JUDGMENT Prasenjit Mandal, J. 1. This second appeal is at the instance of the plaintiff/appellant and is directed against the judgment and decree dated August 31, 2004 passed by the learned Additional District Judge. 1st Track Court. Sealdah in Title Appeal No. 41 of 2000 thereby affirming the judgment and decree dated January 28, 2000 passed by the learned Civil Judge (Junior Division). 1st Court. Sealdah in Title Suit No. 49 of 1989. The plaintiff/appellant/petitioner herein instituted a suit being Title-Suit No. 49 of 1989 contending, inter alia. that previously he instituted a suit being Title Suit No. 374 of 1986 against the respondents/opposite parties for ejectment on the ground of, inter alia, default. The said suit was decreed ex parte with costs against the defendants on March 18, 1988. 2. The defendants filed an application under Order 9 Rule 13 of the CPC for setting aside the said ex parte decree and that application was dismissed on contests. He did not take any step thereafter and then the plaintiff/petitioner filed an application for execution of the said decree and he got possession of the suit premises on August 1, 1988. but. surprisingly on August 2, 1988. the defendants/opposite parties herein forcibly evicted the plaintiff/petitioner from the suit premises. The plaintiff lodged a G.D. entry on August 3, 1988 and thereafter, he filed a suit for eviction against the defendants/opposite parties herein as trespassers. 3. The defendants/respondents/opposite parties herein contested the said suit. Both the parties adduced evidence and on the basis of the evidence on record, the learned Trial Judge dismissed the said suit. 4. The Lower Appellate Court affirmed the said judgment and decree. Being aggrieved, this second appeal has been preferred by the plaintiff/appellant/ petitioner herein. 3. The defendants/respondents/opposite parties herein contested the said suit. Both the parties adduced evidence and on the basis of the evidence on record, the learned Trial Judge dismissed the said suit. 4. The Lower Appellate Court affirmed the said judgment and decree. Being aggrieved, this second appeal has been preferred by the plaintiff/appellant/ petitioner herein. At the time of admission of the second appeal, it was held that the second appeal would be heard on the following substantial questions of law:- (a) Whether the learned Courts below committed substantial error of law in dismissing the suit on the ground that in spite of the earlier decree passed in favour of the plaintiff, he did not get possession of the property by totally overlooking the fact that even in such a case, the second suit for eviction by treating the defendant as trespasser was maintainable and the defendant having already suffered a decree for eviction, his status is no better than that of trespasser: (b) Whether the learned Courts below committed substantial error of law in holding that the appellant failed to get possession in execution of the earlier decree by totally disbelieving the Bailiffs report without any just cause: 5. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that both the Courts below have committed substantial errors of law in dismissing the suit and the appeal by holding that the plaintiff did not get possession of the premises in suit by overlooking the convincing evidence on record. In support of the delivery of possession in favour of the decree-holder, if it is proved that the decree-holder/petitioner herein got possession of the suit premises in the earlier suit by execution of the decree, the status of the defendants/ judgment-debtors/respondents/petitioners herein in respect of the suit premises would be nothing but that of trespassers. The P.W. 1 has stated on Oath that he got possession of the suit property by execution of the decree dated March 18, 1988 on August 1, 1988. The evidence of the P.W. 1 is corroborated by one of the joint process servers who went to deliver possession of the suit premises in favour of the petitioner. 6. The P.W. 1 has stated on Oath that he got possession of the suit property by execution of the decree dated March 18, 1988 on August 1, 1988. The evidence of the P.W. 1 is corroborated by one of the joint process servers who went to deliver possession of the suit premises in favour of the petitioner. 6. The defendant/judgment-debtor contended that the suit premises was kept under lock and key and there was no order for delivery of possession by breaking open the padlock or by removing any kind of construction. But. such contention of the judgment debtor has been wiped out by the overwhelming evidence of the process server and the execution report submitted jointly by the two process servers. From the writ of delivery of possession under Order 21 Rule 35 of the CPC at page No. 35 onwards and other papers, it reveals that the writ of delivery of possession would be executed by breaking open the padlock and khil (log) on the other door at the time of delivery of possession, if necessary. 