: Is it possible to make a Jumuah Masjid in the other place nearby for the same community upon the land given (Oakfaw-Land given by someone Lillah) for previous Masjid’s expense purpose? Situation 1: Old masjid is a place upon small land in between two home in village area where woman are used take bath in pond closer to masjid. Situation 2: Land of old masjid in claimed a family’s land (Non-wakfaw). Situation 3: Investor for new masjid was disagreed to place of old masjid area for land difficulties (earlier a lawful case occurred), small size and Toilet place lacking. Situation 4: some people opposed to place new masjid upon Oakfaw state. A new Masjid already made on that Oakfaw land, some people of that community are agree to say SALAH, some not saying. The community is divided in that issue including some local ALEM (learn Madrasha educating). Is that masjid making legal (according to shariah)? Will we get outcome for Jumua & jamat salah pray?

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger.

From what you mentioned in your question about the old mosque, it is probable that it was built on stolen land, because you mentioned that it belonged to one of the families and a law suit is pending in the courts. If this is the case, then it involves the following:

First, you should wait for the settlement of the ownership dispute over the land on which the old mosque is built. If it belongs to the family, it should be given back to them. If the land does not belong to the family, then the mosque remains on the land as it is.

Second, under the assumption that the mosque's land is not stolen, then it should be pointed out that most scholars are of the view that it is an obligation to follow the terms laid out by the founder of the Waqf if those terms are free of religious violations. Therefore, if the Waqf founder conditioned that the Waqf is to be used only for worship, then it is an obligation to abide by this condition. However, Shaykh Al-Islam Ibn Taymiyyah is of the view that it is permissible to use the Waqf in any way that is more beneficial than the conditions set by the Waqf founder. He said in his Fataawa: “It is permissible to change the terms laid out by the Waqf founder for the greater advantage, although this may differ from time to time. If Fiqh scholars and ascetics were endowed with the Waqf and then it was needed for Jihaad, it may be used to fund soldiers.”

Based on this, if the old mosque was narrow and there are no toilets in it as you mentioned, and it is more beneficial for the people to build a new mosque, then there is nothing wrong in building it on the endowed land due to the overriding benefit. But the unity of Muslims and avoidance of discord should be kept in mind.

If it is found, however, that the land on which the old mosque was built belongs to that family, then it is an obligation to remove the mosque and give the land back to its owners if it is proven that it legitimately belongs to them. Besides, it is not permissible to pray in a mosque that was built on stolen land. A group of Fiqh scholars are even of the view that prayer in such a mosque is invalid.

In this case, it is not right to donate the new property to fund the old mosque that was built on stolen land because it is a condition for validity of Waqf to be made in order to get closer to Allaah, yet there is no doubt that funding a mosque built on a stolen land is not an act of goodness at all, as it is an obligation to remove the mosque and not fund it.

Accordingly, the endowment of the mosque is not valid because as long as it was built on stolen land, it is legally non-existent. The jurists have stated that what does not exist legally is like that which does not exist physically. So, whoever donates something for the benefit of a mosque that does not physically exist or has not yet been built then his endowment is not valid as the jurists state. Imam An-Nawawi said: “An endowment for the benefit of something unknown or non-existent is also not valid, such as an endowment for the benefit of a mosque that is going to be built ...or the maintenance of a mosque if the donator does not specify which mosque it is.”

Since the endowment of that mosque (which is legally non-existent), like an unspecified mosque, is not valid, then the land should be returned to the possession of the Waqf founder or his heirs. It remains in their ownership if the endowment is not valid because the endowment is not transferred to the ownership of the beneficiaries unless it is valid. Al-Furoo’ of Ibn Al-Muflih from the Hanbali school, on an invalid endowment, reads: “If the endowment or bequeathal of something is not valid, then it remains in the ownership of the donator or testator.”

To conclude, there are several possibilities surrounding this issue; so one has to find out the facts of this matter. A Fatwa alone based on this question does not suffice. One should ask the scholars orally because matters concerning Waqf are complex and details about the terms laid out by the Waqf founder are required. In addition, the endowment is to be used according to the best interest of those whom the founder names as beneficiaries. If the founder did not name anyone, then an Islamic court should examine the matter. If you seek out scholars in the country where you live who can look into all the details of the case, then this is better.

Allaah Knows best.