( 1 ) THIS second appeal is by defendants in L. C. Suit No. 4 of 1958 on the file of the Munsiff, Kundgol and is directed against the judgment and decree dated 31-7-1976 passed by the Civil Judge, Hubli in CA. No. 30 of 1965 on his file. ( 2 ) PLAINTIFF instituted a suit averring in the plaint that the defendants were disturbing his passession of the suit survey number by taking their carts and moving about at the trench marked as 'abcd' in the suit sketch. He further asserted that they had also damaged the bund at the place shown as 'ab' for which he claimed damages of Rs. 100. He also sought for permanent injunction against the defendants from disturbing his possession by making use of the trench 'abcd' as a cart way and foot path. ( 3 ) THE defendants have resisted the suit stating that 'abcd' way was not a trench but that it was a regular cart road and that the same was used by them as easement of necessity and alternatively they had perfected that right of user by prescription since they are openly, peaceably and continuously using the way in their own right for more than 20 years before two years prior to the institution of the suit. ( 4 ) THE learned Munsiff who recorded the evidence, appreciating the same, came to the conclusion that the defendants established their right of prescription as alleged and in that view he held that the plaintiff was not entitled for the injunction sought for. He negatived the ground made out by the defendants on the ground of easement of necessity and disaiiowed the claim of the plaintiff so far as it related to damages from defendants and in view of the findings he dismissed the suit of the plaintiff by his judgment and decree darted 31-12-1964. ( 5 ) AGGRIEVED by the said judgment and decree the plaintiff went up in appeal before the learned Civil Judge, Hubli and the appeal was registered as ca. No. 30 of 1965. The learned Civil Judge re-appreciating the evidence on record in the light of the arguments addressed before him, confirmed the findings of the learned Munsiff so far as they related to the damages and the aspect of easement of necessity. No. 30 of 1965. The learned Civil Judge re-appreciating the evidence on record in the light of the arguments addressed before him, confirmed the findings of the learned Munsiff so far as they related to the damages and the aspect of easement of necessity. But, he reversed the finding of the learned Munsiff on the aspect of the alleged right acquired by the defendants by way of prescription, and in that view, he partly allowed the appeal and directed that a permanent injunction should be issued against the defendants from passing through the portion shown as 'abcd' in the land of the plaintiff bearing RS. No. 230/1a of Kamadolli village. Aggrieved by the said judgment and decree dated 31-1-1976, all the defendants have come up in appeal before this Court, ( 6 ) THE learned counsel appearing for the appellants vehemently argued that the learned Civil Judge did not take into consideration the entire evidence on record in coming to the conclusion that the defendants did not establish the right of way by way of prescription. Hence, he submitted that the finding of the learned Civil Judge is materially irregular and that it is not in accordance with the procedure laid down in CPC. As against that the learned Counsel appearing for the respondent-plaintiff argued in support of the findings of the learned Civil Judge. ( 7 ) NORMALLY, this court sitting in second appeal, is not justified in re-appreciating the evidence on record. It is laid down by the Supreme court of India in the case of Ramachandra Ayyar v. Ramalingam Chttiar, AIR 1963 SC 362. , wherein it is observed thus:"the error or defect in the procedure to which the clause (c) of sec. 100 (1) refers is, as the clause clearly and unambiguously indicates, an error or defect connected with, or relating to the procedure; it is not an error or defect in the appreciation of evidence adduced by the parties on the merits. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. That is why, even if the appreciation of evidence made by the lower appellate Court is patently erroneous and the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure. On the other hand, if in dealing with a question of fact, the lower appellate Court had placed the onus on wrong party and its finding of fact is the result, substantially, of this wrong approach, that may be regarded as a defect in procedure; if in dealing with question of fact, the lower appellate Court discards evidence on the ground that it is inadmissible and the High Court is satisfied that the evidence was admissible, that may introduce an error or defect in procedure. If the lower appellate Court fails to consider an issue which had been tried and found upon by the trial Court and proceeds to reverse the trial court's decision without the consideration of such an issue, that may be regarded as an error or defect in procedure: if the lower appellate court allows a new point of fact to be raised for the first time before it, or permits a party to adopt a new plea of fact or makes out a new case for a party, that may, in some cases, be said to amount to a defect or error in procedure. But, the High Court cannot interfere with the conclusions of fact recorded by the lower Appellate Court, however, erroneous the said conclusions may appear to be to the High Court". The observations on procedural defects are not no doubt exhaustive; if the lower Appellate Court fails to consider and discuss the material evidence on a particular issue before coming to its decision or before reversing the findings given by the trial Court that also amounts to a material irregularity in procedure and this Court would be justified in adverting to that aspect in second appeal. ( 8 ) " The Supreme Court of India has reiterated its view again in the case of afsar Sheikh v. Soleman Bibi, AIR, 1976 SC 163 wherein it is observed thus: "broadly, the effect of Secs. 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. 