Vidya Dhar vs Mohan Lal

T.U. Mehta, Acting C.J.

By this election petition the Petitioner Shri Vidyadhar has challenged the election of the Respondent Shri Mohan Lal from 52, Rajnagar reserved constituency as a Member of the Himachal State Legislative Assembly on 10th June, 1977, on the ground that on the date of the election the Respondent was not qualified to fill the seat from the said constituency as that seat was reserved for a schedule caste candidate, and the Respondent did not belong to any of the castes so scheduled in the order known as "Constitution (Schedule Caste) Order, 1950" issued by the President under Clause 1 of Article 341 of the Constitution.

The case of the Petitioner is that the Respondent was not entitled to file his nomination as a candidate for the said constituency as he belongs to "Dasali" caste which is not included in the above referred schedule prescribed for the State of Himachal Pradesh. According to the Petitioner, he had raised this objection orally before the Assistant Returning Officer, but his objection was over-ruled. This particular averment is not found in the petition, but both par ties have led evidence on this point.

It is an admitted fact that last date for filing nomination papers was 18th May, 1977, Petitioner himself was one of the candidates as he claims to be belonging to "Halli" caste which is included in the schedule for Himachal Pradesh. The Respondent filed his nomination paper stating that he belonged to "Jogi" caste which is admittedly one of the castes mentioned in the Schedule. It is an admitted position that the Respondent was a party candidate contesting the election on behalf of Janata Party. There was a third candidate also belonging to the schedule caste who contested from this very constituency. His name is Chuni Lal son of Hari Sukh, who is examined as P.W. 5 in this case. Nomination papers of all these three candidates were accepted and the election took place on the date of the poll which was fixed on 10th June, 1977. Counting was made on 14th June, 1977, on which date the Respondent was declared elected.

The case of the Petitioner is that the election of the Respondent is void because he was not entitled to con test the seat from the above referred reserved constituency as, he being a "dasali", he did not belong to any of the schedule castes prescribed for the State of Himachal Pradesh.

It is an admitted position that the above referred constituency is situated in Chamba district. Before the formation of Himachal Pradesh in the year 1948 Chamba district formed part of a native State ruled by a prince. This particular fact assumes importance because the Petitioner has relied upon some old revenue record of Chamba State which mentions the caste of the Respondent as ''dasali'' and not as ''jogi''.

The case of the Respondent is that this nomination was valid as he belongs to the caste of ''Jogis'' which is a schedule caste and not to the caste of ''dasalis''. It is contended on behalf of the Respondent, and the Respondent has led some evidence in support of this contention, that ''dasali'' is the name of a profession or a vocation and not of a caste. In this connection, it is urged that those persons who are preparing Dooms and pattals (that is, platters and cups made of leaves) and selling them to the public are known as "dasalis". According to the Respondent, neither he nor his father prepares doonas and pattals. The profession of the Respondent''s father is that of an agriculturist and he grows and sells flowers and vegetables. According to the Respondent, this is the profession of those who belong to ''jogi'' caste. Respondent has further adduced evidence to show that his father, he himself, and his sisters and brothers are married in ''jogi'' families and he and the whole of his family belong to the fraternity of the members of ''Jogi'' caste. In support of this contention, the Respondent has heavily relied upon revenue entries which have been prepared as a result of First Regular Revenue Settlement undertaken by the Government authorities somewhere in the middle of November, 1951, and finished in the year 1958. All these revenue entries show that the Respondent''s grandfather named Ghasitu is described as ''Jogi'' by caste.

The Respondent has also produced entries from the school-register of the school where he had studied to show that he is a ''jogi'' by caste.

The Respondent has further produced family registers with regard to Bhagwantpura and Sarol where he resides to show that his family belongs to ''jogi'' caste and also that in this area there is no family registered as belonging to ''dasali'' caste.

The Respondent has further produced evidence to show that when he joined Government service he did soon the averment that he belonged to ''jogi'' caste, though at the relevant time there was no reservation in service for any schedule caste person. However, according to the Respondent when his service record was scanned by a Departmental Promotion Committee he was given promotion on the basis that he belonged to ''jogi'' caste which by that time was a scheduled caste.

As a result of the above referred pleadings, this Court framed the following issues on 23rd September, 1977:

Is it proved by the Petitioner that the Respondent is a "Dasali" by caste and hence he does not belong to any of the castes included in the schedule prescribed for Himachal Pradesh? If so, what is its effect?

Does the Respondent show that he is "Jogi" by caste? if so, what is its effect?

What final orders should be passed?

On these issues, both the parties have led evidence. On behalf of the Petitioner eight witnesses have been examined and plenty of revenue record is produced. On behalf of the Respondent also eight witnesses have been examined and sufficient revenue record relating to the regular revenue assessment which was taken up in Chamba district for the first time in the year 1951, and subsequent revenue record including Record of Rights, which was prepared as a result of the regular revenue assessment, has been produced and relied upon.

Before discussing the oral and documentary evidence which is produced by the parties in the case, it would first be necessary to consider the Respondent''s contention that "Dasali" is not the name of a caste but is the name of a profession or vocation of those persons who are dealing in doonas and pattals. Oral evidence led by the parties on this question is not of much help as it consists merely of oral assertions on one side 01 the other side. 1, however, find that sufficient dependable evidence on this question is furnished by certain old record contained in Punjab States Gazetteer, Volumes XXII A and XLI Part B as well as Sir Denzil Ibbetson''s book on "Punjab Castes" as well as a pamphlet entitled "Estimated population by Castes, 1951" for Himachal Pradesh issued by the office of the Registrar General, India, Ministry of Home Affairs in the yeai 1954. It is from this record that I propose to consider the question whether the word "Dasali" is the name of a caste or merely of a profession or vocation.

Reference to Punjab States Gazetteer, Volume XXIIA, is regarding Chamba State. It is for the year 1904. Chapter I, Section C thereof is with regard to population. This Chapter begins at page 118 (1910 edition). At page 163, we find the description of "menial castes". It states that menial castes in the State of Chamba are numerically important for they include more than one fourth of the entire population. It further states that their names are, for the most part, occupational and indicate the low social position. It should be noted here that in India almost every caste is associated with a particular profession or vocation. Of course, with the advance of the modern age this distinction of caste being known only through profession and vocation is being gradually obliterated because under the Constitution and according to law member of a particular caste is not bound to engage himself only in the vocation or profession of the caste in which he is born. Reverting to the above referred Gazetteer, we find that at page 164 there is the mention of the caste of ''Jogis''. Following remarks are found with regard to jogis:

The Jogis too are ambitious of being considered a superior caste. They are chiefly gardeners and farmers and are distinct from the professional asceties of the same name, though like them many of them have the pierced ear.

