1. Certain cattle were found tied on a Municipal lane and the owner of the same was prosecuted. There is no plea on behalf of the owner that the lane belongs to him. The onus is on him to prove that the area is not part of the Municipal lane but his private property. In the absence of any such plea being noted in the printed form of summary trial I fail to see how the learned Bench Magistrate threw out the case and called upon the Municipal Board to have its claims adjudicated in the civil Court. The other party alleged before me that it was never given any opportunity to prove that the area in question on which the cattle were tethered belonged to its ownership. Evidently a fresh trial is called for.
2. I therefore move the Honourable High Court to quash the decision which has been arrived at without evidence brought on the record and to order a fresh trial. The lower Court can furnish any explanation it likes to be forwarded to the Honourable High Court.
3. I have examined the order of the District Magistrate of Benares and the explanation of the Magistrate concerned. I accept the explanation. If the Municipal Board, within the time granted, is unable to prove to the Bench of Honorary Magistrate when the ownership of the land was in question, I do not see any reason why a second opportunity should be given to prove the case. The prosecution had to adduce evidence; and, if it could not obtain the evidence, the proper course was to ask for time to do so; but there is no sufficient reason why there should be a retrial.
4. Let the record be returned.