Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1191 OF  2012 [Arising out of SLP(C) No. 15174 of 2011]

Joshna Gouda …….Appellant

Versus

Brundaban Gouda & Anr. ……Respondents

J U D G M E N T

Chelameswar, J.

Leave granted.

2. This  appeal  arises  out  of  a  judgment  dated 18.2.2011 of  the High  

Court of Orissa in Writ Appeal No.114 of 2011.

3. The factual background of the litigation is as follows:-

(A)    Election to the post of Sarpanch of  Kulagada Gram Panchayat in the  

District of  Ganjam, Orissa were  held in the year 2007.  The appellant, the  

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first respondent and  two others  filed their nominations.  The scrutiny of the  

nominations took place on 16th January, 2007. The returning officer held all  

the four nominations valid.

(B) Subsequently, except the appellant and the first respondent, the other  

two candidates withdrew from contest. Election took place on 17th February,  

2007, wherein the appellant herein was declared elected.

(C) The first respondent, filed an Election Petition under Section 31 read  

with  Section  34  of  the  Gram  Panchayat  Act,  1964  (for  the  sake  of  

convenience it is called “the Act”), on the ground that the appellant herein  

was not eligible  to contest the election in view of  Section 11(b) of the Act  

which declares that no member of ‘Gram Sasan’ (a defined expression under  

Section 2(h) of the ActI) shall be eligible  to contest for the post of Sarpanch  

if he has not attained the age of 21 years.  It is the specific case of the first  

respondent that  the appellant herein  was born on 20.06.1986 and had not  

attained   the  age of  21 years by the relevant  date.  The 1st respondent,  

therefore, sought two reliefs  in the election petition that the election of the  

appellant herein be set aside and also that the 1st respondent be declared to  

have been duly elected.  The appellant contested the election  petition.  By  

the  judgment  dated  29.11.2008  the  election  petition  was  allowed.  

Aggrieved by the decision of the trial Court, the appellant herein carried the  

I  “Gram Sasan” means a Grama  Sasan established under Section 4’.

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matter in an appeal under Section 38(4) of the Act to the District Court,  

Ganjam.  The appeal was dismissed by a judgment dated 14th September,  

2009.

(D) Aggrieved by the same, the appellant herein carried the matter by way  

of a Writ Petition (Civil) No. 14356 of 2009 to the High Court of Orissa which  

was  also  dismissed by a Judgment  dated  18.2.2011,  and the same was  

challenged in an Intra Court appeal in appeal No. 114 of 2011 without any  

success.  By the Judgment under appeal, the writ appeal was dismissed.

4. It is argued by learned counsel for the appellant that the judgment  

under appeal cannot be sustained as there is no legally admissible evidence  

on  record  to  enable  the  Courts  below  to  reach  the  conclusion  that  the  

appellant was born on 20th June, 1986.

5. It is recorded in the judgment rendered in the writ petition:-

“The trial court held that the date of birth of the petitioner was 20.6.1986 mainly  on the basis of School Admission Register, Ext.5, the relevant entry of which is  Ext.5/A, the Admission Form Ext.6 and the Transfer Certificate of the petitioner  Ext.7, P.W.2, one Asst. Teacher of Basudev High School, Dhaugaon produced the  School Admission Register and proved, it which was marked as Ext.5.”

6. The question of admissibility of the exhibits 5, 5A and 7 was raised in  

the writ petition but rejected on the ground that the said documents were  

admitted in evidence without any objection before the Trial Court.  However,  

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the learned judge opined that mere proof of the above-mentioned exhibits  

does not mean that the content of the said exhibits was also proved.   

“Of course, only because those documents were admitted without objection,  it  cannot be said that the contents thereof were also admitted.  It was the duty of the  opp.party to prove the contents of those documents particularly, the date of birth  of the petitioner entered in Ext.5 and the transfer certificate Ext.7.”

7. However at para 7, it was held::

“In the present case the entry as per Ex.5/A was made on the basis of transfer  certificate Ext.7 and the application made by Maheswar Gouda, cousin brother of  petitioner’s father.  The trial court held that Maheswar Gouda, being the cousin  brother of petitioner’s father had special means of knowledge of the date of birth  of the petitioner. Admittedly, said Maheswar Gouda has not been examined”.   

8. Unfortunately, the learned judge did not record any conclusive finding  

regarding the probative value of the contents of exhibits 5, 5A or exhibit 7,  

but went on to examine the evidence adduced by the appellant herein and  

found  that  the  said  material  does  not  lend  support  to  the  case  of  the  

appellant herein and therefore the entry E.5/A made in Ext. 5 is true.  A  

strange procedure indeed!  Only matched by the strange decision of the  

appellant to adduce evidence.