7. The observations of the Courts below to the effect that there was no order by the Executing Court for breaking upon the padlock by the process server is contrary to the materials-on-record. Similarly, the observations of the Court below to the effect that no independent witness has been examined in support of the delivery of possession cannot be accepted. The Bailiff, Sri Debaranjan Banerjee is no doubt an independent witness and when he has deposed on the basis of materials-on-record. that is, writ of delivery of possession. 1 am of the view that the statement of the bailiff cannot be disbelieved. Therefore, the observations of the Courts below that the plaintiff has failed to examine any independent witness cannot be supported. The report appearing at page No. 39 lays down that other persons present there did not sign on the report. 8. At the time of delivery of possession, certain insignificant materials were found and a list of articles so found was prepared and those materials were handed over to the decree-holder as 'Jimmadar' and both the joint bailiffs had signed on the execution report of the writ appearing at page No. 38 onwards. The process server, namely. Mr. D. Banerjee. 8. At the time of delivery of possession, certain insignificant materials were found and a list of articles so found was prepared and those materials were handed over to the decree-holder as 'Jimmadar' and both the joint bailiffs had signed on the execution report of the writ appearing at page No. 38 onwards. The process server, namely. Mr. D. Banerjee. has deposed in the subsequent suit for eviction of trespassers and he has deposed to the effect that he had delivered possession of the suit premises in favour of the petitioner at the time of execution of the decree in Title Execution Case No. 29 of 1988. 9. Above all. from the materials-on-record. it reveals that the judgment-debtor/opposite parties herein filed a proceeding under section 144(2) of the Criminal Procedure Code and those materials have been marked as Exhibit-4 wherefrom it appears that the defendant No. 1/judgment-debtor/opposite party herein has admitted that he had been evicted from the suit premises on August 1, 1988. Therefore, the evidence on record was sufficient to hold that the petitioner got recovery of possession of the suit premises in the Execution Case No. 29 of 1988 on August 1, 1988. It is his contention that the judgment-debtor evicted him subsequently from the suit premises. 10. It may be recorded herein that parties are closely related. Anyway the execution of the decree of eviction on August 1, 1988 has been proved by materials-on-record. So the possession of the judgment-debtors of the suit premises subsequent to the execution of the decree is nothing but of trespassers. The subsequent suit has been filed for eviction of the trespassers accordingly. 11. The complaints lodged by the petitioner with the concerned Police Station on August 1, 1988 and August 3, 1988 have been marked as Exhibit -3 series. On August 3, 1988. the petitioner complained before the concerned Police Station that after getting the possession of the suit premises, he had been evicted by the defendant from the suit premises forcibly. Therefore, the conduct of the decree-holder on August 3, 1988 is such, that is. expected from a reasonable man of ordinary prudence in ease of dispossession. 12. The Misc. Case No. 78 of 1988 under Order No. 9 Rule 13 of the CPC was dismissed on contest (vide 'Exhibit-4') and the judgment debtor did not move the higher forum against such order. expected from a reasonable man of ordinary prudence in ease of dispossession. 12. The Misc. Case No. 78 of 1988 under Order No. 9 Rule 13 of the CPC was dismissed on contest (vide 'Exhibit-4') and the judgment debtor did not move the higher forum against such order. So, the ex parte decree suit attained finality and then it was executed subsequently on August 1, 1998. 13. This being the position. I am of the view that both the Courts below have failed to appreciate the evidence on record by not treating the opposite parties as trespassers in respect of the suit premises. Both the Courts below have also committed a substantial error of law in failing to observe that the petitioner got possession of the suit premises in execution of the earlier decree and accordingly, the status of the defendants will be nothing but as trespassers. So the conclusion of both the Courts below is not based on the evidence on record but on perverse observation. 