AHMAD ALI, J.---The petitioner through the instant revision petition has called in question the judgment and decree of Additional District Judge-II, Battagram, dated 21.04.2018, in Civil Appeal No. 23/13 through which the learned appellate Court set aside the judgment and decree dated 28.03.2017 passed by learned Civil Judge-I, Battagram and decreed the suit of the respondent/plaintif f.
2. Brief and essential facts leading to the institution of the present petition are that the petitioner Amir Muhammad had purchased land measuring 181/2 Marlas, comprised in Khasra No. 315 situated at Mauza Jesole, District Battagram through mutation No. 642 dated 18.12.2013. The respondent, Waliullah Khayali instituted Suit No. 103/1 for pre-emption against the said sale on 11.04.2014. It was averred in the plaint that he came to know about the disputed sale on 02.02.2014 at 05:00 P.M. in his house in presence of Ehsan Ullah Hashmi and Muhammad Shahid through Akhtar Hayat son of Mumtaz Khan and as such in the said Majlis, he made a jumping demand showing his intention that he will exercise his right of pre-emption against the disputed transaction. Thereafter , notice of Talab-i-Ishhad was issued to the defendant on his address along with Registered AD. He claims his superior right of pre-emption being Shafi Sharik, Shaft Khalit and Shaft Jar .
3. On being summoned, the defendant Amir Muhammad filed his written statement, thereby controverting the contents of the plaint. In support of his claim, the plaintif f produced PW-1 Zia-ur-Rehman Patwari Halqa who appeared and produced Fard Jamabandi for the year 2011-12 as Ex. PW-1/1, three years and five years average as Exhs. PW-1/2 to 1/6, valuation table as Ex. PW-1/7 and Part Patwar of mutation No. 642 as Ex. PW-1/8. Ehsan- ur-Rehman Branch Postmaster appeared as PW-2 who produced register Booking General as Ex. PW2/1 and copy of receipt Ex. PW-2/2. Abdul Qayyum Record Clerk of Post Office appeared as PW-3 and produced the counterfoil of registry No. 197 as Ex. PW-3/1 throu gh which the notice was booked. Anayat Ullah Khan, Advocate, Notary Public appeared as PW-4 and testified in respect of attestation of notice Talab-i-Ishhad Ex. PW-4/1. He also produced and exhibited the relevant page of his register as Ex PW-4/2. The scribe of notice Talab-i-Ishhad namely Aman Ullah Petition Writer appeared as PW-5 and exhibited copy of his relevant register as Ex. PW-5/1. The pre- emptor Waliullah appeared as PW-6, who supported the contents of the plaint. Ehsan Ullah Hashmi appeared as PW-7 who is the marginal witness of the notice Talb-i-Ishhad. The other marginal witness of the notice Talb-i-Ishhad as well as informer namely Akhtar Hayat appeared as PW-8. Against that, Ameer Muhammad defendant appeared as his own witness as DW -1 and produced Badshah Zareen as defense witness.
4. The learned trial Court, vide judgment and decree dated 28.03.2017 dismissed the suit by holding that the plaintif f had failed to prove his cause of action and Talbs in accordance with law. Aggrieved of the judgment and decree of the trial Court, appeal was filed. The learned appellate Court accepted the appeal vide judgment and decree dated 21.04.2018, set aside the judgment and decree passed by the learned trial court and decreed the suit, hence the instant Civil Revision.
5. Arguments heard and record perused.
6. In terms of Section 13 of the Pre-emption Act, the performance of Talbs is a condition precedent as it stipulates that the "right of pre-emption of a person shall be extinguished" unless the three Talbs are performed. The said provision read as follows:-- "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) 'T alb-i-Muwathibat';
(b) 'T alb-i-Ishhad'; and
(c) 'T alb-e-Khushumat'.
(2) When the fact of sale comes within the knowledge of a pre-emptor 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 T alb-i-lshhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
7. To prove Talb-i-Ishhad, the plaintif f relied upon the statement of PW-2 Ehsan-ur -Rehman Branch Postmaster , and Abdul Qayyum Record Clerk Post Office. Both these witnesses deposed in respect of booking of notice.
