- (1.) The facts leading to the filing of the writ petition is, that one Hazi Sheikh Abdul Samad created a private waqf which was registered on 4.8.1931 as 1-A. A second list of the properties was registered on 3.1.1956 as 136. In this waqf, a provision was made that the male son would become the mutawalli and in the absence of a male lineage, the daughter's son would become the mutawalli.
(2.) In 1964, Hazi Abdul Hai, filed suit No.64 for a declaration that he should be declared as a mutawalli. This suit was partly decreed on 24.5.1982 in respect of property No.1-A and was dismissed in respect of property No.136. Two First Appeals were filed. Zakirullah and others filed First Appeal No.457 of 1982 and Mohammad Ahmad filed First Appeal No.83 of 1982. During the pendency of these appeals, one of the respondents Kaniz Fatima, who was the wife of the plaintiff Hazi Abdul Hai, died on 22.4.1985. A substitution application was filed praying that her husband Hazi Abdul Hai should be substituted. Hazi Abdul Hai, i.e., the plaintiff filed an objection contending that his son Nizamul Hai, who was born out of the wedlock from Kaniz Fatima should also be substituted. Consequently, a dispute arose as to whether Nizamul Hai was the son of the plaintiff or not. The High Court, by an order dated 20.3.1988, remitted the matter to the trial court under Order 22 Rule 5 of the C.P.C. to give a finding on this issue.
(3.) On account of the increase in the pecuniary jurisdiction, the First Appeal filed before this High Court was transferred to the lower appellate court. In the meanwhile, the plaintiff Hazi Abdul Hai died on 30.4.1999 and, upon his death, a substitution application was filed by Nizamul Hai for his substitution. The lower appellate court, by its order dated 19.1.2000 remitted the issue to the trial court.;