' MUHAMMAD AMEER BHATTI, J. --- I propose to decide these matters C.R. No, 1899/2005, C.R.No,2097/2005 and C.R.No, 1842/2007 through this single judgment as common question of law is involved.
Facts of C.R.No, 1899/2005
2. By virtue of suit for possession through pre- emption filed on 06.02.1996, the sale through mutation No, 590 dated 05.12.1995 was challenged. It was alleged that the Talab-e-Muwathibat was performed on 10.01.1996 at 10.00 a.m. While sitting in his house in the presence of the witnesses namely Muhammad Arif, the real son acquiring the knowledge of sale from Ghulam Nabi. The notice for Talab-e-lshhad attested by two witnesses was sent to vendee on 17.01.1996 to comply with the provision of Section 13(3) of Punjab Pre-emption Act. The respondents filed their written statement, issues were framed and parties led their evidence. The learned Trial Court vide impugned judgment dated 02.03.2002 decreed the suit of preemptors/respondents, thereupon, appeal preferred by petitioners/defendants was accepted by the learned first Appellate Court vide judgment dated 22.04.2002 which set aside the judgment and decree of the learned Trial Court.
The revision petition No, 1203/2003 filed by the respondents was accepted by this Court vide judgment dated 13.05.2004 and case was remanded for afresh decision in the following lines of action directed by this Court:- "In the matter of talbs also, I find that evidence needs to be read in the light of the said judgment of the Hon'ble Supreme Court of Pakistan in the case of Abdul Qayyum through legal heirs".
"For the reasons stated above, this civil revision is allowed in as such as the judgment and decree dated 22.04.2002 of the learned District Judge, Narowal is set aside. The result would be that the first appeal filed by the respondents shall be deemed to be pending before the learned District Judge, Narowal, where the parties shall appear on 22.06.2004. The learned District Judge shall requisition the record of the Trial Court and of the appeal. The patties shall be given an opportunity to lead evidence in the matter of finalization of the consolidation proceedings. Copies of the above-referred judgments of this Court and of the Hobble Supreme Court of Pakistan shall also be filed by the respondents. After thus recording the evidence and determining the factum of finalization of consolidation the issues pertaining to the superior right of preemption also with reference to talbs shall be decided afresh and the first appeal shall accordingly be decided on its merits. No order as to costs".
' The learned first Appellate Court vide judgment dated 12.07.2005 affirmed the judgment and decree of the learned Trial Court dated 02.03.2004, hence this revision petition.
Facts of C.R.No, 2097/2005 and C.R.No, 1842/2007
3. The present revision petitions assail the impugned judgment and decree dated 20.11.2004 and 07.07.2005 passed by the Courts below, whereby the suit of the respondent was partially decreed.
Hence these revision petitions by the vendee/defendant against the decree and the other revision by the pre-emptor with a prayer to decree his suit in toto.
4. The brief facts are that by virtue of a suit for possession through pre-emption respondent/defendant Abdul Hameed challenged the sale mutation No, 559 dated 21.07.1996 regarding the land measuring 10-Kanals, 2- Marlas for a consideration amount of Rs, 1,38 000/- in Khewat No, 68, Khatooni No, 141 to 149 on the ground of superior right of joint Khatadar in the disputed land. The averment of the plaint as alleged, the respondent, preemptor on acquiring the knowledge of sale on the same day i,e, 21.07.1996 through Muhammad Sharif performed Talbe- Muwathibat thawabit in accordance with law. The date, time and place for the performance of Talb-e-Muwathibat was specified in the averments of the plaint. The alleged notice of Talab-e- Ishhad attested by two truthful witnesses was sent to the vendee on ---. The petitioner being defendant contested the suit by filing written statement and raised the preliminary objections besides controverting the factual position. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Trial Court who was seized of the suit on the basis Of his appraisal of evidence partially decreed the suit vide judgment and decree dated 20.11.2004. Both the parties aggrieved of the judgment and decree dated 20.11.2004 filed two independent appeals which were dismissed by impugned consolidated judgment dated 07.07.2005, hence these two revision petitions by both the parties.
