JUDGMENT : Mr. C.R. Dash, J. - This writ petition is directed against the confirming appellate judgment passed in an election dispute, by the learned District Judge, Jajpur in Election Appeal No. 13 of 2013. 2. The present petitioner is the elected Sarpanch of Dudhujori Grama Panchayat under Sukinda Block in the district of Jajpur. He was declared elected in the Grama Panchayat Election held in 2012. The present petitioner along with opposite party nos.1 and 3 to 6 contested in the election. The petitioner having secured the highest number of votes was declared elected. The present opposite party no.1 secured the second highest number of votes and opposite party nos.3 to 6 secured lesser votes than opposite party no.1. Opposite party no.1 initiated the election dispute in the Court of learned Civil Judge (Jr. Division), Jajpur Road -cum-Election Tribunal vide Election Misc. Case No. 2 of 2012 on the ground that the petitioner is disqualified under Section 25(1)(v) of the Orissa Gram Panchayat Act, 1964 ('Act' for short), because his fourth child namely Mamali Swain has taken birth on 04.05.1995 after the cutoff date, i.e. 21.04.1995. The admitted case of the parties is that, all the contested parties including the petitioner and opposite party no.1 filed their nomination papers before the Election Officer within the stipulated period from 07.01.2012 to 12.01.2012. The petitioner filed nomination papers vide Ext.8, which is an admitted document. Such nomination paper of the petitioner was objected by opposite party no.1 vide Ext.9. The reply to the objection has been proved as Ext.10 and the order of the Election Officer rejecting the objection vide Ext.9 has been proved as Ext.11. In Ext.8, the petitioner has mentioned in his own handwriting that he has only one child namely Ranjan Kumar Swain. Opposite party no.1 filed election dispute asserting that the petitioner is blessed with four children and they are namely Ranjan Kumar Swain, Sujata Swain, Babita Swain and Mamali Swain. It is further asserted that the date of birth of the fourth child Mamali Swain is 04.05.1995, which is after the cutoff date, i.e. 21.04.1995. 3. The petitioner as opposite party no.2 before the Election Tribunal took the plea that his first two children namely Ranjan Swain and Sujata Swain were adopted by him and the date of birth of Mamali Swain is 13.03.1995 and not 04.05.1995. 3. The petitioner as opposite party no.2 before the Election Tribunal took the plea that his first two children namely Ranjan Swain and Sujata Swain were adopted by him and the date of birth of Mamali Swain is 13.03.1995 and not 04.05.1995. It is further asserted by the petitioner in his written statement that the date of birth of Mamali Swain was shown as 04.05.1995 in the School Admission Register only for the purpose of her service benefits in future. Learned Election Tribunal, on the basis of the pleadings of the parties, framed as many as four Issues. 4. In order to substantiate his case, the present opposite party no.1 being the petitioner before the Election Tribunal, examined seven number of witnesses including himself as P.W.1 and also proved series of documents vide Exts.1 to 18. The present petitioner as opposite party no.2 before the Election Tribunal also examined eight numbers of witnesses including himself as O.P.W.1 and has proved three documents vide Ext.A to Ext.C. Learned Court below taking into consideration the documents vide Ext.5, Ext.15, Marked-XXX, Marked-ZZZ, Ext.10 and Ext.16/a, including the oral evidence of P.Ws.1, 2, 3 and 4 held that the present opposite party no.1 being the election petitioner has discharged his initial burden of proving that the date of birth of Mamali Swain is 04.05.1995. The horoscope of Mamali Swain proved by the present petitioner vide Ext.A through his wife O.P.W.5 was disbelieved and found to be not admissible as evidence, taking into consideration the provisions contained in Sections 47, 67 and 159 of the Indian Evidence Act. Learned Court below took painstakingly into consideration Ext.B, the Birth and Death Register maintained by Bhotalanda Anganwadi Centre and Ext.C, the Parivar Survey Patrika maintained by Anganwadi Centre and found suspicious features in both these documents including interpolations etc., as discussed in pages 11 and 12 of the impugned judgment under Issue Nos.1 and 2. Both these documents were disbelieved. On the basis of the materials on record and the evidence adduced, learned Election Tribunal came to hold that the present petitioner is disqualified under Section 25(1)(v) of the Act. 5. The petitioner preferred appeal before the District Judge, Jajpur vide Election Appeal No. 13 of 2013. Both these documents were disbelieved. On the basis of the materials on record and the evidence adduced, learned Election Tribunal came to hold that the present petitioner is disqualified under Section 25(1)(v) of the Act. 5. The petitioner preferred appeal before the District Judge, Jajpur vide Election Appeal No. 13 of 2013. Learned appellate court also taking into consideration the evidence on record and especially the evidence of P.W.4, the Headmaster-in-charge of Botalanda U.G.M.E. School, who had proved the date of birth of Mamali Swain, vide Ext.5, as 04.05.1995 and Exts.15, 10, 16/a and of course Marked-XXX and Marked-ZZZ along with the oral evidence of P.Ws.4, 1, 2 and 3, confirmed the order of the learned Election Tribunal. 