MUHAMMAD AMIN and 3 others vs GULAB and another

ORDER

1. ' This civil revision petition by the plaintiffs is against a decision of learned District Judge dated 19- 9-1992 by which he dismissed the appeal filed in his Court and affirmed the decision by the trial Court dismissing the preemption suit on account of non-performance of Talbs and failing to establish `Zaroorar for exercising pre-emption.

2. ' Necessary facts bearing on the decision of the revision petition briefly put are:-3 'Canals in Khasra No, 737 at Mauza Tarbathi of Tehsil Fateh Jang belonged to Aiwa ffar Khan. By Mutation No, 364 attested on 30-11-1990, he sold this piece of land to Gulab son of Amir and Taj son of Muhammad of Tarbathi for a sum of Rs,50,000. Muhammad Amin, Jalal Khan, Mst. Begum Jan and Ghulam Shabbir jointly claimed pre-emption in respect of the above sale on the ground of being a co- sharer in the undivided joint holding of which the land in suit was a part. Mst. Begum Jan is sister of Jalal Khan. Pre-emption suit was instituted on 7-2-1991 in the Civil Court at District Attock. In para.2(Be), plaint averred fulfilment of Talb-i-Muwathibat, Talb-i-Ishhad and despatch of a notice through registered-cover to the defendants.

3. ' Defendants submitted a joint written statement controverting the averments in the plaint. They denied the assertion about superior right of preemption claimed by the plaintiffs and asserted making of considerable improvements on the land in suit and claimed reimbursement of the expenses incurred in this behalf. On 9-4-1991, the trial Court settled necessary issues covering the controversial points for decision between the parties. Those have been correctly set out in the judgment of the trial Court and need not be reproduced. In support of the issues, plaintiffs gave evidence of two P.Ws. Banaras and Sarwar and one of them namely, Muhammad Amin appeared as a party-witness in support of their case. In addition, some documents were tendered in evidence. In defence, one of the defendants, namely, Gulab recorded his own statement as D.W. 2 and produced Jalal D.W.1. Copy of an extract from Register Khasra Girdawari marked Exh.D.1 was also put in defence evidence. Upon scrutiny of above evidence, the trial Court found against the plaintiffs and dismissed their pre-emption suit on 21-7-1992. It was held that "neither Talb-i-Ishhad nor Talb-i-Muwathibat were fulfilled in accordance with law of pre-emption" and the plaintiffs had failed to establish `Zaroorar or avoidance of 'Zara` for exercising pre-emption. Plaintiffs preferred an appeal to learned District Judge, Attock, who dismissed it on merits on 19-9-1992. It was found that the plaintiffs did not send a notice attested by two witnesses, as required by section 13 of Punjab Pre-emption Ordinance. It was contended by Muhammad Munir Peracha, Advocate, learned counsel for the petitioners that attestation-in-writing of the notice by two witnesses was unnecessary. It was urged that even oral attestation by the two witnesses would have sufficed the directory requirement of the notice-provision contained in section 13(3) of Punjab Pre-emption Ordinance/Act. The contention was without substance. On the date of sale evidenced by mutation sanctioned on 30-11-1990, Punjab Pre-emption Ordinance, 1990 (Ordinance XXVII of 1990) had come in force on 26th November, 1990.

4. ' Ordinance IX of 1991 Punjab Pre-emption Ordinance, 1991, followed it on 25th February, 1991, and Punjab Pre-emption Act, 1991 (Act IX of 1991) on 6-4-1991. Except for a small variation in the language, subsection (3) of section 13 was identically worded, which provided that after a pre- emptor has made Talb-i-Muwathibat, he shall "make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee affirming his intention to exercise right of pre-emption". Proviso to subsection (3) provided that in areas where post office facilities were not available, making of Talb-i-Ishhad in presence of two truthful witnesses shall suffice for a proper substitute to the giving of a registered notice. Plaintiffs did not aver or depose lack of post office facilities in his area. Rather, he had averred in the plaint despatch of a registered notice, on 12-1-1991, containing Talb-i-Ishhad. Photo copy of registered notice is on record of the trial Court. Notice was shown to have been sent through Habib Anwar Khan, Advocate of Attock. It bears his signatures. It is neither signed by any of the plaintiffs nor attested by any witness, not to say of two truthful witnesses. Oral evidence of two P.Ws., related to the plaintiffs, is much discrepant and conflicting also. Photo copy of the registered notice, though present on record but was not tendered in evidence and made part of record at the instance of the plaintiffs. Omission was not disputed. 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 witnessing and witnessing only, but when it is applied to documents, it involves writing". 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)

5. 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 consistent 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 defmition: "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."

6. ' 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 performance are necessarily forbidden". This view was expressed in Nazir Ahmad. v. King-Emperor AIR 1936 PC 253(2) and EA. Evans v. Muhammad Ashraf PLD 1964 SC 536.

7. ' 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. Civil revision has no force in it, and, is, accordingly, dismissed in limine.