HARI LAL AGRAWAL, J.

1. This appeal by defendant N0. I, arises out of a suit filed by the plaintiff-respondent under the provisions of Order XXI, Rule 63 of the Civil P.C., for a declaration that the property fully described at the foot of the plaint purchased by him in court sale, was not liable to be sold in the mortgage decree obtained by defendant No. 1. The relevant facts, briefly stated, are as follows :-

The plaintiff had purchased 3 bighas 6 kathas and 2-1/2 dhurs of land appertaining to plot No. 2843 and others under khata Nos. 452 and 395, being the other half of the disputed lands, from Loknath Tiwary by a sale deed dated 26-11-1930 disposing of his half share in the 6 bighas and odd land. The remaining half share was sold by Khublal Tiwary, his uncle, to Ganga Bishun Tiwary (defendant No. 2). Defendant No. 2 first created a mortgage over the property in favour of the plaintiff and subsequently sold the land to one Jumman Mian, however, leaving in deposit the mortgage money, by a registered deed of sale dated 4-6-1938.

2. These are the admitted facts of this case; Raghunandan Tiwary and Khublal Tiwary were brothers. They had equal interest in a piece of land meas