' M. JAVED BUTTAR, J.--- Petitioners through captioned petitions under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 are seeking leave to appeal against the common judgment and decrees dated 15-10-2004 passed by a learned Single Judge of Lahore High Court, whereby Revision Petitions Nos.1443-D of 1997 and 1933-D of 1998, under section 115, C.P.C. Instituted by their predecessor Mukhtar Muhammad have been dismissed.
2. The petitioners predecessor Mukhtar Muhammad and the respondent Riaz Muhammad brothers inter se, jointly purchased House bearing No,24, Street No,5, Aziz Road, Misri Shah, Lahore, measuring about 4 Marlas, through registered sale-deed dated 20-9-1962, from their father Shah Muhammad, in the proportion of 2/3rd share of the Mukhtar Muhammad and 1/3rd share of the respondent.
Likewise, in the same proportion, they were co-owners of a plot which was constructed upon before the commencement of litigation, into a House bearing No,1, Street No,32 Nawab Colony, Misri Shah, Lahore.
3. The respondent vide registered sale-deed, dated 19-1-1985 purchased 2/3rd share of the petitioners predecessor Mukhtar Muhammad in the first mentioned House No,24 and thereafter on 20-10-1985 brought a suit for possession of the said share and mesne profits, at the rate of Rs,800 per month, which was allegedly promised by Mukhtar Muhammad as a compensation for its use during his occupation. Mukhtar Muhammad contested the suit and raised a plea that the above- said sale-deed was void ab initio, as no consideration was paid to him and that the sale-deed was a result of fraud and misrepresentation.
4. Mukhtar Muhammad also filed a suit for declaration and as a consequential relief, asked for cancellation of the above-said sale-deed dated 19-1-1985.
5. In both the cases, the stance of Mukhtar Muhammad was the same. It was alleged in para.3 of the written statement to the respondent's suit for possession, that there was some dispute, between the parties regarding above-said two properties and with the intervention of the respectables, it was agreed that in the first mentioned property i,e, House No,24, (the property in dispute), Mukhtar Muhammad shall transfer his 2/3rd shares in favor of the respondent and in return as a consideration of the above and by additionally making payment of Rs,1,60,000 (by the respondent), the respondent shall transfer his 1/3rd share in the above mentioned second property i,e, House No,1 and for this purpose, stamp paper was purchased on 12-3-1985 and sale-deed was scribed by Deed Writer Fida Hussain Butt. However, the respondent refused to execute the sale- deed.
6. The parties were put to trial in both the suits and after settling the issues, the evidence produced by the parties, was recorded. The trial Court vide its judgment and decree dated 24-10-1994, decreed the respondent's suit for possession and mesne profits. The appeal of the petitioners predecessor was dismissed by the Additional District Judge, Lahore on 25-6-1997, which was subject-matter of Civil Revision No,1443-D of 1997. Likewise, the suit for declaration and cancellation of the sale-deed, dated 19-1-1985, instituted by the petitioners' predecessor was dismissed by trial Court on 24-10-1994. His appeal was dismissed by the Additional Sessions Judge, Lahore on 9-10- 1998, which was subject-matter of the connected Civil Revision No,1933-D of.1998. Both the said revision petitions, as mentioned above, have been dismissed on 15-10-2004.
7. It has been argued by the learned counsel for the petitioners, as before the High Court, that both the suits pertaining to the same subject-matter, they should have been consolidated and decided together, that an application for their consolidation was moved by Mukhtar Muhammad which was rejected by the trial Court. His revision also failed, which order became final as the matter was not agitated any further. This argument has, therefore, no force. Even otherwise learned counsel has not been able to show any prejudice having been caused to the petitioners on account of non- consolidation of both the suits. The issue cannot be allowed to be reopened at this stage.
