JUDGMENT

A. S. NAIDU, J. — Both the aforesaid Writ applications relate to the election of Gangadhar Bhatra, the petitioner in both the cases, to the office of Sarpanch, Pondosguda Grama Panchayat in the election held in the year 2002. As the cause of action in both the Writ applications is the same, the matters were heard together and are being disposed of by this common judgment.

2. Admittedly, Gangadhar Bhatra filed his nomination for contesting the election held in the year 2002 for the office of Sarpanch, Pondosguda Grama Panchayat. After scrutiny his nomina¬tion was accepted and he was elected as the Sarpanch. After declaration of the result, Rupadhar Pujari, the opposite party in W.P. (C) No. 4856 of 2003, one of the defeated candidates in the election, raised an election dispute in consonance with the provisions of the Orissa Grama Panchayat Act, before the Civil Judge (J.D.), Jeypore which was registered as M.J.C. No. 8 of 2002. It was contended by the petitioner in M.J.C. No. 8 of 2002 that as the present petitioner Gangadhar Bhatra had more than two children, he was not eligible to contest the election in con¬sonance with Section 11 of the Orissa Grama Panchayat Act. It was also alleged that Gangadhar Bhatra had three sons, namely, Saheb Naik alias Bhatra aged 21 years, Bulu Naik alias Bhatra born on 24.7.1993 and Lulu Naik alias Bhatra born on 7.7.1998, which was much after the cut-off date and as such he was not eligible to stand for election.

3. While matter stood thus, some other defeated candidates filed a joint application under Section 26 of the Orissa Grama Panchayat Act before the Collector, Koraput which was registered as G.P. Case No. 5 of 2002 raising the self-same allegations, i.e. Gangadhar Bhatra having three children and the third child having born after the cut-off date, he was not eligible to con¬test the election in consonance with the embargo created by Section 11 of the Act. Challenging the said action of the defeat¬ed candidates, the petitioner filed OJC No. 6305 of 2002 with a prayer to quash the further proceedings of G.P. Case No. 5 of 2002 pending before the Collector, Koraput. This Court by order dated 27.6.2002 directed to issue notice to the opposite parties and stayed further proceedings of G.P. Case No.5 of 2002 on the file of the Collector, Koraput.

4. The petitioner appeared in M.J.C. No. 8 of 2002 before the Civil Judge (J.D.), Jeypore and filed his counter denying the allegations. It was averred that he had only one son, namely, Bulu Naik alias Bhatra through his legally married wife and the other two children were illegitimate children born through a concubine.

5. To substantiate his case, the petitioner in the afore¬said M.J.C. examined four witnesses and exhibited the relevant entry in the Birth Register of C.H.C., Boriguma for the year 1998 and the certified copy of decree in T.S. No. 57 of 2001 of the Court of the Civil Judge (Senior Division), Jeypore as Exts.1 and 2 respectively. The present petitioner, opposite party in the M.J.C., examined three witnesses and exhibited a Divorce Decree as Ext. 4.

6. Under issue No. 4, the trial Court on discussion of the evidence, both oral and documentary, disbelieved the plea taken by the present petitioner that Bimla, his wife, had been divorced by him vide the Divorce Decree, Ext.4. It was held that in fact Bimla was continuing as the wife of the petitioner till the judg¬ment was pronounced. The Court below arrived at the conclusion on the basis of Ext.1 that the petitioner had begotten his third child on 7.7.1998 through Bimla and that he had three sons at the time of filing his nomination on 21.2.2002. On the basis of such conclusion, the Court blow held that Gangadhar Bhatra, the pre¬sent petitioner, had begotten three children, one of them having born after the cut-off date and thus he was disqualified to contest the election. Accordingly, the Court below set aside the election of the present petitioner and allowed the M.J.C. It als