JUDGMENT A.N. Venugopala Gowda, J.—Appellant/plaintiff, filed O.S. No. 215/1983, in the Court of the Civil Judge (Jr. Dn.,) at Tumkur, for Declaration and Mandatory Injunction against the defendant-Vasistananda, the predecessor of the respondents herein, in regard to the suit property, which is a common passage measuring 3 ft. x 77 ft., situated on the western side of the property bearing No. 214 2 (Old No. 1723/A), described in the sketch shown in the plaint and delineated with letters KGJF therein. Appellant purchased the property bearing No. 2142 (Old No. 1723/A) under a sale deed dated 23.12.1970. The relief sought in the suit was: Declaration of joint possessory right and mandatory injunction to demolish LMJF portion in the plaint sketch or in the alternative, to declare easementary right of the plaintiff on the common passage between his and defendant's property and mandatory injunction to demolish LMJF portion. The defendant resisted the suit by filing written statement. The defendant denied the plaint averments and contended that the plaintiff has absolutely no right, title and interest to the space marked as KGJF in the plaint sketch and that he never enjoyed any right over the space KGJF shown in the plaint sketch i.e., the suit property. 2. The Trial Court framed the following issues: i) Does the plaintiff prove his joint right over the area KGJF which is in between Municipal No. 2143 and 2142 as shown in the plaint rough sketch? ii) Is plaintiff entitled for mandatory injunction in respect of the area shown as LMJF as shown in the rough sketch? In the alternative to Issue No. 1 iii) Whether the plaintiff proves his prescriptive right over the area KGJF as shown in the plaint rough sketch? iv) What decree or order? 3. The plaintiff deposed as PW. 1 and examined PWs. 2 to 5 and marked Exs. P1 to P31. Defendant having died during the pendency of the suit and his L.Rs., having brought on record, L.R. No. 2 deposed as DW. 1 and examined DWs. 2 and 3. After considering the evidence, the Trial Court, by a Judgment and Decree dated 23.2.1999, dismissed the suit. 4. Feeling aggrieved, the plaintiff filed R.A. No. 43/1999, in the Court of the Civil Judge (Sr. Dn.) at Tumkur. The appeal having been made over to the Fast Track Court, was registered as R.A. No. 80/2005. 2 and 3. After considering the evidence, the Trial Court, by a Judgment and Decree dated 23.2.1999, dismissed the suit. 4. Feeling aggrieved, the plaintiff filed R.A. No. 43/1999, in the Court of the Civil Judge (Sr. Dn.) at Tumkur. The appeal having been made over to the Fast Track Court, was registered as R.A. No. 80/2005. The learned Fast Track Judge, after hearing the arguments of the learned counsel for the parties, raised the following points for consideration: 1. Whether the Trial Court was not justified in dismissing the suit of the plaintiff/appellant filed for declaration of easementary right or right of enjoyment over the KGJF shown in the suit sketch and for mandatory injunction by ordering to clear the space described as LMJF in suit sketch as per the impugned Judgment and decree under appeal? 2. What order? 5. Finding the appeal to be devoid of merit, the same was dismissed by a Judgment and Decree dated 31.8.2005. Feeling aggrieved, the plaintiff has filed this second appeal. 6. This appeal was admitted to consider the following substantial questions of law: 1. Whether the Courts below were justified in declining the declaration sought for in spite of the plaintiff producing Exs. P1, P2, the sale deeds and Ex. P. 30, the registered agreements regarding user of common passage? 2. Whether the finding recorded by the Courts below in respect of the alternative case pleaded by the plaintiff that he has easementary right over the suit schedule property is declined on the ground that there is an alternative way? 7. Sri L.S. Venkatakrishna, learned advocate for the appellant contended that the Trial Court has committed material error in raising issue No. 3 and in answering the same as if claim was made based on adverse possession. He contended that though several grounds were raised before the First Appellate Court, as is clear from the memorandum of appeal, learned First Appellate Judge has committed material error and illegality in not considering the grounds raised in the appeal memorandum and also urged for consideration. He submitted that though the findings recorded by the Trial Judge are perverse and illegal, the Appellate Judge arbitrarily dismissed the appeal without appreciating the record of the case with reference to the material facts and law. He submitted that though the findings recorded by the Trial Judge are perverse and illegal, the Appellate Judge arbitrarily dismissed the appeal without appreciating the record of the case with reference to the material facts and law. Learned counsel contended that both the Courts below have not addressed themselves to the material issues of fact and law and the findings recorded in the impugned Judgments suffer from grave errors and hence are unsustainable. Learned counsel placed reliance on the following decisions: (a) Santakumari and Ors. Vs. Lakshmi Amma Janaki Amma (D) By Lrs. and Ors., AIR 2000 SC 3009 ; (b) Jagdish Singh Vs. Natthu Singh, AIR 1992 SC 1604 ; (c) I.C.I. (India) Private Ltd. Vs. The Commissioner of Income Tax, West Bengal, AIR 1972 SC 1524 b ; (d) Richard De Souza Vs. Abdul Wahed and Others, AIR 1963 Cal 110 ; (e) Baburao Yashvantrao Jadhav Vs. Shamrao Khandi Jadhav, AIR 1992 Kant 181 ; 8. Sri B.M. Siddappa, learned advocate appearing for the respondents, on the other hand contended that in view of the concurrent findings recorded by the Courts below, the impugned Judgments have not given rise to any substantial question of law and the second appeal is liable to be dismissed. By relying upon the decision in the case of Baljit Singh Vs. Improvement Trust Ludhiana and Another, AIR 2009 SC 1254 , learned counsel made submissions in support of the findings recorded by the Courts below and sought upholding of the impugned Decrees. 