8. On merits the main thrust of the argument of the petitioners' counsel has been that at the appeal stage, in the suit instituted by the petitioner's predecessor Mukhtar Muhammad, he had moved an application for amendment of the plaint so as to seek specific enforcement of the oral agreement between the parties under which the respondent had allegedly agreed to alienate his 1/3rd share in the second House bearing No,1 in the terms mentioned above. The amendment to said effect was prayed in para.7 of the said plaint (suit for declaration and cancellation of the sale- deed), in the prayer clause, and in the heading of the plaint, which application was dismissed by the Appellate Court on 9-10-1998, on the ground that amendment if allowed, would change the nature of the suit. The learned counsel while relying upon Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345, submitted that amendment in the pleadings must be liberally allowed and in the interest of justice the same should have been allowed, even if claim of the petitioners for specific performance had become barred by time.
9. We find no merit in this argument. The sought for amendment in the above-said suit would not only amount to change the nature and character of the suit, it would also nullify the judgments and decrees passed by the Courts below in the respondents' suit and in our view, the learned Judge of the High Court has correctly dealt with all aspects of this issue and the learned counsel has failed to point out any illegality in the same. The relevant paragraph of the impugned judgment, in this regard, for the sake of convenience and to avoid repetition, is reproduced below:-- "8. Regarding Civil Revision 1933-D of 1998, the case propounded by the petitioner in the plaint, which was his defence in the other suit, has been disbelieved by the two Courts below, not only in that case, but in the present matter as well. It seems therefore, that having failed in the first case at both the levels and in the instant at the stage of the trial Court, the petitioner abortively attempted to seek the amendment in the plaint of his suit, particularly seeking the conversion of the suit from the one challenging the sale-deed of the respondent qua the house in issue, but for enforcement of some oral agreement/settlement between the parties, which defence was never believed by the Courts in the other case. Undoubtedly, the amendment, if allowed, would change the entire complexion, the nature of the suit and the cause of action and practicably, it would amount to the nullification of the judgments and decrees rendered by the Courts in other matter i,e, Civil Revision No,1443 of 1997, which when examined on their own merits cannot be set aside, rather have been sustained by this Court as well.
' The argument that lapse of limitation but itself is no ground for refusing the amendment. Suffice it to say, that the bar of limitation may become quite important, when the question of amendment is examined in the light of bona fides, which seems lacking in the case, and about the nature of the change of the claim and the cause of action, therefore, for all these counts, the Courts below have rightly refused to allow the petitioner to amend the plaint in the instant case. No other point has been raised in this petition."
10. As far as the other controversies are concerned, the same are purely factual in nature. All the Courts have recorded concurrent findings of fact against the petitioners and the learned counsel has not been able to point out any illegality in the conclusions drawn which are based on the facts found through evidence. He has also not been able to point out any non-reading of evidence. The petitioners' case was that the sale-deed in question was the result of fraud and misrepresentation and no consideration was paid to Mukhtar Muhammad whereas it has been established through evidence that the petitioners predecessor had executed the sale-deed on his 2/3rd share in the first mentioned House No,24 and the payment of sale consideration to him was also proved through the deposition of P.W.1 Allah Ditta who was the marginal witness of the sale-deed. Similarly the petitioners defence that simultaneously respondent was also under an obligation, under an oral agreement, to transfer his 1/3rd share in the second property i,e, House No,1, was not proved.
P.W.1 Allah Ditta denied that any such second deed was ever written. P.W.4 Ilyas Muhammad, the real brother of the parties, testified about transaction of the sale in favor of the respondent. He in fact testified against the assertions of Mukhtar Muhammad. The learned Single Judge of the High Court after going through the entire evidence and discussing the same, correctly concluded that concurrent findings of fact recorded by two Courts below to the High Court were not shown to be the result of any misreading or non-reading of the evidence. We are of the view, that the respondent's suit was correctly decreed and the suit instituted by the petitioners' predecessor was correctly dismissed and the impugned judgment does not suffer from any illegality to warrant interference by this Court.
' In view of the above mentioned, we see no merit in these petitions which are accordingly dismissed and leave is refused.