Basil Scott C.J.
1. The plaintiff sued for the removal of what is styled in the plaint a curved heap of clay projecting beyond the otta of a house formerly belonging to defendants Nos. 1 and 2 and subsequently transferred to defendant No. 3. He alleged that in a complaint lodged before the 3rd Class Magistrate against defendants Nos. 1 and 2, it was agreed that the heap projecting beyond the otta was to be removed and that owing to an undertaking accepted by defendant No. 4 the complaint was withdrawn; and later on he says that defendant No. 3 has been joined as he purchased the plaint house, that is, the house to which the otta appertained mentioned above in the plaint, and defendant No. 4 was made a party because of his kabuliyat to get the heap removed. The defendant No. 4 in his written statement denied being a surety to the compromise between the parties and said that in the criminal proceedings he was working as a mukhtyar on behalf of defendants Nos. 1 and 2, and that finally an amicable settlement was arrived at and mutual documents were passed whereby defendants Nos. 1 and 2 had agreed to remove so much of the otta as might be found to have been newly enlarged, and that he had been unnecessarily joined.
2. Upon the evidence the learned Trial Judge states: It appears that a charge was framed against defendant No. 1 on the 9th January 1910, and the agreement was entered into two days later, i.e., on the 11th January 1910. But the defendants were acting under legal advice. Messrs. Harishankar D. Joshi and Mulji Narottam, mukhtyar, were their advisers in the Magistrate's Court. The written agreement, Exhibit 44, is proved by the latter, and in his written statement, Exhibit 7, he supports the oral agreement set up in the plaint.' That is a misstatement of defendant No. 4's written statement which, as already observed, states that an amicable settlement was arrived at and mutual documents were passed whereby defendants Nos. 1 and 2 agreed to remove so much of the otta as- might be found to have been newly enlarged. Exhibit 44, which was the document drawn up by the legal advisers of the parties in compromise of the criminal proceedings, commences with the recital of disputes relating to a privy and land and other matters concerning the old houses of the plaintiff and the 1st defendant adjoining each other, and after that recital it states: 'Ultimately I filed a complaint. The same is this day compounded, i.e., a settlement is come to as follows.' Then follow elaborate provisions with regard to a privy and passage between the two houses without any reference whatever to any projection from the otta, and it is stated and also proved to the satisfaction of the lower Court that this document was prepared in duplicate, one counterpart being signed by each of the contesting parties. Therefore, we have a full and elaborate statement of the consideration for the withdrawal of the criminal proceedings. The plaint, however, is entirely silent as to all the considerations stated in Exhibit 44, and states that owing to an undertaking accepted by defendant No. 4 the complaint was withdrawn, the undertaking being with reference to the removal of the projecting part of the otta. It appears to me that in putting forward the case that the complaint was withdrawn in consideration of the compromise to remove the otta, the plaintiff is attempting to add a new term to the agreement, Exhibit 44, which settled the terms of the compromise. The point appears to have escaped the notice of the lower Courts, and we have, therefore, now had a prolonged argument on the part of the plaintiff's Pleader, and since the adjournment yesterday he has addressed us again upon the same point, but nothing that he has urged has in any way shaken my conviction that the alleged agreement sued upon is without consideration.
3. In this view of the case, it is not necessary to consider another important and difficult question of law, which also appears to have escaped notice in the lower Courts, and that is whether an affirmative agreement to do certain work can be enforced against the purchaser with notice of the agreement so as to justify a mandatory injunction calling upon him to do the work. It apparently could not be enforced in England upon the authority of Tulle v. Moxhay (1848) 2 Phill. 774 ; 1 H & T 105; 18 L.J. Ch. 83; 13 Jur. (o.s.) 89; 12 L.T. (o.s.) 469; 41 E.R. 1143; 78 R.R.289 and subsequent cases. Whether it could be enforced under Section 40 of the Transfer of Property Act is a point which, in view of the failure of the plaintiff to prove consideration for the agreement set up, it is not necessary now to decide. I would, therefore, reverse the decree of the lower Appellate Court and dismiss the suit with costs throughout.
4. I concur. This suit has been brought to enforce an obligation arising out of contract under Section 40 of the Transfer of Property Act. It is plain then that if we cannot look at the contract under Section 92 of the Indian Evidence Act, it would not be open to us to give the plaintiff the relief he seeks. And the question which has to be answered is whether we are permitted by the terms of Section 92 of the Indian Evidence Act, in the state of facts alleged in the pleadings and held proved by the Courts below, to look at the oral agreement upon which the plaintiff relies.
5. Briefly his case is this, that owing to certain disputes between himself and defendants Nos. 1 and 2 he had instituted criminal proceedings, and those proceedings were compounded on certain terms arranged between himself and the said defendants Nos. 1 and 2 and set forth in great detail and with much care and elaboration in a written agreement, -which is Exhibit 44 in this case. That agreement contains no reference to the subject-matter of this suit, and the plaintiff in bringing his suit has to rely upon an oral agreement, which we find in his plaint is referable to the consideration expressed in, and presumably, therefore, exhausted by, the following terms of the writing Exhibit 44. He seeks to evade this difficulty, first, by saying that the oral agreement upon which he relies does not fall within the general prohibition of the opening part of the section. In my opinion it very clearly does. It cannot be anything less than an addition, and a very material addition, to the promises or undertakings exacted from defendants Nos. 1 and 2 in consideration of the plaintiff withdrawing his criminal prosecution. That hardly admits of argument.
6. The plaintiff then fell back upon proviso 2 to that section and contended that this was a separate oral agreement upon which the writing is silent and which is not inconsistent with its terms. But having regard to the fact that the plaintiff himself refers its consideration to the consideration set forth in the writing, it becomes perfectly evident that the oral agreement now relied upon must be inconsistent with the terms of the writing Exhibit 41 as that is to be regarded as a complete expression of the contract then entered into between the parties. It might be simply illustrated in this way, that a writing which shows that A bought from B an article X for a given sum of .10, is inconsistent with the subsequent averment of A that he likewise bought from, Ban article Y for the same consideration. For the effect of that would be that while the writing expresses that the article X was bought for 10, A now seeks to show that the price was less than 10 or that nothing at all was paid for Y. In the former case a separate oral agreement set up would clearly be inconsistent with the writing, and in the latter case it would leave the agreement sought to be enforced without any consideration at all.
7. Lastly, I understand the plaintiff relies upon proviso 4, which permits any subsequent oral agreement which rescinds or modifies the writing to be proved. But again it is the plaintiff's own admission, and it is proved beyond doubt, that this was not a subsequent oral agreement, but was part of a single transaction to which expression was given in Exhibit 41. It must have been arrived at before that writing was drawn up. The writing is not one of an informal or careless character in favour of which any presumptions could be drawn in order to make proviso 2 applicable. It appears to have been drawn under the careful supervision of the legal advisers of the parties. In these circumstances I am of opinion that the order proposed by my Lord the Chief Justice is unquestionably right that we are precluded from locking at the oral agreement upon which the plaintiff relies by Section 92 of the Evidence Act, and as a consequence his suit fails and must be dismissed with all costs.