This Chapter then refers to many menial castes such as ''Badhis'', ''Mochis'', ''Halis'', ''Chamars'', ''Dumnas'', ''Kolis'' and others. But it makes no reference to the caste known as "Dasali". This book is, therefore, not of much help in finding whether ''Dasalis'' formed a caste in Chamba State.

However, the above referred book on "Punjab Castes" written by Sir Denzil Ibbetson andpublished in the year 1916 gives exhaustive treatment to the subject. At pages 328 and 329, it gives a table of population showing the number of people belonging to "Menials of the Hills". With regard to Chamba area it refers to the population of "Dasalis" which is put at the figure of 45. This shows that accordingg to the author there were 45 souls belonging to ''dasali'' caste at the relevant time. This ''dasali'' caste is given under the number 178 and at page 336 the following description is given with regard to ''dasalis'':

"The Dasali is a hill caste of superior standing to the Chamar, who makes the cups and platters of leaves which are used at Hindu weddings. The word is perhaps more the name of an occupation than of a caste, and is derived from dusa, the small peice of straw with, which he pins the leaves together; but the Dosali is said not to marry out of his caste. Probably many of them have been returned as Kolis. They are a very low caste, but not out-caste, indeed if they were, articles made by them would hardly be used for eating from.

In the same book at page 228, we find a reference to ''Jogi'' caste. Following relevant observations are found as against this caste:

The Jogi will presently be discussed under the head of Minor Professional Castes. It will there be explained that the word originally means nothing more than one who has by the practice of mental abstraction acquired the power of clairvoyance and similar faculties. But besides the low-class Jogi Rawal there described there are two sets of exceedingly respectable Jogi Faqirs, the kanphatta who pierce their ears and the Augar who do not. The former are priests of Siva and are generally to be found in Shivalas. The latter too are Saiva, but are more secular. The Kanphatta is also called Darshana.

Then at page 235 in the same book, we get further particulars as regards Jogi, Rawal and Nath. Thus, according to this book there existed in Punjab in early times the two castes named "Dasalies" and "Jogis".

There is one more book to which reference would be needed. That book is Volume XLI of Punjab State Gazetteers, Part B relating to Chamba State. This book is also an o''fficial publication and contains statistical tables for the year 1933. At page 28 is the Table No. 15 relating to tribes and castes. This table makes a reference to Jogi caste known as ''Rawal'', but makes no reference to Dasalis. But this does not rule out the existence of Dasalis at the relevant time because if a reference is made to the note at the top of the table it would be known that the table has omitted castes whose numbers are below 500. The table is based on Census Reports for the earlier years. It is likely that on account of small number of Dasahs their mention is omitted is this table.

However, the above referred pamphlet issued by the office of the Registrar-General, Ministry of Home Affairs, Government of India, captioned as "Estimated Population by Castes, 1951" is important. This pamphlet contains two tables. Table I mentions the population of schedule castes, notified under President''s Order, 1951, in the Census of 1911-31 and estimated population of these castes in 1951. This Table I shows that it does not contain any reference either to Dasalis or to Jogis. The conclusion, therefore, is that neither Dasalis nor Jogis were recognised belonging to a scheduled caste by the President in 1951 A.D. Table II which is given in this pamphlet mentions the figures of remaining castes, this table refers to ''Dasalis'' at item No. 41 and ''Jogis'' at item No 64. The polpulation of Dasalisis shown at 104 in 1911, 146 in 1921 and 181 in 1951. Figure with regard to the year 1931 is not shown. The population ofjogis is shown at 2810 in 1911, 2121 in 1921 and 2633 in 1951. Their population in 1931 is not shown. Thus, according to this pamphlet, there was the existence of the ''Dasali'' caste in Himachal Pradesh in the year 1951.

From the above discussed evidence it can be safely concluded that there was the existence of Dasali caste in the then existing State of Punjab in the year 1951 and even before that. It may be that so far as Chamba area is concerned, the population of ''Dasalis'' went on decreasing with the progress of time and therefore the witnesses examined by the Respondent may not be much aware of the existence of this caste, and it is also likely that since Dasalis were carrying the profession of preparing platters and cups of leaves, even those persons who were doing this profession at Chamba continued to be known as ''Dasalis'' even though they did not belong to Dasali caste. However, this particular aspect of the matter does not help us much in determining the question whether the Respondent belongs to Dasali caste as alleged by the Petitioner.

Before proceeding further, it is necessary to note that in none of the schedules issued under the order of the President, which are brought to my notice during the course of the hearing of this petition, I have found that ''Dasali'' is a scheduled caste. As already noted above, even Jogi caste is not shown as a scheduled caste in the First order issued by the President in the year 1951. The learned advocates of the parties have not been able to bring forth any material to show when actually ''Jogi'' caste was put in the Schedule by the President''s order. It is, however, found that in the year 1956, by Act 63 of 1956, Section 3 and Schedule II, ''Jogis'' have been put in the schedule regarding Himachal Pradesh. It would, therefore, follow that so far as the material which is produced before me is concerned, Jogis are found to have been put in that schedule by the order of the President in the year 1956. So far as the record of this matter is concerned, there is nothing to show that they were included in the schedule at any time before 1956, and therefore I will proceed on the footing that Jogis were included in the schedule for the first time in the year 1956. This aspect of the matter assumes some importance in view of the fact that the Petitioner''s, allegation is that though the Respondent''s grandfather Ghasitu was a ''Dasali'' upto the year 1952 he purported to change his caste and style himself a ''Jogi'' from 1953 onwards with the intention of getting the advantage of belonging to a schedule caste. It is obvious that if Jogis are put in the Schedule for the first time in the year 1956 it cannot be successfully contended that three years before that, that is in 1953, there was any motive on the part. of Ghasitu, the grandfather of the Respondent, to change his caste.

As a matter of fact caste is acquired by a person belonging to Hindu society not by conversion but by birth. As observed by Farran, J., in Raghunath Damodhar v. Janardhan Gopal reported in ILR 15 Bombay 599, the caste is a social combination, the members of which are enlisted by birth, not by enrolment. The caste is not a religious body, though its usages, like all other Hindu usages, are based upon religious feelings. It is essentially a social body which is governed and controlled by social traditions and customs peculiar to that body.. As te the factors which should be taken into account for the purpose of determining whether a particular person belongs to a particular caste, Madgavkar, J., has observed in the Bombay case of Subrao Hambirrao Patil Vs. Radha Hambirrao Patil, that popular view lays down three tests for determining the class to which a Hindu belongs. According to him, these three tests are: (1) the consciousness of the caste; (2) its customs; and (3) the acceptance of that consciousness by the other castes. In my opinion, these three tests do provide a workable guide for considering whether a particular person belongs to a particular caste.

