Judgment M. P. Singh, J. 1. The plaintiff-respondent no. I who was a Mutwalli of the waqf estate created by one Bibi Mohammadijan, brought in the court of the subordinate Judge, Patna a title -suit in the year 1959 against the defendant-appellants for recovery of possession over 1.93 acres of land comprised in 2 plots namely, plot nos.1442 and 1443 situate in Diwan Mohalla of Ward No.21 circle No.109 of the Patna Municipal Corporation, P. S. Khajakalan one of the quarters of Patna city. The suit was brought on the allegation that the appellants were trespassers and they did not obtain any title under the settlement from pro forma defendant no.3 Khurshaid Hussain (Respondent no.2) who had merely a right of residence in the building standing on the suit land under the Waqf-deed dated, 10th March, 1979. He also prayed for mesne profits from march, 1957. 2. The suit was contested by defendants 1 and 2 only who are the appellants. Their plea was that respondent no.2 Khurshaid Hussain (defendant no.3)was the Naib Mutawalli and he had a right to settle the land that these defendants appellant took the suit lands by oral settlemert from defendant no.3 about 13 or 14 years ago for agricultural purposes at an annual rental of Rs.110 and from that time they were in possession of the same by growing wheat, maize barley and vegetables etc. , that they made it fit for cultivation and constructe a room on the same for agricultural operations, and that after 4-5 years a Hukamnama followed on 20 January 1952 in favour of defendant no.1. They further claimed that the lauds were their raiyati lands and they had occupancy right therein. They alleged that on 1st February, 1957 defendant no.3 settled through another Hukumnama the renaming land on which the dilapidated building existed. Thereafter they made the land fit for agricultural purposes. They spent Rs.2,600 for improvement of the land. It was further said that the interest of the Waqf board vested in the State of Bihar on 1st january, 1956 and the plaintiff as Mutawalli had no right to sue for possession 3. The suit was decreed by both the courts below. Under the decree the plaintiff-respondent became entitled to recover possession over the suit land and also for mesne profits to be ascertained subsequently on the filing of a petition by him for that purpose. 4. Mr. The suit was decreed by both the courts below. Under the decree the plaintiff-respondent became entitled to recover possession over the suit land and also for mesne profits to be ascertained subsequently on the filing of a petition by him for that purpose. 4. Mr. Umesh Prasad Singh appearing for defendant appellants, contended that because of the vesting of land in the State of Bihar under the Bihar land Reforms Act, 1950 (briefly the Act) on 1st February 1957, the plaintiff respondent no.1 was robbed of his right to sue for recovery of possession or to obtain a decree of possession over the suit property from the appellants. 5. In my opinion counsel is right on this point. The lower appellate court has given a clear finding that the appellants, namely, defendant nos.1 and 2 were in possession of the suit lands from the year 1952. It did not accept the case of plaintiff-respondent no.1, Mutawalli as presented in the evidence of his witnesses that defendant nos.1 and 2 came into possession in the year 1957. The finding of the court of appeal below as given in paragraphs 25 and 26 of its judgment on the point of possession is as follows : ". . . But in view of ja Hukumnama (Ext. A) was executed by defendant no.3 (respondent no.2) on 20th January, 1952. The trial court also in paragraph 11 of its Judgment held that the appellants (defendant nos.1 and 2)had been coming into possession of the disputed land since the year 1952. It rejected the case of the appellants that they had been in possession of the suit lands from the year 1944. The finding of the trial court is as follows : ". The aforesaid evidence, documentary and oral, clearly prove that the defendants have been coming in illegal possession of the disputed land since the year 1952 only. " i will like to state here that it is not the case of any party to the suit that the appellants came into possession of the suit lands at two different times under exts. A and A/1. As already stated Ext. " i will like to state here that it is not the case of any party to the suit that the appellants came into possession of the suit lands at two different times under exts. A and A/1. As already stated Ext. A is a Hukumnama by defendant no.3 khurshaid Hussain alias Ahmad Mian purporting to act as Naib Mutawalli to defendant Basant Mahton dated 20th January, 1952 in respect of the entire plt no.1442 and portion of plot no.1443 comprised in holding no.146 in respect of two Bighas of Bakasht land. Ext. A/1 is a receipt by way of Yad dasht by the same Khurshaid Hussain to defandant Basant Mahton dated 1st february, 1957 in respect of the remaining area of the aforesaid holdin The area of land is not mentioned in this receipt which was executed by way of yaddasht. It is dated 1st February, 1957. There is no mention in these two documents that possession was being delivered. Only the area was mentioned in Ext. A for full description of the lands giving holding no. , ward no. add other details in Ext. A/1. Even the area was not mentioned. The nature of the land was described as Kitchen garden land. Any way the point to be noted is that it is not the case of the plaintiff Mutawalli (respondent no.1) that the appellants came into possession of 2 bighas of land in 1952 and of the rest in the year 1957 under the aforesaid two documents. Such is also not the case of the appellants. Their case is that they came into possession of the suit land 13 or 14 years ago, roughly in 1944. In the circumstances, I am inclined to hold that the two courts below have held that the appellants had been coming in possession of the entire suit land from the year 1952. In other words, the appellants were in possession of the disputed land in 1956 also. 6. The Milkkiyat property of the Waqf estate vested in the State of Bihar under the provisions of the Act on 1st January, 1956. The suit property came to be vested in the Government on that day. The Waqf estate was not in possession of the suit property on that day. The contesting defendants were in posession in their own right and adverse to the plaintiff. They were sued as trespassers. The suit property came to be vested in the Government on that day. The Waqf estate was not in possession of the suit property on that day. The contesting defendants were in posession in their own right and adverse to the plaintiff. They were sued as trespassers. The possession of a trespassers. The possession of a trespasser by no stretch of imagination can be deemed to be khas possession. The plaintiff thus, had no khas possession of the suit lands and he, therefore, was not entitled to a decree for possession after the land had vested in the State of Bihar. See the case of Guru Charan Singh V/s. Kamla Singh, AIR 1977 SC 5 . 