JUDGMENT

Martineau, J. - The land in suit was sold to defendant No. 3 in 1919 by Sohara and Piara, defendants Nos. 1 and 2, who are entered in the Revenue Records as joint owners with the plaintiffs. The latter sued for a declaration that they were the sola owners denying that Sohara and Piara had any rights in the land, and in the alternative they asked for a decree for pre-emption. The Subordinate Judge gave them a declaratory decree in respect of all the lands except the land of the Khichiwala well, for which he gave a decree for pre-emption. The declaratory decree has been upheld by the District Judge, and defendant No. 3 has preferred a second appeal to this Court.

2. The plaintiffs and Sohara and Piara are the grandsons of Rai Khanan, the former owner of the land, the plaintiff's father, Fazal, having been Rai. Khanan's son by one wife and Sohara's and Piar's father, Wasaya, his son by another wife. Rai Khanan died in 1870, and disputes then arose between the sons by the two wives, the plaintiff's father, Fazal, and his brother, Karam, contending that Wasaya and his brother, Jawaya, were illegitimate and had no right to succeed to the property. In 1871 the Deputy Commissioner decided that Wasaya and Jawaya were the legitimate sons of Rai Khanan, and ordered that all the four sons of Rai Khanan should be entered as owners. No change, however, was made in the records till 1878, when an order P-27 was passed by the Tahsildar of Alipur, which shows that Fazal and Karam again denied that Wasaya and Jawaya were the legitimate sons of the Rai Khanan, while Wasaya and Jwaya assorted their legitimacy and asked that they might be entered in the records as owners along with Fazal and Karam. The Tahsildar found that Wasaya and Jawaya were in possession of only two wells, and ordered that they should be entered as co-owners of the whole property but as being in possession of only two nells and not of the rest of the land. That order was carried out. The plaintiffs maintain that, notwithstanding the mutation effected in accordance with the Tahsidar's order of 1878, they remained in possession of the land in suit adversely to Jawaya and Wasaya, and they also allege that in 1897 Jawaya, Sohara and Piara executed a deed P-l by which they agreed to take certain shares in the land of the Khichiwala well, Paluwala well and Tahliwala well in full satisfaction of their claim and gave up all rights in the remaining land.

3. The Courts below have found the execution of the deed P-l to be proved, and the first question is whether there is evidence to support that finding. There is no evidence of the scribe or of any witness in whose presence the document was executed, but the Courts below rely on the statement of one Khuda Bakhsh, who says that the seal of one of the attesting witnesses to the deed is that of his father, Lal. This statement, however, would show only that Lal attested the deed and is no proof that Jawaya, Sohara and Piara executed it. Apart from Khuda Bakhsh's statement all that the plaintiffs have to rely on as proof of the execution is the Sub-Registrar's certificate of registration. The learned District Judge has held on the authority of Ajudhia Prasad v. Jagannath Bakhsh Singh [1917] 20 O.C. 18 that that certificate is evidence of execution, and Mr. Har Gopal, who has argued the case for the respondents, has also referred to Thama v. Govind Bilal . and Nittyanund Kur v. Raj Bullubh Adyapurahit 25 W.R. 267. On the other hand, Mr. Tek Chand on behalf of the appellant has relied on Hori Lal v. Thakur Bhagwan Bakhsh [1916] 19 O.C. 23, Rajmangal Misir v. Mathura Dubain [1916] 38 All. 1, Salimatul Fatima v. Koylashpoti Narain Singh [1890] 17 Cal. 903 and some older rulings, in which it was held that the certificate endorsed by the Registering Officer is not evidence of execution. He also urges that the Registering Officer has not been called as a witness and that he is not shown to be dead; but as to this it is sufficient to say that