Another aspect of the case which should be borne in mind is that this is an election petition wherein, the community having gone to polls, a particular result has emerged. The question as to how the burden for challenging such election results is required to be discharged, has been well stated by the Supreme Court in case of Laxman Siddappa Naik Vs. Kattimani Chaniappa Jamappanna and Others, Hidayatullah, J., speaking for the Court has in this case made the following observations which are pertinent, and which should be borne in mind at the time of appreciating the evidence produced by the parties in such cases. He says:

An election is something which cannot be readily set aside. There must be proof and convincing proof that a person is not properly chosen to fill a particular seat. Mere suspicion or surmise is not sufficient after the Returning Officer accepts a candidature and the candidate is chosen in the election. Once a comunity has gone to the polls and the voters have exercised their franchise it is necessary for an election Petitioner to show that the candidate is not entitled to the seat. In other words, the burden originally lies on the election Petitioner and he cannot succeed unless he discharges that burden. The High Court recognised that there was n o eviden ce in the case but went into the matter from a different angle and attempted to contradict the Presidential order which it was not entitled to do.

Speaking on the same subject, the learned judge has observed in paragraph 7 of the reported judgment as under:

Once the nomination paper was accepted the burden must be assumed again by the party challenging the fact that a candidate belonged to a particular community. If prima facie evidence had been led by the election Petitioner the burden might have shifted to the candidate but as he led no evidence whatever he must obviously fail. This is not one of those cases in which both sides having led evidence the question where onus lies, becomes immaterial, since the Court can reach a conclusion on the totality of the evidence before it. There was no evidence in this case one way or the other. In these circumstances, the election Petitioner could not succeed because of the weakness of the Appellant''s case.

The controversy involved in that case mostly centres round the question as to what tribal community the Appellant belonged. The election Petitioner in that case asserted two facts, namely: (1) that the Appellant was notaNayaka, and (2) that he was a Bedar. It was an admitted position in that case that Nayaka was the community mentioned in Presidential order. The Supreme Court, therefore, observed that the first contention of the election Petitioner that the Appellant was not a Nayaka was a negative fact and the second contention that the returned candidate was a Bedar was a positive contention. Before the Supreme Court it was contended that the proof of the negative contention was not only difficult but was also impossible. The Supreme Court did not agree with this contention because in its opinion the election Petitioner who challenged the election could have proved by positive evidence that the returned candidate was a Bedar. That proof, in the opinion of the Supreme Court, would have proved automatically that he was not a Nayaka. In this connection, the Supreme Court has further observed as under:

To establish the fact evidence was required to show the characteristics, such as customs of marriages, births, deaths, worship, dress, occupation and the like which distinguish a Bedar from a Nayaka. Evidence was also possible to show that the Petitoner was received in the Bedar Community. This was capable of being proved by showing inter-marriage, inter-dining, community of worship, residence in a particular place and the like. Such facts would have led to the drawing of an inference one way or the other. A bare assertion that the Appellant is a Bedar does not suffice to displace the acceptance of the nomination paper or the claim of the Appellant that he is a Nayaka.

These observations made by the Supreme Court in the above referred case of Laxman Siddappa Naik are very pertinent even to the facts of the instant case.

Another consideration which has weighed with the Supreme Court in the above referred case of Laxaman siddappa Naik is the fact that the returned candidate was accepted as belonging to a particular community by his own party because the said candidate in that case was a party candidate. In case of a party candidate, the Supreme Court has made the following pertinent observations in paragraph 9 of the reported judgment:

It is significant that he (returned candidate) was not an independent candidate but one chosen by a party. This party would not have been easily imposed upon and would have taken care to select the right person for the seat.

These observations show that the fact that a particular candidate is accepted by his party as a competent person to contest a particular reserved seat is also a factor which should be given proper appreciation by the Court in such election petitions.

Bearing these principles in mind, I shall now proceed to consider whether the Petitioner in this case has satisfactorily discharged the: burden of showing that the Respondent belongs to the ''Dasali'' caste which is admittedly not one of the scheduled castes.

As already stated, both the parties have put heavy reliance upon the revenue record showing the caste of the Respondent''s grandfather Ghasitu. In order to understand this evidence, it would be necessary to state shortly the relevant pedigree of the Respondent. This pedigree, as is revealed from the record of evidence, shows that there was one jounga. Jounga''s son wasjawala, Jawala''s son was Ghasitu, Ghasitu''s son is Mangtu, and Mangtu''s son is Respondent Mohan Lal. The revenue entries on which the parties have put reliance are with reference to Respondent''s grandfather Ghasitu the son of Jawala.

These revenue entries relied on by the parties can be classified as under:

The entries showing the caste of Ghasitu in times of Chamba State which was at that time a princely State;

Entries relating to the period when Regular Revenue Settlement was first undertaken by the end of the year 1951; and

The revenue record which was prepared as a result of the said Regular Revenue Settlement.

So far as the first category of evidence is concerned, the caste of Ghasitu is shown as ''Dasali'' except in two documents which are found at Exs. P.W. 1/2 and P.W. 2/13. Ex. P.W. 1/2 is dated 2nd Baisakh, 1966 B.K which is equivalent to 1909 A.D. This document mentions the caste of Ghasitu as "Jogi" which is spelled as "Joge". Ex. P.W. 2/13 is the copy of an entry from earlier Register Tarsi (Record of Rights). It mentions the caste of Ghasitu as ''Bafinda.'' Except these two entries, which fall in the first category, the remaining revenue entries belonging to the first category, mention the caste of Ghasitu as ''Dasali''.

So far as second category is concerned, we find that Ex. P.W. 2/9, which is ''Khatauni'' prepared before the regular revenue settlement was taken up, shows that upto the year 1952 A.D. Ghasitu was described as belonging to Dasali'' caste.

The third category refers to those documents which were prepared during regular revenue assessment which was already undertaken by that time. The first document belonging to this category is Ex. F.W. 2/10 which is the document of Tankihat (issues of title) which, as will be seer hereafter, was supposed to have been prepared after some enquiry as regards the issues of title during the courseof re-settlement. This document Ex. P.W. 2/10 is dated 31st July, 1953 and mentions the caste of Mangtu the son of Ghasitu as ''Jogi''. All subsequent documents covered by this third category which are found at Exs. P.W. 2/11, P.W. 2/12, P.W. 2/14, P.W. 2/15, P.W. 2/16, P.W. 2/17 and P.W. 2/18 mention the caste of Mangtu as ''Jogi''.

