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
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 (saw) said: «فِيمَا سَقَتِ الْأَنْهَارُ، وَالْغَيْمُ
الْعُشُورُ، وَفِيمَا سُقِيَ بِالسَّانِيَةِ نِصْفُ الْعُشْرِ»
“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:
(حدثنا يَزِيدُ بْنُ
هَارُونَ، عَنِ ابْنِ أَبِي ذِئْبٍ، عَنِ الزُّهْرِيِّ، قَالَ: قَبِلَ رَسُولُ
اللَّهِ (ص) الْجِزْيَةَ مِنْ مَجُوسِ الْبَحْرَيْنِ قَالَ الزُّهْرِيُّ: فَمَنْ
أَسْلَمَ مِنْهُمْ قَبِلَ إِسْلَامَهُ، وَأَحْرَزَ إِسْلَامُهُ نَفْسَهُ وَمَالَهُ
إِلَّا الْأَرْضَ، فَإِنَّهَا فَيْءٌ لِلْمُسْلِمِينَ، مِنْ أَجْلِ أَنَّهُ لَمْ
يُسْلِمْ أَوَّلَ مَرَّةٍ وَهُوَ فِي مَنَعَةٍ
(Yazeed Bin Haroun told us from Ibn Abi Dhi’b from
Az-Zuhri who said: The Messenger of Allah (saw) 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
(saw) that he said: «مَنْ أَعْمَرَ
أَرْضًا لَيْسَتْ لِأَحَدٍ فَهُوَ أَحَقُّ» “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 (saw) who said: «مَنْ أَحْيَا
أَرْضًا مَيِّتَةً فَهِيَ لَهُ» “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 payment 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 said: 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
levied 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 Muslim 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 (saw) 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 its 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,
Ata Bin Khalil Abu Al-Rashtah
02 Muharram 1438 AH
Corresponding to 03/10/2016 CE
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