100 and 101, read together, is that a second appeal is competent only on the ground of an error in law or procedure, and not merely on the ground of an error on a question of fact. The High Court has no jurisdiction to entertain a) second appeal on the ground of an erroneous finding of fact however, gross or inexcusable the error may seem to be". "section 103 enables the High Court in second appeal, where the evidence on the record is sufficient, to determine an issue of fact necessary for the disposal of the appeal only-- (a) if the lower appellate Court has not determined that issue of fact, or (b) If it has determined that issue wrongly by reason of any illegality, omission, error or defect such as referred to in sub-sec. (1) of Sec. 100". ( 9 ) IN the instant case, the learned counsel appearing for the appellants has rightly pointed out that in the whole judgment, the learned Civil judge has not specifically referred and discussed the aspect of right acquired by prescription by defendants. He has mainly concentrated on the aspect of easement of necessity and suddenly jumped to the conclusion holding that the trial Court was not justified in holding that the defendants had failed to establish a prescriptive right of passage through the disputed area. He has further observed that "i have to hold that the defendants respondents had miserably failed before the trial Court from establishing their alleged right claimed in the plaint". ( 10 ) SEC. 15 of the Indian Easement Act speaks of acquisition of right of way by prescription. It says-where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right without interruption, and for twenty years; the right of way is established by way of prescription and while calculating the period it is stated that "each of the said periods of 20 years shall be taken to be a period ending within 2 years next before the institution of the suit wherein the claim to which such period relates is contested". Thus, it becomes clear that the Court should find, as a matter of fact, whether the alleged right of way was enjoyed as an easement peaceably and openly without interruption and for 20 years. Thus, it becomes clear that the Court should find, as a matter of fact, whether the alleged right of way was enjoyed as an easement peaceably and openly without interruption and for 20 years. If it is used openly and peaceably and without interruption, it is presumed that it was used as of right. In the instant case, the learned Civil Judge while discussing the evidence of the different witnesses has not referred "to the aspect in their evidence as to the right of way claim by prescription by defendants. For example at para 11 of the judgment he discussed the evidence of DW. 1 gurappagowda and he merely refers so far as it deals on the aspect of existence of alternative passage. He has not considered his evidence to appreciate the aspect of right of way by prescription at all. Similarly, in the same para while discussing the evidence of DW 2. Channaveeragowda he has not discussed the aspect of acquisition of right of way by prescription. Similarly, in ' the course of discussion of the evidence of other witnesses he has not dealt on the aspect of the acquisition of right of way by prescription claimed by defendants. It is needless for mp to point out that while discussing this aspect in the judgment the best way should have been for the learned Civil judge to raise points for decision and discuss the evidence of the witnesses under the said points raised for decision. In para 9 of the judgment the learned Civil Judge has no doubt raised point No, 1 in a vague and nebulous manner stating "have the defendants established before the Trial. Court that they had a right of way to go to their land in the disputed area marked with letters ABCD in the plaint sketch?" It is necessary to recall that the defendants resisted the suit by claiming right of way on two grounds, viz,, by way of easement of necessity and by way of acquisition of that right of way by prescription. The learned Civil Judge ought to have put down the points separately. He has not done so and the result has been that he has confused himself while advancing the reasoning and he has mostly confined himself while discussing the evidence to the right claimed by way of easement of necessity ignoring the second aspect viz. The learned Civil Judge ought to have put down the points separately. He has not done so and the result has been that he has confused himself while advancing the reasoning and he has mostly confined himself while discussing the evidence to the right claimed by way of easement of necessity ignoring the second aspect viz. , the right claimed by prescription. ( 11 ) WHILE considering the aspect of prescription it was necessary for him to consider whether such a way existed, whether the defendants used that way by way of easement, whether they used it openly and continuously and whether they used it for more than 20 years completing the period two years prior to the institution of the suit. The learned Civil judge has totally failed to discuss these aspects and has not given his findings on these after discussing the evidence On record. ( 12 ) OR. XLI R. 31 CPC speaks of the contents of the judgment of the appellate Court. The judgment of the appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant Is entitled. The points for decision and the decision thereon contemplated in Order XLI Rule 31 form as it were the corner stones of a sound judgment; if the points are properly framed the likeli-hood of the judge getting confused while advancing the reasons for the decision are likely to be less; if no proper points are raised for decision, the probability of the judge missing some important aspect in the case and not advancing his reasoning for the decision thereon is more. That is what has happened in this case Since he has raised a nebulous point at point No. 1 without splitting it into two aspects, he has missed to discuss the aspect of acqusition of right of way by prescription by the defendants and in fact he has not discussed the evidence on chat aspect at all, though at the end he has recorded his conclusion, which is a material irregularity in procedure. Hence, I am constrained to set aside the judgment and decree of the lower appellate Court so far as it relates to the finding of acquisition of right of way by prescription by defendants. In the circumstances, the decree of the lower Appellate Court reversing the finding of the learned Munsiff on the point of acquisition of right of way by prescription by defendants and the consequent issuance of permanent injunction are hereby set aside and the case is remitted back to the first appellate Court with a direction that the Court shall now discuss that point afresh on the evidence on record and record its finding and dispose of the appeal on merits in accordance with law and in the light of the observations made above. The parties may be heard on the point before the court records its finding. The appeal is thus allowed. No costs. --- *** --- .