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----S. 100‑Second appeal‑New point‑Point touching deficiency of court‑fee neither argued before Courts below nor any such issue raised or claimed by appellants‑Held, such question cannot be permitted to . be argued at second appeal stage.‑[Court‑fee].

Shahid Hussain Kadri for Petitioner. Date of hearing : 13th January, 1982.

This appeal against the judgment and decree of the learned Additional D1strict Judge, Sheikhupura, dated the 7th December, 1981, dismissing the appellants' appeal against the judgment and decree of the learned Senior Civil Judge, Sheikhupura, dated the 6th June, 1979, whereby the respondents' suit for a declaration that the gift of the land in dispute effected by the late Mst. Zainab Bibi, predecessor‑in‑interest of the appellants in favour of the appellants was void and ineffectual on the rights of inheritance of the respon dents and for recovery of possession of their share in the land in dispute was decreed arises out of the following circumstances. On the death of her husband, Jamal Din, in 1934, Mst. Zainab Bibi succeeded as limited owner under custom to her husband's land situate in the area of village Phillor, D1strict Jullunder, now in India. Mst. Sughra Begum deceased, predecessor -in‑interest of the respondents, was the daughter of Ghulam Nabi, brother of Jamal Din. After migration to Pak1stan Mst. Zainab Bibi got the land in dispute situate in the area of village Chuharhana, Tehsil and D1strict Sheikhu pura, in lieu of the land left by her in India to which she had succeeded on her husband's death. She gifted away the land in village Chuharkana to her daughter, Ms . Shah Begum, appellant 1, and the latter's three sons, appellants 2 to 4, and Mutation No. 1660 was sanctioned in respect of the gift on the 12th February, 1961.

2. Mst. Sughra Begum, who alleged that her father, Ghulam Nabi, was alive when Jamal Din died, instituted suit to claim her share according to Shariat out of the land in question conveyed to the respondents by gift. She maintained that Vst. Zainab Bibi being limited owner of the land in dispute was not competent to effect gift of the same in favour of the appellants. During the pendency of litigation both Mst. Zainab Bibi and Mst. Sughra died. The parties to the present appeal are their legal representatives.

3. Even from the admission of the witnesses produced by the appellants it was apparent that Mst. Sughra Begum was the daughter of Ghulam Nabi who died after his brother Jamal Din, had expired. In these circumstances both the Courts below recorded concurrent findings to that effect. Being a limited owner Mst. Zainab Bibi was held to be incompetent to transfer the land in favour of the appellants. Consequently Mst. Sughra Begum was given 6/16th share out of the land in question which share her father would have been entitled to inherit on the death of Jamal Din, the last male owner of the land in lieu of which the land in dispute had been transferred to Msc. Zainab Bibi.

4. It was difficult for the learned counsel for the appellants to assail the concurrent findings of fact of the two Courts below referred to above. How ever, he raised points which, as the perusal of the judgments of the two Courts below disclose, were not argued before those Courts. He contended that proper court‑fee had not been paid on the plaint and as such the respondent were g not entitled to get possession of their share of the land, There was no issue touching deficiency in court‑fee paid by the respondents before the Courts below nor did the appellants claim or move for settling such an issue. It is too late in the day to agitate the question of sufficiency of court‑fee paid on the plaint. At this late stage this question cannot be permitted to be argued.

5. The contention of the learned counsel for the appellants that the gift had been made before the West Pak1stan Muslim Personal Law (Shariat) Application Act, 1962, came into force makes little difference with the outcome of the litigation because even before the enforcement of the Act Mst. Zainab Bibi could be taken to be no more than limited owner of the land with restricted powers of alienation.

6. The learned counsel maintained that there were other collaterals who could claim share in the property in dispute. However, none of them was a party to the litigation nor was their existence pointed out by the appellants earlier. Hence it is only the share of the contesting parties which could be determined. In view of the parties on the record Mst. Sughra Begum's share and consequently that of the respondents, were rightly fixed. There is no room for interference with the judgment of the lower appellate Court. This appeal is consequently dismissed in limine.

K. M. A. Appeal dismissed in limine. .

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