9. Having regard to the controversies set up by the parties in the course of trial, in my view, it can be said that issue No. 3 raised by the Trial Court does not arise for consideration. The finding recorded on that issue was assailed before the First Appellate Court. Though several grounds have been raised in the appeal memorandum as against the Judgment and Decree passed by the Trial Judge, learned Appellate Judge has not appreciated the entire oral and documentary evidence, as is clear from the Judgment passed in the appeal, which is to the following effect: 8...The other relied on documents before the Trial Court among the exhibited documents will follow Ex. P. 2 and P. 30 and hence they need no scrutiny. 10. The First Appellate Court ought to have considered and addressed itself to all the issues of fact and law while deciding the appeal. P. 2 and P. 30 and hence they need no scrutiny. 10. The First Appellate Court ought to have considered and addressed itself to all the issues of fact and law while deciding the appeal. The Judgment of the Court below-Appellate Court, suffers from grave errors, as it has failed to consider all the oral and documentary evidence brought on record of the suit, with reference to the grounds raised in the appeal memo. 11. In the case of AIR 2001 SC 2171 , Apex Court has laid down the principles and parameters as to how a first appeal is to be decided. It has held that, sitting as a court of first appeal, duty is cast on the Court to deal with all the issues and evidence led by the parties before recording the findings. The principle enunciated is that, a first appeal is a valuable right and the parties have a valid right both on question of fact and law and the Judgment in the first appeal must address itself to all issues of law and fact and should contain valid reasons in support of the findings. 12. In H.K.N. Swami Vs. Irshad Basith (dead) by L.Rs.- (2005) 10 SCC 243 , it has been held as follows: 3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. 13. In JT (2010) 10 SC 551 , as to how a regular appeal has to be decided, the Apex Court has reiterated the ratio of law laid down in the cases of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 251 ITR 84 SC and AIR 2001 SC 2171 ." 14. In the instant case, the Court below has not even raised appropriate points for consideration and determination. 15. In the case of Ligakath Ali Khan Vs. Sri Syed Wazeed and others, ILR 2012 KAR 2035, it was held as follows: 18. S. 96 of the Code provides the right of an appeal. O. 41 R 31 of the Code provides guidelines for the appellate Court as to how it has to proceed and decide the appeal. 15. In the case of Ligakath Ali Khan Vs. Sri Syed Wazeed and others, ILR 2012 KAR 2035, it was held as follows: 18. S. 96 of the Code provides the right of an appeal. O. 41 R 31 of the Code provides guidelines for the appellate Court as to how it has to proceed and decide the appeal. The first appellate Court should independently assess the relevant evidence on all the important aspects of the case and record findings on the points raised for consideration. Being the final Court of facts, the First Appellate Court must assign reasons for its decision on the point/s which have been formulated for consideration. The first appeal being a valuable right and the parties having been conferred with right to be heard both on questions of fact and law, the judgment in the first appeal must address all the issues of law and fact and decide the appeal by giving reasons in support of the findings. In the instant case, the Court below has failed to exercise its jurisdiction under S. 96 CPC by following the principles laid down in the decisions noticed supra, in as much as, it has failed to consider all the issues of law and fact. Thus, there is flaw in the impugned Judgment of the First Appellate Court and hence, the same cannot be sustained., Since the matter is being remanded to the First Appellate Court for decision, the rival contentions of the learned advocates are kept open for consideration. In the result, the appeal is allowed and the Judgment and decree dated 31.08.2005 passed in R.A. No. 80/2005 by the Presiding Officer, FTC-I at Tumkur, is set aside. Regular appeal having not been decided in accordance with the settled principles of law, matter is remanded to Fast Track Court-I, Tumkur, for deciding the appeal afresh in accordance with law and the observations made above, within a period of 6 months from the date of appearance of the parties. Both the Parties are directed to appear before the Appellate Court on 24.06.2013 and receive further orders.