1. In support of the reference Mr. Kuttikrishna Menon has argued this case with great ability touching all aspects of the case particularly with reference to the order of the Munsif first Class Magistrate, as to how it is unsustainable. In the view I am taking, I do not think it necessary to deal with all his arguments. The question whether a particular party has a right of way over any place, is a question of fact, and any finding based on the appreciation of the evidence should not be lightly interfered with in revision. In the letter of reference made by the Sessions Judge, he says as fellows:
'In this case, there is hardly any evidence except the bare statement of the counter-petitioners that they were making use of this road.'
This suggests that in order to arrive at a finding, the bare statement of the counter petitioners is not sufficient, i.e. to say, that some more witnesses must be examined to supportthe case of the counter-petitioners. Inferentiallyit suggests that quantity is more important thanquality. This is an extraordinary proposition asextraordinary as the reference itself. Thepowers given to the Session's Judge and theDistrict Magistrate under Section 438 are purelydiscretionary and such revisional powers mustbe exercised sparingly. Usually in proceedingsunder Sections 145 to 147, Criminal P. C. unlessthere is anything prima facie wrong in theprocedure adopted by the trial Court the Sessions Judge is not expected to use his discretionary powers under Section 438 merely to revise afinding of fact based on evidence. The learnedSessions Judge has attempted to get the findingof fact reversed as, in his opinion, the evidenceof the counter-petitioners alone is not sufficient.In my view the Sessions Judge ought not tohave made this reference at all. On the evidence, the first Class Magistrate is entitled topass the order he has passed. The reference istherefore not accepted and it is hereby rejected.