In the absence of specific denial of execution, it is not necessary to call an attesting witness to prove the execution of a document registered in accordance with the Indian Registration Act, 1908.

R. N. MISRA, J.

( 1 ) THE plaintiff is in appeal against the affirming decision of the learned Addl. Subordinate Judge, Sambalpur, in a suit for declaration of title, confirmation of possession and permanent injunction. The disputed property happens to be 10 decimals of homestead land appertaining to plot No. 444 under Khata No. 109 of village Kuchinda.

( 2 ) ADMITTEDLY the property belonged to one Narayan. Laxmidhar is said to have died without issues. The plaintiff happens to be Madhusudan's son. Narayan had a son. It is alleged that the son pre-deceased Narayan and thereafter Narayan died. According to the plaintiff the three brothers were joint and as Narayan and his son died the entire property came to the plaintiff by survivorship. The plaintiff applied for mutation. One Daitari Mohanty objected and subsequently managed to carve out the disputed portion of the property into a separate plot in his name. Daitari is said to have died leaving no heirs in 1964. The defendant claiming to be his widow raised a dispute regarding possession of the property. In a proceeding under section 145 of the Code of Criminal Procedure which was instituted the defendant's possession was upheld. Therefore, the plaintiff came up with the suit.

( 3 ) THE defendant on the other hand contended that Narayan was not the brother of Madhusudan or Laxmidhar. They were of different branches. Narayan was adopted by one Radha Mohan and long after adoption Narayan acquired the property in dispute together with several other items of property while he was serving as Tahasildar in the ex Bamara State. Upon Narayan's death without leaving any heirs, the property escheated to the State. The agricultural lands were settled with different tenants by the Ruler's administration, but the homestead was settled with the plaintiff and Daitari on the basis of half and half. Salami was separately deposited by the settlees and the property was also demarcated. The property in dispute represents Daitari's portion whereupon Daitari raised further constructions. Upon Daitari's death the defendant as widow succeeded to the property. Daitari also left behind a will in her favour. The defendant claimed that the suit was barred by limitation.

( 4 ) THE learned trial judge came to find that the property was a self-acquisition of daitari, and upon his death the defendant as widow and legatee was in possession of the property. The plaintiff had no claim thereto. He accordingly dismissed the suit.

( 5 ) THE learned appellate judge found that there was no evidence on record to show that Radha Mohan had three sons -- Narayan, Laxmidhar and Madhusudan. The evidence led on the plaintiffs side to fix the genealogy in view of the dispute was found to be very meagre and undependable. The learned appellate judge found that Narayan was working as Tahasildar under ex-State of Bamara. Relying upon a note in Ext. 2, the lower appellate court, however, held that it may be assumed that Narayan and Madhusudan were brothers. He found that in regard to the disputed property Narayan's widow was in possession until her death. The lower appellate court discarded the plaintiff's allegation that under Ext. 4 rent had been paid for the disputed property in 1944. Ex. L supported the defence claim of settlement on half and half basis of the homestead plot-Ext. C evidenced the deposit of the Salami. On the basis of the oral evidence supported by these documents, the learned appellate judge came to hold that the land had been duly settled with Daitari Accordingly he upheld the decree of the trial court and dismissed the appeal. This second appeal is directed against the aforesaid affirming decree of the lower appellate court.

( 6 ) IN paragraph 9 of the plaint it has been clearly stated that Daitari was not a member of the family of the plaintiff. Once the settlement with Daitari is accepted as a valid one, in view of what has been stated in paragraph 9 of the plaint, the plaintiff could have no right