As most of you would be aware, the issue of building over graves was discussed in detail on this forum previously, especially in this thread.
Ample reference was made to various Fatawa from Sunnipath (see here and here), wherein they claimed
1- the position of permissibility to be a strong one in the Shafi'i madhab, based on the statements of Allamah Ibn Hajr al-Haytami
2- That the great Hadith Master, al-Hakim, had mentioned building on graves to be the practice of the salaf, based on a quote from his al-Mustadrak that was mentioned by Ibn Hajr al-Haytami in his Fatawa al-Kubra.
This later statement was shown to be a misquote from al-Mustadrak, ostensibly by Allamah ibn Hajr al-Haytami, as Hakim was referring to writing on graves, not building on them.
I had the good fortune of being the guest of Shaykh Taha Karaan in Cape Town during the weekend and had mentioned in passing this misquote by Allamah Ibn Hajr.
Shaykh Taha replied that he is sure that Allamah Ibn Hajr had quoted Hakim as saying writing is permissible, not building, however he will check up.
I received an email from Shaykh Taha last night, which revealed the following:
1- Ibn Hajr al-Haytami had quoted Hakim as saying that writing on graves was the practice of the Salaf. This is under Fatwa #34 of Kitab al-Janaiz.
2- 9 Fatwa's later, Ibn Hajr is posed a detailed question, wherein 2 contradictory answers by on the issue of building on graves are put in front of him, seeking his opinion.One is the famous view of impermissibility, while the second one is one of permissibility. The authors of these answers aren't mentioned.
It is the author of this second answer who misquotes Hakim and who also brings quotes from books like al-Khadim of al-Zarkashi etc in an attempt to prove permission for building.
Ibn Hajr al-Haytami's reply to this is clear in that building is not permissible in a public graveyard and also that the view of permission mentioned in al-Khadim etc is weak and doesn't deserve any attention!
He also clearly states that any such a building should be torn down.
From this we learnt that the following claims (some in the Sunnipath answer and others made on this forum) are all incorrect:
1- There exists Ijma' of the salaf on the permission of building on graves
2- Hakim narrated this Ijma' in his al-Mustadrak
3- Ibn Hajr al-Haytami permitted building on graves
4- The view of permission is a strong view in the Shafi'i madhab, as shown by Ibn Hajr al-Haytami.
We ask Allah Ta'ala to greatly reward Shaykh Taha for bringing this to our attention.