JUDGMENT : Misra, J. - Defendants 1 and 2 are the Appellants against the confirming judgment of the Additional Subordinate Judge, Sambalpur. The facts are very simple. Plot No. 18 had been purchased by the Plaintiff from P. W. 2 sometimes in 1956. Plot No. 17 belongs to Defendants- 2 and plot No. 19 belongs to Defendants-I. Plaintiff's suit is for declaration of his right of way over plot No. 17/1 which leads from plot No. 18 to the street in plot No. 701 on the allegation that the Plaintiff and his pre decessor-in-interest used it as a path for more than the prescriptive period openly and peaceably' as of right. The Defendants' challenged the right of way and in fact asserted that there was no way on plot No. 17/1. 2. The trial court decreed the suit holding the Plaintiff had a right of way over plot No. 17/1 and this judgment was confirmed by the lower appellate Court. 3. Mr. Rath, learned Counsel for the Appellants contended that both the courts below had failed to apply their mind to the evidence on record and the concurrent finding was vitiated as not being based on material on record. There is considerable force in this contention. P.W. 2 is the Plaintiff's vendor. His evidence is that since his grand-father's time they were using the disputed Rasta for coming out from their house on plot No. 18. P.W. 3 is a neighbour whose evidence is that for about the last 22 years the Plaintiff and his predecessor-in-interest are using the Rasta. It appears that be deposed in August, 1959 and the interference by the Defendants of the Plaintiff's right of way was in Aril, 1957. If examined mathematically, his evidence facts snort of the requisite period of 20 years regarding user of the Rasta. If it is said that his evidence should not be mathematically construed but could be examined in the context of event that he comes from muffasil area and an approximate time is given, a different conclusion may follow. It is not open to the second appellate court to assess the evidence one way or the other and disagree with the assessment of the first appellate Court. It is not open to the second appellate court to assess the evidence one way or the other and disagree with the assessment of the first appellate Court. But it is wholly within the jurisdiction of the second appellate court to examine if the first appellate court keeps it-self within its bounds and applies its mind properly and comes to a conclusion on materials on record. In other words, if the first appellate court exercises its jurisdiction properly vested in law u/s 107, Code of Civil Procedure. Examined from this point, of view, there is no discussion of the evidence of P.Ws. 3, 4 and 5. Their evidence, if strictly construed, would not establish the exercise of the right of easement for 20 years. It is really depressing that the first appellate court would not go through the evidence and mention wrongly in the judgment that on a scrutiny of the evidence he arrives at the same conclusion as the trial court. In fact the trial court itself did not closely read the evidence had I not been the second appellate court, I would have given my own opinion on the evidence of P.Ws. 2, 3, 4 and 5. But this is exactly what is prohibited u/s 100 Code of Criminal Procedure. I have therefore no other way but to remand this appeal to the first appellate court who would go through the entire evidence carefully after hearing the parties. If he comes to the conclusion that the Plaintiff used the Rasta for more than 20 years, then the suit would be decreed. If the evidence falls short of the requisite period, then the Plaintiff's suit is bound to fail. 4. In the result, I allow the appeal, set aside the judgment of the lower appellate court and remand the appeal to him for fresh hearing in accordance with law. Costs will abide the result. Final Result : Allowed