Ganga Nath, J.
1. This is a plaintiff's appeal and arises out of a suit brought by him against the defendants to recover possession over a house described in the plaint. The plaintiffis case was that the house was purchased at an auction sale in 1895 by Jasodanand. Jasodanand obtained possession over it on 11th January 1896. The plaintiff claimed the house as This nephew and heir. The plaintiff stated that he had let the house to the defendants who had been occupying it as his tenants. The defendants contended that the plaintiff had never been in possession over the house. They admitted that Jasodanand had purchased the house but contended that he had dedicated it to an Imambara and that they were put in and have been an possession over it as a mutwalli. Both the Courts below found that no wakf was created. They also found that the defendants were not the plaintiff's tenants, but finding that the defendants had been in possession for more than 12 years the lower Court dismissed the plaintiff's suit.
2. As already stated, the defendant's case was that they had been in possession over the house in dispute as a. mutawalli under a wakf created admittedly by the predecessor-in-title of the plaintiff. The defendants never claimed to have remained in possession over the house in dispute in their own right.
3. As already stated, the wakf was alleged to have been created by Jasodanand and the defendants according to their own case must have been appointed mutawalli by Jasodanand and put in possession as mutwalli by him. Both the Courts have found that no wakf was made by Jasodanand. The lower Court has remarked:
I was therefore satisfied to hold that mo waqf of the house in dispute was proved to have been made by Jasodanand to the least satisfaction of the Court.
4. The defendant remained in possession as a trustee and therefore could not claim any adverse proprietary rights in themselves. No person, who has accepted the position of a trustee and has acquired property in that capacity, can be permitted to assert an adverse title on his own behalf until he has obtained a proper discharge from the trust with which he has clothed himself vide Srinivasa Moorthy v. Venkatavarada Ayyangar (1911) 34 Mad. 257.
5. As no wakf is found to have been created the property must go back to the owner or his representative. Section 83, Trust Act, (2 of 1882) lays down:
Where a trust is incapable of being executed, or where the trust is completely executed without exhausting the trust-property, the trustee in the absence of a direction to the contrary, must hold the trust-property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative.
6. The defendants have no right to keep themselves in possession over the property which admittedly belongs to the plaintiff against his wishes. It is therefore ordered that the appeal be allowed, the decree of the lower Court be set aside and the plaintiff's suit be, decreed with costs. Permission to file a Letters Patent appeal is rejected.