Pratt and Handley, JJ.
1. This is a somewhat peculiar case, and the proceedings are marked by several irregularities.
2. On the 11th January last the Sub-divisional Officer of Sitamarhi passed the following order: 'Local inquiry held, the tatte buildings put up on the road southwards from the post-office and at the south-west corner of the same must be removed. They are obviously put up to Hook the road, which is a public way and used by carts. The former building to he removed entirely and the other so far as to leave a track not less than 15 feet wide. Issue notice accordingly under Section 138 of the Criminal Procedure Code.' The petitioner, who is karpardaz of Rani Raj Bansi Koer, received notice and showed cause, urging that the alleged way is the private property of his employer, and asking for a jury to be appointed.
3. The Magistrate instead of first satisfying himself as to the bona fides of the claim, as required by law, see Preonath Dey v. Gobordhone Malo (1897) I.L.R. 25 Calc. 278, and then determining whether the parties should be referred to the Civil Court, see Queen-Empress v. Bissessur Sahu (1890) I.L.R. 17 Calc. 562--proceeded to refer the following question to a jury: 'Is there a public right-of-way at the point where stand the buildings whose removal has been ordered?' That was not a proper reference. 'What the jury had to try was whether the Magistrate's order was reasonable and proper.
4. Misled as they were, the jury went beyond their province, and ultimately by a bare majority of four to three they found that the property belonged to the Rani, but that the public had a right-of-way over it. Whether the particular order made by the Magistrate was entirely reasonable and proper they did not say. We think it is clear that the case has been dealt with in a manner not warranted by law, and we accordingly quash the Magistrate's order dated the 26th April last.