SHARMA, J. - (1.) SINCE both the appeals relate to the election held for the post of ward member and Chair-person of Municipal Board Kotputali, District Jaipur for the year 2000 and involve similar facts and evidence. Therefore, both the appeals are decided by this single judgment.
(2.) SUSHILA Devi and Bhagoti Devi contested the election for the post of member of Municipality, Kotputali from ward No. 5 in which SUSHILA Devi was declared elected as member of ward No. 5. Smt. Kanta Devi was also elected as ward member from Ward No. 10. After the elections for membership were over, the elections for the Chairman of Municipality Kotputali were held on 22. 8. 2000 in which SUSHILA Devi, Kanta Devi and Smt. Prem Devi contested the elections and SUSHILA Devi was declared elected as Chairman. Bhagoti Devi and Kanta Devi by filing separate election petitions challenged the election of Sushila Devi for the post of Ward Member and Chairman and prayed for quashing her election as ward member as well as Chairman, on the ground of her ineligibility to contest the election. The case of the petitioners in the election petition was that the date of birth of Sushila Devi is 1. 1. 1986 and in view of the provisions of Municipalities Act and the Rajasthan Municipalities Electoral Registration Order 1974, the candidate should have attained the age of 18 and 21 years as on 1. 1. 2000 so as to enable him/her to contest the election of ward member and Chairman, respectively. The appellant denied the above facts and averred that her correct date of birth is 2. 2. 1976. On the basis of the pleadings of the parties, following issues were framed in both the election petitions: ****** The election petitioners in their respective election petitions examined themselves as witnesses and in evidence also examined PW. 2 Prabhu Dayal Yadav and Rohitash. Non-petitioner Sushila Devi examined herself and one Rajendra Kumar in both the election petitions. The learned Additional District Judge, Kotputali vide its impugned order dated 8. 4. 2003 allowed both the election petitions and declared null and void the certificates Ex. 4 and Ex. 5 declaring Sushila Devi elected as member and Chairman respectively, and instead Bhagoti Devi was declared elected as ward member and Kanta Devi was declared elected as Chairman. It is against this order, the appellant Sushila Devi had preferred these appeals. Learned counsel for the appellant has strenuously argued that the impugned order of the learned election tribunal is based on surmises and conjectures in as much as it was observed that it does not appear to be true that anyone can take admission in Class-I at the age of 14 years. Learned counsel argued that burden to prove that elected candidate had not attained the age prescribed by statute lies on the election petitioner, yet the learned tribunal drew adverse inference against the appellant for not examining the parents or uncle so as to prove her correct age. Per contra, counsel for the respondents has supported the reasoning and finding of the court below.
(3.) I have given my thoughtful considerations to the rival submissions and perused the impugned order and the material on record. There is no dispute about the legal proposition that burden to prove the fact that elected candidate had not attained the age prescribed by statute lies on the election petitioner. The Apex Court in Birad Mal Singhvi vs. Anad Purohit (1), while relying upon the decision in Brij Mohan Singh vs. Priya Brat Narayan Sinha (2), reiterated the above view. However, the party on whom the burden to prove a fact lies can discharge that burden by proving admission made by the opposite party or by producing direct evidence or by producing circumstantial evidence of the fact. In para 12 of the reply to the election petitions filed by Smt. Bhagoti Devi, it has been averred by the appellant that Jherh lq'khyk nsoh dh mez mlds Ldwy fjdkwmz esa xyr ntz djok j[kh gsaa bl Ldwy ds jftlvj esa fnukad 01-01-986 xyr fy[kh gqbz gsa lgou ls lu~ 1976 ds ctk; 1986 fy[kh xbz gsa** Similarly in para 11 of the reply to the election petition filed by Smt. Kanta Devi it has been averred by the appellant that ;