Munaqasha li-hukm bad al-qudat fi qadiyya tanaza fiha rajulan - ضمن "Athar al-Muallimi

Munaqasha li-hukm ba'd al-qudat fi qadiyya tanaza'a fiha rajulan (Discussion of a Ruling of Some Judges in a Dispute Between Two Men) is a legal treatise by the Yemeni scholar Abd al-Rahman al-Mu'allimi al-Yamani (1311–1386 AH / 1894–1966 CE), in which he overturns and critiques a judicial verdict issued by the court of Bajil in a dispute between two men Athar Abd al-Rahman ibn Y…+1.

Background and Manuscript

The manuscript of the treatise is preserved in the library of the Grand Mosque in Mecca (Maktabat al-Haram al-Makki) under shelf mark 4690, written on three long pages Athar Abd al-Rahman ibn Y…. The text is not in al-Mu'allimi’s own handwriting, and it was likely dictated to his scribe during the period when he served as Shaykh al-Islam under the Idrisi ruler, after which al-Mu'allimi personally added marginal notes and additions in several places Athar Abd al-Rahman ibn Y…. The work was published among his collected writings, Athar al-Mu'allimi Athar Abd al-Rahman ibn Y…+1.

Subject and Legal Arguments

The treatise examines a court ruling concerning a lawsuit between Ahmad ibn Abd Allah Madabish (the plaintiff) and Muhammad ibn Ali Maghbush (the defendant) over two shops, one involving wooden beams inserted into an adjacent wall and the other allegedly built over a public thoroughfare (sabil) Munaqasha li-hukm bad al-…+1. Al-Mu'allimi analyzes several procedural and substantive issues in the law of claims, testimony, conflicting evidence, and property rights:

• Rules of litigation and hisba claims: He notes that clarifying legal rulings is not the role of the litigants, whose duty is restricted to making claims and answering them under established conditions Athar Abd al-Rahman ibn Y…+1. He also argues that a claim cannot be treated as a public-interest claim (da'wa hisba) if the claimant pursues it to secure a personal benefit or avert harm to himself Athar Abd al-Rahman ibn Y…+1.
• Validity of testimony: Al-Mu'allimi invalidates the testimony offered by the plaintiff’s witnesses, who stated, "I testify to God that I know..." (a'lamu), because legal scholars stipulate using the formula of direct witnessing (ashhadu) rather than ambiguous expressions that leave it unclear whether knowledge was acquired by direct observation or hearsay Athar Abd al-Rahman ibn Y…+1.
• Conflicting evidence and possession: In addressing the judge's order to demolish the shops on the street, al-Mu'allimi demonstrates that the defendant's evidence supported unbroken, long-standing ownership and physical possession (dhu al-yad) Athar Abd al-Rahman ibn Y…+1. Citing Shafi'i references such as Bughyat al-mustarshidin and al-Rawd, he argues that evidence accompanied by possession takes precedence over competing claims unless there is proof that the construction was an act of wrongful encroachment, concluding that the demolition ruling was invalid Athar Abd al-Rahman ibn Y…+1.
• Inserting beams into another's wall: Al-Mu'allimi refutes the judge’s ruling requiring the beam owner to compensate the wall owner upon removal Athar Abd al-Rahman ibn Y…+1. Quoting al-Nawawi’s Minhaj al-talibin and its commentaries, he shows that under the Shafi'i school, if the wall owner revokes permission after construction, the choice lies between allowing the beams to remain for rent or removing them while compensating the beam owner for the loss in value, thereby proving that the judge inverted the ruling Athar Abd al-Rahman ibn Y…+1.