' Suit for pre-emption instituted by respondents Nos. 1 and 2 qua Mutation No,20 dated 11-2-1974 claiming that the transaction indeed was sale and not exchange, was decreed by the learned trial Court on 11-12-1974. The said judgment and decree was set aside by the Appellate Court on 22-6- 1976 and the case was remanded to the trial Court for decision afresh. F.A.O. No,196 of 1976 filed by pre-emptors was withdrawn from this Court on 4-4-1990 enabling the trial Court to proceed with the suit as per remand. The suit was then dismissed by the learned trial Court vide its judgment dated 12-9-1995 recording finding qua Issue No,1 that it was not a sale. Appeal preferred there against 15y the pre-emptors was accepted by the learned Additional District Judge, Daska on 22- 11-2000 reversing the findings of the trial Court and holding that it was indeed a sale and not exchange. This is revision petition qua the same.
2. It is contended by the learned counsel that from Exh.P.3. i,e, Mutation No,20 dated 11-2-1974 it was itself evident that the transaction was of exchange and there was no convincing and reliable evidence to prove to the contrary. It is contended that Muhammad Irshad, Lumbardar (P.W.1) whose testimony has been given weight by the Appellate Court, was not trustworthy and his conduct was inconsistent and contradictory before the Court and the Revenue Officer. It is, thus, contended that the Appellate Court has illegally reversed the findings recorded by the trial Court on Issue No,1 and decreed the suit without there being any cogent basis. Reference has been made by him to Sher Azam v. Fazle Azim Shah 1972 SCMR 649; Muhammad Amin v. Ghulam Yasin PLD 1983 Pesh. 13; Ghulam Hussain v. Jam Allah Dad through Legal Heirs PLD 1989 Lah. 73; Syed Khalil-ur- Rehman Chishti v. Abdul Hamid Khan 2004 SCMR 838 and S. Masih Hasan v. Allah Diya and others AIR (34) 1947 Lah.
320. It is also contended that in view of Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360, the respondents/pre-emptors could not be granted decree after 31-7-1986. Reference in this context has been made to Salehoon v. Nazir Ahmad 1996 MLD 1922.
3. In order to support the findings and the judgment of the learned Appellate Court, the learned counsel for the respondents/pre-emptors contends that not only the transaction itself but all attending circumstances are to be considered by the Court in order to reach the conclusion as to the true nature of the transaction. It is contended that there was great disparity in the quantum and quantity of the lands and no prudent person would have entered into such a transaction. He has posed a question as to why a large tract of land i,e, 252 Kanals, 17 Marlas should have been exchanged with small chunk of land measuring 78 Kanals, 14 Marlas situated at two different places. It is contended that no evidence has been produced as to the quality of the hightr value of the land measuring 78 Kanals, 14 Marlas situated in District Bahawalnagar. It is contended that the Court in such circumstances is entitled to uncover the real facts and circumstances to find out the true nature of the transaction. According to him the view taken by the Appellate Court is fully justified by the evidence on the record and the law. Another aspect of the matter pointed out by him is that later on, in the year 1993, the land was resold which would show that the original transaction was not that of exchange and was really a sale. Reference has been made by him to Haq Nawaz v. Muhammad Jan PLD 1965 SC 561; Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCMR 1892 and Allah Ditta v. Haji and another AIR 1934 Lah.
823. It is further contended that the respondents/pre-emptors since had once been granted decree dated 11-12-1975 under the then law, they were entitled to restoration of decree as laid down in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Bahadur Khan v.
Muhammad Yousaf and another 1992 SCMR 2117 and Faiz Muhammad and others y. Zafar Ahmad and others 2005 SCMR 1125.
4. The respective contentions have been considered in the light of the evidence that has come on the record.
5. Taking up the question of import of Malik Said Kamal Shah's case (supra) first, it may be observed that since a decree had once been passed in favour of the respondents/plaintiffs in the year 1975, in the subsequent litigation they could justifiably contest and prosecute the matter for restoration thereof notwithstanding the judgment in Malik Said Kamal Shah's case (supra) as interpreted and elucidated by the Honourable Supreme Court in Sardar Ali's case (supra) and Faiz Muhammad and others' case (supra). The contention of the learned counsel for the petitioners has, thus, no substance and is repelled.
