1 SA 355.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 355 OF 201 0 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.A.G.Magare, Advocate for the appellant. Mr. J.R.Shah, Advocate for Resp. no. 1. Mr. Nandode, Advocate for Resp.nos. 2 to 8. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 25/04/2011 PER COURT : 1. This is the Appeal by the original defendant. The present respondents had filed Suit for partition and separate possession. The trial Court decreed the Suit. The defendant preferred Appeal. The appellate Court also dismissed the Appeal. The defendant aggrieved thereby has filed present Second Appeal. 2. Mr. A.G. Magare, the learned counsel for the appellant strenuously contends that the Courts below have merely on the basis of mutation entry relied on the fact that the partition has been shown amongst Sajjubai on one hand and the 2 SA 355.2010 children of the brother of Munga on the other hand. The mutation entry could not have been formed the basis for such conclusion nor the same creates any right in favour of the plaintiffs. The learned counsel further contends that the provisions of the Hindu Succession Act do not apply to the Scheduled Tribes. It is not disputed that the parties are Scheduled Tribes. The plaintiffs have failed to prove any custom regarding the entitlement of the daughter to inherit the property. In absence thereof, no decree could have been passed in favour of the plaintiffs. According to the learned counsel, the evidence in this regard has not been properly appreciated. 3. Per contra, Mr. Nandode, the learned counsel for the original plaintiffs submits that though in strict sense the provisions of Hindu Succession Act are excluded from being made applicable to the Scheduled Tribes, still the said provisions being based on the principles of justice, equity and good conscience are applied for the purpose of succession to the Scheduled Tribe. For the said purpose, the learned counsel relies on the Judgment in the case of Madhav Kishwar and oths. V/s The State of Bihar reported in AIR 1996 SC – 1864. 3 SA 355.2010 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. Both the Courts on evaluation and appreciation of evidence, have held that deceased Munga was the owner of the property, who was survived by his daughter Sajjubai and the Courts also discussed various mutation entries which have taken place from time to time regarding the allotment of land to Sajjubai. No doubt, a mere mutation entry would not create any right, but the long standing mutation entries unrebutted and uncontroverted would certainly corroborate the theory of the plaintiffs that in the year 1980 partition had taken place. 6. It is also no longer res­integra that though the provisions of Hindu Succession Act stricto­ senso do not apply to the Scheduled Tribes, still the same being based on the principles of justice, equity and good conscience are made applicable as is held by the Apex Court in the case of Madhav Kishwar & oths. V/s State of Bihar referred supra. 7. Both the Courts on appreciation and evaluation of evidence have come to the plausible conclusion. 4 SA 355.2010 8. The Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 355.2010