JUDGMENT : Easwaran S., J. This appeal arises out of a divergent finding of the Munsiff’s Court, Kannur in O.S. No.353 of 2007 and reversed by the Sub Court, Thalassery, in A.S. No.36 of 2008. 2. The brief facts necessary for the disposal of the appeal are as follows:- O.S. No.353 of 2007 is for injunction and a declaration of the right of the plaintiffs over the B schedule property, by way of an easement by prescription. According to the plaintiffs, A and B schedule properties were originally part of a larger property that belong to the janmam right of Thavazhi Tharawad of the plaintiffs and defendants 1 to 6. The properties of the Thavazhi Tharwad was the subject matter of partition deed No.573/1978 and upon partition, The plaint A schedule property with a house was allotted to the share of the plaintiffs. A house in the plaint A schedule property was constructed in the year 1945 and that after effecting the partition by the document No.573/1978, the plaintiffs had access to the plaint A schedule property through the 8 feet pathway as shown as the B schedule and they were using it from 1978 onwards. On 23.02.2007, the defendants 3, 4, 5 and 7 came to the B schedule property and started digging the B schedule pathway to make it unfit and difÏcult to use as a pathway and hence the suit. 3. The defendants appeared and resisted the suit and contended that the plaintiffs have no right over the B schedule property and the suit is not maintainable. The plaint schedule property is not subject matter of the partition deed. The Existence of 8 feet width pathway in the B schedule property in the plaint is not correct and that the only way to the plaint A schedule property is through a ‘varamba’ having a width of 2½ feet and the said varamba is situated in the property allotted to the defendants. On behalf of the plaintiffs, Exts. A1 to A5 documents were marked and on behalf of the defendants no documentary evidence was adduced. Exts.C1 and C2 are the Advocate Commissioner’s report and plan. On behalf of plaintiffs, PW1 and PW2 were examined and on behalf of the defendants DW1 was examined. On behalf of the plaintiffs, Exts. A1 to A5 documents were marked and on behalf of the defendants no documentary evidence was adduced. Exts.C1 and C2 are the Advocate Commissioner’s report and plan. On behalf of plaintiffs, PW1 and PW2 were examined and on behalf of the defendants DW1 was examined. The trial court found on appreciation of the oral and documentary evidence that the plaintiffs have made out a case based on Exts.C1 and C2 report and plan, and the existence of the pathway in the B schedule is established, and thus proceeded to decree the suit as prayed for. 4. On appeal by the defendants, the First Appellate Court also deputed two Advocate Commissioners for inspection of the property and who filed plans and revised reports and those were marked as Exts.C3, C3(a), C4, C4(a) and C5. However, during the course of hearing, a concession was given on behalf of the appellant/defendants in A.S No.36/2008 that the plaintiffs can use the pathway of three feet width and accordingly, the Appellate Court reversed the judgment and decree of the trial court and modifying the judgment and decree of the trial court to the effect that the plaintiffs is entitled to an easement right by way of grant over the plaint B schedule property having width of 3 feet. Aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiffs have come up with the present appeal. 5. Heard Shri.V.Ramkumar Nambiar, the learned Counsel appearing for the appellants and Shri. R. Surendran, the learned Counsel appearing for the 7 th respondent. Though service is complete on other respondents, none appeared for them. 6. While the appeal was admitted to file, this Court framed the following substantial question of law:- “When the appellants have claimed a way having a width of 8 feet, whether first appellate court was justified in reducing the width to 3 feet on the evidence on record and the admitted facts.” 7. Shri.V.Ramkumar Nambiar, learned Counsel appearing for the appellants would contend that since the plaintiffs/ appellants were successful in establishing the existence of the B schedule pathway through Exts.C1 report and C2 plan and that the defendants having failed to file any objections to the said report, the trial court was justified in decreeing the suit. Shri.V.Ramkumar Nambiar, learned Counsel appearing for the appellants would contend that since the plaintiffs/ appellants were successful in establishing the existence of the B schedule pathway through Exts.C1 report and C2 plan and that the defendants having failed to file any objections to the said report, the trial court was justified in decreeing the suit. Before the First Appellate Court, though the appellants sought for an appointment of a fresh Commissioner and the First Appellate Court allowing the same, received Exts.C3 and C4 reports, did not set aside Exts.C1 report and C2 plan. Even going by Ext.C4 report, the existence of B schedule pathway is found out by the Advocate Commissioner, but in Ext.C4 report, it is stated that the plaintiffs have an alternative way. However, according to the learned counsel for the appellants, the Advocate Commissioner in his report has not stated where exactly is the alternate way to the plaint A schedule property exist. 