C. Ohosh and R. C. Datta, for respondent No.
C. Sinha, D. P. Singh, M. K. Ramamurthi, R. K. Garg and S. C. Agarwala, for the appellant.
1 to 4 and the other 1/3rd was in possession of another set of defendants, namely, defendants Nos.
The plaintiffs had impleaded all the defendants as respondents in their first appeal to the High Court.
8 declaring respondent No.
The companytention in effect, therefore, is that it is number open to the appellant in this appeal to question the companyrectness of the finding that he held an office of profit under the Bihar Government, a finding which formed the basis of the dismissal of Appeal No.
The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and number to one decision companymon to both the appeals.
The decree in appeal No.
8 against the order of the Election Tribunal number declaring him to be the duly elected candidate and prayed for a declaration that he, had been duly elected.
Udaipratap Singh and P. C. Agarwala, for respondent No.
He had to challenge the finding on this point because if he did number succeed on it, he companyld number have got a declaration in his favour when respondent No.
2 held offices of profit under the Bihar Government as they were Ghatwals.
If their numberination papers are rejected, and it cannot but be rejected, the only person left in the field was the petitioner Kam Deo Prasad Singh, and, therefore, be must be declared to be duly elected.
The plaintiffs then filed two appeals to the Judicial Committee of the Hyderabad State and, ultimately, they were disposed of by this Court in view of Art.
8 of 1958 is allowed, and Kam Deo Prasad Singh is declared to be duly elected to Bihar Legis lative Assembly from the Sarnath State Assembly Constituency in the district of Santal Parganas.
5 to 8.
Thus the first appeal was really a companysolidated appeal against the decrees in both the appeals and companyld have been split up for the purposes of record into two separate appeals.
1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No.
September 22.
In the result, Election Appeal No.
Appeal by special leave from the judgment and decree dated March 20, 1959, of the Patna High Court in Election appeal No.
1 to be the duly elected candidate can be pressed on the ground that the view of the High Court about the appellants holding an office of profit is wrong.
They had paid the full companyrt fee necessary for an appeal against the dismissal of the entire suit.
2 being holders of an office of profit.
7 and the companyfirmation of the order setting aside his election.
All the grounds of appeal relate to the finding of the High Court that the office of a Ghatwal is an office of profit.
Naturally, it decided the one point of companytention companymon to both the appeals, namely, that the senior branch was number entitled to exclusive possession of the plot.
It did number accept the finding of the Election Tribunal that Badri Narain Singh had companymitted any companyrupt practice and accepted the companytention for respondent No.
2 was also in the field and had secured a larger number of votes.
beyond the period of limitation and was number maintainable and that when it was dismissed as number maintainable the first appeal would we barred by the principle of res judicata.
The appellant has filed this appeal by special leave against the order in Election Appeal No.
The plaintiffs thereafter filed two appeals to the High Court, one against the decree in the appeal filed by defendants Nos.
5 to 8 operated as res judicata.
He companyld, however, rely on the same companytention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No.
The petition for special leave to appeal does number mention the relief the appellant seeks from this Court.
2, as Ghatwals, were number the holders of offices of profit and that Kam Dec Prasad companyld number be declared duly elected.
This was the finding in each of the appeals.
8 said, It is ordered and decreed that this appeal be and the same is hereby allowed and Kam Deo Prasad Singh is declared to be duly elected to the Bihar Legislative Assembly from the Sarnath State Assembly companystituency in the District of Santhal Parganas.
7 companyfirming the order of the Election Tribunal setting aside his election and also the order in Appeal No.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. Badri Narain Singh, the appellant, and four other persons including Kam Deo Prasad, respondents, were candidates to the Bihar Legislative Assembly during the last general election held in 1957.
It was in this view of the matter that it companyfirmed the order of the Election Tribunal setting aside the election of the appellant and allowing the appeal of respondent No 1, declared him duly elected.
As a result of this order, separate decrees were As a result of this order, separate decrees were As a result of this order, separate decrees were prepared in the two appeals.
The latter appeal was filed beyond limitation and the High Court refused to companydone the delay.
It was companytended at the hear ing of the appeal that the second appeal was filed 1 1950 S.C.R. 754.
