' SYED SAJJAD HASSAN SHAH, J.--- Through the instant revision petition,. Sher Ghulam petitioner- defendant has called in question the judgment and decree dated 10-12-2005 passed by learned Additional District Judge-II, D.I. Khan, whereby the appeal filed by the petitioner- defendant against the judgment and decree dated 25-4-2005 of Civil Judge, Paharpur, District D.I. Khan was dismissed.
2. Briefly stated the facts are that Ghulam Jan respondent-plaintiff filed a suit against the petitioner-defendant for possession through preemption in respect of property fully detailed in the heading of the plaint on payment of Rs,10,000 or sale amount to be determined by the Court which was alienated vide Mutation No,270 attested on 29-1-2000 whereas the sale transaction was given the colour of exchange. In fact it was a sale transaction. Likewise, respondent No,2 fictitiously and collusively shown to have got the property in lieu of exchange vide Mutation No,271 which is void and ineffective on the rights of the petitioner-defendant. He asserted in his plaint that the suit property is the ownership of respondent No,2 who has alienated through sale vide Mutation No,270 attested on 29-1-2000 for a sale consideration of Rs,1,000 per kanal and_in order to ward off the right of pre-emption, the mutation has been given the colour of exchange. He further averred that he is co-sharer, contiguous owner and participator in immunities and appendages whereas the petitioner-defdant has no right in the suit property. It is further averred that he a quired the knowledge of sale mutation on 19-2-2000 at 2 hours at his Chowk through Mirza Khan and immediately declared his intention to pre-empt the suit-land: Thereafter, notice Talb-e-Ishhad was scribed in presence of said Mirza Khan and one Doctor Khan witnesses on 23-2-2000 which was sent on the same date through registered cover A/D vide Postal Receipt No,574. His claim has not been honoured by the petitioner-defendant, therefore, he filed the instant suit.
3. The petitioner-defendant contested the suit by filing his written statement. The learned trial Court framed issues arising out of divergent pleas of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned trial Court decreed the suit in favour of respondent-plaintiff.
4. Feeling aggrieved from the Judgment and decree of the learned trial Court, the petitioner- defendant filed appeal which was dismissed by the learned appellate court. Hence, the instant revision petition by, the petitioner-defendant.
5. The learned counsel for tree petitioner-defendant agitated the sole question relating to the proof of notice Talb-e-Ishhad. In support of his arguments, relied upon the statement of one Doctor Khan (P.W.-7) that his statement is not to be considered as sufficient to prove notice Talb-eIshhad. He has not made the statement on oath and flouted the mandatory provisions of sections 6 and 7 of the Oaths Act. He further contended that bare perusal of his statement clearly specifies that he is not a truthful witness. According to the learned counsel, the respondent-plaintiff has miserably failed to prove the performance of Talb-e-Ishhad. He placed reliance on cases titled Sardar Ali v.
Mst. Sardar Bibi alias Sardaran (2010 SCMR 1066), Nazir Ahmad and another v. M. Muzaffar Hussain 2008 S'CMR 1639, Rahimzada v. Muhammad Ayub Khan and others PLD 2003 Peshawar 53), Sahib Rasool v. Saeedullah Khan and 2 others 2004 /ER 115, Abdul Jabbar v. Muhammad Ajmal (2010 CLC 1850) and Hayatullah Jan and 6 others v. Jan Alam and 7 others 2003 MLD 625.
6. As against that, the learned counsel for the respondent-plaintiff contended that the statement of P.W.-7 is sufficient to prove the notice Talb-e-Ishhad as the other witness namely Mirza Khan (P.W.-6) has also testified that notice Talb-e-Ishhad was signed by Doctor Khan and Ghulam Jan.
He further contended that there is no legal requirement that both the attesting witnesses of notice Talb-e-Ishhad are necessarily to be produced to prove the notice Talb-e-Ishhad. He further agitated that the respondent-plaintiff has successfully proved the notice Talb-e-Ishhad and in this regard, both the Courts below have rightly and legally arrived at such conclusion. He placed reliance on cases titled Mukhtar Ali alias Mumtaz Ali v. Mumtaz Ahmad and others (2007 SCMR 221) and Muhammad Tahir v. The State (PLD 1984 Peshawar 56).
7. I have considered the arguments of learned counsel for the parties and carefully perused the record.
8. For exercising the right of pre-emption, the performance of Talb-e-Muwathibat and Talb-e- Ishhad is mandatory as per provision of section 13 of the N.-W.F.P. Pre-emption Act, 1987 and the nonperformance thereof is sufficient to non-suit the plaintiff-pre-emptor. In view of the above provision, it is incumbent for the plaintiff-pre-emptor to prove the same by adducing confidence- inspiring and cogent evidence of truthful witnesses, because without performance of Talbs by the preemptor, the right of pre-emption would not be deemed to have come into existence. The right of pre-emption is the feeble right, therefore, formalities required for its enforcement must be strictly observed. The Talbs for enforcement of right of pre-emption are not only essential requirements but also a fundamental rule in Islamic Law which require performance of three Talbs viz Talb-e- Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat in the manner prescribed by law, otherwise, right of pre-emption gets extinguished.' In the instant case, the respondent-plaintiff was examined as P.W.-5 who testified that the notice was signed by two witnesses, one of them is Doctor Khan.