6. At the outset, I feel it pertinent to mention here that Marked-XXX is the photo copy of the mark-sheet of Mamali Swain issued by the Board of Secondary Education, Odisha and Marked-ZZZ is also the mark-sheet of Mamali Swain issued by the Board of Secondary Education, Odisha obtained by the present opposite party no.1 through R.T.I. Act. Those documents being photo copies, were not marked as Exhibits. Both the documents were marked as "XXX" and "ZZZ" respectively. Those documents having not been marked as Exhibits, both the learned Courts below should have taken both those documents out of consideration. It was an illegality on their part to take into consideration the documents marked "XXX" and "ZZZ" in reaching a conclusion. 7. I have to see, if the documents "XXX" and "ZZZ" are taken out of consideration, there appear any difference in the findings arrived at by the learned Courts below. The Headmaster-in-charge of Botalanda U.G.M.E. School (P.W.4) vide Ext.5 has proved the date of birth of Mamali Swain as 04.05.1995. The present petitioner being opposite party no. 2 before the Election Tribunal, in his written-statement has not denied such fact. He has rather asserted that though the actual date of birth of Mamali Swain is 13.03.1995, in the School Admission Register her date of birth was shown as 04.05.1995 only for the purpose of her service benefits in future. Such a fact being admitted, this is to be seen how far the learned Courts below have arrived at just findings. 8. The petitioner as opposite party no. 2 before the Election Tribunal has tried to prove that Ranjan Kumar Swain and Sujata Swain are his adopted children. Such a fact being admitted, this is to be seen how far the learned Courts below have arrived at just findings. 8. The petitioner as opposite party no. 2 before the Election Tribunal has tried to prove that Ranjan Kumar Swain and Sujata Swain are his adopted children. The natural parents of Ranjan Kumar Swain have not been examined while the natural father of Sujata Swain has been examined as O.P.W.2. He is a relation of the present petitioner. Ext.16/a, which is very much disputed by the learned counsel for the petitioner, is a part of the Parivar Survey Patrika maintained by the Anganwadi Centre. In that document the present petitioner is shown to have been blessed with four children. In the nomination paper filed by the petitioner vide Ext.8, he has suppressed most material facts and has mentioned that Ranjan Kumar Swain is his only child. No contemporaneous documents regarding the adoption, though recent, have been proved. In view of such fact, the learned Courts below have rightly disbelieved the factum of adoption of Ranjan Kumar Swain and Sujata Swain. From this conclusion, I do not find any escape and it is to be held that the present petitioner is blessed with four children, namely, Ranjan Kumar Swain, Sujata Swain, Babita Swain and Mamali Swain. 9. So far as the date of birth of Mamali Swain is concerned, the petitioner in his written statement has himself admitted that though the actual date of birth of Mamali Swain is 13.03.1995, he has mentioned the same as 04.05.1995 in the School Admission Register only for the purpose of her service benefits in future. 10. Learned counsel for the petitioner, in this regard, has relied on the cases of Kamini Das v. Upendra Biswal and Five Others, 2006 (I) CLR - 1. In paragraph-12 of the aforesaid judgment this Court relying on the case of Birad Mal Singhvi v. Anand Purohit, A.I.R. 1988 SC 1976 and referring to the case of Brij Mohan Singh v. Priya Brat Narain Sinha, A.I.R. 1965 SC 282, has held that it is a common habit of parents to under-age their children at the time of initial admission to the school, and such a presumption is available to be drawn in view of the dictum in the cases of Brij Mohan Singh (supra) and Birad Mal Singhvi (supra). In the case of Brij Mohan Singh (supra), question of age of the appellant was in issue. The appellant had asserted that he was born on October 15, 1935, whereas the respondents had asserted that he was born on October 15, 1937. After discussing oral evidence and the documentary evidence including the reasoning supplied by the High Court on the issue of age, Hon'ble Supreme Court proceeded to discuss Ext.2, Ext.8 and Ext.18 adduced in that case, which are Admission Register of Aurangabad Town School, where the appellant had taken admission as a student, the application made by the appellant for the post of Sub-Inspector