SMT. BAISAKHI KAYAL Vs. SRI INDRANIL ROY

JUDGEMENT

(1.) The second appeal has come up for admission. The second appeal can be admitted only if involves a substantial question of law as opposed to mere error of law. The appellant has to overcome insurmountable difficulties in creating a prima facie opinion in the mind of the appeal Court, at the time of admission to admit the appeal disregarding and / or ignoring concurrent findings of fact on the ground of perversity. The test to be applied by the Appellate Court in admitting a second appeal on the question of law in spite of concurrent findings of facts stand on a higher pedestal than the kind of exercise a First Appellate Court is required to do in admitting a first appeal on perversity. More than one filtered process on the facts and evidence having undergone before a second appeal comes up for consideration makes it all the more difficult for the appellant to dislodge such findings unless it is established to be demonstrably perverse on the face of it or that no reasonable person conversant with the law of facts on the given sets of facts and circumstances could have arrived at such a finding. These are merely illustrations of some of the criteria which the appellate Court is required to exercise in admitting the second appeal. Both the Courts below have on appreciation of the evidence on record and more particularly on an earlier finding of a learned Single Judge of this Court, Justice Ajoy Nath Ray as His Lordship then was, refused to accept the contention of the appellant to be the co-owner of the property in question on the basis of an allotment, alleged to have been made in favour of the mother of the appellant sometimes in the year 1948. The appellant in 1950 was 12 years of age and it is not a plausible narrative that he took initiative to get the name of the Pramatha recorded in the Register maintained by the Colony Committee or in the R.R.R. department, Government of West Bengal. Mother of the appellant admittedly came to India in 1950, therefore, the Exhibit C & D, the Refugee Cards dtd. 10/7/1948 cannot be said to have been lending support to the case of appellant. Parents of appellant used to stay at Tufangunj. The case made out by the plaintiff that the appellant was accommodated in his house as he was pursuing his study in Calcutta in a more acceptable version than what is sought to be put by the appellant either before the Trial Court or before the First Appellate Court.

(2.) Mr. Roy has placed strong reliance on an order dtd. 11/3/1988 passed in Title Appeal No. 446 of 1984 that was marked as Exhibit-36 to show that in a previously instituted suit between the parties, the First Appellate Court has observed as follows;

(3.) The subject matter of that suit was the right of the parties to install electricity meter in the suit plot. Mr. Roy's client alleged that being the owner of the property he should have been given the right to install electricity connection which is being opposed by the plaintiff. There was no discussion in the order at all with regard to the ownership of the property by either of the parties or the question of better title. Possessory right was taken as the basis for deciding the issue as who would get the electricity connection. It is elementary that even a trespassers unless evicted by issue process of law would be entitled to electricity connection this has been recognized by the full Bench of our Court in the case of Abhimanyu Majumdar & Ors. vs. The Superintending Engineer & Ors reported in (2011) 2 CHN 768.