2007 PLP 752 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners-defendants, impugn the concurrent decrees of the learned Courts below whereby a suit filed by the respondent-plaintiff-pre-emptor seeking possession of the suit property through pre-emption has been decreed.

2. Learned counsel for the petitioners argued that the respondent-plaintiff had failed to prove Talb-i-ishhad. To support his contention, he firstly referred to the provisions of section 13(3) of the Punjab Pre-emption Act which stipulates as under:- "(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."

3. It is clear from the above that the notice of Talb-i-Ishhad is required to be attested by two truthful witnesses. Attestation is an essential ingredient of Talb-i-Ishhad. This being a question of fact, it had to be proved affirmatively by the respondent-plaintiff. The respondent himself appeared as P.W.1 while he produced his brother Ali Muhammad as P.W.2 and his brother-in-law (sala) as P.W.3 to prove Talb-i-Ishhad. None of these witnesses stated that the notices of Talb-i -Ishhad, which were sent to the seven defendants were signed or thumb marked by them. The respondent-plaintiff deposed that seven notices were inscribed by Malik Abdul Karim, Advocate, at his request. A copy of the notices (Exh.P.1) giving the names of seven addressees (petitioners herein) was brought on record. It was stated by the respondent-plaintiff that he and the two witnesses, namely, Ali Muhammad (P.W.2) and Muhammad Siddique (P.W.3) had affixed their thumb-marks on the copy (Exh.P.1.). There is no statement to the effect that the notices of Talb-i-Ishhad, which were sent to the petitioners-defendants, were thumb-marked by the two witnesses (P.W.2 and P.W.3). The testimony of P.W.2 and P.W.3 in respect of the notices of Talb-i-Ishhad is to the same effect. They acknowledge affixing of their thumb-impressions on the copy (Exh.P.1) but do not state that they attested the notices sent to the petitioners by affixing their thumb-impressions thereon.

4. Learned counsel for the respondent argued that the three P.Ws. named above, were not cross-examined by the petitioners-defendants on the question of attestation and, therefore, it must be held that they accepted that the notices were attested by P.W. 2 and P.W.3. This contention is wholly misconceived. It was firstly for the respondent-plaintiff to prove attestation of the notices sent to the petitioners through affirmative evidence. In the absence of such evidence, there was not occasion for the petitioners to cross-examine the P.Ws. as to attestation. There were two simple ways of proving attestation of the notices addressed to the petitioners. The attesting witnesses should have, in the first instance, stated that they had thumb-marked the said notices by way of attestation. Had this been done, the onus of proving that the notices of Talb-i-Ishhad had not been attested, would have shifted onto the petitioners-defendants. In the present case, in view of the testimony of P.W. P.W.2 and P.W.3, discussed above, it is clear that the onus of proof as to attestation never shifted onto the petitioners-defendants and they, therefore, were not called upon to cross-examine the P.Ws. or lead evidence on the question.

5. Secondly, attestation of the notices of Talb-i-Ishhad could have been proved by giving notice to the petitioners to produce the original notices in Court. Learned counsel for the respondent-plaintiff argued that under Article 77 of the Qanoon-i-Shahadat Order, it was not necessary to give such notice because Exh.P.1. being a copy of the notice sent to the petitioners could have been adduced in evidence. The production of Exh.P.1., however, does not in any manner prove that the notices which were sent to the petitioners were also thumb-marked by the witnesses by way of attestation. Here it is to be noted that the term "attestation" has a special meaning in the law, which requires, as a bare minimum, the signatures or thumb-impressions of the attesting witnesses on the document being attested. Whether or not a document has been attested is a question of fact and, in the case of a notice of Talb-i-Ishhad, has to be proved.

6. Learned counsel for the respondent-plaintiff argued that attestation of the notices of Talb-i-Ishhad in the present case should be inferred from the testimony of P.Ws. 1, 2 and

3. This submission is not legally tenable. These witnesses did not state that they had attested the notices of Talb-i-Ishhad sent to the petitioners. On the contrary, they expressly stated that the copy (Exh.P.1.) had been thumb marked by them by way of attestation. In the circumstances, if at all, an inference is to be drawn from the testimony of the P.Ws., it is that the copy of (Exh.P-1) and not the actual notices of Talb-i-Ishhad were thumb marked by P.W.2 and P.W.3. Here it may be added that it was for the respondent as plaintiff to prove each and every element of section 13(3) of the Punjab Pre-emption Act, reproduced above. His failure to prove that the notices sent to the petitioners were attested by P.W.2 and P.W.3, is, in the circumstances, fatal to his case.

7. In addition to the above, learned counsel for the petitioners took me through the testimony of Muhammad Siddique (P.W.3). There are so many contradictions in his testimony (which includes many statements where he has repeatedly corrected his earlier testimony) that it becomes evident that he was not a truthful person and in fact had been tutored to give evidence in favour of the respondent-plaintiff, who is his brother-in-law (behnoi).

8. The learned Courts below unfortunately have overlooked the above aspects of the case while decreeing the suit of the respondent-plaintiff. In the circumstances, the impugned decrees are a result of their failure to interpret and apply the law to the facts of the case. This constitutes illegality and material irregularity in the exercise of the jurisdiction of the learned Courts below. The impugned decrees are, therefore, set aside and the suit of the respondent-plaintiff is dismissed. F.B./M-674/L Petition allowed.