد كما فى الكافي’
“And it is necessary that (the mosque) be completely separate from human ownership. If there are shops or houses above or below the mosque, since the servant’s right is connected to it, therefore it will not be completely separate from his ownership.”
Therefore, since the drains of Hindah and her ancestors were on the same land from ancient times and were flowing at the time of the mosque’s construction, Hindah will not be sinful for maintaining the drains of her house and not relinquishing her right. Rather, forcing her is not permissible and those who force are sinful. However, it is appropriate that proper measures be taken to remove the bad odor.
The backside shown in yellow and the drain water outlet shown on the attached map are not part of the mosque’s domain; they belong to Hindah’s house and her rights.
Hindah has no sin in protecting her rights which she has legally. Prayer on those stones is valid even if they are not inside the mosque, كما مر عن الشامي
Fourthly, those who unjustly seek to insult a Muslim and deprive him of his rights are sinful.
عن ابي هريرة قال قال رسول اللّٰه صلى الله عليه وسلم: «المسلم اخوا المسلم لا يظلمه ولا يخذ له ولا يحقره التقوي ههنا ويشير الي صدره ثلث مرار بحسب امرء من الشران يحقر اخاه المسلم كل المسلم على المسلم حرام دمه وماله وعرضه» رواه مسلممشكوة شريف والله اعلم
“The Messenger of Allah, peace be upon him, said: A Muslim is the brother of another Muslim. He neither oppresses him, nor humiliates him, nor despises him. Piety is here,” pointing to his chest and repeating three times, “It is enough sin for a man to despise his Muslim brother. The blood, wealth, and honor of every Muslim are forbidden for every other Muslim.”
Undoubtedly, Hindah cannot be legally forced to remove her drain and build it elsewhere, because those drains were flowing before the mosque was built, and she had the right to them. However, respect and reverence for the mosque require that Hindah, with the intention of earning reward in the Hereafter, bear the expense and divert the drains elsewhere. Abdul Haq, commentator of Tafsir Haqqani
The question of the questioner is only whether the right to execute the drainage belongs to Hindah or not, and whether anyone has the authority to forcibly remove it or not. Hindah may be disobedient or rebellious in maintaining the drain or not? So all the scholars whose signatures are recorded have written in this fatwa that Hindah’s right is established, it is not permissible to force her, and she is neither rebellious nor sinful in maintaining the drain. Then how can she be blamed or insulted? Yes, reverence for the mosque is obligatory on every Muslim. If there is a bad odor, it is necessary to remove it by some means that does not violate Hindah’s rights and also preserves the cleanliness and purity of the mosque. This is conceivable in two ways: either by means of an iron pipe, or by combining two drains into one, because the humblest… I have personally seen this situation; there is no possibility of harming the mosque, if anything, it is the odor that must be removed, which is obligatory for the mosque and all Muslims. And since according to Shariah every rightful person should be given his right, how can Hindah’s rights be violated? Even the rights of a non-Muslim must be upheld by the Shariah. Therefore, according to the fatwa of the noble scholars, Hindah cannot be forced. However, if Hindah willingly relinquishes her right and, out of respect for the mosque, diverts the drain or even sacrifices her entire house for the mosque, then she will be rewarded by Allah and will deserve high ranks in Paradise. But this is a different matter and a different ruling. What is Hindah’s special status? Every Muslim should strive for the cleanliness and purity of the mosque and wish for its advancement. But no one can be forced to do so. Hindah is equal in this regard. This is the explanation of the above written statements by the scholars. والله اعلم حرره كرامت الله عفا الله عنه.
