' SHAHID WAIIEED, J.- Challenge in this civil revision is to the 'judgment and decree dated 7-7-2010 passed by the learned Additional District Judge, Phalia District Mandi Baha-ud-Din. Who affirmed the judgment and decree dated 26-1-2010 passed by the learned Civil Judge, Phalia whereby the petitioner's suit for possession through pre-emption was dismissed.
2. Briefly, the facts of the case are that Sarfraz Ahmad, petitioner/plaintiff instituted a suit for possession through preemption against Iftikhar Ahmad, respondent/defendant, claiming therein that the suit land measuring 15 kanals bearing Khewat No.74, - Khatuni No.81, as per record of rights 2001-2002 of Mouza Sahnpal, Tehsil Phalia, District Mandi Baha-ud-Din, was secretly sold out by Mst. Rasulan to the respondent vide. Mutation No.661 dated 2.12.2004 (Exh.P1) on fictitious price of Rs.300,000 instead of actual consideration of Rs.250,000. As per contents of the plaint, the petitioner came to know about the sale on 8-12-2004 at his Fish Farm at 4-00 p.m. Through Muhammad Riaz (P.W.3) in the presence of Muhammad Shafi (P.W.2) and he immediately declared his intention to exercise his right of pre-emption and, thereafter, on 14-12-2004 notice of Talb-e Ishhad (Exh.P1) was dispatched under registered cover acknowledgement due to the vendee/respondent. In response to the summons issued by the learned trial court the respondent/defendant appeared before the Court and contested the suit by filing his written statement.
3. Learned trial court reduced the controversy into following issues:--
(1) Whether the plaintiff has superior right of pre-emption qua the defendant? OPP
(2) Whether the plaintiff fulfilled the requirements of Talbs in accordance with law? OPP
(3) Whether the actual sale price of the suit land was fixed Rs.2,50,000 but in order to defeat his right of preemption Rs.3,00,000 were wrongly entered in the mutation? OPP
(4) If the above issue is not proved in affirmative then what was the market value of the suit land at the time of its sale? OP Parties.
(5) Whether the plaintiff has no cause of action? OPD
(6) Whether the plaintiff has waived his right of pre-emption? OPD
(7) Whether the plaintiff has not come to the court with clean hands? OPD
(8) Relief.
4. Parties to the suit in support of their respective claims produced oral as well as documentary evidence before the learned trial court . Petitioner, Sarfraz Ahmed. Appeared himself as P.W.1 and produced Muhammad Shafi (P. W. 2), Muhammad Riaz (P.W.3), Shafique-urRehman (P W. 1) and Ali Jan (P.W.5). He also produced notice of Talb-e-Ishhad (Exh.P1), postal envelope (Ex.P2), A. D card (Ex.P3), copy of record of rights 2001-2002 (Exh.P4 and Exh.P5), copy of record of rights for the year 2004-2006 (Exh.P6 and Exh.P7) and copy of Aks Shajra (Exh. P8). On the contrary respondent, Iftikhar Ahmad, got examined himself as DW-1 and produced Samar Pervez as (DW-2). The respondent also produced a copy of record of rights for the year 2005-2006 (Exh.D1), copy of Aks Shajra (Exh.D2) and copy of report of Commission (Exh.D3). The learned trial court vide judgment and decree dated 26-1-2010 dismissed the suit on the ground that the petitioner had failed to prove his superior right of pre-emption and also could not fulfill the requirements of Talbs. The petitioner feeling aggrieved by the judgment and decree passed by the learned trial court preferred an appeal before the learned Additional District Judge but it also met the same fate on the same ground. Hence this civil revision.
5. Learned counsel for the petitioner in support of this petition contends that both the courts below have misread and non-read the evidence available on record and resultantly misapplied the provisions of law as the petitioner through evidence has established his superior right of preemption and also compliance of requirements of Talbs contemplated in section 13 of the Punjab Pre-emption Act, 1991.
