1. ZAFFAR HUSSAIN MIRZA, J.-Respondent No. 7, Sar Anjam Khan son of Bahadur Khan is the sole heir of Mst. Sardaro widow of Abdur Rehman Khan. On 30-9-1960, Sar Anjam Khan brought a suit for declaration that he is the owner of 350/381 shares equal to 1508 kanals, 8 marlas, out of the total estate of deceased Abdur Rehman Khan comprising 1621 kanals of land, situate in village Charbanda, Mardan. The other prayers in the plaint were that the Government of N.W. F. P. And the Deputy Land Commissioner, have no power of resuming the land under Martial Law Regulation No. 64 and that, the entries in the revenue record be corrected accordingly. A permanent injunction, by way of consequential relief was also sought. The claim of Sar Anjam Khan was based on a dower deed, by which he claimed that the ownership of the property was transferred to Mst. Sardaro and after her death, be had succeeded thereto by inheritance. It was stated that on the death of Abdur Rehman, the property comprising 8 Items, was mutated by way of inheritance, in the names of respondents 1 to 4 wrongly. Respon--dents 1 to 3, namely, Mir Afzal Khan, Azizur Rehman and Muhammad Ayub are the nephews of deceased Abdur Rehman and respondent No. 4 Me. Zubeda was the other widow, who survived him on his death.
2. The suit was contested by the aforesaid four respondents before the trial Court. However, by judgment dated 28-10-1964, the trial Court, rejected the claim of Sar Anjarn Khan on the basis of the dower deed, but held that he was entitled to succeed to the share devolving upon Mst. Sardaro by inheritance to the extent of 1/8th from the estate of her husband. It was further held that the dower deed only operated as to the usufruct of the land and not to the corpus of the same, so that Mst. Sardaro under the said deed was given only a life estate. The suit was accordingly decreed in respect of 1/8th share of the suit property.
3. Being aggrieved by the aforesaid decision, Sar Anjam Khan filed an appeal before the High Court of Peshawar, which was accepted by judgment dated 30-9-1971. The present appellants were not made parties to the suit or the appeal as originally instituted. However, during the pendency of the appeal, on 13-4-1966, they were impleaded as parties on their own request through an application, dated 22-3-1966, under Order XLI, rule 20, C. P. C., subject to all just exceptions. The plea of the appellants for being impleaded as parties to the appeal, as set out in their application was that "the petitioners are entitled to the transfer of a part of land in dispute under Martial Law Regulation, 1964, read with its sale scheme as tenants". It is stated at the bar that Martial Law Regulation No. 64 only affected the holding of respondents Mir Afzal and Azizur Rehman. In other words, the only interest of the appellants in the controversy, was that if the land in dispute was held to have rightly devolved upon the aforesaid respondents alongwith other heirs, by way o f inheritance from deceased Abdur Rehman Khan, then the holding of the said respondents would exceed the ceiling prescribed under-the said Martial Law Regulation and the excess land would be resumed by the Land Commission, to be allotted to the appellants as sitting tenants.
4. The High Court accepted the appeal of Sar Anjarn Khan and upheld his claim that the aforesaid dower deed validly divested deceased Abdur Rehman Khan of the corpus of the property in dispute, which stood transferred to Mst. Sardaro under the terms of the impugned dower deed (Exh.
5. P. W. 4/J). By this finding the controversy between Sar Anjam Khan on the one hand and Mir Afzal Khan, Azizur Rehman Khan, Muhammad Ayub Khan and Mst. Zubeda Begum on the other stood concluded. At this stage, it will be necessary to pause and mention that during the pendency of the appeal, the contesting parties, namely, the last-mentioned contesting respondents had settled their dispute with Sar Anjam Khan and did not want to contest the appeal. We find from the record of the High Court that on 22-11-1965, an application (Miscellaneous Application No. 480 of 1965) was submitted on behalf of Mir Afzal Khan, Azizur Rehman Khan and Mst. Zubeda Begum that they "admit the ownership of Sar Anjam Khan plaintiff-appellant in 1508 kanals, 8 marlas out of 1641.
6. Kanals, 19 marlas of land situated in the area of Charbanda, Tehsil and District Mardan, as claimed by Sar Anjam Khan plaintiff-appellant in his suit". Again on 17-1-1966, respondent Muhammad Ayub Khan submitted an application that he has sold his share in the suit land to Sar Anjam Khan and requested that the said transaction be confirmed in favour of the latter. In this regard, the learned Judges of the High Court in their judgment at para. 55, made the following observations :- "We will further like to bring on record, that defendant-respondents 1 to 4 do not contest the suit.
7. The conduct on their part will not clinch the matter, so far as the Chief Land Commissioner is con-- cerned, but it certainly reinforces our conclusion, that corpus of the land in suit and not the mere usufruct was conveyed to the lady as far back as 1923 in lieu of her dower."
8. As regards the right claimed by the present appellants, the learned Judges of the High Court made the following remarks :- "Mian Muhammad Younus Shah, learned counsel interjected on behalf of the tenants during the course of arguments and contended, that since the tenants of the land in suit expected allotment of the land to them on its resumption, they were interested parties. He, however, conceded that if this Court was of the view, that corpus of the land has been conveyed, the plaintiff was entitled to the declaration prayed for, and his clients will not get anything in that case. Even if Mian Muhammad Younus Shah had not taken such a lukewarm stand, we would not have considered it desirable to hear him in detail for, no relief has been sought against his clients."
9. The present appellants then approached this Court for leave to appeal and by order, dated 23-12- 1972, their petition was accepted and leave prayed for was granted, on the ground that the property involved in the case is of substantial value and the important question of validity of life interest or life estate under the Muhammadan Law required consideration.
10. We have heard Mr. Abdul Samad Khan, learned counsel for the appel--lants and upon discovering the aforesaid facts, namely, that the original four contesting defendants had admitted the claim of Sar Anjam Khan before the High Court and declined to contest the appeal, long before the present appellants applied for being impleaded as parties, we have enquired from him as to how the appellants had locus standi to maintain an appeal against the decree passed by the High Court.
11. He is unable to make any satisfactory reply and merely reiterates the same ground as was urged in the application of the appellants for being joined as parties, that in the event of their success in the present appeal, they expect to obtain allotment of the lands coming to the share of Mir Afzal Khan and Azizur Rehman Khan. We are, however, of the view that the present appellants have no present right or interest in the subject-matter of controversy in the suit, since they are total strangers thereto and seek to obtain benefit by pressing the case of the four respondents who had themselves given up the controversy in the aforesaid manner. The learned Additional Advocate- General appearing o In behalf of the Government of N.-W. F. P. And Deputy Land Commissioner, has also candidly conceded that his clients have not appealed against the decision of the High Court as they are not aggrieved by the same and cate--gorically states that his clients have no objection if the Court is willing to accept the concession made by the four respondents mentioned above.
12. In view of the aforesaid, we are inclined to hold that if the facts discovered by us during the course of the arguments of this appeal, had been brought to the notice of the leave granting Bench, the leave order would not have been granted. We, therefore, recall the leave order and dismiss the petition for leave preferred by the present appellants. In the circumstances of the case, there shall be no order as to costs.