PICHAMMAL Vs. APONNAMBALA BHATTER

JUDGEMENT

(1.) IN our opinion, the Subordinate Judge has rightly held that the defendants were precluded, by Section 92 of the INdian Evidence Act, from proving the oral agreement set up by the 1st defendant, whereby the plaintiff is said to have agreed in substance to return the sale-deed, Exhibit A, and to relinquish his rights thereunder. The learned Vakil for the appellant argues that, in spite of this provision of law, the plaintiff is estopped, under Section 115 of the INdian Evidence Act, from [prosecuting the present suit. But, in order to set up any plea of estoppel, the party raising it must first prove the declaration, act or omission on which it is based, and, in the present case, Section 92 stands in his way. We cannot accede to the suggestion that Section 92 must be read subject to Section 115.

(2.) WE may also observe that, to allow appellant s contention would be to run counter to the spirit of the rulings in Kurri Veerareddi v. Kurri Bapireddi 29 M. 336 : 1 M.L.T. 153 : 16 M.L.J. 395 and Jagadbandhu Saha v. Radha Krishna Pal 36 C. 920 : 4 Ind. Cas. 414. It is true that, at the time of the alleged oral agreement, the plaintiff s document had not been registered, but it had been executed, and plaintiff had thereby acquired a right to get it registered; whenever he chose. WE do not think the cases quoted can be sufficiently distinguished on this ground The second appeal is dismissed with costs.