6. I have heard learned counsel for the petitioner and perused the record. The pre-emption right is a feeble right and, therefore, pre-emptor is bound to establish his superior right of pre-cmption and to A perform and fulfil requirements of Talbs meticulously and any failure in that behalf would deprive the pre-emptor of success in getting a pre-emption decree. In - this perspective the learned trial court framed Issue Nos. 1 and 2. Onus probandi to prove Issue No .1 was on the plaintiff/petitioner and, that is, as to whether the plaintiff had superior right of pre-emption qua the defendant. The petitioner in para 5 of the plaint has stated that his property is situated adjacent to the pre-emptor's property and he also share right of passage and of water and, therefore, claimed himself to be Shafie-Khalit and Shafi-e-Jar. In support of this assertion the petitioner produced: (i) copy of record of rights 2000-2001 (Exh.P4) which establishes the petitioner's ownership over 10 marks of land in Khewat No.51, Khatuni No.58, (ii) copy of record of rights 2005-06 (Ex.P6) which discloses petitioner's ownership over 10 marlas of land in Khewat No.53, Khatuni No.63; and, ownership over 15 kanals of land situated in Khewat No.76, Khatuni No.87; and (iv). Aks Shajra (Exh.P8). On the contrary the respondent, Iftikhar Ahmad, produced record of rights 2005-2006 (Exh.D1) regarding his property situated in Khewat No.21, Khatuni No.22 (87 kanals 17 marlas); Khewat No.76, Khatuni No.87 kanals, 14 marlas); and Khewat No.76, Khatuni No.88 (21 kanals, 7 marlas). He also produced a copy of Aks Shajra (Exh. D2). A perusal of the oral as well as documentary evidence conclusively establishes that both the plaintiff and defendant are Shafi-e- Khalit and Shafi-e-Jar and, therefore, relying upon the principle laid down in the case of Sardar Khan v Gulzar and another (2006 YLR 1203) it is held that the plaintiff/petitioner has failed to prove his superior right of pre-emption as the land of the respondent is excess in area to the land of the plaintiff/petitioner. Hence the courts below have rightly declared that the petitioner has no superior right of pre-emption qua the defendant.
7. Now I advert to Issue No.2 viz whether the plaintiff fulfilled the requirements of Talab in accordance with law. In the instant case the petitioner alleged that he came to know about the sale on 8-12-2004 at his Fish Farm at 4 p.m. Through Muhammad Riaz (P.W.3) in presence of Muhammad Shafi, (P.W.2) and he immediately declared his intention of pre-emption. He further stated that after obtaining copy of Mutation No. 661 (Exh.P1) on 13-12-2004 notice of Talb-eIshhad (Ex.P1) attested by two witnesses confirming Talb-e-Muwathibat was dispatched under registered postal cover on 14-12-2004. The respondent, however, controverted the petitioner's assertion qua making of Talbs and stated that the petitioner had waived his right of preemption. Sarfraz Ahmed/petitioner while appearing as -P.W.1 deposed that he came to know about the sale on 8- 12-2004 at his Fish Farm through Muhammad Riaz (P.W.3) at 4 p.m and after obtaining copy of mutation Ex.P1 from Patwari, notice of Talb-e-Ishhad was got drafted on 14-12-2004 from the office of Khalid, Advocate. He further states that Muhammad Riaz (P.W.3) and Muhammad Shafi (P.W.2) were with him and Muhammad Shafi (P.W.2) affixed his thumb-impression whereas Muhammad Riaz (P.W.3) signed the notice of Talb-e-Ishhad. Muhammad Shafi who appeared as P.W.2 in the course of cross-examination made the {{URDU TEXT}} ' According to section 13 (3) of the Punjab Pre-emption Act, 1991 the notice of Talb-eIshhad should be attested by two truthful witnesses. "Attestation" and "Execution" are two different acts. The attestation is meant to ensure that the executant was a free agent and not under pressure nor subject to fraud while executing the document/notice. Now a question arises that whether Muhammad Shafi (P.W.2), in view of his above quoted statement can be declared as attesting witness of notice of Talb-e-Ishhad (Exh.P1). The attesting witness in terms of Article 79 of Qanun- eShahadat Order, 1984 read with section 3 of the Transfer of Property Act, 1882 is