ABDUL KHAN vs RAMZANO BIBI

ORDER

1. MIAN SAQIB NISAR, J.---Petitioner pre-emptor has lost his cause on the issue of Talbs before the forums below as the attesting witnesses of the notice of Talb-i-Ishhad have not been examined by him. In the context of the above, it is expedient to reproduce section 13 of the Punjab Pre-emption Act, 1991 which reads as below:- "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) "Talb-i-Muwathibat';

(b) `Talb-i-Ishhad'; and

(c) Talb-i-Khusumat'.

2. Explanation. ---(I) ...........................................

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 Talbl-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of preemption:"

4. ' It is clear from the above, that for the purposes of ,Talb-i-Ishhad the notice thereof has to be attested by two truthful witnesses. This is the mandate of law and sine qua non for the making of a valid Talb-i-Ishhad and also for the exercise of right of pre-emption. The question, therefore, which arises in the pre-emption matters' is, as to how such notice should be proved, if it is disputed by the defendant-vendee of the case. In this regard, the provisions of Article 79 of the Qanun-e-Shahadat Order, 1984 are relevant which stipulates:-- "79. Proof of execution of document required by law to be attested. --If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called :for the purpose, of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence".

5. Reading the two noted provisions together, it is vivid that a document which is required by law, as in preemption suits, the notice of Talb-i-Ishhad is required by section 13 (ibid) to be attested by two witnesses and it (the document) shall not be used in evidence until and unless two witnesses have been produced to prove the attestation of the same. In'the instant case, as mentioned earlier, the alleged witnesses of the notice of Talb-i-Ishhad have not been examined by the petitioner with the consequences that the alleged notice does not qualify the test of proof as envisaged by Article 79 of the Qanun-e-Shahadat Order, 1984 and thus cannot be used as a piece of evidence to prove the making of Talb-iIshhad by the petitioner, meaning thereby that his right of pre-emption "shall be extinguished" as mandated by section 13 ibid. Therefore, we do not find any merit in this petition which is hereby dismissed and leave is refused.