This is the apparent meaning of Aḥmad’s statement, namely, that kharaj is not contingent upon the land being used for crops or orchards. In the report of Yaʿqūb ibn Bukhtān, he was asked: “Do you think that a man should pay, on what he possesses of a house or estate, according to what ʿUmar prescribed—an amount for every jarīb—and then give it in charity?” He replied, “How excellent that would be!” He was then asked: “I have heard that you pay kharaj on your house and give it in charity—is that so?” He replied, “Yes.”
It has also been held that whatever construction is indispensable for cultivating the land—such as a dwelling one builds for residence on kharaj land in order to cultivate it—is exempt, and its kharaj is thereby waived. This is because one cannot remain engaged in cultivating it without a dwelling in which to reside. Whatever exceeds the extent of his need, however, is subject to its kharaj.
If kharaj land is leased or lent, its kharaj is due from the owner, not from the lessee or borrower. Aḥmad said, in the report of Abū al-Ṣaqr, concerning a man who took land in al-Sawād on lease: “He pays the assessment fixed by ʿUmar, and he pays the ʿushr after ʿUmar’s assessment.” The apparent meaning of this is that kharaj is due from the lessee, since the person who took the land on lease is a lessee. He said likewise in the report of Muḥammad ibn Abī Ḥarb: “It is valid for someone to lease a portion of the land of al-Sawād from the person in whose possession it is, and it shall have the same ruling.”
Thus, he treated the lessee as equivalent to the lessor. Abū Ḥafṣ explicitly stated this in the second volume of his work on leasing, saying: “Chapter: Evidence that whoever leases land and cultivates it is liable for both kharaj and ʿushr, rather than the landowner”—and he cited therein the report of Abū al-Ṣaqr.
In my view, Aḥmad’s statement does not entail what has been claimed. He was referring only to a man who took land from the sultan, who handed it over to him in return for kharaj and made that kharaj its rent. The land had not been in the sultan’s possession as leased property; rather, it belonged to the Muslims collectively. The case under discussion here is that land is in the possession of a Muslim subject to a fixed kharaj, and he then leases it out. In that case, the second party is not liable for the kharaj; rather, it remains due from the first party, because the land is in his possession in return for rent, and that rent is the kharaj.
If the tax official and the landowner disagree over the land’s legal status—the official claiming that it is kharaj land and the owner claiming that it is ʿushr land, with both claims being legally tenable—the owner’s statement is accepted over that of the official. If he is suspected, he must take an oath. In a disagreement of this kind, it is also permissible to rely on documentary entries in the sultan’s official registers, provided their authenticity is known and their written records are trusted.
If the landowner claims that he has paid the kharaj, his statement is not accepted. It is permissible, however, to rely in establishing payment of the kharaj on official sultanic documents, provided their authenticity is known, in accordance with the customary practice observed in such matters.