1. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment, dated 24th March, 1981. Of the Lahore High Court ; whereby a civil revision filed by the petitioner arising out of a land dispute was dismissed.
2. Mst. Nazar Bibi widow of Haider Ali deceased brother of the plain--tiffs (petitioners) made a wilt in 1935 in f4vour of the brothers of her deceased husband purporting to bequeath in their favour the entire land which she had inherited from Haider Ali as limited owner. She died in 1951. The Revenue Authorities, however, did not give effect to the will and decided the question of inheritance to the property held by htst. Nazar Bibi in accordance with the provisions of Muslim Personal Law (Shariat)
3. Application Act, 1948. They mutated 1/4th of the land held by Mst. Nazar Bibi in favour of her own brothers and sisters (respondents) and the remaining 3/4th its favour of the heirs of her deceased husband.
4. A suit filed by the heirs of Haider Ali on the basis that they could retain the property under the will and in any case on account of adverse possession was dismissed by the trial Court. Their appeal and subse--quently revision in the High Court having been dismissed, they have now sought leave to appeal.
5. All the learned Courts below have held that Mst. Nazar Bibi being a limited owner could not through a will deprive her heirs of her inheri--tance under the Muslim Personal Law (Shariat) Application Act, 1948 and that the plaintiffs were unable to establish their claim on the basis of adverse possession.
6. The only point raised in the High Court on behalf of the petitioners, it may be mentioned, was that the decision of the learned Courts below on question of adverse possession was liable to be reversed. The learned single Judge examined the question raised in the face of the pleas and evidence led from both the sides. No force having been found in the sole argument raised with regard to adverse possession, the revision petition was accordingly dismissed.
7. Learned counsel for the petitioners was enable to satisfy us on the question of findings of all the learned Courts below with regard to adverse possession. He was unable to show how Mir Laik All v.
8. Standard Vacuum Oil Company (Esso) PLD1964SC220 cited in High Court from the petitioners' side could be of any assistance to them. Ultimately, after raising this point, the learned counsel did not press the same.
9. His main contention raised in support of the petition for leave to appeal as contained in the application for submitting an additional ground was that "the will being in favour of non-heirs of the lady was valid to the extent of 1/3 share out of the property of Mst. Nazran Bibi even under the Muslim Personal Law, hence the suit could have been decreed to the extent of 1/3 share on this account as well and could not have been dismissed in toto." He explained that the plaintiffs (peti-- tioners) were entitled on the basis of the will to obtain 1./3 share of the 1/4th share, which as Muslim Law heir Mst. Nazar Bibi could have inherited from her husband under the Muslim Law, on her surviving him. When questioned that the widow could make a will of s property if she was its full owner, and that as a limited owner as held by the learned Courts below, she had no power to do so even by way of the so-called testamentary alienation of the property ; which did not then belong to her as full owner and to which on her death her own lawful heirs would have been entitled, to inherit learned counsel relied on what he stated to be the solitary judgment supporting his view, namely, Ghulam Muhammad Shah v. Fateh Muhammad Shah PLD1950BJ9 , Although the question of succession under the Muslim Law (Shariat) Application Act, 1948 was not involved in the said case, nonetheless it would not be necessary to examine the authority because the view taken therein stood otherwise, overruled in Ghulam Muhammad Shah v. Fateh Muhammad Shah P L D1955F C I the subject-matter of dispute in this case was the same and was between the same parties as in the Baghdadul Jadid case. We asked the learned counsel whether the will of Mst. Nazar Bibi could in any way benefit the petitioners on the principle of "surrender" and "acceleration of succession" which concept are sometimes relevant in cases of gift by a limited owner but for obvious reasons he could not advance the petitioners' case even in this behalf. Ultimately, after some arguments when questioned whether there was n pronouncement by this Court on the question raised, he cited Said and others v. Fazal Hussain and others PLD 1959 SC (Pak.) 356, which is against the plea raised by him. A similar argument as raised by the learned counsel was considered in the cited case, namely, that an alienee from a female limited' owner was entitled to retain at least the share of the property that would have fallen to her. The argument was repelled with the observation that it would have had some force if instead of the notional inheritance envi--saged in section 3 of the Shariat Application Act, 1948, the limited owner had actually succeeded to a share in the property as she would have don if her limited interest had terminated otherwise than by her own death and because in the said case (as in the present case), the limited interest, of the female terminated because of her death, the share which she would have otherwise inherited shall devolve on her heirs under the Muslim Personal Law. A short but comprehensive observation made in the said case, namely, "it is plain that she herself never became vested with full ownership in any part of the property", therefore, the plea could no] succeed, is a complete reply to the argument of the learned counsel.
10. In the light of the foregoing discussion even if we would have formally allowed. The application made by the petitioners for urging a ground other than one taken before the High Court and not taken in the petition for special leave to appeal, the petitioners could not have derived any benefit.
11. We accordingly decline to grant the permission.
12. No other point having been urged, we do not find any justification for interference. This petition accordingly is dismissed.