The present regular second appeal by the plaintiff

assailing the concurrent findings of the Courts below,

wherein, the suit for declaration, partition and separate

possession

and

consequential

relief

of

permanent

injunction was dismissed by the Courts below.

The parties herein are referred to as per their

ranking before the trial Court for the sake of convenience.

This Court, while admitting the appeal, has

framed the following substantial questions of law on

08.01.2020:

"(1) Whether the Courts below have failed to

analyse the alleged family custom or village

custom as pleaded by the plaintiff?

(2) If the existence of alleged family custom or

village custom is established, then, whether such

a family custom or village custom as pleaded by

the plaintiff would prevail upon the general rules

of partition under Hanafi School of Sunni Sect of

Mohammedan Law?

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(3) Whether the Courts below have failed to

appreciate the law regarding the partition among

Mohammedans?

(4) Whether the judgment and decree impugned in

this appeal deserves any interference at the

hands of this Court?"

Learned counsel, Sri Basavakiran G.R. for Sri

D.P. Ambekar, learned counsel appearing for the appellant

and Sri. Ananth S. Jahagirdar, learned counsel for

respondent Nos.2 to 5 have been heard on the substantial

questions of law framed by this Court.

Brief facts of the case are that:

Plaintiff and defendant Nos.3 and 4 are the children

of defendant Nos.1 and 2. It is the contention of the

plaintiff that the family owned land bearing Bl No.333/1A

measuring 10 acres 6 guntas which was standing in the

name of defendant No.2 and land bearing Bl No.333/1B

measuring 3 acres 14 guntas was standing in the name of

defendant No.1. It is the contention of the plaintiff that

originally it was single Bl No.333/1 measuring 13 acres 20

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guntas which was standing in the name of Mohammed

Gudusab Musti and the said Mohammed Gudusab Musti

effected partition between his four sons namely, Hamidali,

Shoukatali, Rajatali and Ilahi and the said Mohammedsab

has given the said land by way of partition in favour of

Hamidali and Rajatali and the mutation entry was effected.

It is the further contention that Ilahi and Shoukatali have

been given lands in the partition and accordingly, mutation

entries were effected. It is the contention of the plaintiff

that in the family of the defendants and the plaintiff, there

is a convention and that the partition was effected during

the life time of the father, and the said convention has

been followed since time immemorial as per the hereditary

custom in the village as well as the specific convention in

the family of plaintiff and defendants.

6.

It is the contention of the plaintiff that the

customary principle of partition to be effected during the

lifetime of the father was continued since 40 to 50 years in

the family of the plaintiff and the defendants. As per the

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customary and hereditary principle that was in force in the

family, the plaintiff is entitled to the legitimate share

during the lifetime of defendant Nos.1 and 2. However,

defendant Nos.1 and 2 colluding with defendant Nos.3 and

4 have denied the legitimate share to the plaintiff and this

being so, defendant Nos.1 and 2 have sold the suit lands

in favour of defendant No.5 without any legal necessity.

The cause of action, according to the plaintiff, arose on

01.03.2006

when

defendant

No.5

obstructed

the

possession of the suit schedule property.

7.

The suit was resisted by defendant Nos.1 and 5

by filing written statement and also by filing counter claim.

It is the contention of the defendants that the parties are

Mohammedans and they are governed by Sunni Law of

inheritance and the suit is not maintainable during the

lifetime of defendant Nos.1 and 2. It is the contention of

the defendants that defendant Nos.1 and 2 have owned

the suit schedule property and the plaintiff and defendant

Nos.3 and 4 are no way concerned with the suit schedule

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