6. Now adverting to the crucial issue as to the nature of transaction, the variant approach of the Courts below and findings recorded on Issue No,1 need to be compared on evaluation and assessm ent of the evidence produced by the parties. The Issue No,1 is as follows:-- "(1) Whether the impugned transaction is that of sale and not of exchange? OPP"
' Obviously the issue was to be proved by the respondents/preemptors. In the suit filed by them, it was pleaded that in order to defeat the right of pre-emption of the respondents/pre-emptors, the transaction was given the colour of exchange, which was indeed a sale made orally for a consideration of Rs,72,740. Such an assertion was denied through the written statement and it was pleaded that the exchange had been made inter se the parties, which was an act of good management as the land exchanged was of much higher value and was situated in cotton growing area. In order to prove their assertion, the respondents/pre-emptors produced Muhammad Irshad, Lumbardar (P.W.1) who was present at the time of attestation of the mutation and had even identified the parties and in whose presence, the exchange mutation had been sanctioned. He, however, before the Court stated that it was a sale. According to his testimony, the mutation was sanctioned at the residence of the Tehsildar whose name even he could not recollect. The other witness produced by the respondents/pre-emptors was Tehwar Hussain Patwari (P.W.2) whose testimony however, was of no relevance to the issue. Muhammad Nawaz, one of the pre-emptors/plaintiffs appeared as P.W.3 who stated that the land was indeed sold for a consideration of Rs,72,500 and the 78 Kanals of land with which it was exchanged, was "Banjar Qadeem" situated in Chak Nos.106/6-R and 116/6-R, Tehsil Fort Abbas. It was admitted by him that no payment of price took place in his presence. As against that Riasat Ali, one of the petitioners/defendants appeared as (D.W.1) who reiterated the assertion of exchange and stated that the land situated in Bahawalnagar was valuable land situated on Chishtian Road, Fort Abbas.
The other evidence produced by the parties was in the shape of mutation, subject-matter of dispute, copies of other Revenue Record such as Jamabandies and Khasra Girdawaries and Mutations Exh.P.8 and Exh.P.9. The learned trial Judge on consideration of the evidence and its analysis recorded findings on Issue No,1 in negative against the respondents/plaintiffs who disbelieved the testimony of P.W.1 Muhammad Irshad, Lumbardar, due to his conduct before the Revenue Officer and the Court. Indeed the said witness has been mainly relied upon by the Appellate Court while reversing the findings of the trial Court. His testimony, therefore, needs to be considered on close analysis of the matter. Mutation No,20 through which exchange took place was entered on 7-2-1974 which was sanctioned on 11-2-1974 by the Revenue Officer in "Jalsa-e- Aam" on the identification of Muhammad Irshad, Lumbardar (P.W.1). It was clearly mentioned and recorded that it was a transaction of exchange ( ) between the parties. While appearing as P.W.1 Muhammad Irshad, Lumbardar took a complete somersault not only about the nature of the transaction but also states that the mutation was sanctioned at the residence of the Revenue Officer. This was very material, and major contradiction in his stance and deposition. His testimony, therefore, became highly doubtful and his credit-worthiness stood eroded by his own inconsistent and self-denying conduct. If his statement is disbelieved then there remains no evidence in support of the assertion of the respondents/pre-emptors except the bare statement of Muhammad Nawaz, P.W.3. In such state of affairs "the most important evidence furnished by Muhammad Irshad, Lumbardar"' as described by the learned Appellate Court loses all its significance. The findings recorded by the learned trial Court could not, therefore, be interfered on the basis of such a weak and unreliable evidence of Muhammad Irshad, Lumbardar (P.W. 1).
7. From the precedents cited by the learned counsel for the parties, it is culled out that the Court is entitled to find out the true nature of the transaction and come to its conclusion on the basis of the evidence that may be produced by the parties. However, in order to show and prove that the transaction is not the same as is described and recited in the document, heavy onus lies on the party so pleading. It is also settled law that passing of the sale consideration must be proved by the plaintiffs/pre-emptors for such purpose. No such reliable, convincing or cogent evidence has been produced by the respondents/pre-emptors in this case. Suffice it to observe that in Sher Azam v. Fazle Azim Shah 1972 SCMR 649 it was observed that 'for a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. In the present case, Courts below were not satisfied that price in cash was paid, and from the mere fact that possession of both the properties remained with the respondent or that the areas and the qualities of the properties said to be exchanged were unequal, no irresistible inference of sale could be drawn".
Thus, disparity in the quantity of land itself does not lead to inference or conclusion to strike down the transaction as owned by the parties and recited in the public record. Reference in this context may also be made to Ghulam Hussain v. Jam Allah Dad through Legal Heirs PLD 1989 Lah. 73 wherein it was laid down that the exchange arrived at between the parties could not be brushed aside merely on the basis of conjectures and surmises even though there be some disparity in price. Similar principle is deducible from Syed Khalil-ur-Rehman Chishti v. Abdul Hamid Khan 2004 SCMR 838. Likewise the mutations of sale of the year 1993 i,e, almost twenty years of the original transaction, cannot be invoked to discredit the transaction of exchange of the year 1974.
8. Thus, the comparative approach of the two Courts below considered in the light of the evidence on the record objectively, leads me to the conclusion that findings recorded by the trial Court on Issue No,1 were consistent with the evidence on the record whereas the approach adopted by the learned Appellate Court was not backed by the evidence and is unsustainable in law.
' In view of the above, by setting aside the judgment of the Appellate Court dated 22-11-2000, the judgment of the trial Court dated 12-9-1995 is restored. As a result, the suit instituted by respondents Nos.1 and 2 stands dismissed. This revision petition is accepted accordingly with no order as to costs.