A de facto trustee can maintain a suit for the benefit of the trust.

BRIJ MOHAN LALL, J. :- This is an appeal by one of the defendants against a decree of the learned Civil Judge of Kanpur.

2. It appears that one Debi Din owned an area of one biswa out of plot No.840 abutting on a public road in Juhi Khurd, Kanpur. By means of a registered deed dated 29-5-1914 he dedicated this area for the purpose of establishing a guashala. One Shyam Lal alias Shamlu Baba, who was the pujari of Mahabirjis temple in Cooperganj at Kanpur, was appointed a trustee under this deed. Shyam Lal agreed to construct a gaushala, a well, a cattle trough and four pucca shops "with his own money". He did erect certain constructions. Sometimes later he hypothecated the land and the constructions to the appellant. The latter is the natural born son of one Ram Asrey, but has been adopted by his (Ram Asreys) brother Bisheshwar Prasad. Ram Asrey, Bisheshwar Prasad and their sons form a joint Hindu family.

3. Ram Asrey had a simple money decree against Shyam Lal and in execution thereof he got the disputed land and constructions put up for sale in 1933. He purchased the said property in the auction sale. After the purchase he erected 13 Kothris thereon. A few years later Shyam Lal died.

4. The suit which has given rise to this appeal was instituted by one Brahamanand (hereafter described as respondent) within 12 years of the auction sale. He claimed to be Shyam Lals chela and the present trustee of the gaushala. He contended that the property in suit was trust property and as such it could not be sold in execution of a decree obtained against Shyam Lal personally. He prayed for possession of the property in suit after demolition of the constructions erected by the appellant and also sought a decree for Rs.1,080/- as mesne profits. The defendants to the suit were Ram Asrey, his son, Satya Narain, and the appellant.

5. The appellant alone contested, the suit. He contended that the land in question was conveyed to Shyam Lal personally, that the trust sought to be created was not valid and that in any case the constructions put up by Shyam Lal were his personal property and did not form part of the trust. It was urged that a valid title had passed to Ram Asrey as auction purchaser. Limitation and S.41, T.P. Act, were also pleaded in defence. Another plea taken in defence was that in the event of the respondents suit being decreed he should pay the costs of the constructions put up by the appellant. Lastly, respondents status as trustee was disputed and it was contended that he had no light of suit.

6. The learned Civil Judge overruled the defence and decreed the suit for possession of the property in dispute and for recovery of a sum of Rs.540/- as mesne profits. He directed the appellant and his co-defendants to remove the 13 kothris put up by them on the disputed land within a period of six months.

7. Dissatisfied with this decree the appellant alone has preferred this appeal. Ram Asrey and his son, Satya Narain, have been impleaded as pro forma respondents. Four points were urged by the learned counsel for the appellant in his arguments, viz. :

1.The constructions made by the appellant had not been impressed with the character of a trust and were his private property.

2. The claim for demolition was barred by the doctrine of acquiescence.

3. In any event the appellant was entitled to claim compensation for the buildings constructed by him.

4. The respondent has no right of suit.

8. It may be pointed out at the outset that the appellant has two independent titles, viz., (1) as mortgagee and (2) as auction purchaser. His mortgage was a simple mortgage and gave him no right of possession. Moreover, this mortgage has, on his own showing, been satisfied. A suit on its basis, if now instituted, would be time-barred. It is, therefore, clear that he has no right to remain in possession on the basis of this mortgage-deed and cannot, therefore, resist the respondents suit on this ground. If he has any title, it is as an auction purchaser.