Arnold White, C.J.
1. As regards the question of fact in dispute, namely, what were the terms of the compromise entered into between the Vakils of the parties in Civil Suit No. 155 of 1908, I think it is clear on the evidence that one of the terms of that compromise was that the present defendants were to deliver to the present plaintiff the house, the possession of which is asked for in the present suit. The two Vakils, who appeared for the parties in Suit No. 155 of 1908, gave evidence in this suit and their evidence is in substantial agreement that one of the terms of the compromise in the suit of 1908 was that delivery of the house in question should be given by the present defendants to the present plaintiff.
2. The point was taken on behalf of the appellant that inasmuch as the compromise in the suit of 1908 was reduced into writing, under the provisions of Section 92 of the Evidence Act oral evidence for the purpose of adding terms to the compromise which are not to be found in the written document is inadmissible. The first answer to that contention appears to me to be that the compromise in the suit of 1908 was not reduced into writing. The appellant relies upon an endorsement made by Mr. Justice Sankaran Nair on the plaint in the suit of 1908. That endorsement is in these terms: It is represented that the matter has been settled by the defendants Nos. 2 and 3 agreeing to withdraw the suit. Adjourned to to-morrow for payment of the money'. It seems perfectly clear that that does not purport to be, and is riot a record of the terms of the compromise. It is merely a note of, the learned Judge as the ground on which he was prepared to make an order of adjournment. In this endorsement, there is no reference either to an undertaking by the plaintiff to pay Rs. 500 or to an undertaking by the defendants to deliver up possession of the house. Then we have a formal order made by the Registrar under the powers conferred on him under the rules allowing the plaintiff in the suit of 1908 to withdraw that suit. There, again, we have no reference either to the Rs. 500 or to the agreement to deliver up possession of the house. Even if there was any writing which recorded this compromise, inasmuch as the settlement was arrived at put of Court, it is not one of the matters which, under Section 92 of the Evidence Act, was to be reduced into writing. Mr. Justice Wallis says with regard to this:'It appears to me that what happened really was, in the turn that events took, that the suit was withdrawn upon a settlement made out of Court.' Then, he goes on to observe: 'it is always open to the plaintiff to withdraw his suit, if he does not ask for permission to bring a fresh suit. The Court cannot prevent him from doing so, but he is liable to have an order made to pay costs of the other side, but subject to that, his withdrawing the suit is a matter in his own control, and so far as I know it is perfectly open to parties to settle a case out of Court and to withdraw the suit in consequence of the settlement.'
3. The real crux of the case arises in connection with the point taken by the appellant, that, inasmuch as the settlement affected immoveable property, the plaintiff who relies on the settlement cannot succeed because there is no registered document in writing. The learned Judge, referring to this, says: 'it is contended that this amounts to a transfer of immoveable property, which is invalid for want of registration under the terms of the Transfer of Property Act.' It is not suggested that the compromise itself required registration in order to give it validity. But the contention is that, assuming the compromise to be valid, no title vests in the plaintiff by reason of the absence of a registered document as required by Section 54 of the Transfer of Property Act. The learned Judge did not think it necessary to consider this question, because he came to the conclusion on the facts of this case that the defendants were estopped from setting up a title in themselves. The learned Judge says: 'The whole basis of the settlement was that the plaintiff in that suit had no rights to transfer at all' (the original is 'rights' and the point is 'right'), What the learned Judge means is that' the basis of the settlement was that there were no rights of property in the defendants and if there were no rights of property in the defendants, there was nothing to transfer and there was nothing that could bring into play the provisions of the Transfer of Property Act. He goes on to say: 'The compromise was that they were to abandon their claim to any rights and the basis of the settlement was that they had no rights'. I may put it in this way, that the basis of the settlement was that any rights which the plaintiffs in that suit might claim to set up--that their conveyance to the man Talukana was not an effective conveyance--, or that any rights which they might set up, assuming that the conveyance to Talukana was an effective conveyance, that they had acquired rights by reason of possession as against Talukana or his representatives--the basis of the compromise was that all these rights were abandoned for good consideration. The learned Judge finds in so many words that the defendants were estopped on the facts of the case from setting up a title in themselves. He does not find in so many words that the defendants were estopped from setting up the case that as between them and the plaintiff, the plaintiff was not entitled to possession. But 1 think that is involved in his finding. I do not say that I do not agree with the learned Judge in his finding as to estoppel on the facts proved. But it seems to me that the decree of the learned Judge may be supported on another ground.
4. The plaintiff in this case asks for possession of certain property. He does not ask for a declaration of his title to the property. If in this case a plea had been formally raised that the plaintiff had no title because there had been no registered instrument, it seems to me that, as a matter of pleading, it would have been a good reply to that plea for the plaintiff to say: 'I admit I have no registered instrument as evidence of my title to the property in question, but the plea that I have no registered instrument is immaterial because I am not asking for a declaration of my title to the property, but for possession of the property by virtue of an agreement between you and me under which you, in consideration of money paid by me to you, undertook to give me possession.'
5. It seems to me that for these reasons we can support the judgment of the learned. Judge, and I think that this appeal should bo dismissed with costs.
6. Sankaran Nair, J.--I agree.