' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners have challenged the judgment and decree dated 28.5.2008 passed by learned first appellate court whereby appeal filed by the respondents-defendants was accepted and the judgment and decree dated 23.6.2005 passed by learned trial court decreeing the suit of the petitioners-plaintiffs was set aside.
2. Brief facts of the case are that plaintiffs-petitioners filed a suit for declaration wherein she challenged the transaction of sale by their mother in favour of defendants through registered sale deed No, 264 attested on 27.1.1979 and sale deed No, 2552 attested on 21.11.1982 by plaintiff No, 2 and registered power of attorney No, 397 dated 13.9.1983 on behalf of plaintiffs in favour of defendant No,2 and transaction on the basis of said power of attorney and mutation attested on the basis of said 'registered documents. 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 respective oral as well as documentary evidence. Learned trial court decreed the suit vide judgment and decree dated 23.6.2005. Appeal was preferred which was accepted vide judgment and decree dated 28.5.2008. Hence, this civil revision.
3. No one appeared on behalf of the respondents, therefore, they are proceeded against ex parte.
4. Learned counsel for the petitioners argues that findings recorded by the learned trial court are well-reasoned who has rightly decreed the suit and the findings of learned first appellate court are against the evidence available on the file. Learned counsel has referred various portions of statements of the witnesses of the parties. Prays for acceptance of the civil revision and setting aside the judgment and decree passed by the learned first appellate court and restoration of that of the learned trial court.
5. I have heard learned counsel for the petitioners, gone through the record, evidence oral as well as documentary produced by both the parties and findings recorded by both the courts below.
6. So far as reference of evidence by learned counsel for the petitioners with regard to various portions of statements of witnesses is concerned, learned counsel wanted that inference and interpretation of said portions of statements be drawn in favour of the plaintiffs when there are contradictions in the statements of witnesses of the defendants that whether Mst. Zubaida Bibi was a "Pardah" observing lady or used to go in the public without observing "Pardah" and such like other portions of statements which I believe are not very helpful and beneficial to determine the matter in issue. Mst. Zubaida Bibi/plaintiff appeared as 'her own witness. There are two aspects of this case; one is that a transaction through registered sale deed in the year 1979 by the mother of the plaintiffs in favour of defendants has been challenged and the other is that .Through registered sale deed on behalf of plaintiff No, 2 Mst. Safia the transfer of property has been challenged and further registered general power of attorney on behalf of plaintiff No, 1 and on the basis of that document the transaction in favour of defendants has been challenged with a prayer of cancellation of the documents which are on behalf of plaintiffs themselves.
7. So far as first part is concerned, admittedly the registered sale deed No, 264 dated 27.1.1979 on behalf of Mst. Hajran in favour of defendants Nos. 1 & 2 for which I am clear in my mind that it was the responsibility of the plaintiffs when they have filed the suit on 29.12.1994 i.e, 15 years after the said transaction when Mst. Hajran passed away in the year 1992 and she never challenged or disputed the sale deed No, 2552 dated 21.11.1982 by her in favour of the defendants. The other transaction is registered sale deed by plaintiff No, 2 in favour of defendants and the third is registered power of attorney on behalf of plaintiff No, 1 in favour of one defendant he. Defendant No, 2, which is registered document No, 397 dated 13.9.1983. I am of the view that with regard to transactions by plaintiffs through registered sale deed or through power of attorney the requirement was that a suit should have been filed under section 39 of the Specific Relief Act, 1877 for cancellation of the documents and not a declaration because I am of the considered view that through a declaratory suit filed under section 42 of the Specific Relief Act, 1877 a decree for declaration can be granted for a pre-existing right and no new right can be created through a declaratory decree. When pleadings of the plaintiffs show that they are challenging the validity of sale deed on behalf of plaintiff No, 2 and power of attorney on behalf of plaintiff No, 1 that same are against the law, result of conspiracy, based upon misstatement and fraud upon the plaintiffs and result of undue influence upon the plaintiffs, same is liable to be ignored and is not binding upon the plaintiffs which clearly shows that their prayer with regard to the said document is not only contradictory one but is self-destructive. They have not in clear words denied the execution of power of attorney and the sale deed on behalf of One of the plaintiffs. In that eventuality the suit for cancellation of document was required to be filed but the same has not been filed, therefore, the findings recorded by the learned first appellate court are in accordance with the evidence available on the file and law.
8. There is no infirmity or illegality in the findings recorded by the learned first appellate court. No case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. Is made out, therefore, this civil revision having no merit is hereby dismissed.