The above is the broad classification of the revenue record which is relied on by both the parties. Before considering the evidenciary value 6f this revenue record, a short narration of the facts leading to this record would be necessary so that its import can be properly assessed.

It is found that on 7th of Magha, 1975 B.K. (equivalent to 1908 A.D.) some proceedings were taken against Ghasitu the grandfather of the Respondent for making an encroachment on some land belonging to Chamba State. At Ex. P. W./3/1 is the report with regard to this encroachment. This report mentions the caste of Ghasitu as ''Dasali.'' It appears that pursuant to this report one Sita Ram who was functioning as a Moharrar made his report as found at Ex. P.W. 1/1. Itis dated 14th Ghait, 1965B.K. This report of Sita Ram, Moharrar, describes Ghasitu as a ''Dasali''. The report is in urdu and English translation thereof is found at Ex. P.W. 1/1 A. This translation wrongly inserts the word ''caste'' before the word ''Dasali''. The translation is made by the Petitioner himself with the aid of somebody else. The Petitioner seems to have put many such translations in the record of the case. Here it should be noted that these translations are not correct translations of the original because in some translations the word ''caste'' is added before the word ''Dasali'' when the original does not contain that word, and in some translations of some of the orders passed by the Ruler of Chamba State cause title is wrongly added even though the same is not found in the original order. Therefore, in all these faulty and incorrect translation I have encircled the parts which are not found in the original. These parts need not, therefore, be read in those documents. This fact is required to be mantioned because in the cause titles which are wrongly added in the translations, Ghasitu''s caste is mentioned as ''Dasali'' though the original orders do not contain any such thing. With this clarification, I would proceed further.

It is found that during the course of the investigation as regards the alleged encroachment made by Ghasitu, one person named Harzalu, who belonged to the same village to which Ghasitu belonged, filed his objections against the stand taken by Ghasitu. These objections are found at Ex. P.W. 1/2. They are dated 2nd Baisakha, 1966 B.K. This document. Ex. P.W. 1/2 is already referred to above in this judgment. It should be recalled that Harzalu who had filed these objections has mentioned the caste of Ghasitu as early as in the year 1966 B.K. as ''Jogi''. This shows that even in the year 1966 B.K. (equivalent to 1909 A.D.) Ghasitu''s caste was known as ''Jogi'' by a person who belongs to his own village.

It is further found that on 25th Chait, 1965 B.K. the Ruler ordered to levy fine on Ghasitu for the said encroachment. This is found from the document Ex, P.W. 3/2. Compliance with this order of fine was made, as is clear from the document Ex. P.W. 3/3.

It transpires that Ghasitu had requested the ruler to make a grant of the land which was said to have been encroached upon. Therefore, the Ruler ultimately took his decision to grant this land to him on 9th Baisakha, 1966 B.K. as is clear from the document found at Ex. P.W. 1/3. Thus, ultimately these proceedings as regards encroachment resulted in the grant of this land in favour of Ghasitu. The grant evidenced by the Ruler''s order found at Ex. P.W. 1/3 does not mention the caste of Ghasitu though it contains some heading regarding cause title and die subject matter which refers to Ghasitu as belonging to ''Dasali'' caste. But this heading, as already noted above, is not found in the original.

It is an admitted fact that after the above reference grant was made in favour of Ghasitu the land was mutated to the name of Ghasitu in a register called "Register Farsi". The relevant entry from this register is found at Ex. P.W. 2/1. This entry mentions the caste of Ghasitu as ''Dasali.'' From Register-Farsi, entry was made in the register known as "Tankara Jamabandi". The entry is found at Ex. P.W. 3/4. It also mentions the caste of Ghasitu as ''Dasali''.

Documents relating to the above referred dispute with regard to encroachment said to have been made by Ghasitu are produced from a file which is known as "Collectory File No. 1625".

About 7 to 8 years thereafter, i.e. B.K. year 1972 which is equivalent to 1915 A.D., other proceedings were started. This time, they were started by Ghasitu and several others against one Gangu. Several documents having relation to this dispute are produced from Collectory File No. 334. I will make a short reference to these documents.

At Ex. P.W. 2/2 is the copy of an application said to have been made by Ghasitu and others to the authorities in Ghamba State. This application is dated 20th Chait, 1972 B.K. (equivalent to 1915 A.D.). English translation of this document is found at Ex. P.W. 2/2/A. This translation purports to be containing the signatures of the persons who filed the application, but the original does not contain any signatures. The translation also mentions a list of objectors. But even this translation of objectors is not correct because it mentions the word "caste" before the word "Dasali" with reference to Ghasitu. Subject to these corrections, it is found that Ghasitu, who is described as "son of Jawala Dasali", and others had filed this application Ex. P.W. 2/2. At Ex. P.W. 2/3 is the document which gives the list of objecstors including Ghasitu. Its translation which is found at Ex. P.W. 2/3 a mentions wrongly the word ''caste'' before the word ''Ghasitu''. At Ex. P.W. 2/4 is the map of the land with regard to which the dispute was raised. It refers to Ghasitu having his caste "Dasali". It is found that even the land with regard to which Ghasitu and others had filed this objection was granted to them by the Ruler. This grant was made on 28th Jaith, 1975 B.K. Document found at Ex. P.W. 2/7 is the order of the Ruler evidencing this grant. The order itself does not mention any caste of Ghasitu or others, but even the cause title which is wrognly added in the Hindi translation does not refer to Ghasitu of his caste.

After the land was granted to the objectors as per Ex. P.W. 2/7, mutation entry was made in the register-Farsi as found at Ex. P.W. 2/8 in favour of the objectors. This Ex. P.W. 2/8 does show that Ghasitu''s caste is mentioned as ''Dasali''. From Register-Farsi the entry went to Tankra Jamabandi as found at Ex. P.W. 3/5 which also described the caste of Ghasitu as ''Dasali'' though the word ''caste'' is not found in the original before the word ''Dasali''. This is the summary of the documents relating to Collectory File No. 334. The last named entry in Tankra Jamabandi is for the year 1982 B.K. which is equivalent to 1925 A.D.

Thus, from the above record it is found that upto the year 1925 A.D. Ghasitu was mostly described as a ''Dasali''. The above discussed record falls within the first category out of the three categories mentioned above.

Reference to the entries from Tankra Jamabandi found at Exs. P.W. 3/6 to P.W. 3/13 shows that from 1995 B.K. to 2001 B.K. (equivalent to 1938 A.D. to 1944 A.D.) the grandfather of the Respondent has been referred to as belonging to ''Dasali caste. As there is no record from 1944 to 1951 A.D. when regular revenue settlement was undertaken, it is not possible to know how the caste of Ghasitu or Mangtu was described, during this period.