7. Learned counsel appearing for respondent no.1 contended that the suit land being "homestead" within the meaning of section 2 (j) of the Act was sayed under section 5 read with section 4, 4 (a) and (f) of the Act from being vested in the State. It was also pointed out that for the purpose of the applicability of section 5 of the Act it was not necessary that the intermediary should be in "khas possession" of the land. In my opinion there is no merit in this contention. Sec.4 (a) of the Act provides that once an Estate vests in the state, the various interests of the intermediaries enumerated therein, ate also vested in the State of Bihar absolutely free from all encumbrances and such intermediaries shall cease to have any interest in such estate other than the interest expressly save by or under the provisions of the Act. Amongst the many rights enumerated in that section undoubtedly the right of possession is included. In view of section 4 (a) of the Act, therefore, the intermediary looses all his rights in the estate in question other than the interests expressly saved by or under the provisions of this Act. Amongst the many rights enumerated in that section undoubtedly the right of possession is included. In view of section 4 (a) of the Act, therefore, the intermediary looses all his rights in the estate in question other than the interests expressly saved by or under the provisions of this Act. Sec.4 (f) of the Act on which much reliance has been placed, runs as below : "the Collector shall be deemed to have taken charge of such estate or tenure and of all interests vested in the State under this section: provided that nothing contained in this clause or in any other provision of this Act shall be deemed to authorise the Collector to take charge of any institution, religious or secular, of any trust or any building connected therewith or to interefere with the right of a trustee to apply the trust money to the objects of the trust. " From the above it is clear that the proviso simply debars the Collector from taking charge of any building connected with the religious or secular institution or to interfere with the right of a trustee to apply the trust money to the object of trust. The proviso to this section does not confer any right on the intermediary. Further question is whether the suit land is "homestead" containing a building connected with the religious institution. In my opinion, respondent no.1 has not been able to show that the suit land was his "homestead". Under section 2 (j) of the Act "homestead" means a dwelling house used by the proprietor or tenure-holder for the purpose of his own residence or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and outbuildings and includes any out buildings used for purposes connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. In the present case the house was given to Eqbal Hussain father of defendant no.3 Khurshaid hussain for the purpose of residence under the original deed of Waqfnama (Ext.1) dated 10th March 1897. So Eqbal Hussain had only a right of residence in the house standing upon the suit plots. That right was to continue under the said deed from generation to generation although the ultimate right of supervision was in the Waqf Estate. So Eqbal Hussain had only a right of residence in the house standing upon the suit plots. That right was to continue under the said deed from generation to generation although the ultimate right of supervision was in the Waqf Estate. Thus, the dwelling house was not being used by the proprietor or tenure-holder either for the purpose of his own residence or for the purpose of letting it out on rent as contemplated by the definition of "homestead" given in clause (j) of section 2 of the Act. The lower appellate court mentioned the suit land as "homestead" simply on the ground that the plots in question contained pucca building and it has been given to the father of defendant no.3 for his residence. Again it is to be noted that character of the land can change. Even "homestead" can be converted to agricultural land. In the present case there is evidence on record and there is also the finding of the court of appeal below that the appellants used the land for growing vegetables. It cannot, therefore, be called "homestead" in the hands of the appellants. It may also be pointed out that from paragraph 16 of the judgment of the lower appellate court it seems that the building which once stood on the suit land did not exist and that its materials were sold and the sale-proceeds were credited to the account of the Waqf Estate. The mere fact that there was a building on the suit plot in the past and that the suit lands were "homestead" at one time, cannot go to show that it remained so for all the times. I am, therefore, of the opinion that the suit plots were not "homestead" at the time when the Waqf estate vested in the State of Bihar. 8 Assuming, for the purposes of this case, that the suit land was "homestead" within the meaning of clause (j) of section 2 of the Act and that it was a part of the Waqf estate, I do not see how the plaintiff can be entitled to recover possession of it. Under section 5 of the Act it is only "homestead" which is in possession of all intermediary on the date of vesting of which the intermediary is entitled to retain possession. Sec.5 of the Act makes the position clear. Under section 5 of the Act it is only "homestead" which is in possession of all intermediary on the date of vesting of which the intermediary is entitled to retain possession. Sec.5 of the Act makes the position clear. It provides that with effect from the date of vesting of the "homestead" comprised in an estate or tenure and having been in possession of an intermediary on the date of such vesting shall be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such "homestead" and to hold it as a tenant under the state free of rent. There is, therefore, no doubt that the intermediary can take advantage of this section only when he is in possession. In the present case the plaintiff respondent no.1 was not in possession of the suit lands on the date of vesting the vesting having been taken place on 1st January, 1956. In Smt. Sabitri Devi thirani V/s. Satya Narain Mandal, AIR 1972 SC 42 it was held that under section 5 it is only the "homestead" which is in the possession of an intermediary on the date of vesting which the intermediary is entitled to retain possession. The suit, therefore, to recover possession of the suit land is not maintainable, the right of possession having been vested in the State of Bihar. 9. In the result the appeal is allowed, the judgments and decrees of the two courts below are set aside and the suit is dismissed. In the circumstances of the case, I would leave the parties to bear their own costs. Appeal allowed.