The provisions of the Orissa Tenancy Act do not apply to land situated within the municipal limits of Cuttack.

JUDGMENT :

R.N. Misra, J. - The Defendant is in appeal against a reversing decision of the learned Fifth Additional Subordinate Judge, Cuttack in a suit for ejectment against the Appellants brought by the Orissa Board of Wakfs from a homestead within the outer compound of the Kadam Rasool located in the town of Cuttack.

2. The Defendants 2 to 2 (d) were, the ad-matwalis of the wakf the Kadam Rasool and the Defendants 2(e) to 2(g) are members of the committee set up by the District Judge of Cuttack according to the provisions of Act 20 of 1863. In 1948, the Matwalis admitted the Defendant No. 1 into tenancy for residential purposes in respect of the disputed property. The wakf Board came into existence some time in March, 1961 under the provisions of the Wakfs Act of 1954. On 14th July, 1962 the present suit was instituted by the Board for the ejectment of the Defendant No. 1 from the lease-bold on the contention that the lease created in her favour was illegal, unauthorised, inoperative and did not bind the Board of Wakfs. From the plaint it appears that the Defendant No. 1 bad been called upon to show cause as to why she may not be evicted and she came up with an explanation that she had taken lease of a ditch and with enormous expenditure improved it and bad ultimately set up a house. The Board was, however, not satisfied with the explanation and as the location of a residential house within the Kadam Rasool itself was vitiating the religious atmosphere and was therefore, against the interest of the Wakf, the suit was instituted pursuant to the decision of the Plaintiff. Board taken on 1-2-1962.

3. Two sets of written statements were filed one by the Defendant No. 1 Appellant and the other by the Darogas (Mutwalis). The Defendant No. 1 contended that the property belonged to the Darogas and not to the Wakf itself, having been set apart for their maintenance. It was further alternatively contended that the land was lying fallow as useless; for the benefit of the Kadam Rasool, the lease was granted and after taking permission of the Municipal authorities, the Defendant No. 1 raised the construction and has, been residing there already for more than 15 years prior to the institution of the suit. The Defendant No. 1 claimed to have acquired non-evictable occupancy right in respect of the disputed property.

The Darogas pleaded that the alienation was not illegal, the lease is not against the interest of the Wakf in any manner; the lease had been granted for the interest of the Kadam Rasool and the institution has indeed benefited by the lease the disputed property being located beyond the inner compound which contains the main shrine of the Kadam Rasool, the residential use by the Defendant No. 1 does not interfere with the religious activities. A claim also made that the lands including the disputed property which are located between the inner compound and the outer compound of the Kadam Rasool are Madat Mash lands of the Darogas and they have hereditary right of enjoyment thereto. It was also pleaded that the disputed property was a ditch and water from the Cuttack Jail compound which flowed into it ultimately proved to be a nuisance. The Defendant No. 1 who undertook to fill up the ditch in order to have the nuisance abated has done so at enormous expenditure and has also raised a house. The waste and unproductive land which had hitherto become a nuisance to the Wakf and in fact was interfering with the religiousness of the Kadam Rasool has been rendered useful and thus the process of leasing out was a beneficial one for the Wakf. The Plaintiff was thus not entitled to ejectment.

4. The learned trial Judge found: (1) the Plaintiff failed to establish that the disputed property was the Wakf property of the Kadam Rasool endowment; (2) the disputed property was an agricultural holding and the Defendant No. 1 was protected from eviction u/s 236 of the Orissa Tenancy Act; (3) applying the provisions of the Public Wakf (Extension of Limi