It is found that after the regular revenue settlement was undertaken, one ''Khatauni'' was prepared as found at Ex. P.W. 2/9. Petitioner''s witness No. 2 Kewal Krishan, who is working as Sadar Kanungo at Deputy Commissioner''s office, Chamba, ever -since the year 1974, and who has produced most of the above referred record, explains in his deposition why this Khatauni Ex. P.W. 2/9 was prepared and how it was prepared. He says that to make the record upto date for the regular revenue settlement which wa s undertaken this khatauni Ex. P. W. 2/9 was prepared. According to this witness, this Khatauni is divided into three parts, namely part A, part B and part C. Part-A refers to entry No. 366-Nautor, and Part-B refers to work No. 9. The witness says that part-A'' was taken" from Register-Farsi which was already in existence. Part-B was taken from Jamabandi Tankra which was also already in existence. But part-C was prepared by the concerned Kanungo after going to the spot. All these three parts of this Khatauni refer to Ghasitu as a''Dasali''. The Kanungo who is said to have prepai ed Part-G of this document and who has also signed this document is petitiner''s witness No.7 Hoshiar Singh who claims that he had prepared Part-C which mentions the caste of Ghasitu as ''Dasali'' aftei verifying the details on the spot. As already noted above, the Petitioner puts heavy reliance upon this part of evidence to show that Ghasitu belonged to''Dasali'' caste. This Khatauni has been prepared on 27th February, 1952.

Evidence reveals that just after the above referred Khatanuni was prepared, issues of title were determined by the settlement officer who was conducting the regular revenue settlement proceedings. The documents relating to these issues of titles are known as "Tankihat". What is the meaning of this ''Tankihat'' is explained in the Settlement Report which is prepared by one Shri Thakur Sen Negi. This report is produced before me by the learned advocates of the parties. It is captioned as "Settlement Report of Chamba District (First Regular Settlement 1951-58) dated 30th July, 1966". At page 21 of that Repoit, in paragraph 70 the expression "Tankihat" is explained as under:

Issues of titles (Tankihat) - In a revisional settlement, the basis for title consists in the presumption of truth attaching to the entries in the Record of Rights of the previous settlement. In a first regular settlement, when either no previous record of any kind exists or there is a record but it does not command any presumption of truth in favour of its entries, issues of title have, for the first time, to be settled before entries pertaining to title are made in the Record of Rights. As mentioned in paragraph 48,48565 issues of title had to be settled in this settlement.

This shows that the record known as Tankihat is not the result of any mechanical process of adopting entries found in the existing revenue record especially in case where the regular settlement takes place for the first time and the existing record does not carry with it any statutory presumption of truth. This particular aspect of the case is very important in view of the Petitioner''s contention that though Ex. P.W. 2/9 which was prepared in the month of February. 1952, mentions the caste of Ghasitu as Dasali, the subsequent Tankihat record found at Ex. P.W. 2/10 wrongly mentions that caste as Jogi. According to the learned advocate of the Petitioner, the sudden change in the caste of Ghasitu in the Tankihat record is inexplicable and is not supported by any regular order and, therefore, should be ignored. The above quoted paragraph 70 of the Settlement Report, however, shows that Tankihat record does not depend upon the previous entries found to have been made without regular settlement and is the outcome of certain enquiry regarding the issues of title. In other words, according to the above quoted paragraph 70, Tankihat record is an independent record not de-; pending upon the facts already found in the existing record which ''does not carry with it any statutory presumption of truth. With these observations, I would proceed to narrate the Tankihat record and other record which subsequently followed as a result of the finalisation of the regular settlement.

Ex. P.W. 2/10 is the Tankihat record which, as already noted above, was prepared on 31st July, 1953. This mentions the caste of Mangtu as Jogi. Evidence shows that along with this Tankihat record, the settlement officer is supposed to settle the pedigrees of the parties concerned. Ex. P.W. 2/11 is such a pedigree relating to the ancestors of the Respondent. This pedigree also mentions the caste of his ancestors as Jogi. After the settlement of issues, as evidenced by Tankihat record, Missal Hakiyat which means the Record of Right was prepared as found at Ex. P.W. 2/12 which also mentions the caste of Mangtu as Jogi.

At Ex. P.W. 2/14 is the Khatami relating to the above referred Collectory File No. 334. It is similar to the Khatauni found at Ex. P.M. 2/9 which was prepared in 1952. This Ex. P.W. 2/9 was prepared with regard to Collectory File No. 1625, while this Khatauni Ex. P.W. 2/14 was prepared with regard to another land which is referred to in Collectory File No. 334.

Obviously this Khatauni Ex. P.W. 2/14 was prepared before Tankihat record was prepared and it mentions the caste of Ghasitu grandfather of the Respondent as Dasali. However, one pedigree is found at the back of this document. This pedigree mentions the caste of the ancestors of the Respondent as Jogi. According to Petitioner''s witness No. 2 Kewal Krishan, to whom reference is made above, such pedigrees are prepared after making enquiry on the spot (vide pages 13 and 14 of the deposition of the record).

Subsequent documents which are found on the record of the case are Jamabandis of the various years which follow, They are Ex. P.W. 2/15 which is Jamabandi for the year 1963-64 with regard to one piece of land; Ex. P.W. 2/16 which is for the same year with regard to another piece of land; Ex. P.W. 2/17 which is record of rights; and Ex. P.W. 2/18 which is Tankihat record of 1955. All this record shows that Mangtu the father of the Respondent is mentioned as belonging to Jogi caste.

In view of the above state of affairs in the revenue record, the learned Advocate of the Petitioner emphasised the fact that the forefathers of the Respondent have been originally described as belonging to Dasali caste, and since the caste is a matter of birth, this caste could not have been changed either by the Respondent, or by any of his ancestors. According to him, therefore even if in the subsequent revenue record their caste is mentioned as Jogi, that should be ignored and it should be held that the Respondent belongs to the ''Dasali'' caste to which he seems to have belonged right from the year 1908 A.D.

In view of these contentions, it is first necessary to consider whether from the revenue record which existed in Chamba State it can be positively said that Respondent''s forefathers did belong to ''Dasali'' caste. In other words, the question to be considered is whether this revenue record is sufficient to prove the caste of the Respondent. While considering this question, there are some other important aspects of the matter which should be borne in mind.