14. Mr. Aniruddha Chatterjee, learned Advocate appearing for the appellant has referred to the decisions of Municipal Committee, (sic) v. Punjab State Electricity Board & Ors. reported in (2010) 13 SCC 216 . D.R. Rathna Murthy v. Ramappa, reported in (2011) 1 SCC 158 and Bharatha Matha & Anr: v. R. Vijaya Renganathan & Ors. reported in AIR 2010 SC 2685 and thus, he submits that when there is perversity in the findings of fact, the said perversity itself is a substantial question of law which can be gone into by High Court under section 100 of the CPC. 15. For the reasons discussed above. I am of the view that the lower Courts have come to a wrong finding and the evidence on record has not been property appreciated. Accordingly, the findings of the lower Courts suffer from perversity and so. according to the above-mentioned three decisions, such perversity in the matter of findings can well be entertained in the second appeal. 16. On the other hand. Mr. Samit Kr. Datta. learned Advocate for the respondent has referred to the decisions of Dipak Kumar Mitra v. Basanta Kumar Misra reported in (2001) 1 CLJ 289 and the State of U.P. v. Ram Chandra Trivedi reported in AIR 1976 SC 2547 . 16. On the other hand. Mr. Samit Kr. Datta. learned Advocate for the respondent has referred to the decisions of Dipak Kumar Mitra v. Basanta Kumar Misra reported in (2001) 1 CLJ 289 and the State of U.P. v. Ram Chandra Trivedi reported in AIR 1976 SC 2547 . Thus, he submits that the concurrent findings of fact arrived at by the Trial Court and the First Appellate Court cannot be disturbed. The High Court may hear appeal on substantial question of law. In the matter of Dipak Kumar Mitra (supra), this decision was related to whether the defendant No. 1 actually sublet the suit premises to the defendant No. 2 without the consent of the plaintiff. Both the Courts below came to the concurrent finding on that issue. But. in the instant case. I find that both the Courts below have failed to analyze the evidence on record and that is why they have failed to arrive at a correct conclusion resulting in commission of substantial errors of law in arriving at the conclusion. 17. Accordingly, the matter comes within the jurisdiction of substantial errors of law as discussed above. So, in entertaining the second appeal, this Hon'ble Court is very much competent to determine whether any substantial error of law has been committed or not in arriving at the conclusion in entertaining the second appeal. So. the decision of Dipak Kr. Mitra (supra) is not applicable in the instant case. Similar is the position with regard to the decision of The State of U.P. (supra). Therefore, the facts are altogether different. So. this decision referred to by the respondents. I hold, is not also applicable in the instant situation. 18. In that view of the matter, I am of the opinion that both the Courts below have committed substantial errors of law in dismissing the suit as well as the first appeal. Accordingly, the judgments and decrees passed by both the Courts below are liable to be set aside. The substantial questions of law framed are thus answered. 19. The second appeal succeeds. 20. Accordingly, the second appeal is allowed on contests with costs against the respondents. The judgments and decrees passed by both the Courts below are hereby set aside. The Title Suit No. 49 of 1989 be and the same is decreed on contest with costs against the defendants. 19. The second appeal succeeds. 20. Accordingly, the second appeal is allowed on contests with costs against the respondents. The judgments and decrees passed by both the Courts below are hereby set aside. The Title Suit No. 49 of 1989 be and the same is decreed on contest with costs against the defendants. The plaintiff do get decree for recovery of possession of the suit premises by evicting the defendants therefrom. The defendants do deliver khas possession of the suit premises in favour of the plaintiff within 30 days from date failing which the plaintiff will be at liberty to execute the decree through Court. The plaintiff do also get decree of mesne profits from the date of institution of the suit till recovery of possession under Order 20 Rule 12 of the CPC. the quantum of which shall be determined on a separate proceeding and the plaintiff is required to pay ad velorem Court fees thereon when directed. Urgent xerox certified copy of this order, if applied for. be supplied to the learned Advocates for the parties on their usual undertaking. Appeal allowed