1. 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 circumstances of the case, the first appellate court can be said to have properly discharged its appellate jurisdiction?
(2) Whether the learned appellate Judge was justified in interfering with the judgment and decree passed by the learned trial Judge without appreciating the oral evidence without interpreting and construing the documentary evidence available on record and without assigning its independent reasoning thereon?
5. Learned advocate Mr. Majmudar appearing for the respondent waives notice of admission of appeal on behalf of the respondent. With consent of both the learned advocates, this appeal is taken up for final hearing today.
6. From the judgment of the learned trial Judge, it clearly appears that the learned trial Judge has considered oral evidence at Exh. 47 and 81 of both the parties and considered as many as 10 documentary evidence. The learned trial Judge has appreciated oral evidence with documentary evidence and then recorded his findings and based his conclusion on such findings. It was therefore incumbent upon the learned appellte Judge to come to the conclusion as to how learned trial Judge was wrong in appreciating and construing the documentary evidence available on record. For this purpose, the oral evidence as also documentary evidence was required to be discussed and dealt with, though not in detail, but at least application of mind to such evidence was required and then to come to the conclusion by assigning independent reasoning. This Court does not find that the learned appellate Judge has either examined, considered or in any manner appreciated the evidence available on record and assigned any independent reasoning reflecting such appreciation of evidence available on record. Reasons for reversing the judgment and decree passed by the learned trial Judge are found very cryptic and clearly depict the non application of mind on the part of the learned appellate Judge.
7. At this stage, decision of Hon'ble the Supreme Court in the case of Santosh Hazari versus Purushottam Tiwari (Deceased) by LRs reported in (2001) 3 SCC 179 is required to be referred. In the said decision, Hon'ble the Supreme Court has held and observed in paragraph 15 as under:
“15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai & Ors., AIR 1983 SC 114). The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trialJudge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh & Ors., AIR 1951 SC 120). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it.”
8. In light of the above, this appeal is required to be allowed and the matter is required to be remanded to the first appellate Court to again decide the appeal afresh on its own merits after hearing the parties in accordance with the provisions of Order 41 of the Code of Civil Procedure.
9. In the result, the appeal is allowed. The judgment and decree passed by the first appellate Court in Regular Civil Appeal No. 88 of 2003 dated 27.7.2012 is hereby quashed and set aside. Matter is remanded to the first appellate Court to decide the appeal afresh on its own merits after giving full opportunity to the parties. Since the judgment and decree passed by the first appellate court is quashed and set aside, whatever position prevailing between the parties in respect of the subject matter of the suit as on the day shall continue to prevail till the appeal is finally heard and decided by the first appellate court. Learned advocates for the parties request that since the first appeal was of the year 2003 which has arisen out of the suit of 1996, this Court may direct the first appellate court to hear and decide the first appeal at the earliest within stipulated time period. Considering the request made by the learned advocates for the parties, the appellate court below is directed to make endeavour to hear and decide the appeal finally at the earliest, preferably within a period of one year from today.
10. In view of the order passed in the second appeal, Civil Application No. 11356 of 2012 shall not survive. Therefore, same stands disposed of accordingly.
(C.L. Soni,J.) an vyas