before i exit this discussion, here is the summary of the proofs on which I base my understanding:
1.
Thus did We make their case known to the people, that they might know that the promise of Allah is true, and that there can be no doubt about the Hour of Judgment. Behold, they dispute among themselves as to their affair. (Some) said, “Construct a building over them”: Their Lord knows best about them: those who prevailed over their affair said,“Let us surely build a place of worship over them.” (Quran 18:21)
al-Razi, al-Syuti, Ibn Jawzi, al-Asqalani, Mullah Ali Qari, Qazi Thanaullah Panipati, al-Hakim, al-Nasafi and many others are agreed that they were the believers who built this mosque (masjid) at the place of 'peace of the cave.' see this
post.
2. 'Abdullah related that the Prophet, may Allah bless him and grant him peace, prayed at the end of the upper part of the valley behind al-'Arj if you are on the way to Hadba.
There are two or three graves at that mosque, on which are piles of stones, to the right of the path at the large stones marking the path. 'Abdullah used to return home from al-'Arj after the sun had declined from midday.
He would pray Dhuhr in that mosque. (
Bukhari)
3. Muhammad said: Abu hanifa informed us saying that Ata ibn as saib narrated to us saying
the graves of Prophet Hud, Salih and Shuaib [aleh islam] is in Masjid Al Haram (Kitab al-Athar of Imam al-Shaybani as published by Turath Publishing in London)
4. Imam at-Tabari and Hafiz Ibn Kathir write, in 88 AH, that
the room of ‘A’isha (may Allah be pleased with her) – where there are graves of the Prophet Muhammad (may Allah bless him and grant him peace), Abu Bakr and ‘Umar (may Allah be pleased with them)- was joined to the mosque of the Prophet. (Reference: Tareeh Tabari and Tar'ikh Hafiz Ibn Kathir, Chapter of Government of Walid ibn 'abd al-Malik)
Even if Ibn Bazz and other scholars have said that it was mistake, im more inclined to commit it since majority of the Salaf did not criticize it and neither undo this action at an opportune time. 1, 2, 3 and 4 show that a grave either next to the mosque or inside the mosque is not similar to the interpretation of 'grave worship.'
5. Dawud ibn Salih said: "[The governor of Madina] Marwan [ibn al-Hakam] one day saw a man placing his face on top of the grave of the Prophet. He said: "Do you know what you are doing?" When he came near him, he realized it was Abu Ayyub al-Ansari. The latter said: "Yes; I came to the Prophet, not to a stone." Ibn Hibban in his Sahih, Ahmad (5:422), Al-Tabarani in his Mu`jam al-Kabir (4:189) and his Awsat according to Haythami in al-Zawa'id (5:245 and 5:441 #5845 Book of Hajj, "Section on the honoring of the dwellers of Madina, chapter on placing one's face against the grave of our Master the Prophet
(from livingislam.org).
6. It is also narrated that Mu`adh ibn Jabal and Bilal came to the grave of the Prophet
and sat weeping, and the latter rubbed his face against it. Ibn Majah 2:1320, Ahmad, al-Tabarani, al-Subki, and Ibn `Asakir (from livingislam.org).
5 and 6 make it clear that facing the grave or rubbing on them or sitting next to them is neither a bidda nor haram. And all the ahadith which prohibit such acts can only be understood in terms of worship or respect.
Thus, the scholars have mentioned:
7.
Mullah Ali Qari (Rehmatullah Alaih) writes: Anyone who builds a mosque near the grave of an upright person or prays in the tomb (Maqbara) or intends to ask for help through the Ruh of that upright person or intends to seek barakah from his left overs,
If he does all that without the intention of giving him Tazeem or doing tawajuh towards him ( in prayer) “Then there is nothing wrong in that, don’t you see that Grave of Hadrat Ismail(A.S) is inside the Masjid ul Harram near the hateem and to Pray there is Superior than anything else ” however to pray near the graves is only forbidden when the soil becomes dirty because of Najasat of deceased… In the Hateem near Hajr al Aswad and Mizaab there are “Graves of 70 Prophets” [Mirqat, Sharh al Mishqaat, Volume No. 2, Page No. 202]
Mullah Ali Qari (Rehmatullah Alaih) also said: The early Muslims (Salaf) have considered it Mubah (i.e. allowed) to build over the graves of famous Mashaikh and Ulama so that people can visit them and sit there (easily) [Mirqaat Sharh al Misshqaat, Volume No. 4, Page No. 69]
8. Similarly,
Imam Ibn Hajr al Asqalani (rah) writes in his magnificent Fath ul Bari (commentary on Sahih Bukhari):
In view of the fact that the Jews and Christians were taking the graves of their Prophets as their qibla for the purpose of respect, and were paying attention towards them at the time of their prayers, their graves took the position of idols. For this reason the Muslims have been forbidden from this action.
However, if someone constructs a mosque near the grave of a pious person for the purpose of seeking tabarruk and not for prostration or paying attention towards them, he will never be included in this prohibition. [Ibn Hajr al-‘Asqalani, Fath al-bari, vol. 3, p. 208]
If anyone disagrees with the above understanding because of the way he understands/presents his proof then it is his right. In Islamic history scholars have differed while accommodating their differences. So all I ask from the people on the other side is to accommodate my opinion.