8. It is further pointed out that when the trial court had decreed the suit based on the appreciation of evidence, the First Appellate Court could not have modified the decree simply based on the so called concession given by the appellants/ defendants before the First Appellate Court. In fact, according to the learned counsel, no adjudication on the merits by the First Appellate Court has taken place. 9. Per contra, Shri.R.Surendran, the learned counsel appearing for the 7 th respondent would contend that the condition under Section 15 of the Easements Act , 1882, for making out an easement by prescription is not available in the present case and therefore, the First Appellate Court has rightly modified the judgment and decree based on the concession granted by the appellants herein. If as a matter of fact, the plaintiffs does not want to avail the concession, it is perfectly open for them to do so. 10. I have considered the rival submissions raised across the Bar, and perused the records and judgments of the courts below. 11. Admittedly, the existence of the B schedule way has been found out by the Advocate Commissioner. However, the question is whether the plaintiffs have established the conditions prescribed under Section 15 of the Easements Act , 1882. 10. I have considered the rival submissions raised across the Bar, and perused the records and judgments of the courts below. 11. Admittedly, the existence of the B schedule way has been found out by the Advocate Commissioner. However, the question is whether the plaintiffs have established the conditions prescribed under Section 15 of the Easements Act , 1882. Going by the averments in the plaint and also the documentary and oral evidence adduced before the trial court, the trial court was satisfied as regards the availability of necessary ingredients for claiming an easement by prescription. No doubt, the defendants are entitled to appeal against the said findings. But, however, when an appeal is preferred under Section 96 of the Code of Civil Procedure, the First Appellate Court is expected to appreciate the facts and evidence adduced before the trial court and coming to a conclusion as to whether the judgment and decree of the trial court could be sustained based on the evidence adduced by the parties. 12. In this context, this Court, notices the fact that the defendants did not file any objection to Exts.C1 report and C2 plan and at the same time, have sought for appointment of a fresh commissioner at the First Appellate Court stage. The reason which prompted the First Appellate Court to appoint such an Advocate Commissioner is not evident from the records. Be that as it may, the Advocate Commissioner was appointed and Exts.C3 and C4 reports were filed. A perusal of Exts.C3 and C4 reports also show the existence of the pathway. But, however, the Advocate Commissioner has reported that there is an alternate way to enter into the plaint schedule property, without specifying the exact nature of the alternate way. It is in this context, the First Appellate Court proceeded to modify the judgment of the trial court solely based on the concession given by the defendants/appellants before the trial court. 13. In the considered view of this Court, the approach of the Appellate Court is not permissible and is a clear abdication of duty cast upon the First Appellate Court, while considering the First appeal under Section 96 of Code of Civil Procedure. 13. In the considered view of this Court, the approach of the Appellate Court is not permissible and is a clear abdication of duty cast upon the First Appellate Court, while considering the First appeal under Section 96 of Code of Civil Procedure. In order to arrive at a finding as to whether the judgment and decree of the trial court is sustainable or not, certainly the quality of evidence adduced by the party will have to be appreciated and a decision ought to be rendered by the First Appellate Court on its own merits. The sustainability of Exts.C3 and C4 reports would also have to be tested in the light of the fact that the Appellate Court has not chosen to set aside Ext.C1 report and Ext.C2 plan. However, these are matters, which should have gained the attention of the First Appellate Court and a decision ought to have been rendered on merits, rather than modifying the judgment and decree based on the concession. 14. In the above circumstances, this Court while answering the substantial questions of law this Court holds that the First Appellate Court ought not have modified the judgment and decree by reducing the width to 3 feet of the B schedule pathway. Resultantly, this appeal is allowed setting aside the judgment and decree of the Sub Court, Thalassery in A.S. No.36 of 2008 and the matter is remanded back to the files of the Sub Court, Thalassery. Accordingly, A.S. No. 36 of 2008 will stand restored to files of the Sub Court, Thalassery. The parties in this appeal are directed to appear before the Sub Court, Thalassery,(now Sub Court, Kannur) on 23.07.2025. The Sub Court, Kannur, shall proceed to consider the appeal on merits and dispose of the same in accordance with law at any rate within a period of three months from the date of receipt of a copy of this judgment. Since, only the 7 th respondent has appeared before this Court, the Registry is directed to forward the copy of the judgment to the other respondents, who have not appeared before this Court.