Whoever revives a barren land in respect to the Kharaaji land

প্রশ্ন · Question

Assalaamu Alaikum Wa Rahmatullahi Wa Barakaatuhu,

This is a question related to the lands and it is as follows: After
reading the book, Economic System in Islam and the subject of the
lands it became apparent to me that the description of the land is
either ‘Ushriyah or Kharajiyah with the evidences that came in this
subject area... It became clear to me also that the neck of the Kharaaj
land belongs to the state whilst its benefit belongs to the individual.
There were also sufficient evidences in respect to this! As for by
question then it relates to what was quoted on page 136 about the
subject of reviving the barren lands and its text stated the following:
“Whoever cultivates a barren land in Kharaji area where no Kharaj
has been imposed on it before he owns its land title (raqabah) and its
benefit if he is Muslim.
If he is non -Muslim, he owns its benefit only.” So how am I meant to
reconcile between what was mentioned previously and what is
mentioned in this paragraph in respect to the ownership of the neck
of the Kharaaji land?? And in particular as there is no evidence
attached to the last paragraph?? And Jazaakallahu Khairan

উত্তর · Answer

The agricultural land and the barren lands each have their own
Ahkam that regulate them in accordance to the Shar’iyah evidences
related to them. We will explain the details of this as follows:
Firstly: The evidences of the agricultural land which include amongst
them:
1 – Muslim extracted a Hadeeth on the authority of Jabir in his
Saheeh who said: The Messenger of Allah ﷺ said:
«ِ
فِيمَا سَقَتِ الَْْنْهَارُ، وَالْغَيْمُ الْعُشُورُ، وَفِيمَا سُق ِيَ بِالسَّانِيَةِ نِصْفُ الْعُشِّْ »
“In respect to that which has been irrigated by the rivers and rain a
tenth is due and in respect to that which is irrigated by the
waterwheel (i.e. by hand artificially) half of a tenth is due”. (Note:
another variation of the Hadeeth in English: “A tenth is payable on

what is watered by rivers, or rains, and a twentieth on what is
watered by animals.”) This text is ‘Aamm (general) meaning that it
applies to every agriculturally cultivated ‘Ushriy land unless there
exists a text that specifies this general text.
2 – After the Fat’h (Conquest) a new problem arose in respect to the
conquered lands outside of the general text and the Kharaaj was set
(for it). Abu ‘Ubaid said:
(بِْي ذِئْبٍ، عَنِ الزُّهْرِير، قَالَ: قَبِلَ رَسُولُ اللَّهِ (ص) الْجِزْيَةَ
َ
حدثنا يَزِيدُ بْنُ هَارُونَ، عَنِ ابْنِ أ
حْرَزَ إِسْلََمُهُ نَفْسَهُ
َ
سْلَمَ مِنْهُمْ قَبِلَ إِسْلََمَهُ، وَأ
َ
مِنْ مَجُوسِ الْبَحْرَيْنِ قَالَ الزُّهْرِيُّ: فَمَنْ أ
وَّلَ مَرَّةٍ وَهُوَ ف ِي مَ
َ
نَّهُ لَمْ يُسْلِمْ أ
َ
جْلِ أ
َ
يْءٌ لِلْمُسْلِمِيْ َ، مِنْ أ
وَمَالَهُ إِلََّ الَْْرْضَ، فَإِنَّهَا ف َ نَعَةٍ
Yazeed Bin Haroun told us from Ibn Abi Dhi’b from Az -Zuhri who
said: The Messenger of Allah ﷺ accepted the Jizyah from the Majus
of Bahrain. Az-Zuhri said:
‘Whoever embraced Islam from amongst them his Islam was
accepted and his Islam safeguarded his life and property except for
the land. That is because it is Fa’i (booty) for the Muslims because he
did not embrace Islam initially whilst he was under no threat).’ This is
what ‘Umar (ra) judged in accordance to in respect to the land of the
Siwaad (in Iraq) when he said: “I saw (it correct) to keep the lands
with their people and to place Kharaaj upon them...”
As such the Hukm of the ‘Aamm (general) applies in its according to
its generality “Every agricultural land in Dar ul -Islam which is
Ushriyah land has the Zakaah due upon it”. According to the Ahkam
Ash-Shar’iyah it does not go outside of this general text unless it is
specified by another text i.e. “The Kharaaji land” in accordance to the
Ahkaam Ash-Shar’i. In other words, every agricultural land in Dar ul -
Islam has the Hukm that it is Ushriyah land unless there is a specific
evidence for a particular land indicating that it is Kharajiyah. This is
detailed completely in our books.