As far as building the dome on top of the grave is concerned, following is what I have got to mention. You may accept or reject without imposing your opinion on me. Here is my understanding:
9. Imam Baydawi (rah) in his tafsir says: “From this (verse 18:21) it is understood that to erect a Mausoleum for the special people, i.e. Pious Saints and Ulema, is permissible”.
10. Imam Ibn Hajr Haytami has summarized this issue in this masterpiece Fatawa al-Kubra. Here is some part of the post (by one of the sheikhs on SunniPath) which gives the summary of the four position in the Shafi school:
As Imam Al-Shihab Ibn Hajar Haytami points out in his Major Edicts (Ar. Al-Fatawa Al-Kubra) in the chapter on funerals, our Shafi'i imams have taken four positions regarding building atop graves:
The first position, which is the relied-upon position that Imams Nawawi and Rafi'i have codified and Imam Ibn Hajar and many late scholars have considered reliable, requires a distinction between graveyards that are endowments and like them, public graveyards -- these being where people of the area have become accustomed to burying their deceased -- and private property. Building atop a grave in a graveyard that is an endowment or public is unconditionally forbidden, whether the grave belongs to a scholar or someone else. As for if the grave is in private property, it is permissible to build atop it, but it is disliked to do so. The difference between the two is that the legal reason (Ar. `illah) for prohibiting building over graves is because it crowds out and denies access, making it difficult for people to bury another deceased in a grave that was built over. For this reason, it is forbidden in public graveyards but not in private ones.
The second position is the unconditional permissibility of building atop graves, whether they are endowments, public, or otherwise, and whether they are the graves of scholars or laymen. In Al-Khadim, Imam Badr Al-Deen Al-Zarkashi quotes at length the words of the sheikh and imam, Sharaf Al-Deen Al-Ansari regarding the Qarafah [m: (a graveyard near Cairo)], during which he [m: i.e., Al-Zarkashi] says:
"The early Muslims (Ar. Salaf) (Allah be pleased with them) witnessed this greater and lesser graveyard in the past. Graves and structures were constructed in it, yet none of the scholars of the time opposed it in word or action. He [m: (i.e., Al-Ansari)] says, “they built the dome of Imam Al-Shafi'i (Allah be pleased with him) and his academy in it and the other shrines are like this."
[m: After finishing up the quotation from Al-Ansari, Al-Zarkashi says:]
"One of the late scholars said, [m: i.e. Al-Ansari's] words indicate that building in public graveyards is not forbidden. And if it is not forbidden to build in public graveyards, then a fortiori, it is not forbidden to build in wastelands or private property with the permission of the owner."
[...]
In the Mustadrik, immediately after rigorously authenticating the hadiths on the prohibition of building and writing on graves, Imam Al-Hakim mentions, these [m: hadiths] are not acted upon, for all Muslim imams, east and west, have structures over their graves, and this is something that the later generations (Ar. khalaf) took from the early generations (Ar. salaf). Al-Burzuli said, 'it is therefore a matter of consensus.'
[...]
One of the late scholars of our imams mentioned beautiful words that support the permissibility of building atop graves, [m: Scholars] have mentioned the validity of leaving a bequest to construct Al-Masjid Al-Aqsa and the graves of the prophets (peace and blessings of Allah be upon them). Sheikh Abu Muhammad incorporated the graves of scholars and the righteous under this [m: ruling] because it entails reviving visitation [m: of their shrines]. In Al-Waseet and Al-Ihya, Al-Ghazali says that which indicates the permissibility of building atop the graves of the scholars of religion, sheikhs of Islam, and other righteous people. It is not far-fetched that this permissibility is based on honouring them.
[...]
Like Al-Waseet and Al-Ihya, Sharh Al-Tanbeeh by Imam Ibn Al-Rif`ah contains that which indicates the permissibility of building [m: atop graves], or rather, its praiseworthiness. There is no doubt regarding this, for it is found in all the lands of Islam in the past and present.
[...]
None of the scholars or righteous people, who are the guardians of the religion, have been referenced as having opposed this in word or action, yet there is no doubt that they were able to do so. And Allah Most High knows best.
The third position is the unconditional permissibility of building atop the graves of scholars, saints, and the righteous, whether in endowment lands or otherwise. As for building over the graves of non-scholars, it carries the distinction made in the first position. The differentiation between the graves of scholars and others -- in terms of honouring them and reviving their visitation -- becomes evident from what was narrated from Al-Ghazali and others in the second position; i.e. because visiting them increases aspiration for acquiring knowledge and righteousness, as is clear to many people.
The fourth position is the unconditional prohibition [m: of building atop graves], regardless of whether in endowments or other lands, or whether the grave is for a scholar or someone else. Imam Shihab Al-Deen Al-Adhra`i chose this position because of the generality of the prohibition [m: found in the hadiths], and because [m: building atop graves] involves ugly innovation, wasting money, extravagance, showiness, and the imitation of tyrants and disbelievers.
The Prohibition of Building Structures over Graves and the Obligation to remove them [Archive] - sunniforum.com - a resource for the propagation of authentic Islamic teachings
All in all, I respect the other opinion (based on the text) that it should not be built. But I prefer the opinion (practiced upon) of the permissibly given that it is built on private property. I pray that the Muslim nation learns to accommodate the opinions of each other.
