' Bahadur Khan and others, the present petitioners had filed a suit for recovery of possession on the basis of preemptive right of Khata Shareek, Shafi Khaleet and Shafi Jar against Mutation No.3256 sanctioned on 18-5-1995. Asserting in the plaint it was stated by the aforesaid plaintiffs/ petitionersthat Muhammad Akhtar son of Fazal Din had sold out the land measuring 32 Kanals situated in Dakhli Mauza Bahadurpur, District Rahimyar Khan to Peeranditta defendant/respondent at the rate of Rs.20,000 per acre. The total amount being Rs.80,000 but had shown .It to be a fictitious and fake transaction of exchange. So, it was prayed by the plaintiffs/ petitioners that the transaction entered into mutation being an exchange, be declared as a sale transaction and the suit be decreed in their favour as they have got superior right of pre-emption. The suit was contested by defendant/respondent. He filed the written statement and denied the factum of sale and alleged that it was an exchange and sale was never made. Many other objections were also raised in the written statement. Issues were framed and parties had produced their evidence oral as well as documentary. The learned trial Court dismissed the suit holding that the plaintiffs have failed to prove their superior right as well as the transaction to be a sale contract.
2. Dissatisfied with the judgment and decree dated 28-6-2000 passed by learned Civil Judge 1st class, Sadiqabad an appeal was filed before the learned District Judge, Rahimyar Khan, which was also dismissed holding that issue No.1 was rightly decided against the petitioners and the transaction was an exchange.
3. This judgment was delivered by learned Additional District Judge, Sadiqabad on 29-1-2002.
Hence, this civil revision.
4. The learned counsel appearing on behalf of the petitioners has addressed the arguments by stating that no document to prove the ownership of Peeranditta was Produced by defendant/respondent.
' According to the learned counsel, no change through the alleged exchange in the possession of the parties under the exchange was also proved by him. The learned Appellate Court by holding that issue No.1 with regard to the nature of transaction has not been proved to be a sale and leaving aside the other issues has contravened the provisions of Order XLI, rule 31, C.P.C. And evidence of P.W.1 and P.W.4 was wrongly discarded.
5. I have considered the arguments of the learned counsel appearing on behalf of the plaintiffs/pre-emptors/petitioners. Whether the transaction is a sale or exchange, it is a finding of fact, chapter of which findings of fact has been closed with the decision/judgment of the learned Additional District Judge, the Appellate Court. The findings of facts cannot be disputed especially the concurrent, found by both the Courts below, in the revisional jurisdiction unless the three ingredients/ conditions prescribed by provisions of section 115 of the C.P.C. Are proved through the record. The learned Appellate Court when forming its opinion of the factum of exchange has considered Exh.P.6, Exh.D.1 and the statement of D.W.2, who was an attesting witness of the mutation, the deductions from the evidence have not been found against the rules provided for appreciation of evidence. So, the tenor of the transaction, being exchange it is to be believed as such through the impugned mutation. To show the hidden transaction as a sale agitated by the petitioners .Was to be proved by the petitioners, if they wanted to succeed in their case. It was not the burden of respondent/defendant to bring evidence to prove the exchange as an exchange because it was being displayed by the mutation itself. The person who wanted that Court should believe against apparent nature of a transaction to that of different one has to prove himself as such. In Muhammad Irshad and others v. Sardar. Khan 1981 CLC 124 it was held that the pre-emptor can show, display and prove the real transaction and in case of its failure, he has to suffer. In Muhammad Amin v. Muhammad Yasin PLD 1993 Pesh. 13, when no evidence was brought on record to prove the transaction of exchange to be a sale, the suit was dismissed.
6. The plaintiff had to prove that through this transaction, sale price of the property was settled and paid and that the transaction was wrongly disguised as an exchange. As the petitioners have failed to prove the transaction to be a sale, so the main foundational ground for the success of a case having been lost by the petitioners, Order XLI, rule 31 of the C.P.C. Had not necessarily required the Court to decide all other issues, in the circumstances of the case. Accordingly, the civil revision being not competent against the concurrent findings of facts is liable to be dismissed, which is dismissed as such in limine.