1. ' The petitioner filed a suit to pre-empt a sale of land measuring 51 Kanals 10 Marlas situated in village Khonda, Tehsil Jand, District Attock purchased by respondent vide Mutation No,605 attested on 29-9-1990. This suit was filed on 6-1-1991. The suit has been contested and dismissed by the learned trial Court vide judgment and decree, dated 30-7-1992 on the ground that there is no proof of making of Talb-i-Ishhad within a period of two weeks and, therefore, no superior right of pre- emption can be claimed by the plaintiff. Aggrieved of this judgment and decree, the petitioner filed an appeal in the Court of learned District Judge, Attock. The appeal has been dismissed by the learned District Judge, Attock vide judgment and decree dated 31-10-1992. Finding of the learned trial Court on Issue No,1 regarding making "of Talb-i Ishhad" has been affirmed and it has been held that the plaintiff has failed to prove the making of Talb-i-Ishhad within a period of two weeks w.e.f, the date of acquisition of knowledge of sale. Aggrieved of these two judgments and decree, the plaintiff has filed this civil revision.
2. Learned counsel for the petitioner has argued that the two Courts below have illegally held that the plaintiff has not proved that he has made "Talb-i-Ishhad" within a period of two weeks w.e.f, the date of acquisition of the knowledge of sale. Learned counsel has aruged that the sale took place on 29-9-1990 whereas the notice is dated 20-10-1990, therefore, it stands established that "Talb-i- Ishhad" was made as per provisions of section 13 of the Punjab Pre-emption Act two weeks from knowledge of sale through a registered notice Exh. P1. Learned counsel has further referred to the statements made by the witnesses regarding making of Talabs and has argued that the plaintiff's witnesses in their statement made on 19-5-1992 have mentioned the period of 1-1/2 years as being the date of knowledge approximately and, therefore, credit should have been given by the Court to the statements of those witnesses who are illiterate persons who have no knowledge about the Court proceedings.
3. I have considered the arguments addressed by the learned counsel for the petitioner and have also gone through the record. For the purpose of appreciation of argument of the learned counsel for the petitioner, section 13 of the Punjab Pre-emption Act is reproduced as under: "SECTION 13.
2. ' 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.
3. Explanation.---(I) Talb-i-Muwathibar means immediate demand by a pre-emptor 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.
4. ' 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-Khusumar means demand by filing a suit of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) 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 31, or knowledge, whichever may be earlier, 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 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 subsection (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."
5. ' Mohajir Khan P.W.2 has stated in his examination-in-chief that he alongwith he plaintiff as well as P.W.3 Muhammad Amir went to the defendant to request him to give the land but he refused and that a notice mark A was sent to him which bears his thumb-impression. Amir Khan P.W.3 has made a similar statement. The plaintiff has also corroborated the statement made by the P.W.2 and P.W.3. A copy of the notice Exh.D.1 has also been placed on the record of the case. There is no evidence with regard to the fact that notice Exh.D.1 was sent to the petitioner by registered post acknowledgment due. It has been held in case of Mrs. Dino Manekji Chinoy and 8 others v.
6. Muhammad Matin PLD 1983 SC 693 that if an act is to be done in a particular manner, it shall have to be done in accord with the statute and if it is not established that it has been done in accord with the statute, the act will be illegal provided a prejudice is not caused to the other side. Finding of their. Lordships to the above effect at page 699 of the reference is reproduced as under:--- "Coming now to the nature of the provisions of the newly-inserted rule 3 of Order XLIII, C.P.C. we observe that sub-rule (1) of rule 3 requires that the party preferring an appeal against any order made during the pendency of the suit must give notice of such appeal to the respondent or his Advocate before presenting the appeal by delivering a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against. In order to satisfy the appellate Court that this has been done, he should obtain an acknowledgment receipt to the effect that a copy of the grounds of appeal alongwith the other documents has, indeed, been received by the respondent or his Advocate.
7. ' The purpose of this provision obviously is to avoid the delay that is occasioned in issuance of notices to and having service effected on the respondent in a case where the main suit is still pending adjudication and only the legality or correctness of some interlocutory order is under question. Hence intimation to the respondent of the fact that an appeal is being preferred and on the grounds on which this is being done, to avoid taking him by any surprise, has been prescribed as a condition precedent to the entertainability of the appeal. Sub-rule (2) of rule 3 provides that on receipt of the notice referred to in sub-rule (1), the respondent may, with the permission of the Court, appear before it and contest the appeal with a view to getting it dismissed in limine, in case he succeeds in doing so he may even be awarded costs. The above provision highlights the fundamental importance of issuance of the notice to the respondent by the appellant before presentation of the appeal. Not only does he become aware of the fact that an interlocutory order issued in his favour has been challenged by an appeal but a right has been conferred on him to contest the appeal at the limine stage with the permission of the Court, with a view to getting the appeal dismissed at that very stage and, thus, bring to a close the litigation directed against an order passed pendente lite favourable to him. This would not be possible unless notice before presentation of the appeal was given to the respondent, the said valuable right conferred upon him would be lost and resultantly the provisions of sub-rule (2) of rule 3 would be rendered futile, inutile and nugatory. Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinizing appeals preferred against the interlocutory orders made during the pendency of a suit of all the Courts concerned, do require the appellant or his Advocate to submit, alongwith the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained."
