P L D 1954 Dacca 134 (PLP)

IBRAHIM, J.

‑In this case the dispute is over certain landed property which belonged to Logina Bibi, from whom defendant No. 1 who is in possession, purchased it on the 23rd February 1932. The plaintiff claims it under an alleged previous purchase made on the 20th December 1931, and has sued to recover possession on declaration of title on the allegation that rte defendants dispossessed him. His kabala is Exh.

1. The suit is contested .by defendant No.

1. He challenges the genuineness of Exh. 1, and denies the story of possession and dispossession, his case being that the kabala, Exh. 1 was not executed by Logina Bibi. The suit has been dismissed, both the Courts below being of the opinion that the plaintiff failed to make out that the kabala, Exh. 1 was executed by her. It is argued here, that since Exh. 1 is a registered deed, there is no onus on the plaintiff to prove its execution: It is claimed that in the case of a registered deed the onus lies on the party who denies execution. I do not see how the ques tion of onus can now be raised. When both parties have made their best efforts to prove their respective cases and on the evidence adduced, the Court is able and has come to a definite conclusion, it is not open to the unsuccessful party, to claim that he should yet succeed on the ground that the onus lay A on the other party. The onus in such a case is discharged by the balance of evidence in favour of the successful party. I may just quote the words of Lord Thankerton in Watt or Thomas v. Thomas (1947 A C 484.) where he said "The only suggestion by Lord Mackey or the Lord Ordinary having misdirected himself was as to onus of proof ; but the Lord Ordinary, quite rightly, makes no reference to onus of proof, for, as has often been pointed out, no question of burden of proof as a determining factor of the case arises on a concluded proof except in so far as the Court is ultimately unable to come to a definite con clusion on the evidence, or some part of it, and the question will arise as to which party has to suffer thereby." Granting, however, that this question can be raised there is nothing in the appellants' contention. A person relying on document, is bound to prove its execution. The fact that it is registered makes no difference. It is true that do document is registered unless the Registrar is satisfied on such enquiry as the Registration Act authorizes that it was executed by the alleged executant. But he is not a Court and has no judicial function. The object of his enquiry is to enable him to do his departmental duty, and the opinion formed in such an enquiry, though good for his departmental purpose, has no value in a judicial enquiry as evidence of its execution. The kabala in this case was registered after an enquiry under section 74 of the Registration Act, as Logina never admitted execution. The onus clearly lies on the plaintiff to prove its execution. The lower Appellate Court has committed no mistake. Nawab Mirza Ali Kadar Bahadur v., Indra Prasad and another (23 I A 92.) on which the appellants rely, has no bearing. That was a suit on a mortgage. The mortgagor admitted execution but denied receipt of consideration. It was rightly held that the onus lay on him to prove that he did not receive the consideration. The appellants have taken a further point in this case,. It has been argued that the defendant being a stranger to this kabala (Exh. 4) cannot challenge its genuinenets. It is said that this contention is supported by Lal Achul Ram v. Raja Kazim Hussain Khan (32 I A 113). It would be dangerous to hold that, a stranger to a deed, which is urged against him in evidence, cannot contend that it is void for non‑execution. Acha Ram's case (supra) is no authority for any such proposition. All that seems to me to follow from that decision is that if the parties to a voidable deed do not impeach it, it is no concern of a stranger that it is so. This case does not lay down that a stranger cannot impeach a deed as being void, This is clear from the observation: "It is not enough for Achal Ram to make ;out that the sale deed is voidable at the option of Ardawn. He must show that it was and is absolutely void." The appeal is dismissed. A. H. Appeal dismissed.