PW-2, during his cross-examination admitted that he delivered the registered post to one Bacha Zareen who received the same. The said portion of his cross-examination is reproduced:-- {{URDU TEXT}}
8. The copy of registered AD, Ex PW-2/2 available on file, 'bears the signature of defendant, despite the fact that PW-2 delivered the registered post to Bacha Zareen. Thus in the given circumstances, PW-2 cannot be termed to be a truthful witness. The defendant while appearing as DW-1, was confronted with his signature on AD Card during his cross-examination and he deposed:- {{URDU TEXT}}
9. In the case of "Munawar Hussain v. Afaq Ahmed and others (2013 SCMR 721)" it has been held by the august apex Court that:-- "So far as Talb-e-Ishhad is concerned, admittedly the service on one of the two petitioners defendants/vendees namely Muhammad Akram was not personally effected and according to learned counsel for the respondent, it was effected on his brother and co-vendee Munawar Hussain appellant. The afore-referred service is not a service in the eyes of law. It is not the case of respondent/plaintiff either that service of notice of Talb-e-Ishhad on the said vendee was made through registered post acknowledgement due. The contention that service on the co-vendee should be presumed as service in law is not backed by any provision of law and therefore, is not tenable."
In the instant case, however , the service was effected on a person, who is not even a co-vendee, while personal service of vendee/defendant is not proved. The defendant, while appearing as DW-1, denied receipt of any notice Talab-i-Ishhad . In the case of " Muhammad Bashir v . Abbasi Ali Shah (2007 SCMR 1 105)" it was held that:- "Admittedly there was no personal notice , and mere endorsement of "refusal" would not constitute service, since the petitioner -defendant had denied service not only in written statement but also on oath while appearing in Court.
The statement made by him in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun-e-Shahadat Order stood rebutted and it was for the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done."
10. It is by now well settled that 'Talbs' are sine-qua-non for maintaining a suit for pre-emption "Bashir Ahmed v.
'Ghulam Rasool (2011 SCMR 762), Allah Ditta through L.Rs v. Muhammad Anwar (2013 SCMR 866), Muhammad Ali v. Mst. Humera Fatima (2013 SCMR 178) and Muhammad Anwar v. Safeer Ahmed (2017 SCMR 404 )".
11. Under Section '3 of the Transfer of Property Act, 1882, '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 instrum ent 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 executant". In the instant case, the witnesses of Talb-i-Ishhad are PW-7 and PW-8 who though claime d that they signed the notice Talb-i-Ishhad , however , none of them deposed that the other attesting witness of the notice as well as the plaintif f signed the notice in their presence, as such they do not fulfill the requirement of an attesting witness. Reference can be made to the case of "Nazir Ahmed v. M. Muzaf far Hussain (2008 SCMR 1639 )".
Similarly , the scriber of the notice Talb-i-Ishhad namely Aman Ullah appeared as PW-5 and produced the relevant page of his register as Ex. PW-5/1, however , during cross-examination he admitted that neither he mentioned the details of notice in his register nor the signatures of witnesses were obtained upon his register .
12. Another important aspect of the case is that at the time of Talb-i-Ishhad, Talb-i-Muwathibat was not repeated, either by the plaintif f or by his witnesses. They stated that the petition writer scribed the notice which was signed by them and thereafter it was dispatched to the defendant. It is by now well settled that merely signing and sending of a notice would not fulfil the requirements of Section 13 of the Pre-emption Act. In the case of "Muhammad Zahid v.
Dr. Muhammad Ali (PLD 2014 SC 488 )" the apex Court held that:- "The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talb-i-Ishhad which, in fact, is confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere signing and sending of notice.
The witnesses examined in the Court, too did not stated anything regarding confirmation of such intention. One of the attesting witnesses, so-called, rather turned the table on the respondent when he stated that he signed the notice in Urdu but the signature found thereon is in English. This also shows that he neither signed nor attested the notice in terms of Section 13 of the Act. The argument of learned ASC for the appellant that mere signing and sending of notice cannot be held to be a substantive compliance with the provision of section 13 of the Act, is thus, not without substance. We, therefore, have no hesitation to hold that Talab-i-Ishhad in the circumstances of the case cannot be held to have been established in accordance with the requirements of section 13 of the Act. "
13. Learned appellate court failed to appreciate the evidence in its true perspective and thus erroneously passed impugned judgment and decree which is not sustainable in the eye of law. Resulta ntly, while accepting the present petition the findings of the appellate Court dated 21.04.2018 are hereby set aside and the judgment and decree passed by the learned trial court dated 28.03.2017 are restored.