5. The learned counsel for the petitioners has primarily assailed the findings of the learned Courts below and the controversy between the parties was reduced to the following two issues:-
(1) Whether the plaintiff has superior right of pre- emption qua the vendee-defendant? OPD
(2) If above issue is proved in affirmative, whether has he fulfilled all the requirements of Talabs and other conditions of law within due time? OPP
6. The contention of the learned counsel for the petitioners is that the respondents/plaintiffs did not perform Talabs in accordance with law and the alleged notice of Talab-e-Ishhad has also not been proved, as the respondents had not produced two attesting witnesses of notice and only one witness of notice was produced and this deficiency to fulfill the requirement of law was fatal according to the Article 79 of Qanoon-e-Shahadat, so the suit of the petitioners was liable to be dismissed. Regarding the superior right of pre-emption, learned counsel for the petitioners contends that though the petitioners has taken the ground of superior right on the basis of co- sharer and Shafi-e-Jar and Shafi-e-Khaleet but in his evidence he did not utter a single word about the other superior right except co-sharer. Adds that the evidence of other P.Ws. Is also on the same line, so at the most he could only claim his superior right on the basis of co-sharer and in this regard the evidence available on record does not support him the learned first Appellate Court also reached on this conclusion that the petitioner failed to prove his superior right qua the co- sharer as his Khata had already been separated during the consolidatiOn proceedings, which was approved by Hon'ble Supreme Court of Pakistan. He further alleged that learned both the Courts below have erred in law while declaring that the respondents/plaintiffs had superior right of Shafi- e-Jar and suit was decreed on this superior right. To elaborate his contention, the learned counsel submits that the plaintiffs had not led any oral evidence in this regard.
' The only evidence available on record is "Aks shajra". This document was tendered in the statement of learned counsel, therefore, it was not proved according to the mandate of law.
7. About Talab-e-Muwathibat it is contended that although the averments made in the plaint fulfilled the requirement of law but the particulars of Talab-e-Muwathibat were not proved by endorsing in his evidence, inasmuch as the informer had not been produced as a witness: It is contended that both of the Courts below have overlooked and ignored the inconsistency and material consideration in the deposition of witnesses produced by the respondents.
8. On the other hand, learned counsel for the respondents vehemently opposed the contention of learned counsel for the petitioners and contends that both of the Courts below concurrently decided the disputed question of facts raised by the learned counsel for the petitioners, therefore, this revision petition is not maintainable hence liable to be dismissed. Further contends that both of the learned Courts below rightly held respondents/plaintiffs entitled to get decree as they have successfully proved the performance of Talab.s in accordance with law and his superior right qua Shafi-e-Jar is also established from the record. He contends that "Aks Shajra" available on record had been put to "Patwarr, who prepared the same and he while appearing as A.W.1 admitted the validity of "Aks Shajra" and its sanctity while deposing that he prepared "Aks Shajra" and it was according to the revenue record. So sufficient compliance for the proof of "Aks Shajra" has been made, therefore, there is no illegality and irregularity in the judgment of both of the learned Courts below, amenable through this revision petition.
9. Mr. Arshad Malik Awan was appointed as amicus curiae to assist this Court on the point that in case if witness dies before recording the evidence then can the evidence of plaintiff be considered as that of a witness to prove the execution of document as required by Article 79 of Qanoon-e- Shahadat. The other question proposed by this Court was that whether there is no need for a notice to produce such document before its admission in evidence as secondary evidence.
' Regarding the first question the learned counsel contends that under Article 79 of Qanoon-e- Shahadat, it was the paramount duty of the plaintiff to produce two truthful witnesses who did attest the document of its execution failing which, document will not be presumed to have been proved in accordance with law. Adds that in case of death of one of the marginal witnesses of the execution of document, the Article 80 of Qanoon-e-Shahadat provides the procedure how to prove the fact/document. The other modes should have been adopted to prove the execution of purported document. Reliance is placed on Liaqat Ali v. Province of Punjab through DCO Gujrat and 6 others (2005 YLR 2529) and Dayam Khan and others v. Muslim Khan (2015 SCMR 222).
' About the second point it is contended that under Article 76(a) read with Proviso 1 to Article 77 of Qanoon-eShahadat, the exemption is provided to the copy of notice for its admission as secondary evidence and there was hardly any need for the permission of the Court. Reliance is placed on Munshi Khan v. Khan Zaman and another (2003 MLD 1666) and Haji Auranagzeb Khan v.
Habib Khan (PLD 2010 Peshawar 80).
10. I have considered the arguments of the learned counsel for the parties and gone through the record of the case and the case-law relied upon by the learned counsels.
First question may be dealt with first.
