Govinda Menon, J.
1. Rao Bahadur P. M. Srinivasa Aiyangar contends that the lower Courts have not adverted to the crucial point in the case, namely, whether there was, in fact, any encroachment by the petitioner. There was a previous prosecution in which the petitioner was convicted foe having encroached upon a piece of land belonging to the Municipality and that conviction was confirmed. The present conviction is for refusing to demolish a structure built upon that encroached land. It is clear that the previous judgment will not operate in favour of the prosecution to show that there is an encroachment, which has to be proved by separate and independent evidence.
2. In the trial Court, P. W. 1 has given prima facie evidence that the petitioner has encroached upon a piece of land belonging to the Municipality and built a structure thereon. The petitioner in his statement has denied it generally; but the evidence of D. Ws. 1 to 8 does not categorically show that the land alleged to have been encroached upon was in fact the petitioner's. No title deed has been produced. In view of the previous prosecution, be to the lower Courts do not seem to have concentrated their attention with regard to the ownership of the land and whether there was any kind of encroachment as alleged by the Municipality. In the absence of any clear finding by either of the lower Courts that the petitioner has, in fact, encroached, I am inclined to set aside the orders of be to the lower Courts and remand the case for trial to the Court of first instance widen Will dispose of it according to law after taking such fresh evidence as the parties deem fit to tender.