1. A decree was passed in favour of the respondent Bindraban against one Gajadhar on the 28th of May 1894. A few days afterwards the judgment-debtor sold to the plaintiff in the suit out of which this appeal arises, a house and a one-pie zamindari share in the village of Mayapur for Rs. 2,696-6. The plaintiff allowed his vendor to remain in possession of the house on his undertaking to pay one anna monthly rent. The house was attached by the decree-holder Bindraban, the respondent to this appeal. The plaintiff intervened, claiming the house as his own on the strength of the above-mentioned sale-deed. The Court executing the decree found that the sale-deed was without consideration and disallowed the intervenor's claim. He has now filed a regular suit. Along with his suit he did not file the sale-deed on which he relied, and no explanation is forthcoming as to why it was not produced. The defendant Bindraban pleaded that the sale-deed was a collusive document, without consideration and invalid. The Court of First Instance held upon this admission that it was for the defendant to prove the want of consideration, and in the result decreed plaintiff's claim. On appeal this was reversed by the District Judge, who held on the facts set forth above that it was for the plaintiff to prove that a real contract of sale had been entered into.
2. It is no doubt true that, as a general rule, a party who disputes the validity of a deed on the ground of non-payment of consideration is bound to prove his allegation. But in the present instance I am of opinion that the learned Judge was right in the view he took of this case. The plaintiff intervenor having failed in the execution department on account of his not having proved consideration, it was for him to prove his title when, he brought a regular suit. It was not sufficient for him merely to allege in his plaint that a certain sale-deed had been executed and registered. The finding in the inquiry which was held under Section 279 of the Code of Civil Procedure being against him, it was for him to get rid of that finding by something more than a mere allegation that a sale-deed had been written and registered. The fact that the vendor, notwithstanding the alleged sale, remained in possession of the house is a circumstance, moreover, which cannot be lost sight of. The learned vakil for the respondent refers to the case of Gobind Atma v. Sanlai I.L.R. 12 Bom. 270. The view adopted by the Court; in that case is in accord with the conclusion at which I had arrived before my attention was drawn to that case. In my opinion the District Judge was quite right. The appeal is dismissed with costs.