Chandiramani, J. - (1.) This is the defendant's second appeal against the appellate decree of Mr. Mohammad Tufail Ahmad, Additional Civil Judge of Lucknow, dated 26th January 1944.
(2.) It would appear that the plaintiff respondent purchased from one Jagannath a certain house by a sale deed dated 9th March 1908. The eastern boundary, which is material for purposes of the appeal, was described as "deewar makan haza mulhiq ba bagh." The plaintiff gifted this house to his wife. The plaintiff and his wife both then mortgaged the house to Munnu Lal on 22nd October 1926 (EX. 3). The eastern boundary of the mortgaged house was now described as "deewar makan haza mulhiq bagh jo ab rasta am hai." In 1931 the plaintiff and his wife executed another mortgage of the very same property in favour of Behari Lal defendant 2. The eastern boundary was now described as "rasta." In all the three documents already referred to the other boundaries remained the same. It appears that in 1927 a portion of open land immediately to the east of the mortgaged house was purchased by the plaintiff from the municipal board. It also appears that after 1931 some time between 1932 and 1934 on this plot of land another house was built by the plaintiff. Behari Lal, the mortgagee of 1931, sued on his mortgage and obtained his decree. In execution of that decree the mortgaged property was sold and it was purchased by the appellant defendant 1. After the confirmation of sale the sale certificate EX. A-1, dated 20th July 1942, was issued in favour of the appellant, and in the sale certificate the property was described as "ek qita makan pukhta do-manzila mae arazi waqai Mohalla Dugawan" and the eastern boundary was given as "rasta" and the other boundaries corresponded with those given in the mortgage deed of 1931. When steps were taken to deliver possession of the property sold to the appellant the plaintiff obstructed and stated that under the sale certificate the appellant was entitled to receive possession of one house whereas the boundaries given in the sale certificate embraced in fact not one house but two houses and that he was willing to hand over possession of the "do manzila" house which in fact was covered by the sale certificate and not of the other house immediately to the east thereof. The report of the person who had gone to deliver possession clearly stated that in fact within the boundaries given in the sale certificate two distinct houses were included whereas the purchaser was entitled to receive possession of only one house. The appellant was unable to obtain possession. Shortly thereafter the plaintiff filed a suit for a declaration that the second house situated immediately to the east of the "do-manzila" house, which in fact had been sold at the auction, should be declared to be his property and not covered by the sale certificate.
(3.) The main defence of the auction-purchaser was that the sale certificate was his document of title and thereby he was told what was described within the boundaries, that both the houses were sold and that in fact they were only one house, that, in any case, a separate suit was not maintianable and the remedy of the plaintiff, if any, was in proceedings under Section 47, Civil P. C., and as they have not been taken he could not raise the present objection.;