' ABDUL HAMEED DOGAR, J.--- This appeal with leave of the Court is directed against the judgment, dated 2-11-1999 passed by a learned Judge in Chambers of the Lahore High Court, Lahore, whereby Civil Revision No,2278 of 1995 filed by appellant was partly allowed and the suit filed by appellant to pre-empt sale of land has been partly decreed to the extent of one half share after recording finding that the appellant being co-sharer in the same Khata should share the disputed land equally in accordance with section 20 of the Punjab Pre-emption Act, 1991 (hereinafter referred to as the "Act"). The respondent will also be entitled to withdraw Rs,40,000 already deposited.
2. Briefly, stated, facts giving rise to the filing of instant appeal are that appellant purchased the land in dispute measuring 6 Kanals, 9 Marlas from Khewat No,29 Khatouni No,106, Khasra Nos.121, 122 situated in village Lodeke Tehsil Daska for a sum of Rs,40,000 from Faiz Ahmad vide registered sale- deed dated 12-3-1992. On 9-7-1992 Akbar Ali appellant filed suit for pre-emption on the basis of being co-owner before the trial Court. The appellant contested the suit by filing written statement wherein he denied the superior right of pre-emption of the respondent as claimed in the plaint. The trial Court framed the issues and after recording the evidence dismissed the suit vide judgment and decree dated 30-3-1994 on the ground that the requirement as to making of Talbs had not been complied with. Feeling aggrieved, respondent preferred appeal before the Additional District Judge, Daska, who vide judgment, dated 23-10-1995 allowed the same while holding that the requirement as to making of Talbs had been complied with and decreed the suit of respondent as a whole. The said judgment was assailed by the appellants before the learned High Court in the abovementioned civil revision which was partly allowed with the modification that the parties should share the same half and half.
3. Leave to appeal was granted on 25-7-2001 by this Court to consider, inter alia, that according to section 13 of the Act, it was required that notice regarding Talbs shall be attested by two truthful witnesses, therefore, it was a document which was required by law to be attested. Article 79 of the Qanun-e-Shahadat Order, 1984, provides that two attesting witnesses should have been called in Court to prove the same, whereas in this case only one witness was examined and on account of the non-production of other witness the finding of the trial Court that mandatory requirement as to fulfilment of Talbs had not been complied with was correct and the suit was liable to be dismissed and was rightly dismissed by the said Court.
4. We have heard Mr. Taki Ahmad Khan, learned Advocate Supreme Court for the appellant and Mr. Sanaullah Zahid, learned Advocate Supreme Court for respondent and have gone through the record and proceedings of the case in minute particulars.
5. Learned counsel for the appellant contended that the evidence produced by the vendee regarding the Talbs was discrepant and it had rightly been rejected by the learned trial Court.
According to him the finding of the First Appellate Court on Issue No,8 regarding superior right of pre-emption was based on patent misreading of the record. He further contended that appellant filed a suit for specific performance before the Civil Court at Daska against one Faiz Ahmad which remained pending for a considerable period and the respondent had the knowledge of sale in favour of appellant due to the decree of the said suit, therefore, the allegations of lack of knowledge and consequent belated Talb-iMuwathibat is false. He contended that the Talb-i- Muwathibat was not made in accordance with law and not at the time when the respondent acquired the knowledge of the sale in favour of appellant. He argued that the out of two witnesses of Talb-i-Ishhad only one witness was produced in the Court as such requirement of section 13 of the Act is not fulfilled.
' He contended that the provisions of Act have not been interpreted in accordance with section 32 of the Act thus, the impugned judgment be `modified and the suit of the respondent is liable to be dismissed. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talbs were made. He went on to argue that witnesses, namely, Abdullah (P.W.1) and Muhammad Aslam (P.W.2) even did not disclose in their respective statements in evidence the time and the date of sale, therefore, the period for making Talb-i- Ishhad cannot be said to have been made within two weeks from the date of knowledge of sale.
Even notice of Talb-i-Ishhad did not bear the time and date of reconfirmation of Talb-i- Muwathibat while making Talb-i-Ishhad. Lastly, the learned counsel contended that the judgment of trial Court is well-reasoned and is based on proper appraisal of evidence and in accordance with law, as such the same may be maintained.
6. On the other hand, learned counsel for the respondent controverted the above contentions and argued that the impugned judgment does not suffer from any legal flaw and argued that the P.Ws.
Are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and have unambiguously deposed that the respondent instantly expressed his intention of pre-empting the sale. He further contended that the respondent has proved notice of Talb-i-Ishhad by producing its marginal witness, namely, Muhammad Aslam (P.W.2) who without any contradiction supported the case of respondent on making of Talbs.
8. (sic) At the very outset, it would be relevant to refer in the instant matter though the notice of Talb-i-Ishhad was attested by two marginal witnesses, namely, Muhammad Aslam and Paiz Muhammad but at trial only one marginal witness namely, Muhammad Aslam was examined as P.W.2. About non-examination of other marginal witness, namely, Fain Muhammad, no explanation of any sort has been brought on record by the appellant. As per section 13(3) of the Act, it is mandatory that notice about Talb-i-Ishhad is to be sent in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption. Its proviso further mentions that if the facilities of post office is not available, Talbi-Ishhad is to be made in presence of two truthful witnesses. The provisions of Qanun-e-Shahadat would be applicable in the instant case as the Qanun-e-Shahadat Order was promulgated in 1984 and the right of pre-emption in the instant case was claimed by the appellant on 9-7-1992. Qanun-e-Shahadat Order, 1984, prescribes the mode of examining the witnesses whereby it is mentioned that if a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence. This Court in the case of Hamid Qayum and 2 others v. Muhammad Azeem through Legal Heirs and another PLD 1995 SC 381, has held that if the writing or signatures is on a document which is by law required to be attested, then the execution and signature on .The document can be proved only by calling in evidence the attesting witnesses of the document.
10. (sic) Even in Mahomedan Law, 1987; the demands for claimiaig right of pre-emption have been defined as follows:-- "225. Demands of pre-emption.--- No person .Is entitled to the right of pre-emption unless--
(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talb-iMuwathibat (literally, demand of jumping, that is, immediate demand): and unless
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the Talb-i-Muwathibat had already been made and has made a formal demand-
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale (b), and
(b) in the presence at least of two witnesses. This formality is called Talb-i-Ishhad (demand with invocation of witnesses).
11. On perusal of above provisions Mahomedan Law as well as of Punjab Pre-emption Act it is clear the demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness.
12. For what has been discussed above, the appeal is allowed, impugned judgment, dated 2-11-1999 and judgment of the Appellate Court dated 13-10-1995 are set aside whereas the judgment and decree of the trial Court dated 30-3-1994 whereby the suit filed by respondent was dismissed with costs, is restored.