2016 PLP 111 (CLC)

IBAD-UR-REHMAN LODHI, J.

Although the suit for pre-emption filed by the present respondents was decreed vide judgment and decree dated 28.03.2006 and appeal filed there against by the present petitioner was dismissed on 28.05.2009, yet the learned counsel for the petitioner has a ground for attack to such decree on stated non performance of Talb-i-Ishhad strictly in accordance with the provisions of section 13(3) of Punjab Pre-emption Act, 1991.

2. In elaborating his such contention, learned counsel for the petitioner has referred statements of PW-2 Ghulam Rasool and PW-3 Muhammad Mansha, who were produced in evidence as attesting witnesses of notice of Talb-i-Ishhad. The particular reference has been made to the statement of PW-2 Ghulam Rasool, which statement is to the following effect:- Similarly, PW-3 Muhammad Mansha who is shown to be the other witness of notice of Talb-i-Ishhad has deposed in the following manner:- urdu

3. Section 13(3) of Punjab Pre-emption Act, 1991 requires that the notice of Talb-i-Ishhad must be in writing and attested by two truthful witnesses.

4. The term "attest" is defined in Black's Law Dictionary, Ninth Edition in the following manner:- "to testify, to affirm to be true or genuine, to authenticate in writing by signing as a witness." It is thus abundantly clear that an attesting witness must be in conscious knowledge of the contents of the document, which he is going to attest and as such, both the witnesses i.e. PW-2 Ghulam Rasool and PW-3 Muhammad Mansha, who have been introduced as attesting witnesses of the notice of Talb-i-Ishhad are not to be considered, at all, in their such capacity. According to their admission, they only put their signatures over already prepared document without having any knowledge as to what has been written in the said document, as such, they were not attesting witnesses of the notice of Talb-i-Ishhad and thus were not in a position to testify or to affirm the document to be true or genuine.

5. Strict test is provided in the Pre-emption Laws to prove three Talbs beyond any doubt. In the above highlighted background, an important link of Talbs is missing from the chain as provided in section 13 of the Act. In view of section 13(4) of the Act, ("a pre-emptor is only competent to file suit for pre-emption by making Talb-i-Khusumat if the first two Talbs i.e. Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3) have successfully been performed.") missing of any one link would be fatal to the case of pre-emptor.

6. In the present case, as noted earlier, the plaintiff/pre-emptor has failed to establish the performance of Talb-i-Muwathibat strictly in accordance with provisions of Section 13 of Punjab Pre-emption Act, 1991.

7. The courts below while passing a decree in favour of the plaintiffs have completely overlooked this fatal lapse.

8. The learned counsel for the respondents with the help of case law reported as Khuda Yar through Legal Heirs and 10 others versus Ghulam Muhammad and another (1999 SCMR 1808) has argued that minor discrepancies in the statements of witnesses after efflux of considerable time are to be ignored. The deficiency, as noted in the case in hand, is not a minor discrepancy, rather it is fatal to the case of the plaintiffs. The decree granted by the courts below is, thus, result of misreading of evidence and non-appreciation of the legal position on the point. It is not sustainable.

9. While accepting this civil revision petition, both the judgments and decrees passed by the courts below are, therefore, set aside and suit of the respondents/plaintiffs is dismissed. However, there will no order as to costs. SL/M-331/L Revision accepted.