JUDGMENT D. P. Sood, J.—By the consent of the learned Counsel for the parties, the appeal is admitted and is disposed of. 2. The sole substantial question of law involved in the instant appeal is whether in the facts and circumstances of the instant case summarily dismissal of the first appeal by the District Judge was justified without notice to the respondents. 3 Shortly stated, the facts are that the appellant was the contesting defendant in the trial Court. Respondents/plaintiffs filed a suit seeking declaration to the effect that they are owners in possession of the suit land and as a consequential relief they prayed for issuance of permanent injunction restraining defendant No T from interfering into the land in dispute. The defendant-appellant resisted and contested the suit on the grounds inter-alia that he is the owner of the suit land by way of adverse possession. In addition, it was contended by him that the suit land was in possession of his fore-father as a tenant under the landowners and he has became owner of the same in accordance with section 104 of the H. P. Tenancy and Land Reforms Act, 1972. 4. On the pleadings of the parties, the trial Court framed issues. The material issues for the purpose of decision of this appeal are issues No. 3 and 5 which are as under:— 3. Whether defendant No. 1 has become owner by way of adverse possession? OPD 4. Whether the suit is time barred? OPD 5. Whether the fore-fathers of defendant No. 1 has become owner of the suit land as alleged? OPD The trial Court held the plaintiffs to be in possession of the suit land and decreed the suit land as prayed for vide his judgment dated October 8, 1991. 5. The contesting defendant-appellant assailed the judgment of the trial Court before the Court of the learned District Judge, (first appellate Court) who dismissed the same summarily without even issuing the notice of the appeal to the respondents. 6. At the very out-set, it may be stated that the judgment of the trial Court had been assailed on various grounds detailed in the grounds of appeal annexed to the instant lis. The findings on issues No. 3 to 5 have been challenged. 6. At the very out-set, it may be stated that the judgment of the trial Court had been assailed on various grounds detailed in the grounds of appeal annexed to the instant lis. The findings on issues No. 3 to 5 have been challenged. There is no gainsaying the fact that the first appellate Court is the final court of fact, which by procedure established by law is enjoined upon to adjudicate upon the facts, which can only be done by a careful and elaborate considerations of oral and documentary evidence on record. No doubt Rule 11 of Order 41 of the Code of Civil Procedure empowers the appellate Court to dismiss an appeal in limine without notice to the opposite party when it finds that there is no prima facie case nor there is any merit in the appeal but this discretion has to be exercised in a judicious manner The discretion should not appear to have been exercised arbitrarily particularly in disputed questions of law and facts The pleadings of the parties from the very inception of the filing of the suit indicated that there are triable issues which needed the determination of the court concerned. In the instant case, a careful perusal of the grounds of appeal also indicate that there existed triable issues with respect to the question of limitation, possession and also as to whether in the facts and circumstances the appellant had or had no case. The apex Court in various cases have depricated the practice of summarily dismissing an appeal when triable issues arise for determination. I am fortified in taking this view as has been observed in the case of AIR 1972 SC 1932, Mahadev Tukaram Vetale and others v. Smt. Sugandha and another, and consequently followed in the case of Umakant Vishnu Junnarkar v, Parashuram Damodar Vaidya, AIR 1973 SC 218 and (1993) 2 Sim LC 440, AH Mohammad v. State of H. P. and others The learned Court below does not appear to have applied its mind to this aspect of the legal proposition particularly in view of the amendment of section 100 of the C P- C. whereby the second appeal is now only maintainable in case a substantial question of law exists. A liberal approach should have been adopted by the first appellate Court in this view of the matter. A liberal approach should have been adopted by the first appellate Court in this view of the matter. Accordingly, without going into the merits of the case, the appeal is accepted and the case is remanded to the first appellate Court to decide the case on merits after affording opportunity to both the parties of being heard. The impugned judgment and decree are set aside with no orders as to costs. The parties are directed to appear before the trial Court on 8th February, 1994. The appeal stands disposed of in terms of the above. Appeal allowed. -