“But  father  of  the  petitioner  has  been  examined  as  O.P.W.  No.3.  As  per  the  affidavit evidence the date of birth of  the petitioner was incorrectly recorded in  the  school  register  and  school  certificate  by  the  teachers,  which  appears  improbable.   Furthermore,  it  transpires  from  the  evidence  of  the   petitioner  herself, that when she took admission in Panchayat U.P. School she was 10 years  old. She took admission in the said school on 10.1.96. If  10 years is deducted  from that date  it  would come to 9.7.1986.  So, the evidence of the petitioner  almost  allies  with  the  case  of  opp.  party  No.1  that  the  date  of  birth  of  the  petitioner was 20.6.1986.”

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9. Thereafter the learned judge elaborately discussed the evidence of the  

appellant herein and concluded that:- “ It would not improve the case of the  

petitioner as discussed earlier”.  

10. The Division Bench noted the objection to the admissibility in evidence  

of the exhibits 5, 5A and 7 in the following words:-

“The ground of attack of the impugned order is that the learned Single  Judge having held that the documents relied upon by respondent No.1, namely  Exts.5,5/A and 7, which are the only documents from the side of respondent no.1  to establish the date of birth of the appellant are not admissible in evidence under  section 35 of the Evidence Act, the learned Single Judge erred in further probing  into the matter and dismissing the writ petition.  The aforesaid documents on the  basis of which the respondent no.1 sought to establish that the appellant was not  qualified to file nomination having been found inadmissible, the only alternative  was to allow the writ petition.”

11. The Division Bench did not  record any clear finding either on the  

admissibility or the probative value of the content of the above-mentioned  

exhibits but suddenly switched over to the examination of the evidence of  

the appellant.

12. Exts.  A  to  H  are  documents  produced  by  the  appellant  herein  in  

support  of  her  claim  that  her  actual  date  of  birth  is  7.7.1985  but  not  

20.6.1986, as contended by the first respondent. Exts. A and H are voters  

lists of the year 2007 and 2008 respectively.  The Division Bench observed  

that both the documents were prepared later in point of time to the filing of  

the nomination papers in the election in question and also they do not reflect  

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the date of birth of the appellant herein.  Similarly, Ext. D is a horoscope  

alleged to be that of the appellant herein.  The Division Bench opined that  

the said document was rightly not relied upon.  Ext. E is a certificate of date  

of birth issued under the provisions of the Registration of Births and Deaths  

Act showing the date of birth of the appellant as 7.7.1985 but such an entry  

came to be made pursuant to an application made by the appellant herein  

subsequent to the nominations in the election in question.  The High Court  

refused to place any reliance on the said document on the ground that it was  

issued by an executive magistrate, who according to the High Court did not  

have the jurisdiction to issue the same.   

13. We  do  not  propose  to  examine  the  correctness  of  the  reasoning  

adopted by the High Court for refusing to place any reliance on the above-

mentioned documents produced by the appellant herein in her bid to prove  

her actual date of birth as 7.7.1985.  For the purpose of the present appeal,  

we will proceed on the basis that the High Court rightly refused to believe  

those documents and, therefore,  the appellant herein failed to prove her  

date of birth to be 7.7.1985.  But that does not automatically lead to the  

conclusion that the assertion of the respondent No.1 that the actual date of  

birth of the appellant herein is 20.6.1986 is proved. Even according to the  

High Court, the content of the Exs. 5, 5/A and 7 has no probative value.  Ex.  

5 was proved by PW.2, an assistant teacher of the Basudev High School.  Ex.  

6 and 7 were proved by PW.2, the headmaster of Basudev High School.  It  

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appears from the record that PW.2 stated that Exhibit 5/A entry showing the  

date of birth of the appellant herein as 20.6.1986 was made on the basis of  

Ex. 7 which is a transfer certificate issued by the headmaster of Panchayat  

Upper  Primary  School  where  the  appellant  herein  studied  before  joining  

Basudev High School.  Ext.6 is an application dated 11.7.1998 for admission  

of the appellant in Basudev High School made by one Maheswar Gouda, who  

is said to be a cousin of the appellant’s father.  The said Maheswar Gouda  

was admittedly not examined.  By the judgment under appeal, the Division  

Bench rightly held -

“……..it was the duty of the opposite party (the first respondent herein) to prove  the contents of those documents, particularly the date of birth of the petitioner  (the appellant herein) entered in Ext.5 and the transfer certificate Ext.7”

[emphasis supplied]

Having held so, the Division Bench reached the conclusion –

“the evidence of the petitioner (the appellant herein) almost allies with the case of  the  opposite  party  No.1  (the  first  respondent)  that  the  date  of  birth  of  the  petitioner was 20.6.1986.”