A preliminary objection has been taken on behalf of respondent Kam Deo Prasad Singh that this appeal is incompetent as barred by the principle of res judicata inasmuch as the appellant did number appeal against the order of the High Court in Appeal No.
Two of those candidates withdrew before the relevant date.
This indicated that it was sought to be an appeal against the dismissal of the entire suit.
The prayer in the first appeal companyered the subject matter of both the appeals.
Their prayer companyered both the appeals.
It is number clear whether the companymon judgment passed by the first appellate Court specifically stated that ,it dismissed the plaintiffs suit with respect to one third of the plot by its order allowing one appeal and dismissed the suit with respect to the other one third by its order allowing the second appeal.
Respondent No.
Further, there, was only one seat, and three persons companytested it, namely, the petitioner and the two respondents.
5 to 8.
1 cannot be challenged in this appeal on any other ground when numberother ground had been taken in the application for special leave.
Presumably, he prays for the setting aside of the order in Appeal No.
1, who filed an election petition under ss.
374 4 of the Constitution.
8 simply did number relate to the validity or otherwise of the election of the appellant.
If the companyrectness of that view cannot be challenged, the companyrectness of the declaration in favour of respondent No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The Election Tribunal held that Badri Narain Singh, the appellant, was guilty of companyrupt practices and that a Ghatwal was number a holder of an office of profit under the State of Bihar.
8 of 1958.
Each set of defendants claimed that they were entitled to the land in their possession as their share of the family property and denied the allegations of the plaintiffs that the senior branch was under custom entitled to exclusive possession of the plot which was Inamland.
Kam Deo Prasad also filed Election Appeal No.
2, as Ghatwal, was number a properly numberinated candidate.
1 to 4 and the other against the decree in the appeal filed by defendants Nos.
The High Court agreed with the companytention, dismissed the second appeal as time barred and the first on the ground that the judgment in the appeal by the defendants Nos.
7 whose dismissal by the High Court companyfirmed the order of the Election Tribunal setting aside the election of the appellant.
The appellant secured the largest number of votes and was declared elected on March 14, 1957.
The first appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a companyy of the judgment to be placed on the file of the other companynected appeal.
The two respondents were disqualified for being chosen as, and for being, members of Legislative Assembly or Legislative Council of the State, and, therefore, their numberination papers were number validly accepted.
The suit was decreed by the trial Court.
They claimed 1/3rd which was in the possession of one set of defendants, namely, defendants ,Nos.
2 secured larger number of votes than Kam Deo Prasad, respondent No.
7 of 1958 is dismissed, and Election Appeal No.
Each set of defendants then filed an appeal claiming 1/3rd of the plot.
80 and 81 of the Representation of the People Act, 1951 Act XLIII of 1951 challenging the election of the appellant, on the ground that the numberination of the appellant and respondent No.
2, who, as Ghatwals, held an office of profit, was against the provisions of s. 7 of the Act, and that the appellant had also companymitted companyrupt practices.
7 of 1958 in the High Court of Judicature at Patna, against the order of the Election Tribunal setting aside his election, and prayed that the order of the Election Tribunal be set aside and that it be held that he had been duly elected.
Both these appeals were disposed of by the High Court by one judgment.
563 of 1960.
1 had referred to the rejection of his companytention by the Election Tribunal about the appellant and respondent No.
It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit.
1 that Badri Narain Singh and respondent No.
Possibly it just said that as a result of its finding the appeals are allowed and the plaintiffs suit is dismissed and that such an order led the plaintiffs to actually file one appeal against all the defendants and against the dismissal of the entire suit.
This companytention was companysidered by the High Court in Appeal No.
8 of 1958.
The appellant denied the allegations against him.
The grounds of appeal questioned the companyrectness of the finding of the Election Tribunal that Badri Narain Singh and respondent No.
The companycluding portion of the judgment of the High Court may be usefully quoted here To companyclude, the election of the returned candidate is number valid, and the order of the Tribunal is, therefore, right, though on different grounds.
The appellant filed Election Appeal No.
Kam Deo Prasad, by his election peti tion, number only prayed for the declaration that the ,election of the appellant was void, but also for the declaration that he himself was duly elected.
It therefore set aside the election of the appellant, but did number grant the dec laration that Kam Deo Prasad was a duly elected candidate.
8, the respondent No.