Secondly: Evidences related to the Ahkam of the barren land which
include:
1 – Al-Bukhari recorded from ‘Aa’ishah (ra) from the Prophet ﷺ that
he said:
«حَق
َ
َحَدٍ فَهُوَ أ
رْضًا لَيْسَتْ لِْ
َ
عْمَرَ أ
َ
مَنْ أ » “Whoever cultivated a land not
belonging to anyone has the most right to it”.
At-Tirmidhi collected a Hadeeth from Sa’eed Ibn Zaid from the
Prophet ﷺ who said:
«رْضًا مَيرتَةً فَهَِيَ لَهُ
َ
حْيَا أ
َ
مَنْ أ » “Whoever revives a barren land then it
belongs to him,” also related by Abu Dawud.
These texts are general in respect to the land becoming the property
of anyone who revives it. If he revives it in the Ushr land, then he
owns it and it will be an Ushriyah land upon which Zakaah is due if
the one who revived it was a Muslim. And there would be Kharaaj
due upon it if the one who revived it was from the Ahlu -dh-
Dhimmah. That is because the Kaafir is not from the people upon
whom Zakaah is due from and as such the Kharaaj is due from him
because the agricultural land is not devoid of a paymen t allocation;
either Zakaah or Kharaaj must be due from it.
As for if the revival was in the Kharaaj land, then the land would be
Kharaajiyah, whether the one who revived it was a Muslim or a
disbeliever from amongst the Ahl al -Dhimmah... This is like what Abu
Yusuf, the author of ‘Al -Kharaaj’ stated when he said: “Al -Hasan Ibn
‘Imaarah related to me from Az -Zuhri from Sa’eed Ibn Musayyib who
said: ‘Umar Ibn Al -Khattab (ra) said: “Whoever revives a barren land
then it is his and the one who fences it off does not have a right to it
after three years”... Abu Yusuf sa id: The meaning of this Hadeeth in
our view is that it applies upon the barren land that no one has a
right in respect to it or any ownership. So whoever revives it and it
becomes as such (i.e. revived) then it is his and he can cultivate it,

rent it, dig rivers from it and build upon in respect to that which
contains a Maslahah (interest). If it was in the Ushr land he would
give the Ushr (i.e. Zakaah) from it and if it was Kharaaji land then he
would give the Kharaaj from it...”.
* Consequently, if the Muslim revives a barren land within the Ushr
land then it would be Ushriyah and he would own its title and its
benefit; and he would pay Zakaah from it; a tenth (Ushr) or half of a
tenth. If a Kaafir from amongst the Ahl al -Dhimmah revived it, then
he owns the title and benefit likewise and pays Kharaaj from it
because he is not from the people of Zakaah. This is an explanation
for what was mentioned in the ‘Economic System’ book: “Whoever
cultivates a barren land of the 'Ushri land, he owned its land title
(raqabah) and its benefit, whether Muslim or non -Muslim. For such
land, the Muslim landlord is obliged to pay the Zakat ('Ushr) of the
plants and fruits, which are entitled for Zakat once the amount of the
harvest has reached the Nisab. As for the non -Muslim landlord of
such land, he pays the Kharaaj, not the ‘Ushr. This is because he is
not from those who are subject to pay Zakat and because the land
cannot be left devoid of a payment, either Kharaaj or ‘Ushr.”
* And if he revives or cultivates Kharajiyah land then he owns it and
the land is Kharaaji i.e. he owns the benefit and not the land title.
The Kharaaj is due upon it and Zakaah upon the produce is the one
who cultivated it was a Muslim, whilst Kharaaj would be due upon
the land if the one who cultivated it was from amongst the Ahlu -dh-
Dhimmah. This is the explanation for what was mentioned in the
book ‘Economic System of Islam’: “Whoever cultivates a barren land
in a Kharaaji area where Kharaaj has been le vied before it became
barren, he owns its benefit only without owning its land title
(Raqabah), whether the landlord is Muslim or non -Muslim. Such a
landlord is obliged to pay the Kharaaj because it is a conquered land.
Therefore, the Kharaaj remains on it at all times, whether owned by a
Muslim or non-Muslim.”