The first aspect of the matter is that it is nowhere found in the record, which is relied on by the Petitioner, that Ghasitu or any other forefathers of the Respondent had ever described himself as belonging to Dasali caste. If there was any description such as the one which Sita Ram, Moharrar, preferred to give, it would obviously not bind Ghasitu or any of the forefathers of the Respondent so long as it is not shown that the same was admitted by him as correct. Moharrar Sita Ram''s repot found at Ex. P.W. 1/1 shows at the most that in the opinion of Sita Ram, Ghasitu was a Dasali, but there is nothing to show whether he formed this opinion after considering the caste to which Ghasitu belonged, or after consicteringthe profession to which he belonged. Now, even if it is believed that Moharrar Sita Ram knew Ghasitu as belonging to Dasali caste, that aspect of the matter does not improve Petitioner''s case because in the same period, i.e. in the year 1909 A.D., one Harzalu, who belonged to the same village to which Ghasitu belonged, has described Ghasitu as a person belonging to Jogi Caste. This is evident by reference to Ex. P.W. 1/2. Moharrar Sita Ram admittedlydid not belong to the village of Ghasitu and therefore his opinion about the caste of Ghasitu cannot carry greater weight than the opinion of Harzalu. Therefore, the evidence as disclosed from Exs. P.W. 1/1 and P.W. 1/2 shows that there was no uniformity in identifying the caste of Ghasitu amongst people who were known to Ghasitu.

Much was made, in my opinion, unnecessarily, of the decision given by the Ruler in the year 1966 B.K. regarding grant in favour of Ghasitu of the dispute land as found from the document Ex. P.W. 1/3. It was contended that the Ruler of Chamba State was sovereign and his word was law and therefore if that Ruler described Ghasitu as belonging to Dasali caste the said description becomes law. The argument deserves to be summarily rejected for various reasons. The first reason is that the order found at Ex. P.W. 1/3 nowhere mentions the name of Ghasitu and .nowhere describes him as belonging to Dasali caste. This order is no doubt passed in the file No. 1625 but the cause title of the .file and description found therein do not become the part of the decision given by the Ruler. Another important reason is that the Ruler of Chamba State was not .called upon to give decision as regards Ghasitu''s caste. That question as regards Ghasitu''s caste was not in dispute before him. What was in dispute was whether Ghasitu, whatever be his caste, had encroached upon the land in question. The Ruler ultimately decided this question of encroachment and then ordered the grant in favour of Ghasitu as per the document found at Ex. P.W. 1/3. Under the circumstances, it is not possible to say that the Ruler had given any decision which amounted to law on the question of Ghasitu''s caste.

Petitioner''s witness No. 2 Kewal Krishan has admited in his deposition that nowhere in the revenue record of the Chamba State he has been able to notice any documents showing that Ghasitu had admitted that he belong to Dasali caste. At any rate, no such document is produced in the record of this case. Therefore, the result is that during the course of the administration of Chamba State, Ghasitu was mostly described as Dasali. The question whether he was a Dasali or a Jogi has never cropped up before any revenue authorities of the erstwhile Chamba State and therefore if Ghasitu was described as a Dasali it only means that the concerned Revenue authorities identified him to be a Dasali. One does not know on what material this identification was based.

Howevere, the question is whether this description in the revenue record of the old Chamba State carries any presumption of truth or any evidentiary value. My answer to this question is in the negative, firstly, because, this revenue record of Chamba State was not prepared on the strength of any regular and systematic revenue settlement, and secondly, because there was no statute prevailing at that time under which it was obligatory on the concerned revenue authorities to mention the caste of a holder of a land in the relevant revenue entries. I have perused the relevant portions of the Gazetteers which are produced before me, and I have found that there is nothing therein to suggest that Chamba State had any systematic procedure for the preparation of revenue records. From all that I have noticed, it has been found that this revenue record was prepared in rather haphazard manner, and this would be evident from some of the materials which I have come across and which I propose to quote hereafter. It, therefore, follows that if some revenue officials, not acting under any systematic procedure prescribed by law, preferred to describe Ghasitu and others of the Respondent''s family as ''Dasali'', in all probability, the said description was made in a casual and haphazard manner not carrying any presumptive or evidentiary value. In fact, it is found that in the Register-Farsi produced at Ex. P.W. 2/13 Ghasitu''s caste is mentioned as ''Bafinda''. Now, it is nobody''s case that Ghasitu ever belonged to ''Bafinda'' caste. This aspect of the matter goes to emphasise that the revenue record prepared in times of Chamba State was not systematized or regular, and in all probability it depended much upon the hazy impression carried by the officer who prepared the record.

At this stage, it would be necessary to quote certain observations regarding the condition of the original settlement prevailing in times of Chamba State found in the Settlement Report made by Mr. Negi. These observations are found in Chapter III of the Report. They are asunder:

"40. Introductory Account - The settlement operation, Chamba district, began about the middle of November, 1951. This was the first regular settlement of the Chamba district. The summary settlement preceding it, and carried out some three quarters of a century before, by Colonel Blair Reid had not stipulated any particular duration. In fact it was not any settlement at all worth the name. No formal assessment report, nor any formal settlement report, was ever written. Even the assessment was not made on any systematic and uniform basic principles. To be more precise, no assessment was at all made in that operation by Colonel Reid. All that he did was, as mentioned in para 30, to record the State demand that each holding was actually meeting at the time of the summary survey and summary record work carried out by him.

The need for the regular settlement arose as much out of the necessity for a regular record as from the inequities and hardships,...the record of the old system was no good for modem purposes.

Reference to Punjab States Gazetteer, Vol. XXII-A, relating to Chamba State, shows some history as regards land revenue. In Chapter III, Section C which begins at page 267, under the caption "Original system of assessment" at page 270, it is mentioned that in former times the revenue was assessed according to the amount of seed and quality of the soil, and was realised in kind and cash, called collectively sal bachh. Further development in the collection of revenue is thereafter mentioned. But there is nothing therem to show on what principles the said revenue was collected. It is found that some attempt to systematise the thing was made by Colonel Reid to whom the reference is made by Mr. Negi in his Report, but as stated therein even this summary settlement made by Colonel Balair Reid was not systematic.

Under these circumstances, no presumption, statutory jor otherwise, can flow from the revenue record of Chamba State with regard to the caste of the Respondent and his ancestors. In Sadiq Hussain v. Anup Singh (AIR 1924 Lahore 151) the Lahore High Court has held that since the statement as regards caste of a land-owner was at that time not a statement covered by Section 31 of the Punjab Land Revenue Act as it stood then, there is no presumption about the correctness of caste entry made in the revenue record. Reference to Punjab Settlement Manual by Sir James M. Douie, page 151, shows that it was for the first time in the month of June, 1926, that by Financial Commissioners notification No. 1686-R the caste and residence of the persons holding revenue-paying land were required to be described in the revenue record, in the State of Punjab. But so far as Chamba State is concerned, there was no such provision and, therefore, on the authority of the above referred Lahore High Court decision the Petitioner cannot derive any benefit arising from any presumption, statutory or otherwise, from the caste description of the ancestors of the Respondent found in the revenue record of the Chamba State.

