' MUHAMMAD DAUD KHAN, J.--Petitioner has impugned the judgment and decree dated 29.1.2005 passed by learned Additional District Judge-I, Mardan, whereby appeal filed by the respondents- defendants was accepted, judgment and decree dated 30.4.2004 passed by learned Civil Judge, Mardan, was set aside and suit of the petitioner-plaintiff was dismissed, hence petitioner has filed instant revision petition for setting aside the impugned judgment and for restoration of judgment and decree passed by the trial Court.
2. Brief facts of the case are that Mst. Razia Begum, the petitioner filed a suit for possession through pre-emption with regard to suit property purchased by the respondents through mutation No. 955 attested on 29.9.1996 for a sale consideration of Rs. 52000/-. It has been averred in the plaint that she got the knowledge of sale on 4.11.1996 (Monday) at 3.00 pm Noon at her house through Bakht Taj son of.Shams-ud-Din in presence of Muhammad Asif and she there and then made talb-e- muwathibat. Subsequently, on 13.11.1996, a notice of talb-e-ishhad was sent against respondents through registered post with A.D. The petitioner annexed thephotocopy of notice and original receipt of Post Office with the plaint.
3. On appearance, the respondents objected the notice of talb-e-ishhad because the same was signed by one marginal witness, namely, Muhammad Asif Khan. On this score, the learned trial Court dismissed the suit of petitioner vide judgment and decree dated 29.4.1997. Feeling aggrieved, the petitioner filed appeal before the Appellate Court, which was accepted vide judgment and decree dated 22.10.1997 by setting aside the judgment and decree of learned trial Court and the case was remanded back to him to ask for written statement and to decide it on its own merits after recording the evidence. The respondents, being not content with the decision of Appellate Court, filed a revision petition before this Court, which was dismissed vide judgment and order dated 13.5.1998 and the judgment and decree of learned Appellate Court was maintained.
4. Subsequently, the respondents submitted their written statement. Issues were framed and evidence of the parties was recorded. The learned trial Court, after hearing the learned counsel for the parties, decreed the suit in favour of petitioner vide judgment and decree dated 30.4.2004.
Being not content with the decision of trial Court, the petitioner questioned the market value determined by the trial Court while the respondents challenged the judgment and decree as a whole in their respective appeals before the learned Additional District Judge-I, Mardan, who after hearing the learned counsel for the parties, accepted the appeal of respondents and set aside the judgment and decree of learned trial Court while dismissed the appeal of petitioner vide judgment and decree dated 29.1.2005. Hence, the instant Revision Petition.
5. I have heard the learned counsel for the parties and have also gone through the record.
6. Admittedly, the notice of talb-eishhad does not bear signature of one marginal witness, namely, Bakht Taj, who was allegedly informer of the sale mutation. For convenience, Section 13(3) of the Preemption Act is reproduced below:-- "13. Demand of pre-emption.
(1) -------------
(2) ------------- ' Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right ofpre- emption".. From the above provision, it is clear that the notice talb-i-ishhad should be attested by two truthful witnesses.
7. The question that has to be dealt with by this Court is as to whether the not signing of notice talb-e-ishhad by one marginal witness under Section 13(3) of the KPK Pre-emption Act, 1987 (hereinafter referred to be Pre-emption Act) qualifSting the attestation of notice mentioned in the said section is necessary or not. To resolve this legal question and determine the purview of attested witness is necessary.
The meaning of word 'attest' has been given in Black's Law Dictionary 9th Edition at page-147 in the terms that:- "To affirm to be true or genuine; to authenticate by signing as a witness"
Similarly, the meaning of word 'attesting witness' has also been mentioned in the said Dictionary at page-1741 in the terms that: "One who vouches for the authenticity of another's signature by signing an instrument that the other has signed".
8. Now a question arises-that whether Bakht Taj (PW-5) in view of his statement can be declared as attesting witness of notice talb-i-ishhad. The attesting witness in terms of Article 79 of Qanun-e- Shahadat 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. 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 law 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 necessary conditions for awitness attesting the document 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 view of the above, it is clear that Bakht Taj (PW-5) cannot be treated as attesting witness of notice talb-i-ishhad.
