' Through the instant revision petition, plaintiff/petitioner has challenged the judgment and decree dated 15.10.2011 passed by the learned District Judge, Lakki Marwat whereby on acceptance of appeal filed by the respondent, the judgment and decree dated 10.05.2010 of the learned trial Court of Civil Judge-V, Lakki Marwaat was set aside, resultant suit of the petitioner/plaintiff was dismissed.
2. Brief facts of the case are that the present petitioner filed a suit for possession through pre- emption against the respondent,' defendant upon purchasing of suit land measuring 14 marlas through Mutation No, 1246 attested on 29.10.2008 alleging therein ' fulfillment of requisite demands by the defendant in view of Section of Khyber Pakhtunkhwa Pre-emption Act, 1987 which are full: detailed in the plaint. Upon this respondent/vendee/ defendant was summoned who filed written statement, raising therein several legal as well as factual objections.
3. Upon divergent pleadings of the parties issues were fram by the learned trial Court and the parties led evidence as they wish in their favour. Upon completion of recording of evidence and hearing arguments, pre-emption suit of the present petitioner/plain of was decreed vide judgment and decree dated 10.05.2010 by the learn trial Court.
4. Dis-satisfied from the judgment and decree of the learned trial Court the present respondent filed Regular Civil Appeal before the Appellate Court of learned District Judge, Lakki Marwat who his judgment and decree dated 15,10.2011 accepted the appeal and of the petitioner/plaintiff was dismissed.
5. Feeling aggrieved from the judgments and decrees of the learned appellate Court, the petitioner/plaintiff has assailed the same before this Court through instant civil revision petition on the grounds raised in the petition.
6. Arguments heard and record perused.
7. After perusal of record it reveals that present petition, pre-emptor according to Para No, 2 of his plaint alleged that information through Asmatullah PW-3 about suit sale mutation on 1.11.2008 at 4.45 hours after Asar vela at his own Baithak situated Langar Khel Hati Khan in presence of Daud Khan who at that time was sitting along with the plaintiff. Upon getting information to if there and then made Elan-e-Shufa and afterward sent notice on 5.11.2008 through registered post.
8. The vendee/respondent denied the making of talabs preliminary objections as well as on fact in written statement. It is we settled law that for a successful pre-emptor it is legally necessary have meticulously proved the requisite Taiabs as envisaged under Section 13 of the Khyber Pakhtunkwha Pre-emption Act. So, in regard the vital issue for determination is the proof of performance of both Talbs i.e, Talab-e-Muwathibat and Talab-e-lshhad. In this respect the learned trial Court framed specific Issue No 4 besides other.
ISSUE No,
4. Whether plaintiff has performed Talabs according to law? OPP
9. According to this framed issue the onus to prove Tal abs was upon the plaintiff/pre-emptor, who produced Asmatullah Khan son of Adam Khan as PW-3, Daud Khan son of Adam Khan as PW-4 and plaintiff/pre-emptor himself appeared as PW-5. It is pertinent to mention that Asmatullah, PW- 3 and Daud Khan, PW-4 are real brothers interse. PW-3 during examination-in-chief deposed that he informed plaintiff on 01.11.2008 at 4.45 hours when he was sitting along with Daud Khan in his Baithak. Upon his information plaintiff made Elan-e-Shufa to file pre-emption suit against defendant and thereafter on 05.11.2008 he Daud Khan and Sher Ali Khan came. to Lakki City and scribed notice from one Akram Khan Advocate. Photocopy of notice is EX.PW-3/1, which was thumb impressed by him and was signed by other above mentioned witnesses.
10. During cross-examination Asmatullah PW-3 stated that he and his brother Daud Khan resides in one and the same house and they both were informed about the suit transaction by one Sher Ali Khan and he further stated that Daud Khan and he were informed at 03 p.m. on 01.11.2008. He reached the Baithak of Miro Khan at 04.45. hours whereas Daud Khan was allegedly already sitting there.
11. Daud Khan appeared as PW-4 but during his examination in-chief he stated that he on 01.11.2008 at 04.45 hours was sitting along with plaintiff in his Baithak when his brother Asmatullah came who informed the plaintiff in his presence about the suit sale mutation. Upon this plainiff there and then made Elan-e-Shufa.
12. Miro Khan, plaintiff appeared as PW-5. He narrated the same facts about making of Elan-e- Shufa as alleged in the plaint and stated that he was sitting in his Baithak along with Daud Khan PW-4 and Asmatullah PW-3 came and informed him and he upon getting information made Elan- e-Shufa. During examination-in-chief PW-3 and PW-4 further stated that they were informed by one Sher Ali Khan at 3.00 p.m. while Daud Khan has been shown sitting along with plaintiff on the same day earlier before the arrival of Asmatullah, certainly the same fact of sale would have been brought into the knowledge by Daud Khan to pre-emptor but pre-emptor did not express his intention to pre-empt the sale before Daud Khan, so he was in prior knowledge of sale mutation specially when pre-emptor during deposition did not state that he and Daud Khan it silent for one and half hour before arrival of Asmatullah the alleged informer.
