Khem Chand 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.
3. 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:
^^1- D;k vizkFkh la[;k&3 lq'khyk] okMZesEcj o uxjikfydk v/;{k ds in ij fuokZpu gsrq okafNr vk;q dh u gkus ls v;ksX;Fkh
2- D;k vk;q dh v;ksX;rk laca/kh ,rjkt pquko vf/kdkjhd le{k fy;k tkuk vko';d Fkk ;fn ugha fy;k x;k rks bldk D;k izHkko gksxk A
3- vuqrks'k A**
4. 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.
5. 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-1 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.
6. Per contra, counsel for the respondents has supported the reasoning, and finding of the court below.
7. 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 v. Anad Purohit, (AIR 1988 SC 1796) while relying upon the decision in Brij Mohan Singh v. Priya Brat Narayan Sinha, ((1965) 3 SCR 861) (AIR 1965 SC 282)) 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 noh dh mez mlds Ldwy fjdkWMZ esa xyr ntZ djok j[kh gSa A bl ldwyds jftLVj esa fnukad 01-01-986 xyr fy[kh gqbZ gS A lgou ls lu~ 1976 ds ctk;fy[kh xbZ gS A**
8. Similarly in para 11 of the reply to the election petition filed by Smt. Kanta Devi it has been averred by the appellant that ^^mldh tUefrfFk lgou ls 2-2-1976 dh ctk; fyfidh; =qfV ls 01-01-1986 fy[kh xbZtks okLrfod ugha gS A**Therefore, the appellant has admitted .in clear terms that her date of birth has been written as 1.1.1986 instead of 2.2.1976, though it has been written inadvertently by mistake. The election petitioner has also proved the fact that in school record the date of birth of the appellant has been written by her uncle as 1.1.1986. PW.2 Prabhu Dayal Yadav, Head Master of the concerned educational institution, has proved the certificate (Ex.11) of the date of birth of the appellant, which he issued on the basis of the school record. He has also proved scholar register Ex.12 and its entry at SL. No. 1287 in respect of Sushila Devi. He also proved the admission form Ex.13 submitted at the time of admission of appellant Sushila Devi. In all these documents the date of birth of Sushila Devi has been mentioned as 1.1.1986. In Birad Mal Singhvi's case (supra), their Lordships of the Supreme Court held that an entry relating to the date of birth made in the Scholars' register is relevant and is admissible under Section 35 of the Evidence Act. It has further been held that if the entry in the Scholars' register regarding date of birth is made on the basis of information given by the parents or some one having special knowledge of the fact, the entry would have probative value but if it is given by a stranger or someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value.
9. Appellant Sushila Devi in her statement has admitted that Onkar Mal Saini is her uncle. Ex.13 bears the signatures of Onkar Mal Saini. Since this was an admitted case of the appellant that because of inadvertence or by mistake her date of birth has been written as 1.1.1986 instead of 2.2.1976, therefore, the onus to prove the actual date of birth shifts on her. I am fortified in my view by a decision of the Apex Court in A. Raghavamma and Anr. v. Chenchamma and Anr., (AIR 1964 SC 136) wherein it has been held that the burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in theevaluation of evidence.
10. In that view of the matter, the criticism levelled against the impugned judgment that the election tribunal wrongly drew an adverse inference against the appellant for not examining the parents and uncle to prove the actual date of birth pertains to the domain of appreciation of evidence. It is well settled law that when each of the parties adduced evidence, the question of burden of proof loses all importance and even in a case where the burden of proof initially lies with the election petitioner and he or she fails to discharge it by evidence but elected candidate admits the material fact when there is no bar for any declaration on the basis of such admission. In Smt. Rebti Devi v. Ramdutt and Anr., (AIR 1998 SC 310) it has been held that when both the sides had adduced evidence, the question of proof pales into insignificance. Again in Arumugham (dead) by Lrs. and Ors. v. Sundarambal and Anr., (AIR 1999 SC 2216) it has been held as under: -
'In the present case both sides had adduced oral as well as documentary evidence and therefore even assuming that it was erroneous for the lower appellate Court to say that the burden of proof lay on the first defendant to prove that the plaintiff was not the son of Haritheertham, that would not, in our opinion, have any material bearing on the conclusion reached by the lower appellate court. The appellate Court had considered the oral and documentary evidence adduced on both sides and preferred to accept the evidence adduced on the side of the plaintiff and it also rejected the evidence adduced on the side of the defendants.'
The lower court having considered the oral and documentary evidence adduced on behalf of both the parties, preferred to accept the evidence adduced from the side of election petitioner and rejected the evidence adduced on behalf of elected candidate
11. No doubt true that the date of birth of appellant as mentioned in the scholars' register 'has no evidentiary value, unless the person who made the entry or who gave the date of birth is examined to prove the same. But when once it is proved on record that the admission form, Ex.13 was submitted by Omkarmal Saini, uncle of the appellant, mentioning the date of birth of appellant as 1.1.1986 and that Omkar Mal Saini being the near relative of the appellant had special knowledge about it, in that event the onus to prove the correct date of birth of the appellant shifts on appellant herself. In my considered view, the parents and near relations having special knowledge are the best persons to depose about the actual date of birth of a person. The appellant failed to examine in evidence her parents and uncle to prove her alleged correct date of birth.
12. In Order to prove her alleged correct date of birth the appellant has produced invitation card, Ex.A3 concerning function of the date of birth of her son, thereby extending invitation to attend the function on 13.9.97. She has also produced Janampatri, Ex.P4 of her son, in which the date of birth of her son has been shown as 28.8.97, electrol role of Municipality (Nagar Palika Nirvachak Namawali, 2000), Ex.P7 which mentions her age as 25 years, electrol-role of legislative assembly area of Kotputali, 1998 in which the age of appellant has been shown as 25 years. However, suffice it to say that no witness has been examined in evidence to prove Janampatri, Ex.A2. DW2 Raj Prasad who has been examined to prove Janampatris Ex.A4 and A5 has admitted that he prepared the Janampatris about 1-1/2 years age. His statement was recorded on 15.1.2003. The election petitions were instituted in the year 2000. From the circumstances aforesaid, it is clear that after the election petitions were filed, the appellant with a view to create evidence got prepared the above mentioned documents so as to produce the same in evidence. Even if the statement of DW1 Sushila Devi is accepted on its face value that her date of birth is 2.2.1976, then also she would have attained the age of 22 years and 24 year in the years 1998 and 2000, respectively, while Exs. A/7 and A/6 mention her age as 23 years and 25 years in the years 1998 and 2000, respectively. One more important fact also needs to be noted. The appellant joined the school in 1990 and, therefore, her age at the time of joining the school, according to appellant herself, was 14 years. In my view, generally a person does not get admission in class 1st at the age of 14 years.
13. The upshot of the above discussion would be that the election petitioners have succeeded in proving that the elected candidate Smt. Shushila (appellant) had not attained the age prescribed by statute for contesting elections of Ward Panch and Chairman. The court below, in my firm view, has appreciated the evidence adduced on behalf of both the parties in true perspective and has arrived at a correct conclusion, which does not call for any interference by this court.
14. Resultantly, both the appeals fail and are hereby dismissed with no Order as to costs.