14. We  have  already  examined  the  evidence  of  the  appellant  herein.  

There is nothing in the said evidence to indicate that the date of birth of the  

appellant was 20th June, 1986.  At the worst, the said evidence failed to  

establish that the appellant’s date of birth was 7.7.1985.

15. The election of the appellant was challenged on the ground that the  

appellant was not eligible to contest the election on the ground that the  

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appellant was not 21 years of age on the relevant date because according to  

the election petition, the appellant was born on 20.6.1986.  The burden to  

proof the fact that the appellant was born on 20.6.1986 rests squarely on  

the first  respondent.   Section 101 of  the  Indian Evidence Act  makes it  

abundantly clear.

“S.101.  Burden of proof – Whoever desires any Court to give judgment as to  any legal right or liability dependent on the existence of facts which he asserts,  must prove that those facts exists.

When a person is bound to prove the existence of any fact, it is said that  the burden of proof lies on that person.”

16. It was held in Robins Vs. National Trust & Co. Ltd., 1927 A.C. 515 –  

“To assert that a man who is alive was born requires no proof.  The onus is not on  the person making an assertion, because it is self-evident that he had been born.  But  to assert  that  he had been born on a certain  date,  if  the date  is  material,  requires proof; the onus is on the person making the assertion.”   

Since the first respondent failed to discharge the burden cast upon him, the  

election petition must fail.

17. However,  the learned counsel for the first respondent,  Shri Debasis  

Misra, very vehemently submitted that facts admitted need not be proved  

and the appellant  had admitted  the  fact  that  the  appellant,  on her  own  

admission,  was 10 years  old  when she took admission in  the  Panchayat  

Upper Primary School on 10.1.1996.  Learned counsel relied upon para 7 of  

the judgment under appeal  (which is  already extracted in para 8 of  this  

judgment but for the sake of convenience, we reproduce the same):

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“………it transpires from the evidence of the  petitioner herself, that when she  took  admission  in  Panchayat  U.P.  School  she  was  10  years  old.  She  took  admission in the said school on 10.1.96. If  10 years is deducted from that date  it  would come to 9.7.1986.”

18. Learned counsel for the appellant, on the other hand, submitted that  

such a conclusion came to be recorded on incorrect reading of the evidence  

of the appellant.  A copy of the deposition made by the appellant is placed  

before us.  In the cross examination, the appellant stated as follows:

“When I was five years of old, I joined in the school for the Ist time when I took  admission in  Dhougan U.P. school, I was ten yeas of old. I left that school in the  year 1998.  My father Apurba Gouda is an educated man. I can not recollect who  had taken me to Dhougan School for admission.

One outsider brought my T.C. from the Dhougan U.P. School and get me  admitted in Dhougan High School. I cannot say his name. I was thirteen years of  old, when I took admission in Dhougan High School in Class VIII.”

It  can be seen from the above-extracted  portion  of  the  evidence of  the  

appellant that the appellant stated that she was 13 year old when she took  

admission  in  the  High  School  (obviously  Basudev  High  School)  and  the  

admission, as we have already noticed from the evidence of PW.2, was on  

11.7.1998.  Deducting 13 years from that date would place the year of birth  

of the appellant in 1985.  It is not clear as to the material on the basis of  

which the Division Bench recorded that the admission of the appellant in the  

Panchayat Upper Primary School was on 10.1.1996.  We assume for the  

sake of argument that there is some basis on record for the finding that the  

appellant took admission in the Upper Primary School on 10.1.1996.  On her  

own  admission  she  was  10  years  old  on  that  date.  Then  there  is  an  

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inconsistency  in  her  evidence  regarding  her  age  with  reference  to  her  

admission into the Upper Primary School and Basudev High School. In such  

a case, her statement that she was 10 year old on 10.1.1996, in our opinion,  

cannot be treated as an admission that her date of birth is 20th June, 1986.  

An  admission  must  be  clear  and  unambiguous  in  order  that  such  an  

admission should relieve the opponent of the burden of proof of the fact said  

to have been admitted.

19. For all the above mentioned reasons, we are of the opinion that the  

judgment under appeal cannot be sustained and the same is set aside.  In  

view of  our  conclusion,  the  second question regarding the declaration in  

favour of the first respondent does not survive.

20. Appeal is allowed.

………………………………….J. ( ALTAMAS KABIR )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; January 31, 2012.

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