2024 PLP 1793 (CLC)

FAZAL SUBHAN, J.

Instant is an appeal under section 8 of the Khyber Pakhtunkhwa Enforcement of Women's Property Rights Act, 2019, (Act) through which appellants have challenged order dated 19.11.2019 of the Ombudsperson Khyber Pakhtunkhwa directing the Deputy Commissioner, Karak for conducting partition proceedings and handing over possession to the complainant/ respondents.

2. Facts of the case are that the respondents Nos.1 and 2 filed a complaint No.6-40/2020 before the learned Ombudsperson Khyber Pakhtunkhwa, Peshawar, claiming to be legal/ shari Legal heirs of deceased Gul Nawaz and are entitled to 2/8 shares in the property, described in the heading of the complaint, situated at Takht-e-Nasrati, District Karak. After filing of the complaint the present appellants were served with notice, where after appellants Nos.1 and 2 and Legal Heirs of Muhammad Saeed appeared and filed their written statement, and through order dated 23.09.2021, the Deputy Commissioner, Karak was directed to submit inquiry report in the matter. On 30.09.2021, the Deputy Commissioner, Karak submitted inquiry report along with Goshwara Malkiyat, wherein shares of the complainants have been determined. The Ombudsperson Khyber Pakhtunkhwa, Peshawar, vide impugned order dated 18.11.2021, directed the Deputy Commissioner, Karak to depute Tehsildar for calling both the parties, visiting of spot and preparation of Naqsha Alif, Bay and Jeem and then handing over the possession to the complainant. Aggrieved from the said order the appellant have filed this appeal on the grounds, inter alia, that the impugned order is the result of misreading and non-reading of available record and it suffers from material illegality and irregularity. It was further contended that the appellants have already annexed the record of the suits filed by respondents Nos.1 and 2 before the Civil Judge, Takht-e-Nasrati, District Karak, in respect of the same property and the stay application of the respondent Nos.1 and 2 has been concurrently dismissed by the learned Civil Judge-II, and Additional District Judge, Takht-e-Nasrati, District Karak, for the reason that matter between the parties relates to the factual controversy. It was further submitted that the impugned order dated 18.11.2021 is the result of partiality for the reason that the contention raised in the written statement have not even been considered at the time of passing the impugned order.

3. Arguments of learned counsel for the appellants and that of learned counsel for the respondents heard and record perused.

4. The respondents Nos.1 and 2 have approached the learned Ombudsperson Khyber Pakhtunkhwa Peshawar, under section 4 of the Act, whereby a women deprived of her ownership or possession of the property, may file complaint to the Ombudsperson, however, specific condition has been mentioned that such complaint has to be entertained, if no proceedings in Court of law are pending regarding that property. The relevant provision of section 4(1) and its proviso are reproduced herein below for convenience.

4. Complaint to the Ombudsperson in case no proceedings in a Court of law are pending

(1) Any woman deprived of ownership or possession of her property by any means may file a complaint to the Ombudsperson if no proceedings in a 'Court of law are pending regarding that property. Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization, may also initiate action under subsection (1) in relation to the ownership or possession of a women's property, if no proceedings are pending in a court in respect of that property. Section 7 of the same Act, also relates to the complaint before the Ombudsperson in case of proceedings in a Civil court, which is as follows:

7. Complaint to the Ombudsperson in case proceedings in a Court of law are pending.

(1) Where proceedings in a Court of law are pending in relation to the ownership or possession of any property claimed to be owned by a woman, she may file a complaint under this subsection to the Ombudsperson: Provided that the Ombudsperson, on its own motion or on a complaint filed by any person including a non-governmental organization may also initiate action under subsection (1) in relation to the ownership or possession of a woman's property, even if proceedings are pending in a court in respect of that property.

5. As per Section 7(1) of the Act, Proviso, the Ombudsperson on gaining knowledge on its own motion or on a complaint filed by any person, may also initiate action in relation to subsection (1) regarding ownership or possession of property of a women, even if, proceedings are pending in the court in respect of that property. Section 6 of the Act, is of much importance and consideration, which requires an Ombudsperson to make reference of the complaint to report, in case, the matter requires in-depth inquiry to the investigation or detailed recording of evidence or it relates to intricate matters, in which case the Ombudsperson shall forward a reference along with all the reports/ material collected and submitted the same to the Civil Court of competent jurisdiction. In the instant case the respondents Nos.1 and 2, through their complaint had claimed their legal share in the property, left by Gul Nawaz, their predecessor and in their written statement before the learned Ombudsperson, the appellants have specifically mentioned in Para No.3, that suit of respondents Nos.1 and 2 is already pending before the Civil Judge-I, Takhte-Nasrati, District Karak, in respect of the same property, however, the learned Ombudsperson has not considered this aspect of the case and passed the impugned order for partition of the property in dispute and handing over possession to the respondents Nos.1 and

2. Photocopy of the Civil suit filed by the respondents Nos.1 and 2 are already on the file, which shows that in one of the suit they have claimed recovery of Rs. 8571250/- as rent of 55 shops @ Rs.5000/- per month, since 2009 to 2019, recovery of cost of litigation Rs. 1,00,000/-(one lac) and court fee Rs. 15000/-, whereas in second suit they have claimed 12/8 share in the landed property described in the heading of the plaint. They further prayed for permanent injunction and possession by means of partition and thus in both the suits not only intricate question of law and facts are involved, but it also requires recording of pro and contra evidence from both sides and in that situation learned Ombudsperson while ignoring the provision of sections 4, 6 and 7 of the Act, has passed the impugned order in derogation of express provisions, which in no way is sustainable in the eyes of law, for sole reason that question raised in the complaint requires thorough investigation and detail recording of evidence.

6. In this view of the matter, this appeal is accepted, the impugned order dated 18.11.2021 is set aside and the complaint is remanded to the Ombudsperson with the direction to proceed with the same in accordance with law on the subject. SA/24/P Appeal allowed.