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 Sessions 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.