11. Un-doubtedly, to prove the execution of the document the production of two attesting witnesses is a necessary and mandatory requirement. It is obvious that Talab-e-lshhad will not be considered to have been proved in terms of Section (3) of Punjab Pre-emption Act, 1991 if the two attesting witnesses are not produced and in this regard I will make the reliance on Muhammad Abaidullah v. Ljaz Ahmed (2015 SCMR 394) and it is expedient to reproduce the relevant para as under:- "In order to rove Talb-i-lshhad two truth fullattesting witnesses, independent of the person, issuing and or sending notice1 are required to be examined to prove the factum of Talb-i- lshhad. Besides the execution of a document could only be proved by examining two attesting witnesses of the document as provided by the Article 79 of the Qanun-e-Shahadat Order, 1984.
' In another case Hon'ble Supreme Court of Pakistan reiterated similar view. In that case second witness had gone to Dubai before recording the evidence and could not be produced. The plea was taken that he was out of country, therefore, his evidence could not have been recorded in an attempt to get the benefit of the enabling provisions but Hon'ble Supreme Court of Pakistan did not approve such practice and held that plaintiff was under legal obligation to summon witness to record his evidence. It was declared that a witness's non-appearance was fatal to suit because of his non-production even his absence from Pakistan. The judgment of Hon'ble Supreme Court of Pakistan reported as Mst. Rooh Afza v. Auranagzeb and others (2015 SCMR 92).
12. From the law laid down by Hon'ble Supreme Court of Pakistan it is obvious that without producing two attesting witnesses and recording their testimony the factum of prove of Talab-e- lshhad would be out of question. But where one of the witness had died, in that case the provision of Article 80 allows the document to be proved by producing other evidence. The assertion of learned counsel for the respondents/plaintiffs that the executant of the document appeared as P.W.2, therefore, his evidence was as good as the marginal witness and he also signed the said document, is not acceptable in view of the law laid down by Hon'ble Supreme Court of Pakistan referred ibid. In this case neither the second witness was produced to prove the factum of Talab-e- lshhad nor any other independent evidence was led to prove the death of the second witness to prove his thumb impression. The best evidence in this regard was the scribe of the said document who was an Advocate, who also signed it, and in whose presence witnesses and plaintiff had signed/put their thumb impression but this best evidence had been withheld to prove the attestation of the notice by the deceased attesting witness. The deficiency to prove the factum of Talab-e-Ishhad in evidence is floating on the surface of record, therefore, it is obvious that the preemptors/respondents have failed to prove the factum of Talab-e-lshhad in accordance with Article 79 of Qanoon-eShahadat Order, 1984, therefore, suit could not be decreed and this fateful aspect of the case has been ignored by both of the learned Courts below rendering their judgments unsustainable in the eye of law.
13. Documents must be proved by primary evidence except in the cases as mentioned under Article 76 of the Qanoon-e-Shahadat. Article 76 of the Qanoon-e-Shahadat deals with cases in which secondary evidence relating to documents may be given. But under Article 77 of the Qanoon-e-Shahadat states that secondary evidence can only be produced after serving a notice to the party in whose possession such document is, as prescribed by law. If no notice is prescribed by law then such notice as the Court considers reasonable under the circumstances of the case.
14. The only purpose of a notice under Articles 76 and 77 of the Qanoon-e-Shahadat is to give the party an opportunity of producing the original document. Secondary evidence is admissible when the party offering evidence of its contents cannot, for any reason, not arising from his own default or neglect, produce original document in reasonable time and under Article 77, the Court has absolute power to dispense with the notice when it deems it fit.
15. I deem it here appropriate to deal a question qua an objection when it is raised at recording of evidence regarding the admissibility of any document or part of oral evidence the Trial Court can mark it an exhibit subject to such objections to be decided at the later stage in the final judgment.
If it is found the Court at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. However, I make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
16. Adverting to the main question it is held that the documents mentioned in Article 77 of Qanoon- eShahadat proviso I are exempted from issuance of notice before applying the permission for secondary evidence. If both the Articles put in juxtaposition it could be assumed manifestly that for secondary evidence the permission from Court is necessary and essential irrespective of the fact that notice to other is required or not nevertheless the Court has absolute power to dispense with it I am fully in agreement with the observation of this Court made in case reported as Munshi Khan v.
Khan Zaman and another (2003 MLD 1666). It is expedient to reproduce the observation of the learned Judge:--- "I am further note here that the document in question is itself a notice and permission to lead the secondary evidence is hardly necessary. This civil revision is without any force and is accordingly dismissed leaving the parties to bear their own costs."
17. For what has been discussed above, the C.R. No 1899/2005 and C.R. No 2097/2005 are allowed and whereof the impugned judgment and decrees of both the learned Courts below in both the C.Rs, are hereby set aside with the result the suit of respondents stands dismissed. C.R. No, 1842/2007 is dismissed. No order as to costs.
' Civil revision /Suit dismissed.