' AMIN-UD-DIN KHAN, J.---Through this single judgment I intend to decide instant Civil Revision as well as Civil Revision No,493-D of 2004 as both these petitions are interconnected.
2. This is one of the oldest cases. Today Syed Sami Azhar Gardezi, Advocate appeared on behalf of Malik Bakhtiar Mehdi, Advocate for the petitioner and stated that son of learned counsel for the petitioner is ill, therefore, learned counsel is not available. When he was informed that it is one of the oldest cases and there are other counsels on behalf of the petitioner as well, therefore, there is no question of adjournment in this case, then he prayed that learned counsel for the respondent be heard and learned counsel for the petitioner will argue the matter after the break. When no one appeared on behalf of the petitioner I was left with no option but to decide the case after hearing learned counsel for the respondents and scrutiny of the record available on the file.
3. This case was filed by Mr. Khizar Hayat Khan Punian, Advocate. Thereafter Mr, Azhar Abbas Sandila and Malik Bakht Yar Mehdi, Advocates filed power of attorney on behalf of the petitioner. No explanation has been given that why the other learned counsel are not available.
4. Through this civil revision petitioner has challenged the judgment & decree dated 13.3.2004 passed by learned Additional District Judge, Layyah whereby appeal filed by the petitioner was dismissed and the appeal filed by the defendants-respondents was accepted and partial decree passed by learned trial court in favour of present petitioner was also revered and the judgment and decree dated 20.12.2000 whereby learned trial court partially dismissed the suit of the plaintiff- petitioner. The other revision i.e, Civil Revision No, 493-D of 2004 is against the acceptance of the appeal filed by the respondents-defendants by the learned first appellate court.
5. Brief facts of the case are that plaintiff-petitioner on 2.4.1991 filed a suit for declaration that he is owner in possession of the suit property and defendants have no concern with the suit property and registered general power of attorney No,17 registered on 6-1-1991 by defendant Nos. 1 and 2 in favour of defendant No, 3 and General Power of Attorney No, 48 registered on 13.1.1991 in favour of defendant No, 3 and proceedings of the executing court whereby possession of the land has been delivered to defendant Nos. 1 and 2 and in implementation of decree the attestation of mutation Nos. 273, 274 and 275 attested on 24.2.1991 have also been challenged.
6. The case pleaded by the plaintiff is that the suit land was purchased by the plaintiff and the other vendees through Mutation No,844 on 30.8.1973. The pre-emption suit was filed to pre-empt the said sale by Mehmood and others. It is the case of the plaintiff that to save the property from the said pre-emptors plaintiff got a suit filed by defendant Nos. 1 and 2 against him and other vendees and plaintiff was pursuing the matter whereas defendant Nos. 1 and 2 were neither interested nor their rights were in that pre-emption suit and ultimately the suit was decreed and in execution the property was transferred in their favour. Defendant Nos. 1 and 2 dishonestly transferred the property through their attorney defendant No, 3 in favour of other defendants. The plaintiff was forced to file suit in hand as the suit property was transferred in favour of defendants Nos. 4 and 5. Written statement was filed, suit was contested. Learned trial court framed the issues, invited the parties to produce their evidence. Both the parties produced their oral as well as documentary evidence. Learned trial court partially decreed the suit to the extent of 8 kanals of land whereas suit land is 104 kanals and 10 marlas. Both the parties preferred the appeals. The learned first appellate court dismissed the appeal filed by the plaintiff-petitioner and accepted that of respondents-defendants. Hence, the instant revision by the plaintiff-petitioner.
7. Learned counsel for the respondents argues that admittedly the suit for pre-emption was filed by defendants Nos. 1 and 2 and suit was ultimately decreed on 31.1.1978 in favour of defendants Nos. 1 and 2. While referring statement of PW-1 the plaintiff who appeared as his own witness stated that after decree of the pre-emption suit he received the amount of his share as he was one of the vendees. Learned counsel argues that petitioner/plaintiff has not produced any document to prove that he was pursuing the suit for pre-emption. He could have produced the receipt of deposit of "Zar-e-Panjum" and the decretal amount and other expenses incurred upon the pre-emption suit by the plaintiff of that suit and further that the case pleaded by the plaintiff has not been proved by the evidence available on the file.
8. I have heard learned counsel for the respondents, gone through the record as well as findings recorded by the two courts below.
9. When it was an agreement between the parties as per the plaintiff that after the suit of pre- emption is decreed in favour of the plaintiffs of that suit the suit property will be transferred in favour of the present plaintiff-petitioner, there should have been an agreement in writing but neither there is any agreement nor the oral agreement has been pleaded in the plaint in accordance with the requirement of Order VI, Rule 4 of the C.P.C. And further the detail of the agreement, date, time and place of agreement and the names of witnesses have also not been mentioned. Further the plaintiff has no right to challenge the power of attorney by defendant Nos. 1 and 2 in favour of other defendants. In my view a third party has no right to file a suit for declaration that registered power of attorney by one defendant in favour of other defendant be cancelled.
10. I am further clear in my mind that a decree in a suit for declaration filed under section 42 of the Specific Relief Act, 1877 can declare a pre-existing right but cannot create a new right. Suit in hand for declaration of title in the suit property has been filed on the basis of alleged agreement between the parties. If there was any agreement between the parties, the suit for specific performance of contract was competent, suit for declaration was not competent. The suit has been filed with a considerable delay when the suit for pre-emption was decreed in favour of defendant Nos. 1 and 2 on 31.1.1978 and filing of this suit on 2.4.1991 is long after the prescribed period of limitation. In this view of the matter I am unable to disagree with the findings recorded by the learned first appellate court which are absolutely in accordance with law and the evidence available on the file.
11. For invoking jurisdiction under section 115 of the C.P.C. The petitioner was required to show that the findings recorded by the learned courts below are result of misreading and non-reading or some procedural defect fatal to the case, but no such misreading, non-reading or procedural defect has been highlighted nor I find the same in the findings recorded by the learned courts below.
12. In this view of the matter, no case for interference has been made out, therefore, these civil revisions having no force stand dismissed.