The foregoing discussion of the position of the revenue record of the Chamba State and the subsequent revenue record which was prepared during regular settlement and thereater, shows that there is conflict between the two records as regards the caste of the Respondents forefathers. When there is such a conflict between the record which is the outcome of a summary settlement and the record which is result of a regular settlement, it is the latter type of record which must be preferred for the simple reason that the record which is the result of regular settlement is not only systemtic and is prepared after good deal of care but it also carries with it a statutory presumption of correctness. At page 24 of the Punjab Settlement Manual by Sir James Douie, we find the following observations in this connection:

"44. Difference between summary and regular settlements. - ...legally the chief difference between the two lies in the fact that no presumption of truth, such as is attached to entries in records-of-rights prepared at regular settlements (Section 16 of Act XXXIII of 1871), belongs to similar entries made at a summary settlement. An officer making a record-of-rights at a first regular settlement could alter any entry made at a summary settlement simply on the ground that he considered it incorrect. An officer making a re-settlement under Act XXXIII of 1871 had no such power with reference to the entries in records-of-rights framed at a first regular settlement (Section 19 of Act XXXIII of 1871).

These observations also explain why the Tankihat found at Ex. P.W. 2/10 carries greater weight than the Khatauni found at Ex. P.W. 2/9. This Tankihat shows that the revenue authorities had accepted the caste of Mangtu the father of the Respondent as Jogi in preference to the previous description found in Khatauni found at Ex. P.W. 2/9 as Dasali. In Saddu v. Mani Ram (AIR 1931 Lahore 139) even the Lahore High Court has observed that summary settlements had not the same value as regular settlements and that the presumption arising from entries in a regular settlement cannot therefore be rebutted by entries in an earlier summary settlement. The same view has been taken by Patna High Court in Shaikh Banka v. Shaikh Bartul reported in AIR 1952 Patna 157 - In the case of Shri Raja Durga Singh of Solan Vs. Tholu, the Supreme Court has discussed the question as regards conflict between entries in revenue record and has held that where there is such a conflict it is the latter entry which is substituted for the old one which should prevail. As already noted above, pedigrees relating to the ancestry of the Respondent had been prepared during the regular settlement. Petitioner''s witness No. 2 Kewal Krishan says that there was no procedure in the Chamba State to prepare such pedigree tables. It is, therefore, found that these pedigrees/were prepared for the first time during revenue settlement. The value of such pedigree tables is explained by Punjab High Court in Mangal Singh v. Manphul Singh Jaimal Singh reported in AIR 1961 Punjab 251, wherein it is held that pedigree tables prepared at the time of settlement form part of the record-of-rights as prescribed u/s 31(2)(d) of the Punjab Land Revenue Act and therefore the presumption of truth must extend to such pedigree-tables until the contrary is proved or a new entry is lawfully substituted therefor. I have already referred to the relevant pedigree entries which are produced in this case. They all describe the father and the grandfather of the Respondent as belonging to "Jogi" caste and not to "Dasali" caste.

As already noted above, the learned Advocate of the Petitioner relied heavily upon the Khatauni Ex. P.W. 2/9 which has been prepared in the year 1952 immediately followed by a Tankihat found at Ex. P.W. 2/10 prepared in the year 1953. It is here that the different caste of the father of the Respondent is mentioned. Now, in this connection, he put reliance upon the following deposition of the witness No. 2 Kewal Krishan. He deposes as under:

"In Ex. P.W. 2/10 the entries are brought from Ex. P.W. 2/9 which is ''Khatauni'' regarding which entry is made in column No. 6 of Ex. P.W. 2/10. In Ex. P.W. 2/10 in column No. 3 there is an entry ''Mangtu son of Ghasitu, caste Jogi''. It is true that in Ex. P.W. 2/9 from which the above referred entry Ex. P.W. 2/10 is made, mentions the caste of Mangtu son of Jawala as "Dasali". In column No. 4 of Ex. P.W. 2/10 there is a statement of Mangtu which bears some thumb-impression purporting to be of Mangtu. I cannot say how Mangtu''s caste is written as Jogi in Ex. P.W. 2/10 because I do not know of any record from which this caste as ''Jogi'' was described'' therein. I have not come across any record showing the order of competent authority that the caste of Mangtu should be changed from ''Dasali'' to ''Jogi''.

Relying upon this part of the deposition of the witness, it was vehemently contended that since the witness has not come across any record showing the order of the competent authority that the caste of Mangtu should be changed from ''Dasali'' to ''Jogi'', it should follow that the change in the caste of Mangtu made in Ex. P.W. 2/10 is made without any authority. This contention is not acceptable, because in the first place the statement of the witness that entry in Ex. P.W. 2/10 is made from Khatauni found at Ex. P.W. 2/9 as it is and without any change, is not found to be acceptable in view of the above quoted paragraph 70 of the Settlement Report. Reference to the other paragraph of this Settlement Report shows that Tankihat Register was prepared after the issues of title were determined. According to paragraph 70 of the Report, about 48,000 and odd issues of title were settled by the settlement officer. This means that Tankihat record was prepared after some independent enquiry and the entries therein were posted not merely from the previous record which was existing but also from some other material which was gathered at the time [of the settlement of the issues of title. If P.W. 2 Kewal Krishan did not "come across'' any record showing an older of competent authority that caste of Mangtu should be changed, that does not mean that no such record existed. Presumption as to the official acts is that they are done in accordance with procedure. Therefore, when entries in the Tankihat record found at Ex. P.W. 2/10 were posted, they should be presumed to have been posted regularly and according to law.

Thus from the revenue records, the Petitioner has not been able to show that the Respondent belongs to ''Dasali'' caste.

Oral evidence which is produced by the Petitioner is to the effect that when members of the ''Dasali'' caste die, they are cremated, but when the members of the ''Jogi'' caste die, they are buried. On this point, the contention of the Respondent is that there are sub-castes in Jogis and therefore the custom of burial of the dead in the Jogi caste is not uniform in all the sub-castes. Evidence on this point is offered by both the parties through certain witnesses who have deposed from their memory about some burials and cremations which have taken place several years ago. I don''t want to place reliance on this type of evidence as it is not found to be quite safe to determine such an important question relying upon the memories of the witnesses who have come to depose in Court many years after the event.