13. It is admitted position that pre-emptor has not produced scriber Akram Khan Advocate and the postman to prove the scribing and delivery of notice Talab-e-Ishhad. PW-5, pre-emptor, admitted during cross-examination that he thumb impressed upon the blank paper and nothing was written upon that blank paper at that time which proves that attestation of notice Talab-e-Ishhad was not according to Section 13 of K.P.K Pre-emption Act which is reproduced as under: "13. Demand of pre-emption.
(1) The right of pre-emption of a person .shall be extinguished unless such person makes demands of pre emption in the following order, namely:--
(a) Talb-i-Muwathibat;
(b) Talb-i-Ishhad; and
(c) Talb-i-Khusumat.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i Muwathibat.
(3) [Subject to his ability to do so, where] a pre-emptor has made Talb-i-Muwathibat under sub- section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under Section [32], or knowledge, whichever may be earlier, make Talb-i Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption: ' Provided that in areas where due to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat *under sub-section
(2) and Talb-i Ishhad. under sub-section (3), he shall make Talb-i Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
' The underlining is of mine for emphasis
14. In Section 13(3) the legal phrase appearing in sub-section (3) is "making Talab-e-Ishhad by sending a notice in writing attested by two truthful witnesses" so, the legal phrase "notice in writing" means and includes that it should be first written then be attested by two truthful witnesses and the executants in same sitting and meeting. The legal term "attestation" has not been defined in the Pre-emption Act and had been defined in Section 3 of the Transfer of Property Act. To comprehend the meaning and import of "attestation" Section 3 of the Transfer of Property Act is reproduced as under: "S.3. '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 seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment or his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the execu tap 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;]
15. After giving deep thought to above definition clause regarding legal term "attestation" it transpires that plaintiff had not complied the manner for attestation of said notice being a document provided in Section 3 of the Transfer of Property Act and petitioner/plaintiff had signed blank paper and not written notice. During cross-examination he responded to a question that nothing was written over blank paper. In this regard wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan in case titled "Sardar AU vi Mst. Sardar Bibi alias Sardaran through L.Rs, (2010 SCM R 1066) wherein it was held that: "The definition of "attested" requires attestation of an instrument by two or more witnesses. The role of witnesses in such attestation is that each of them has seen the executant sign or affix his thumb-mark to the instrument or has seen some other person sign the instrument in the presence and under the direction of the executant. See case of Abdul Hakeem v. Mst. Jannat Bibi 2005 SCM R 1228."
16. In another case titled "Nazir Ahmad and another vs. M. Muzaffar Hussain" (2008 SCM R 1639) it has been held: "The attesting witness is one who not only sees the document being the expectant but also signs it as a witness."
17. The pre-emptor to conceal this important fact withheld the relevant important evidence by not producing scriber Muhammad Akram Khan Advocate which proves that plaintiff and his two attesting witnesses are not truthful and the whole episode relating to execution and attestation of alleged notice Talab-e-Ishhad proves to be fake in such like circumstances. Adverse presumption could be taken against pre-emptor in view of Article 129(g) of Qanun-e-Shahadat Order, 1984 by not producing scriber.
18. The learned appellate Court below was well in reason while rendering its findings that plaintiff signed blank paper and the contents of alleged notice Talab-e-Ishhad were written lateron and not in presence of plaintiff and the other two attesting witnesses, same factual position is corroborated by the admission of plaintiff which is reproduced as under: So notice Talab-e-Ishhad is a document and shall be executed and attested in the presence of executor and witnesses and duly signed or thumb impressed in the same meeting after comprehending the contents upon reciting it by the scriber to the executor and witnesses and if document is not scribed, recited and signed or thumb impressed in the same meeting it would not be validly attested documents which is fatal to a party putting reliance on it, hence the requirements of law regarding "attestation" of notice Talab-e-Ishhad has not been fulfilled and not proved. So the findings in this regard by the learned appellate Court are correct and no exception could be taken against the same. Reliance is placed on case titled "Imam Ali vs. Muhammad Siddique and 3 others (2007 CLC 277) it is held: "He admitted without any demur that the thumb- impressions were obtained on blank papers and thereafter the notice was typed."
19. Moreover, it is admitted position that the postman has not been produced by the pre-emptor to prove the factum of delivery of registered post envelope containing notice Talab-e-Ishhad upon vendee which under the law was necessary to be proved by pre-emptor. In this regard wisdom is derived from the judgment of Hon'ble Apex Court in Allah Ditta case (2013 SCM R 866).
20. For what has been discussed above, it is held that the learned appellate Court has correctly appraised the evidence according to law and no question of misreading and non-reading of evidence arises. Moreover non-production of postman and scriber in the circumstances of this case had put the last nail in the case of pre emptor. Thus the findings rendered by the learned appellate Court below needs no interference. So, the judgment and decree of the learned appellate Court is confirmed and maintained by holding that suit of plaintiff/petitioner was rightly adjudged as dismissed by learned appellate Court below.