PRASAD, J. - (1.) THE petitioner in the present writ petition was elected as Sarpanch of Gram Panchayat, 29 DWD on 31. 1. 2000. An objection was taken before the Returning Officer that in view of provisions of Sec. 19 (1) (iv) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as `the Act'), the petitioner was not qualified to be a candidate at election because he is father of five children. Two of them have been born after 27. 11. 1995, a date after which any offspring in addition to two children has been construed to be a disqualification for being candidate at election. THE Returning Officer did not re-act to the objection and accepted the nomination paper of the petitioner. At the election, the petitioner was elected as Sarpanch. After election, an election petition was filed challenging the election of the petitioner by respondent No. 1 Sant Ram. In this election petition, trial was held and after trial Election Tribunal came to the conclusion that two of the offspring of the petitioner had taken birth after 27. 11. 1995, therefore, petitioner was not entitled to be elected as Sarpanch.
(2.) IN its decision on the election petition, the Election Tribunal has considered that election petitioner has produced evidence to the effect that there are five children born to the petitioner and therefore, the petitioner was not entitled to contest the election of Sarpanch. The election petitioner had raised objection before the Returning Officer but Returning Officer ignored all the evidence produced before him for disqualifying the petitioner for contesting the election. The Tribunal has noted evidence of A. W. 2 Uma Devi who was Sarpanch of Chak 29 DWD 1995 to 1999. She has given in her evidence that when she was Sarpanch, ration card of petitioner had the endorsement of three children made into it. Now, the petitioner has five children. The age of youngest child is 2-1/2 years. She has proved ration card Ex. P/4 on which she says that she has signed from A to B. A. W. 3 Bhanwar Singh, Secretary of the Gram Panchayat, 29 DWD has proved birth register of the Gram Panchayat from 1996 to 1997. He has said that a girl Krishna was born to the petitioner on 17. 11. 1996. The entry records name of father as Bhadar Ram and mother as Sita. A. W. 4 Sujata Sharma, Family Health Worker has also been examined by the election petitioner who has produced a survey report dt. 2. 9. 1999 which records that petitioner had five children on 2. 9. 1999 and the youngest child was of one year age, A. W. 5 Om Prakash and A. W. 6 Shiv Bhagwan have deposed about the date of birth of children who were studying in their schools. A. W. 7 Baldev who was Panch has stated that petitioner had got a ration card in 1995 where five units were recorded including three children. After that two issues were born to the petitioner and when new ration card was prepared, he got thumb impression of the wife of petitioner. In rebuttal, the petitioner has examined himself and has also examined N. A. W. 2 Bhagirath and N. A. W. 3 Devilal, No. documentary evidence has been produced by the petitioner. The Election Tribunal after considering evidence of the parties came to the conclusion that it is not denied that there are five children to the petitioner. The Tribunal has also noted that if any of the children have been born after 27. 11. 1995, then disqualification is provided in Sec. 19 of the Act. The Tribunal has found that documentary evidence overwhelmingly support the case of the election petitioner and the petitioner has produced no documents to rebut the documents produced by the election petitioner. The Election Tribunal has drawn adverse inference also because at the trial, the petitioner had admitted that he had got ration card prepared which is with him but he has not produced the same. Similarly, the Tribunal has also noticed that the petitioner had in his possession birth entries in a note book and he has ignored producing such document. Election petitioner has substantiated his case by production of many documents showing that two children of the petitioner were born after 27. 11. 1995. The Tribunal came to the conclusion that petitioner has earned disqualification contained in Sec. 19 of the Act, Assailing decision of the Election Tribunal, the present writ petition has been filed by the petitioner. The judgment is assailed on the ground that documentary evidence has wrongly been relied upon by the Tribunal. The Authors of documents have not been produced. The witnesses who have appeared in the witness box to prove the documents have pleaded ignorance about authors of the entries relied upon by the election petitioner. Thus, according to the petitioner, there was no proof of the fact as alleged by the election petitioner.
(3.) THE document Ex. 6a which is Annex. P/7 with the writ petition shows that when father is 22 years and mother is 20 years, how could the petitioner born five children. THEse documents are incongruous. Witnesses Baldev Singh and Uma Devi were inimical and therefore they should not be believed. THE petitioner has placed reliance on certain decisions of the Courts to support his contention. He has relied on (Laxman Siddappa Naik vs. Kattimani Chandappa Jampanna) (1), wherein Hon'ble Supreme Court has held that election petitioner cannot succeed because of the weakness of the successful candidate. Before any election is set aside, there must be convincing proof. THE burden on the election petitioner, unless election petitioner discharges his burden, he cannot succeed. The petitioner has further relied on Ch. Razik Ram vs. Ch. J. S. Chouhan and others (2), wherein it has been held that evidence of both sides be weighed while deciding election petition. The Election Tribunal, according to the learned counsel, has not properly weighed the evidence given by the petitioner. Learned counsel has also relied on (Lakhan Sao (deceased) through legal heirs vs. Dharamu Chaudhary) (3), and has canvassed that when a court records finding, it must analysis entire evidence. According to the learned counsel, evidence has not been properly appreciated by the trial court. The petitioner has also relied on S. Gopal Reddy vs. State of A. P. On the strength of the case decided by the Hon'ble Supreme Court in Brij Mohan Singh Vs. Priya Brat Narain Sinha (5), learned counsel has submitted that in view of Sec. 35 of the Evidence Act, unless author comes in witness box, entries cannot be relied. In the instant case, authors were not produced. Learned counsel for the respondent-caveator submitted that Tribunal has based its case on the basis of records produced by the election petitioner and has also considered the evidence of the petitioner. The petitioner has failed to discharge his burden in rebuttal. Ordinarily, parents are the best persons to speak about the date of birth of their kid. No records were produced by the petitioner. The election petitioner has produced a number of documents of the official record and in view of Sec. 78 of the Evidence Act, the documents having been proved from the legal custody, there was a presumption under Sec. 79 of the Evidence Act. The former Sarpanch, Uma Devi in her statement has stated that youngest child of the petitioner is 2-1/2 years. In cross- examination, her statement has not even been questioned. Thus, election petitioner's burden was discharged and the petitioner failed to rebut the evidence produced by the election petitioner. ;