Al-Dakhil in fiqh (possessor in dispute)

Linguistically, al-dakhil is the active participle of dakhala (to enter), meaning the interior or inside of a thing as opposed to its exterior. ¹ In the terminology of jurists, it refers to the person who actually exercises physical possession over the disputed object, or whose disposal in the manner of owners is established; jurists also designate him as the possessor (dhu al-yad), the holder of the hand (sahib al-yad), or the occupant (al-ha'iz). ¹

It is contrasted with al-kharij (the outsider), who possesses nothing of the object but comes from the outside disputing the possessor; he is free of possession and disposal. ¹ In ownership litigation, distinguishing the possessor from the outsider determines who is the plaintiff and who is the defendant: the outsider is the plaintiff and the possessor is the defendant, which is the foundational norm in legal claims because the possessor has no need to initiate a claim while holding the object. ¹

Jurists identified several scenarios concerning the conflict and weighing of evidentiary proofs (tarjih al-bayyinat):

First, evidence in claims of absolute ownership (al-milk al-mutlaq): when two parties claim ownership of an object without specifying a causative origin such as inheritance or purchase, and each produces valid witnesses, the Hanafis, the prevalent Hanbali view, and Ibn al-Majishun of the Malikis rule in favor of the outsider's evidence and discard the possessor's evidence; they argue that the outsider is the plaintiff and the prophetic tradition assigns evidence to the claimant, and that the claimant's evidence establishes a new cause whereas the possessor's evidence only confirms the outward indication of existing possession. ²³ Conversely, the Shafi'is, the prevalent Maliki view, and a Hanbali narration give precedence to the possessor's evidence because, when both sets of evidence are equal, his is bolstered by actual possession. ²³

Second, evidence in ownership attributed to a specific cause: if the cause is repeatable, such as buying or planting, Hanafis prefer the outsider's evidence unless both claim to have acquired it from the same individual, in which case the possessor's evidence prevails. ³ If the cause is non-repeatable, such as animal birth, breeding, or weaving a specific cloth, the possessor's evidence is unanimously preferred because it attests to an additional fact reinforced by possession, citing the report of Jabir where two men disputed an animal and the Prophet ﷺ ruled in favor of the one possessing it. ³ In the Maliki school, the possessor's evidence is preferred if witnesses are of equal integrity, but if one party specifies a cause and the other makes an unqualified claim, the one specifying the cause is preferred. ³ In the Shafi'i school, the possessor is preferred on the soundest position unless he claims absolute ownership while the outsider explicitly claims purchase from the possessor himself, in which case the outsider prevails due to superior knowledge of transfer. ³ For the Hanbalis, three narrations exist: the prevalent view preferring the outsider in all cases, a second preferring the possessor if his witnesses attest to a specific cause, and a third giving unconditional precedence to the possessor because the defendant's position is inherently stronger. ³⁴

Third, evidence with dates: where each party states a date of acquisition, the one with the earlier date is given precedence by Hanafis, Malikis, and a Hanbali narration, because it establishes ownership at a time when the other did not claim it and established rights are presumed to continue; Hanafis except animal breeding, giving unconditional precedence to the possessor. ⁴ The Shafi'is hold that if the possessor holds the earlier date he prevails definitively, and if he holds the later date the relied-upon doctrine still favors him because mutual cancellation in the present leaves existing possession confronting past ownership; another Hanbali narration prefers the outsider unconditionally without regard to dates. ⁴⁵