It is, however, found from the record of the case that the Respondent and his close relatives have married in the families belonging to Jogi caste. At Ex. P.W. 2/19 and Ex. P.W. 2/20 are respectively the record-of-right and pedigree table relating to one Nidhia who is the father-in-law of one of the brothers of the Respondent. The caste of this Nidhia is shown as Jogi which proves that the Respondents said brother is married in the family belonging to Jogi caste.

The Respondent is R.W. 4. He has produced in his deposition Exs. R.W. 4/1 and R.W. 4/2. They are relating to one Madho Ram who is Respondent''s father-in-law. His caste is described in these two documents as Jogi. Moreover, at Ex. R.W. 4/3 is the record-of-rights and Ex. R.W. 4/4 is the pedigree relating to one Hardeo of Narua. This Hardeo is the father-in-law of Respondent''s brother Prem Lal and sisters Shakuntla and Vidya. This Hardeo is described in these two documents as belonging to Jogi caste which shows that the brother and the sisters of the Respondent are married in the Jogi family.

Again, at Ex. R.W. 4/5 and Ex. R.W. 4/6 are respectively the pedigree and record-of-rights relating to one Piaru who is related to the Respondent as his maternal uncle. Even he is described as belonging to Jogi caste.

All this evidence goes to show that social connections of vital importance which the Respondent has are only with the members of the Jogi caste. This gives sufficient support to the Respondent''s case that he is Jogi by caste.

The Respondent has put further reliance upon the relevant family-registers kept by the Gram Panchayat. The entries from these registers are proved through the deposition of R.W. 2 Gian Chand. At Ex. R.W. 2/1 is the entry relating to the details of the family of Respondent''s father. At Ex. R.W. 2/2 are similar details from the subsequent family register. At Ex. R.W. 2/3 is the entry from the family-register relating to one Raghubir Dass who is the father-in-law of one of the brothers of the Respondent. At Ex. R.W. 2/4 is the entry from family register relating to Madho Ram the father-in-law of the Respondent. These entries are relied on by the Respondent to show that in the family-registers kept in the Gram Panchayat his own family and the families of his near relatives are shown to be belonging to Jogi caste. This R.W. 2 Gian Chand has further deposed, after perusing the whole of the two registers produced in the Court, that in these registers there is no family which is recorded as belonging to Dasali caste. Witness says that these family-registers are maintained under instructions from the Government.

There is nothing to dispute the statement of the above referred witness that these family-registers are maintained pursuant to the instructions issued by the Government. These registers are, therefore, official registers even though they are not shown to have been kept under any statutory provisions. Being official registers, entries posted therein stating the caste of the families mentioned in these entries are relevant u/s 35 of the India Evidence Act. The learned Advocate of the Petitioner contended that according to R.W. 2 Gian Chand, entries in these registers are brought from ''birth and death registers'' kept by the Panchayat and therefore so long as these birth and death registers, which are the source of these entries, are not produced, no reliance can be placed upon these family- registers. This argument is not acceptable because if these family-registers are found to be official registers and if the entries therein are found to have been posted in due course of official business, then they themselves would be relevant as primary evidence u/s 35. Their evidentiary value is to be assessed with reference to the facts of the case, and since there is nothing in evidence which would detract anything from their evidentiary value, I don''t find anything wrong in relying upon these entries. As stated above, these entries give sufficient support to the case of the Respondent.

The Respondent has also relied upon the entry as regards his admission in Government High School at Sarol. This admission entry in that school is proved through the deposition of R.W. 1 Goverdhan Gurang. He is the Headmaster of Government High School, Sarol, and the admission entry which he has produced is at Ex. R.W. 1/1 dated 28th June, 1951. This entry shows that as early as 1951 the caste of the Respondent was shown as Jogi. It is found from the deposition of R.W. 1 Goverdhan that this admission entry Ex. R.W. 1/1 was made on the strength of the admission form which was filled in and the Respondent was admitted in the school. It was, therefore, contended that unless this admission form was produced and proved, no reliance can be placed on this admission entry Ex. R.W. 1/1. Again, this argument is not acceptable in view of the provisions of Section 35 because the school register is official register which is kept in discharge of official duties by the concerned school authorities. It is true that there are certain decisions which assess the evidentiary value of school certificates with great caution. But the question of assessing the evidentiary value of the records which are relevant u/s 35 of the Evidence Act depend s upon the facts of each case. So far as this case is concerned, there is nothing to show that the entry found at Ex. R.W. 1/1 is not reliable. In my opinion, therefore, even the proof of this entry goes to support the case of the Respondent.

Through the deposition of R.W. 3, Dr. S.M.L. Grover, who is Director of Health Services, Himachal Pradesh, the Respondent has produced three documents found at Exs. R.W. 3/1, R.W. 3/2 and R.W. 3/3. Ex. R.W. 3/1 is the interview chart dated 10-12-1963 prepared when the Respondent was recruited as a Clerk in the Government service. This document shows the caste of the Respondent as Jogi. Ex. R.W. 3/2 is the seniority list of Clerks wherein the name of the Respondent is shown at serial No. 151. It is dated 10-6-1974. This seniority list describes the Respondent as belonging to schedule caste without mentioning the name of the caste. Both these documents are based on the information given by the Respondent himself in the year 1963 when he was recruited. But the fact remains that in the year 1963 the Respondent claimed to be a member of Jogi caste even though it was not necessary for him to do so because at the time of his recruitment in Government service no special quota for any schedule caste member was reserved for recruitment. At Ex. R.W. 3/3 is the copy of the proceedings of the Departmental Promotion Committee held on 19-8-1974. That shows that he was promoted in the schedule caste quota. These documents, therefore, show that right from the year 1963 to the year 1974 the Respondent has been treated as belonging to schedule caste in the Government record.

The above discussed evidence is, in my opinion, sufficient to refute the Petitioner''s stand that the Respondent belongs to the caste known as ''Dasali''. On the contrary, the evidence supports the Respondent''s case that he belongs to ''Jogi'' caste which is one of the castes mentioned in the Schedule.

In view of this position, I don''t find it necessary to detain myself more on the oral testimony of different witnesses going to prove the custom of burial or cremation prevalent in the members of the ''Jogi'' caste and ''Dasali'' caste.

I, therefore, decide the Issue No. 1 in the negative, i.e. against the Petitioner, and Issue No. 2 in the affirmative, i.e. in favour of the Respondent.

The result of these findings is that this election petition should fail. The same is, therefore, dismissed with costs.