JUDGMENT :

C.L. Soni, J.

This appeal is at the instance of the original plaintiff who had succeeded before the trial Court. It is his case before the trial court that he has the right of way to pass through a path way called Navera of 10 ft. in width between his house and the house of the defendant. Such right was obstructed by the defendant and, therefore, necessity for filing the suit for declaration and permanent injunction had arisen. Learned trial Judge considered and appreciated the oral as also the documentary evidence available on record. On the basis of such appreciation of the evidence, learned trial Judge found that there was way available to the plaintiff as claimed by the plaintiff between the two properties and thus allowed the suit of the plaintiff and declared that the defendant has no right or authority to cause obstruction to the plaintiff in using such way in Navera which is between the houses of the plaintiff and the defendant.

2. The defendant challenged the said judgment and decree passed by the learned trial Judge by filing Regular Civil Appeal No. 88 of 2003 in the Court of the learned 7th Ad-hoc Additional District Judge Kheda at Nadiad. As could be seen from the judgment of the learned appellate Judge, the judgment is of total 10 paragraphs. Out of 10 paragraphs, the learned appellate Judge has recorded submissions of the learned advocates upto 9th paragraph and following is the consideration, appreciation and application of mind of the learned appellate Judge in paragraph 10:

“10. Looking to all these facts and arguments stated in appeal memo itself, it is clear that Ld. Civil Judge has committed mistake in arriving conclusion that plaintiff has got right of way from Navera. It appears from record that plaintiff has got alternative way. In this case of easement of necessity and when it is called that there is alternative way, than other words. It may be difficult still easement of necessity cannot be claimed as a matter of right, so in my view order of Ld. Civil Judge is against evidence and established principles of law. Further, the order is ambiguous also, is required to be set aside. Hence I decide issues No.1,2 & 3 in the affirmative and pass following order.”

3. The first appeal is a very valuable statutory right available to a litigant. If the first appellate court is to reverse the judgment and decree passed by the trial court, it has to examine, scan through and independently assess the evidence available on record and to assign its own reasons for reversing the judgment and decree passed by the trial Court. The learned advocate for the respondent was therefore called upon to address as to whether the learned appellate Judge could be said to have displayed conscious application of mind while dealing with the first appeal and could be said to have discharged its appellate jurisdiction in accordance with law. Learned advocate for the respondent submitted that though the judgment of learned appellate Judge appears to be cryptic one, but learned appellate Judge has found that there is alternative way available to the plaintiff and, therefore, no right of easement was surviving to the plaintiff and in that circumstances, the judgment and decree passed by the learned trial Judge was required to be interfered with by the learned appellate Judge. He,however, could not justify the method and manner in which the learned appellate Judge had decided the appeal. Learned advocate for the appellant Shri Dave therefore urged that this Court may remand the matter to the first appellate Court at this stage so as to do complete justice to the parties and for that purpose, he requests to finally dispose of this appeal.

4. Considering the facts of the case especially the manner and method in which the learned appellate Judge dealt with the appeal, this appeal is required to be finally heard by this Court and, therefore, this appeal is admitted on the following substantial question of law:

(1) Whether in the facts and c