a person who had witnessed the execution of an instrument by the executant and also signed the instrument for the purpose of attesting signature of the executant. It has been held in the case of Riaz-ur-Rehman and others v. Muhammad Urus (2005 M LD 1954) that attesting witness is one who not only writes or sees a document being executed and appends his name at the end of document, but is a person who also signs it as a witness. It is well-settled principle that attestation in relation to instrument means attested by two or more witnesses each of whom has seen the executant, sign, or affix his mark to the instrument, or has seen other person sign the instrument in the presence and by the direction of the executant or has received from the executant a personal acknowledgement of his signature or mark or of the signatures of such other persons and each of whom has signed the instrument in presence of the executant. The word "attested" means that person has C signed the document by way of testimony to the fact that he saw it executed. The necessary conditions for a witness attesting the deed are: firstly, that he has seen the executant; and, secondly, he has signed the instrument in the presence of the executant. If these two conditions are fulfilled by the witness, there can be no doubt about his being attesting witness. In this regard reliance is placed on Nazir Ahmad and another v. M. Muzaffar Hussain j2008 SCM R 1639), Rai Ganga Pershad Singh and others v. Ishri Pershad Singh and others (A.I.R 1918 Privy Council 31, Banarsi Das and others v. Collector of Saharanpur and others (A.I.R 1936 Allahabad 712) and Zaharul Hussain v. Mahadeo Rarnji Deshmukh and others (A.I.R (36) 1949 NAGPUR"9). In view of above, it is clear that Muhammad Shafi (P.W.2) cannot be treated as attesting witness of notice of Talb-e-Ishhad (Exh.P1) as he neither witnessed the execution of notice by the executant/Sarfraz Ahmed nor affixed his thumb mark for the purpose of attesting mark of the executant/Sarfraz Ahmed and this is evident from his statement made during cross-examination that he affixed his thumb mark on the blank paper and notice was written in his absence. In these circumstances, Talb-e-Ishhad is not proved on record as notice of Talb-e-Ishhad has not been attested by two truthful witnesses. The learned courts below have rightly placed reliance on the case titled Imam All v Muhammad Siddique and 3 others (2007 CLC 277) which on all fours is applicable to the facts of the instant case wherein it has also been held as follows:-- "Now Siddique respondent No.1 has appeared as D.W.3 to state that the petitioner never made a Talb and never came to him with any persona and that Imam All petitioner and his witnesses are lying. Now so far as the matter of the said notice (Exh.P.3) is concerned, I am afraid that the petitioner himself negated the testimony of his said witnesses. In the course of his cross- examination, he has stated that he got the thumb-impressions of the witnesses on the notice.
He admitted without any demur that the thumb-impressions were obtained on blank papers and thereafter the notice was typed. He was further cross-examined and he admitted that when notice was being typed the witnesses had left for their village. He has further stated that he does not at all know as to what was written in the notice. To my mind, the allegation that the petitioner went to the house of the respondent No.1 with the consideration amount and he refused to accept it stands duly rebutted on record while it is in the statement of the petitioner himself that no valid notice evidencing Talb-e-Ishhad was given. I, therefore, do confirm the finding of the learned Additional District Judge that making of a valid Talb-e- Ishhad has not been proved on record."
8. The petitioner has failed to prove his superior right of pre-emption and has also failed to fulfil the requirement of section 13 of the Punjab Pre-einption Act, 1991 qua the Talbs and, therefore, no case has been made out for interference in the concurrent findings of the courts below.
9. In view of what has been discussed above, the instant civil revision being bereft of any merit is dismissed in limine.