showing his date of birth and the certificate issued by the Bihar School Examination Board for his passing Matriculation examination respectively. Hon'ble Supreme Court ruled in favour of admissibility of the School Admission Register under Section 35 of the Evidence Act, but refused to accept the date of birth mentioned in the School Admission Register and the certificate issued by the Board of Secondary Examination as correct date of birth, as it was suggested that incorrect statement was made at the request of the person regarding the date of birth of the appellant, who had admitted him to the School. The request was also made, it is suggested, to make him appear two years younger than what he really was, so that later in life he would have an advantage while seeking public service, for which a minimum age of eligibility is prescribed. 18. Taking into consideration all the aforesaid aspects, Hon'ble Supreme Court, in paragraph-20 of the judgment, held thus :- "..........The appellant's case is that once this wrong entry was made in the admission register, it was necessarily carried forward to the Matriculation Certificate and was also adhered to in the application for the post of Sub-Inspector of Police. This explanation was accepted by the Election Tribunal but was rejected by the High Court as untrustworthy. However much one may condemn such an act of making a false statement of age with a view to secure advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. However much one may condemn such an act of making a false statement of age with a view to secure advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently. We find it impossible to say that the Election Tribunal was wrong in accepting the appellant's explanation. Taking all the circumstances into consideration, we are of opinion that the explanation may very well be true and so it will not be proper for the Court to base any conclusion about the appellant's age on the entry in these three documents vide Ext.2, Ext.8 and Ext.18." 11. So far as the fact of the present case is concerned, the present case can however be distinguished. From the material on record, it is found that the present petitioner has not come to litigation with a clean hand. In the nomination papers filed by him, vide Ext.8, he declared that he has only one child namely Ranjan Kumar Swain. Before the Election Tribunal he took the plea that he has adopted Ranjan Kumar Swain and Sujata Swain, but he failed to prove such fact as found from the materials on record. He also took the plea in the written statement that, though the date of birth of Mamali Swain is 13.03.1995, he has shown the same to be 04.05.1995 in the School Admission Register only for the purpose of her service benefits in future. If the difference in the actual date of birth of Mamali Swain, as asserted by the petitioner, and the date of birth as recorded in the School Admission Register is compared, it is found that the difference of days in between both the dates is only one month and 22 days. Such a small period is totally insufficient for Mamali Swain to get any service benefits in future, as asserted by the petitioner. There is also no cogent evidence to prove that the actual date of birth of Mamali Swain is 13.03.1995. Taking into all such facts and especially the fact that the petitioner has not come with a clean hand to the Court of equity, it is to be held that no finding can be arrived at in his favour only on the basis of presumption, when such presumption is not available to be drawn in the facts and circumstances of the case. 12. 12. Lastly, it is submitted by learned counsel for the petitioner that the issue of adoption of Ranjan Kumar Swain and Sujata Swain having not been framed, the matter should be remanded back for fresh disposal. This Court, in the case of Sri Badridas Goenka and Others v. Sri Gopal Jew Thakur & Others, XXXIII 1967 C.L.T. 995 has held that if the parties went to trial fully knowing the rival case and led all the evidences not only in support of their contention but in refutation of those in the other side, it cannot be said that, absence of an issue was fatal to the case or that there was mis-trial which vitiates the proceeding. In the present case, issue of adoption was raised by the petitioner for the first time before the Election Tribunal. He adduced full evidence being aware of his pleadings, and the learned Courts below also took into consideration the evidence adduced. In view of such fact, I do not find any justification to remand the matter at this stage for fresh disposal. 13. Taking into consideration the discussions supra and the evidence adduced by the parties, including the impugned judgments, I do not feel inclined to interfere in the matter. 14. In the result, the writ petition is devoid of any merit and the same is accordingly dismissed. 15. Parties are directed to bear their respective costs of litigation. Final Result : Dismissed