JUDGMENT 1. The appellant, who is defendant 1 in the suit out of which this appeal arises, obtained a money decree against defendant 2, and in execution of that decree attached certain land belonging to the judgment debtor. The respondents who are the plaintiffs objected to the attachment but their objection was overruled. They then sued to establish their title and impleaded in the suit as defendants third party persons who had purchased the land from defendant 2 after the dismissal of the plaintiff's objection. The plaintiffs alleged that the land was the bakasht of the landlord from whom they had purchased it in execution of the decree and that they had from time to time settled it with defendant 2, the last settlement being in 1922, for a term of seven years. They further alleged that on the expiry of this term the defendants second party surrendered the land to the plaintiffs. 2. The defence of the appellant was that the land was the occupancy holding of defendants second party. The trial Court held that the defendants second party were non-occupancy raiyats, that they had surrendered the land to the plaintiffs and that the latter were in possession by reason of the surrender until they were dispossessed by defendants third party after the institution of the present suit. The Court gave the plaintiffs the declaration applied for and also a decree for recovery of possession against defendants third party. 3. There was an appeal by defendants second party in which it was held by the appellate Court that the defendants second party were occupancy raiyats but that they had surrendered the holding to the plaintiffs. The appellate Court also held that the plaintiffs ought to have amended their plaint in order to seek recovery of possession from defendants third party but as they have not done so they were not entitled to a decree for recovery of possession. The decree declaring the plaintiffs' title was however confirmed. Two points have been raised in second appeal by the defendants third party. The first is that the suit is barred by Section 42 of the Specific Relief Act, by reason of the fact that the land in dispute is now not in the possession of the plaintiffs but in the possession of defendants third party. Two points have been raised in second appeal by the defendants third party. The first is that the suit is barred by Section 42 of the Specific Relief Act, by reason of the fact that the land in dispute is now not in the possession of the plaintiffs but in the possession of defendants third party. The right of the plain, tiffs to the relief they claim however must be judged as at the date of the institution of the suit. At that time they were in possession and it was therefore sufficient for them to establish their right to the land. The first point therefore fails. 4. The second point relates to the surrender of the land by defendants second party. It appears that two istafanamas were executed by defendants second party surrendering the land to the plaintiffs on the expiry of the settlement of 1922. These documents, however, are not registered. The first Court, therefore, held that they were not admissible in evidence but found on other evidence in the case that the land had in fact been surrendered to the plaintiffs. In their appeal to the Court below defendant 1 challenged the right of the trial Court to found the fact of surrender on other evidence in the case. The appellate Court found on other evidence in the case that the land was in fact surrendered. It is now contended that Section 91 of the Evidence Act, is a bar to the plaintiffs proving surrender otherwise than by production of the istafanamas and that the istafanamas being inadmissible, as they were not registered, the plaintiffs cannot be permitted to prove the surrender at all. It may be observed that unlike many other transactions a surrender by an occupancy raiyat is a unilateral act inasmuch as it cannot be resisted by the landlord as Section 86 of the Bihar Tenancy Act, confers upon a raiyat an absolute right to surrender his holding, except in one instance which is not relevant to the present case. 5. In 80 IC 187 [(’22) 9 AIR 1922 Pat 222 : 80 IC 187, Mukhduman v. Saiyed Altaf Hussain] it was held that although Section 91 of the Evidence Act, bars proof of the terms of a document otherwise than by production of the document it does not exclude other proof of the transaction itself. 5. In 80 IC 187 [(’22) 9 AIR 1922 Pat 222 : 80 IC 187, Mukhduman v. Saiyed Altaf Hussain] it was held that although Section 91 of the Evidence Act, bars proof of the terms of a document otherwise than by production of the document it does not exclude other proof of the transaction itself. In 21 CWN 1149 [(’18) 5 AIR 1918 Cal 828 : 41 IC 779 : 21 CWN 1149, Juman v. Mohammad Nobineoaz] it was held that where a sale of property of less than Rs. 100 in value is effected by an unregistered document and is completed by delivery of possession S. 91 would not exclude proof of the fact of delivery of possession. In so far as a surrender by an unregistered deed is concerned, the matter is concluded by a decision of this Court in 49 IC 504 [(’19) 6 AIR 1919 Pat 13 : 49 IC 504, Jagdamba Prasad v. A.V. Sham] where it was held that a deed of surrender need not be registered if there are facts de hors and apart from the deed itself from which the inference can be drawn that there was an implied surrender in fact. The Privy Council in 14 Cal 109 [(’87) 14 Cal 109 : 13 IA 160 : 4 Sar 732 (PC), Imambandi Begum v. Kamleswari Pershad] held that an unregistered ekrarnama effecting a surrender may be taken in evidence in proof of the surrender. The only case which has been cited on the other side is 13 CLJ 284 [(’11) 13 CLJ 284; 8 IC 47, Sarat Chandra v. Nritya Gopal] where it was held that when the original lease was made by a registered instrument oral evidence was not admissible to prove a surrender. That case was distinguished in 47 Cal 129 [(’20) 7 AIR 1920 Cal 243 : 54 IC 752 : 47 Cal 129, Poran Chandra v. Indra Seni] on the ground that the alleged surrender had not been valid by delivery of possession. The decision of this Court and of the Privy Council conclude the question which has been raised with the result that the appeal must be dismissed with costs. 6. Appeal dismissed.