2 – No ownership of Ushri or Kharaaji land by reviving (cultivating) it
is not taken outside of this general text. As such, the Ushriyah is in
respect to the Ushriyah land and the Kharaajiyah is in respect to the
Kharijiyah land unless there is a specific text mentioned for specific
cases that are contrary to that. By examining the cultivation of barren
lands within the Kharaajiyah lands a circumstance has been found
that mentioned in a specific text in the case here the land becomes
Ushriyah at the time of its revival (or cultivation) by a Muslim. This is
the circumstance when the barren land is within the Kharaajiyah land
however the Kharaaj has not previously been levied upon it. The
texts that specify that include the following:
A – When the Muslims conquered the land of Iraq, Umar placed
Kharaaj upon the agricultural land. There was also barren land there
in Iraq which Umar did not place Kharaaj upon which included within
the land upon which the Basra was established upon and its
surroundings. When the Muslims revived it, it was made Ushriyah
land by the Ijmaa’ As -Sahaabah. In this way the barren Kharaaji land
that has not previously had Kharaaj levied upon it is exempted from
the general text and its revival or cultivation by a M uslim makes it
Ushriyah even if it was within the Kharaajiyah land which was
conquered by force. This has been mentioned in more than one
source from which we mention:
- It was stated in ‘Al -Inaayah Fee Sharh Al -Hidaayah’ when
mentioning the Hadeeth of the Messenger of Allah ﷺ about the
reviving (or cultivation) of the barren land:
“And whoever revives a barren land, then according to Abu Yusuf it is
considered to be in (accordance to) its scope.
So if it was from the scope of the Kharaaj land (meaning close to it)
then it is Kharaajiyah and if was from the scope of the Ushr land then
it is Ushriyah). The Qiyaas (analogy) in respect to Basra was according
to the opinion of Abu Yusuf, the student of Abu Hanifah, for it to be

Kharaajiyah because it is from the land in the scope of (or close to)
the land of the Kharaaj that ‘Umar had imposed Kharaaj upon.
However, it remained Ushriyah when the Muslims revived (or
cultivated) it contrary to the Qiyaas. That was due to the Ijmaa As -
Sahaabah. The author of ‘Al -Inaayah Fee Sharh Al -Hidaayah’ added:
“The Qiyaas in respect to Basra was that it should be Kharaajiyah
because it is close to the Kharaaj land. However, the Sahaabah levied
the Ushr upon it and so the Qiyaas was left for their Ijmaa’.”
- Similar to this was found in ‘Dar ul -Mukhtar Wa Hashiyah’ of Ibn
‘Aabideen (Radd ul -Muhtaar) where he said: “And the Qiyaas is for
the “land of Basra” to be Kharaajiyah according to Abu Yusuf because
it is close to (or adjoining) the land of Kharaaj however the Qiyaas id
abandoned due to the Ijmaa’ As-Sahaabah (rah).”
* And it is clear from all of this that the barren land of Basra which
did not have Kharaaj previously imposed upon it became Ushr land
when Muslims revived or cultivated it.
That means that the barren land which has not had the Kharaaj
imposed upon it whilst being located in the Kharaaji land becomes
Ushri land if Muslims revive or cultivate it. If, however, a non -Muslim
cultivates it, it remains Kharaajiyah land in accordance to the
generality of the text of the Hadeeth. This is the explanation that
came in ‘The Economic System of Islam’: “Whoever cultivates a
barren land in Kharaaji area where no Kharaaj has been imposed on
it before the he owns its land title (Raqabah) and i ts benefit if he is
Muslim. If he is non -Muslim, he owns its benefit only. The Muslim
owner of such land is obliged to pay the 'Ushr with no Kharaaj on
him. While the non -Muslim owner has to pay the Kharaaj, similar to
the Kharaaj that was imposed upon its Kuffar inhabitants at the time
of its conquest.”

In this way the question that you asked about has been answered,
not just the exact question but rather all of the branches related to
the cultivation of barren lands, and may Allah be with you.
Your brother,
Abu Yasin
02 Muharram 1438 AH
Corresponding to 03/10/2016 CE