ORDER
Somasundaram, J.
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 support
the case of the counter-petitioners. Inferentially
it suggests that quantity is more important than
quality. This is an extraordinary proposition as
extraordinary as the reference itself. The
powers given to the Session’s Judge and the
District Magistrate under Section 438 are purely
discretionary and such revisional powers must
be exercised sparingly. Usually in proceedings
under Sections 145 to 147, Criminal P. C. unless
there is anything prima facie wrong in the
procedure adopted by the trial Court the Sessions Judge is not expected to use his discretionary powers under Section 438 merely to revise a
finding of fact based on evidence. The learned
Sessions Judge has attempted to get the finding
of fact reversed as, in his opinion, the evidence
of the counter-petitioners alone is not sufficient.
In my view the Sessions Judge ought not to
have made this reference at all. On the evidence, the first Class Magistrate is entitled to
pass the order he has passed. The reference is
therefore not accepted and it is hereby rejected.