JUDGMENT : 1. This is a plaintiff's appeal arising out of the following circumstances: The plaintiff and his brother were mortgagees of the property in question. The mortgage being usufructuary they were in possession. The mortgagor sold the equity of redemption to the opposite party Madho Pande. Thereupon the plaintiff Sita Ram Pande brought a suit to enforce his right of pre-emption as a co-sharer. Being in possession he did not ask to be put into possession of the property. His claim was decreed; he paid the money into Court within the time fixed and Madho Pande removed the money from Court. Subsequently the plaintiff applied to the revenue Court for an entry of his name as full owner, he till then being recorded as a mortgagee. Madho Pande objected, whereupon the plaintiff brought the present suit for a declaration that he was the full owner of the property; that he was in possession of it; that the defendant had no title to it and had no right to obstruct him. The Court of first instance decreed the suit and granted the declaration. The lower appellate Court has held that the suit is barred by Section 47 of the CPC, because the plaintiff did not put the pre-emption decree into execution and had not formally been placed in possession of the property. It is an admitted fact that in the pre-emption suit the plaintiff did not ask for possession, for the simple reason that the property which he sought to pre-empt was a bare equity of redemption, an intangible right of which no possession could be granted, and also because he himself was in actual possession qua mortgagee. 2. It is urged on behalf of the respondent that, because the plaintiff failed to have his right proclaimed in the village under O. 21, R. 36, therefore he has no right whatever to the equity of redemption which in some mysterious manner has remained vested in the respondent, although he has taken out of Court the pre-emption money deposited by the plaintiff. 3. It is quite clear to my mind that under these circumstances no title whatever vests in the defendant when the plaintiff satisfied the condition laid down in the pre-emption decree by depositing the amount of the sale price in Court and the defendant removed that amount from Court. 3. It is quite clear to my mind that under these circumstances no title whatever vests in the defendant when the plaintiff satisfied the condition laid down in the pre-emption decree by depositing the amount of the sale price in Court and the defendant removed that amount from Court. The plaintiff being himself in possession had no necessity to seek anything further in execution of the pre-emption decree. By operation of law he became the full owner of the property. Being in possession, it was unnecessary for him to go through the formality laid down in the order and rule mentioned above. The defendant is a person who has absolutely no title whatever and is admittedly not in possession of anything. I allow the appeal, set aside the decree of the Court below and restore that of the first Court. The plaintiff will have his costs in all Courts.