The said Doctor Khan was examined as P.W.-7 who refused to give statement on oath and also deposed in dubious manner because he was shown the register of Petition Writer and he testified that "notice Talb-e-Ishhad is recorded on 23-2-2000. Again stated that he is not in the knowledge of notice Talb-eIshhad, however, he had signed and is unaware of any other matter".In his cross- examination, once again he admitted as correct that "he is unaware of any notice of plaintiff Ghulam Jan." The above statement of the alleged witness of notice is not sufficient to substantiate that the respondent-plaintiff has succeeded to prove the performance of Talb-eIshhad, for the reason that the respondent-plaintiff was not confronted either with the original notice or its Photostat copy to confirm its contents and affirm his signature thereon, which clearly lends support to the contention of the petitioner-defendant that the respondent-plaintiff has not performed Talb-e-Ishhad. The proof, as required under the law to prove the notice Talb-e-Ishhad by producing two truthful witnesses is altogether missing from the instant case, in absence whereof, the suit of the respondent-plaintiff was not liable to be decreed. Although the pre-emptor cannot be knocked out on the basis of technicalities as it is agitated by learned counsel for the respondent-plaintiff but yet there was nothing to suggest that non-compliance of section 13 of the Act ibid is technicality which is not fatal to the pre-emption suit. It has been laid down by the august Supreme Court and this Court time and again that the requirements of Talbs are sine qua non for exercising right of preemption.
9. In this case, the requirement of provision of section 13 of the Act ibid, i,e, by evidence of two truthful attesting witnesses has also not been fulfilled, as attesting witnesses are those who had not only seen executant but also signed or affixed thumb-mark thereto or some other person sign same in presence and under direction of executant, which is lacking in the evidence of the respondent-plaintiff. Moreso, the word attested has been defined in the Transfer of Property Act, 1882 which quoted as under:- ."attested, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has been some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal knowledge or his signature or mark, or of the signature of such other person, and each of whom has signed by the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
10. When the evidence of the respondent-plaintiff. Is adjudged in the light of above definition, it can be safely said that the testimony of P.W.-7 does not fulfil the requirements so laid down. This deficiency also affects the very root of the case of the respondent-plaintiff. In this regard, reliance is placed on Bashir Ahmad and another v. Mushtaq Ahmad (2007 SCMR 895) wherein after reproducing the provisions of section 13 of the Punjab Pre-emption Act, 1991, it was observed that:-- - "The plain reading of the above provision would show that performance of Talb-e-Muwathibat and Talb-e-Ishhad is essential for exercise of right of pre-emption and if the first or second Talb is not made in accordance with the requirement of section 13 (ibid), the pre-emptor cannot succeed in the preemption suit."
' The honourable Supreme Court in the case titled Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086) while discussing the repercussions of making of Talbs in a pre-emption suit, observed that:- "The making of these Talbs is thus; not a mere procedural formality prescribing a mode for exercising right of pre-emption but on the same depends the very life and the continued exercise of the said right. It may be added that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter of making the said demands or to show any laxity in the said matter because the consequences of failure to perform the said Talb in the prescribed manner, stands determined by the law itself i,e, (Extinction of the said right)."
' Besides, while deciding a lis, it is the quality of evidence which is always to be seen. While testing the statement of P.W.-7 at the touchstone of this principle, it is vivid that the statement is contradictory, sketchy and dubious in nature thus, not based on truth and has got no evidentiary value in the eye of law. It is fortified by the case titled Abdul Sattar and another v. Muhammad lqbal (PLD 2009 Lahore 407).
11. The learned counsel for the respondent-plaintiff placed reliance on the case of Sardar Ali (supra), wherein the honourable Supreme Court, without adverting to the merits of the case, remanded it to the High Court for decision afresh on all the issues which have been left undetermined. Hence, it is of no avail to the respondent-plaintiff.
12. The witness of notice Talb-e-Ishhad namely Doctor Khan (P.W.-7) has refused to depose on oath when he was being examined by the Court. This fact per se is sufficient to hold that the witness was reluctant to make the statement, for the reason that he neither seen the scribing of notice nor stood as attesting witness to the notice. Moreso, the witness has flouted the provisions contained in section 5 of Oaths Act, 1873 by refusing to make his statement on oath whereas he was bound to make his statement on oath. The provisions are quoted below:--- "Oaths or affirmations to be made by witnesses; interpreters; Jurors.--- Oaths or affirmations shall be made by the following persons:--
(a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any Court or persons having by law or consent of parties authority to examine such persons or to receive evidence;
(b) ---------
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13. In Chapter-IV of the Act ibid, forms of oaths and affirmations have been given which are reproduced below for ready reference:-- "7. Forms of oaths and affirmations.--- All oaths and affirmations made under section 5 shall be administered according to such forms as the High Court may from time to time prescribe. And until any such forms are prescribed by the High Court, such oaths and affirmations shall be administered according to the forms now in use."
' The witness is bound to take oath before recording his statement as perform as prescribed by the High Court but in the instant case, P.W.-7 has refused to depose on oath. It can invariably be gathered that the statement is defective and this defect is incurable. Even otherwise, whatever is stated by the witness is also not extending any benefit to the case of the respondent-plaintiff.
14. For the reasons mentioned above, I am of the firm view that both the learned Courts below have materially erred in decreeing the suit in favour of the respondent-plaintiff. The judgments and decrees of the Courts below are not sustainable in the eye of law. Resultantly, the instant revision petition is accepted, the judgments and decrees of both the learned Courts below are set aside and suit of the respondent-plaintiff is hereby dismissed with no order as to costs.