8. ' To the same effect is the law laid down in cases of Muhammad Amin and 3 others v. Gulab and another 1993 CLC 98 and Said Muhammad Shah v. Ghulam Hussain 1993 CLC 105 which is directly attracted in this case. In case of Muhammad Amin and 3 others at page 100/101 it has been held as under:-- "Requirement of registered notice attested by two truthful witnesses for making of Talb-i-Ishhad was pre-emptory. It is a mandatory requirement of pre-emption law and its non-observance must be mortally fatal to enforcement of a pre-emption claim. Subsection (3) of section 13 of Pre- emption Ordinance/Act does not sustain oral attestation by two witnesses. In law Dictionary of Words and Phrases Judicially Defined by Dr. A.R. Biswas "to attest" is to affirm to be true or genuine; to authenticate by signing as a witness; to authenticate officially, to bear witness; to testify and attestation is the signing by a witness to the signature of another to affirm that the document was signed in the presence of the attesting witness. Attestation in its primary meaning involves writing".
9. In Wharton's Law Lexicon, attesting witness is shown "a person who has seen a party execute a deed, or sign a written document. He then subscribes his signature for the purpose of identification and proof of any future period". In re: Selby-Bigge, 1 All ER 1009 (at page 1011) Hodson, J. after extracting a quotation from Blackstone's Commentaries, 4th Edn., Vol. 2, p. 260 observed: "Attestation" in its primary meaning as the dictionaries show, involves witnessing, and witnessing only, but when it is applied to documents the dictionaries show, and the authorities also, that it involves writing. I need not refer to many of the dictionaries, which appear to be quite consisent on the topic. The first one I was referred to was Sweet's Law Dictionary, published in 1882, where (p.73) the heading "Attest-Attestation" is followed by this definition: `To attest is literally to witness any act or event, but the term is now exclusively applied to the signature or execution of a document. When A executes a deed in the presence of B, and B signs his name on the document as a token of his having witnessed A's execution, B is said to attest the execution. The term is even more commonly applied to wills than to deeds. A clause called an attestation clause is generally written at the foot of the instrument as a declaration by the attesting witness that the instrument was signed or executed in his presence.'
10. ' It is to be observed that in the dictionary, it is stated categorically that `the term is now exclusively applied to the signature or execution of a document'. The dictionaries of the English language, in contrast with legal dictionaries give the more general meaning of the word "attest" first. The New English Dictionary gives the meaning first, "To bear witness to, affirm the truth or genuineness of; to testify, certify; and there is added this; "formally (a) by signature, (b) by oath". So that, on the face of it, at any rate, there seems to be nothing against the proposition that a reasonable construction of the word "attest", when applied to a document, necessarily involves, or, at any rate, includes, a reference to writing. I do not propose to refer to any other of the dictionaries." In my opinion, subsection (3) necessarily contemplated attestation in writing of the notice by two witnesses. It is settled that `where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of preformance are necessarily forbidden'. This view was expressed in Nazir Ahmad v. King-Emperor AIR 1936 PC 253 (2) and E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536.
11. ' Pre-emption is but a feeble right. Therefore, the formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record. Since registered notice attested by two truthful witnesses for communicating Talb-i-Ishhad was wanting, plaintiffs were rightly non-suited in the lower Courts."
12. ' In case of Said Muhammad Shah at page 108 of the report it has been held as under:--- "Right of Shuffa is but a feeble right. Therefore, the formalities required for its enforcement must be strictly observed and there must be a clear proof of their observance. Unexplained delay in making the requisite demands shall defeat the pre-emption."
13. ' In the case in hand, there being no documentary evidence to prove the sending of notice through registered post acknowledgement due, it cannot be said that the notice was sent as provided under the law. According to Faja Khan witness of the plaintiff, about 1-1/2 years ago brother of the plaintiff informed him regarding the respondent-defendant having purchased the land. Similarly is the statement of Amir Khan P.W.3. Identical statement was made by the petitioner-plaintiff as P.W.1.
14. As per calculation the date of acquisition of knowledge of the sale by the plaintiff came to 19-11- 1990. Notice is said to have been served upon the respondent, as alleged by the petitioner on 20- 10-1990 before even acquisition of knowledge. The word ({{URDU TEXT}} ) used in the statement of the witnesses cannot be interpreted in favour of the petitioner and secondly the compliance of the requirement of making of Talb-i-Ishhad' within the stipulated period of time is to be proved by positive evidence by the petitioner.
15. ' No benefit of doubt can be given to the petitioner by interpreting the statement made by his own witness in his favour. This being a civil revision, two Courts below have concurrently held after perusal of evidence that making of "Talb-i-Ishhad" is not proved on the record as per requirements of the law within the stipulated period of time, and, therefore, the suit has been dismissed for want of making of "Talb-i-Ishhad". It has been held in case of Sardar All and others v. Muhammad Ali and others PLD 1988 SC 287, Rozi Khan and others v. Syed Karim Shah and others 1992 SCM R 445, Zafar Ali v. Zainul Abidin and another 1992 SCM R 1886 and Zafarullah Khan v. Muhammad Khan and others 1993 SCM R 696 that without making of either of the Talab-i Muwathibat' and `Talb-i-Ishhad', a suit for pre-emption can neither to be filed nor decreed inasmuch as no enforcible superior pre- emptive right comes into existence at all without making of Talabs.
16. ' In view of above there being no misreading or non-reading of evidence, I do not find any ground to interfere with the concurrent findings of fact recorded by the two Courts below which are based upon correct appreciation and reading of evidence.
17. ' Resultantly, I see no force in this civil revision. The same is, therefore, dismissed in limine.