RAM SAHAI Vs. GAJJA

JUDGEMENT

(1.) THIS is an appeal under sec. 116-A of the Representation of the People Act, 1951 against the judgment of the Election Tribunal, Jaipur, dated the 28th of February, 1958.

(2.) THE facts giving rise to it are that in the last general elections for the Rajasthan Legislative Assembly, which took place in early part of the year 1957, Dausa was a double-member constituency. One seat was reserved for a member of the Scheduled tribe and the other was a general seat. For the reserved seat, there were 3 candidates, namely, Shri Gajja, Shri Ram Sahai and Shri Nathya, of them, Shri Gajja secured the highest number of votes and he was declared elected by the returning officer from the said constituency on 9th March, 1957. Ram Sahai, who secured the next highest number of votes but who was defeated by Shri Gajja, filed an election petition against Shri Gajja. He also impleaded as the second respondent Shri Ramdhan who was declared elected for the general seat and who had defeated his 3 rival candidates Shri Ramkaran, Shri Bhag-wan Sahai and Naihnyg. It was alleged by Shri Ram Sahai that respondent No. 1 Shri Gajja was a Patel of village Sikrai, that he was thus holding an office of profit under the Government on the date of his nomination paper, that he was disqualified for membership of the legislative assembly under Art. 191 of the Constitution of India and that his nomination paper was wrongly accepted. It was further alleged that respondent No. 1 had joined hands with respondent No. 2 and that both of them had jointly committed certain corrupt practices which were detailed in the application. Both the respondents contested the election petition and thereupon 2 issues were framed by the Election Tribunal. After recording evidence of both the parties, the Tribunal decided all the issues against the petitioner and hence he has filed this appeal.

(3.) WE have now to examine the legal aspect of this matter. Learned Counsel for the appellant has urged that since Gajja actually worked as a Patel for a number of years it must be presumed that he was duly appointed by competent authority. It is contended that the first register should not be relied upon, because although it is a bound register, some of the leaves have become loose and it is likely that it may have been tempered with. WE have seen the register over selves. It is a bound register and it is true that although some! of the leaves have become loose, there is no reason to suspect that it may have been tempered with. The leaves which mention the names of Parshadi, father of respondent Gajja, Bholu, Gangadhar and Ram Sahai have not yet become loose and there is no reason to presume that false entries might have been made in this register and that the name of Gajja might have been removed. Similarly, the second register is serially numbered and we see no reason to entertain any suspicion about the entries made therein. Learned counsel for the appellant has argued that even though Gajja's name was not mentioned in these registers and that even though the order about his appointment was not forthcoming, this Court must presume that he was duly appointed as a Patel, otherwise he could not have been allowed to work as such for about 9 years. In support of his contention, learned counsel has referred to sec. 91 (1) of the Indian Evidence Act. It may be pointed out that sec. 91 of the Indian Evidence Act provides for the exclusion of oral testimony by documentary evidence in certain cases. It lays down that if the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document,no evidence shall be given in proof of the terms of such contract,grant or other disposition of property,or of such matter except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Act. Under exception 1, it has been provided that if a public officer is required by law to be appointed in writing and if it is shown that any particular person has acted as such officer, the writing by which he was appointed need not be proved. According to this exception, it was enough for the appellant to prove that respondent No. 1 had acted as a patel and it was not absolutely essential for him to produce the order of his appointment, but this exception only raises a presumption in favour of the stand taken by the appellant and it is not a piece of conclusive evidence about the valid appointment of respondent Gajja. In other words, the presumption is rebuttable and when Gajja has shown by producing Government records, that his name was never entered as a Patel in the registers in which his name ought to have been entered if he was appointed at any time, then the said presumption is certainly rebutted. If Gajja was really appointed as a Patel by some formal order of the appointing authority, then his name ought to have been mentioned in the first register. Similarly, his name would have been mentioned in the second register if he was formally appointed at any time. The Patwari, Kanungo and Tehsildar of village Sikari, referred above, have all appeared in evidence and they have also supported the respondent's version to the effect that he was probably never appointed formally as a Patel and he continued to work in his father's place in an informal manner. This kind of position may appear strange at the present time, but it seems there was nothing abnormal about it at the time when the respondent's father became blind or when he expired. In the face of the evidence of the three witnesses, referred above, and the absence of entries in the 2 registers, we find no justification to reverse the findings of the Tribunal to the effect that Gajja respondent was not duly appointed as a Patel of village Sikrai.