9. Moreover, in the instant case, neither the scribe of the notice nor the postman of the area has been produced in the witness box to record their statement for the purpose of proof of notice talb- iishhad. Similarly, the original A.D. Card is neither annexed with the plaint nor submitted in the evidence. So, it can safely be concluded that the factum of performance of talb-i-ishhad according to law is not proved.
10. In the instant case, another aspect of the case is worth consideration. Though talb-i- muwathibat and talb-i-ishhad were allegedly made by pre-emptor Mst. Razia Begum herself but talb-i-khusumat in the shape of filing instant suit was made by one Bakht Taj son of Shams-ud- Din, who wasshown as attorney of the pre-emptor and in the evidence, he also admitted that at the time of filing of suit, he was not attorney of pre-emptor.
11. The perusal of plaint shows that it was signed/verified and instituted by one Bakht Taj, as attorney of petitioner. According to plaint, it simply means that talb-i-khusumat was performed by attorney, not by the petitioner (as pre-emptor) herself. To evaluate the consequences of non-filing of suit by pre-emptor/plaintiff herself in the light of Pre-emption Act,firstly it would be necessary to understandthe spirit of law on the subject. Section 13 of the Act is reproduced below:- "13. Demand of Pre-emption.- (I) The right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely: -
(a) Talb-i-muwathibat;
(b) Talb-i-ishhad; and
(c) Talb-i -Khusumat.
' Explanation. (I) 'Talb-i Muwathibat' means immediate demand by a preemptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption.
' Note.- Any words indicative of intention to exercise the right of pre-emption are sufficient.
(II) 'Talb-i-Ishhad' means demand by establishing evidence.
(III) 'Talb-i -Khusumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice 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: ' Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-IIshhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-iMuwathibat under subsection (2),and Talb-i-Ishhad undersubsection (3) he shall make Talbi-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption".
(Emphasis provided)
12. Section 13 of the Pre-emption Act, is couched in negative form providing that right of pre- emption, shall be extinguished unless the pre-emptor establishes the three ingredients stipulated therein strictly in accordance with law. A bare reading of subsection (4) of Section 13 of the Act
(ibid) reveals that Talb-i-Khusumat is equally important and required specific mode and manner to perform it.
13. The opening line of subsection (4) of Section 13 of the Act is meaningful and purposeful and imposes the legal obligation of satisfaction of performance of two Talbs by the plaintiff (s) himself or through his/her attorney or agent, as provided by Section 14 of the Act. If a pre-emptor is unable to make demands under section 13 of the Act, he/she may appoint agent for this purpose. Section 14 of the Act reads as under:-- "Demand by guardian or agent.--- ' Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf".
14. The cumulative effect of both sections 13 and 14 of the Act is that Talb-iKhusumat can only be made by a person whether he is pre-emptor or his guardian or agent appointed by him, who satisfies the requirements of Talb-i-Muwathibat and Talb-i-Ishhad personally.
15. The words used in subsection (4) of Section 13 of the Act clearly indicate the personal knowledge about the obligation carried out by himself in shape of Talb-sunbathing and Talb-i-Ishhad.
16. In my humbly view, the suit of preemptor under section 13(4) of the Act can be filed by a person, who himself performs the Talb-i-Muwathibat and Talb-i-Ishhad. In the instant case, the Talb-i- Muwathibat and Talb-i-Ishhad were allegedly performed by the petitioner (pre-emptor) herself while suit was filed by Bakht Taj, attorney, meaning thereby that Talb-i-Khusumat was not performed according to law. It further follows that the very suit is bad in law.
17. In view of the above, this Court finds no illegality or irregularity in the impugned judgment of the appellate Court, which is based on proper appraisal of the facts available on record, requiring no interference in the revisional jurisdiction from this end.
18. Consequently, instant revision petition is hereby dismissed but with no order as to costs.