JUDGMENT : Rao, J. - Defendants file this appeal against the reversing judgment of the Additional Subordinate Judge of Balasore decreeing the Plaintiffs' suit to recover possession of the suit lands described in Schedules Ka and Kha attached to the plaint and awarding Rs. 50/- as damages. 2. The Plaintiffs alleged that they had title to the suit properties and were in possession of the same when on 18-11-1950 the Defendants trespassed upon the same and removed the crops. The Defendants contended that the Plaintiffs had no title to the suit properties and that they were not in possession of the same within 12 years before suit and consequently were not entitled to recover possession and damages. 3. Raghunath Jena, the father of Plaintiffs 2 to 4 purchased a portion of Ka schedule land from Binod Das, father of Defendant 5 and from one Chudamani, mother of Defendants 3 and 4, on 8.7.1924. Again on 28.3-1927 the same Raghunath Jena purchased the remaining portion of the Ka schedule land from Gadu, father of Defendants 1 and 2 daughter of Gadu's brother Mahendra Das. On 31.3.1927 Plaintiff 1 purchased the Kha schedule land from the father of Defendant 5. Kali Charan, the other son of Binod, was unheard of for 10 or 12 years. His sister, Defendant 5, was in possession of the land. The Defendants did not admit the sale deeds and stated that the sale deeds were not acted upon and the vendors were in possession. They also alleged that Defendants Sand 4 purchased the shares of Sakamani by Exts. A and B and that the Plaintiffs were never in possession of the suit properties. 4. Both the courts below concurrently found that the sale deeds relied open by the Plaintiffs were supported by consideration, were acted upon and were valid. The learned Munsif also found that the Plaintiffs failed to prove possession within 12 years of suit and therefore dismissed the suit. But on appeal the learned Additional Subordinate Judge reversed the said finding and held that the suit was within time. 5. Mr. G.K. Misra, the learned Counsel for the Appellants raised before me only one point which is that the learned Additional Subordinate Judge erred in coming to a conclusion that the Plaintiff proved possession within 12 years and that the suit was in time. 5. Mr. G.K. Misra, the learned Counsel for the Appellants raised before me only one point which is that the learned Additional Subordinate Judge erred in coming to a conclusion that the Plaintiff proved possession within 12 years and that the suit was in time. He submitted that the learned Additional Subordinate Judge committed an error of record in dealing with the evidence adduced by the Plaintiffs and did not give cogent reasons as to why the finding of the trial court should be set aside. He also submitted that the learned Munsif approached the case correctly and came to a definite conclusion that the Plaintiffs were not in possession of the suit lands within 12 years before suit and that the learned Additional Subordinate Judge was wrong in his approach in arriving at his decision. 6. The Plaintiffs' sale deeds are of 1924 and 1927. There was a settlement in 1929.30 and the Plaintiffs were not recorded. According to the evidence the Plaintiffs got mutation of their names for the first time on 10-11-1950 and the suit was filed on 16.1.1951. The Plaintiffs filed rent receipts only from 2412.1950. No rent receipts before that date were filed by the Plaintiffs. The Defendants produced rent receipts Ext. C series from 1940 to 1950. The oral evidence to prove possession within 12 years was that of P.Ws. 1, 2 and 3. P.W. 2 is a relation of the Plaintiffs. P.W. 3 is a relation of the Plaintiffs' Purohit. The trial court also found that they were not inimically disposed towards the Defendants, but that they were interested in the Plaintiffs and for these reasons the learned Munsif discarded the evidence of P.Ws. 2 and 3 as to possession of the suit lands by the Plaintiffs within the statutory period. 7. The learned Munsif after discussion of the oral evidence of P. Ws. 1 to 3 and the documentary evidence in the case along with the oral evidence adduced came to the above conclusion. 8. 2 and 3 as to possession of the suit lands by the Plaintiffs within the statutory period. 7. The learned Munsif after discussion of the oral evidence of P. Ws. 1 to 3 and the documentary evidence in the case along with the oral evidence adduced came to the above conclusion. 8. The learned Additional Subordinate Judge in setting aside the finding observed in his judgment, "From the fact that the Plaintiffs were able to produce rent receipts only from the time of their mutation in 1950 and -the contesting Defendants produced rent receipts from 31-3-1940, the learned Munsif came to the conclusion that the Defendants were all along paying rent until 1950 and so although he had his reliance on the P.Ws. on the question of Plaintiffs actual physical possession and disbelieved D.W. 2 who, according to the learned Munsif, was the sole witness for the Defendants on the point, in first part of the judgment, the learned Munsif abruptly came to the finding that the Plaintiffs actually never got possession of the suit lands and their story of dispossession was false. To my mind the whole trend of argument put forward by the learned Munsif in his judgment on the point seems to be fallacious. After having come to the conclusion regarding actual physical possession in Plaintiffs' favour on the merits of the evidence of the witnesses examined on both sides, the learned Munsif should not have taken just the opposite view on the very same question, simply because the Plaintiffs did not produce rent receipts prior to their mutation in 1950 and the fact that the rent receipts from 1940 were being produced from the custody of the contesting Defendants. I find that the Plaintiffs have been supported by P.Ws. 2 and 3 as to whose evidence the learned Munsif seems to have taken a favourable impression. As for P.W. 2, he is so distantly related to the Plaintiffs that there is no reason to disbelieve him on that account. As regards the other witness P.W. 3. I find that he is quite disinterested person and no suggestion was made to him in his cross-examination that he was interested in the Plaintiffs. This witness also was believed by the learned Munsifs. As regards the other witness P.W. 3. I find that he is quite disinterested person and no suggestion was made to him in his cross-examination that he was interested in the Plaintiffs. This witness also was believed by the learned Munsifs. This statement by the learned Additional Sub-ordinate Judge is obviously wrong and is based upon a mis-reading of the judgment of the learned Munsif and an error on the face of the record with regard to the interestedness of P.W. 3. In the Judgment, with regard to the evidence of P.Ws. 1 to 3, the learned Munsif observed, "P.Ws. 1, 2 and 3 testify to the physical possession of the Plaintiffs since the purchases. It is seen that P.W. 2 Nanda Kumar Senapati is the father-in-law of Plaintiff Jagabandhu's sister's son. P.W. S Indra Panda is a relation of the Plaintiff's priest. But there is nothing to show that P.Ws. 2 and 3 have any enmity against the Defendants. There is no reliable evidence on the side of the contesting Defendants to show that they were physically in possession of the lands inspite of the sales. Only D.W. 2 Kartik Jena testifies regarding possession of Suka's share by the Defendants but he admits that he is in bad terms with the Plaintiffs. Hence the Plaintiffs' story of physical possession has been prima facie supported by P.Ws. 2 and 3. But is it true and were the Plaintiffs dispossessed by the Defendants 1 to 4 as alleged by them?" This categorical observation clearly shows that the learned Munsif did not accept the evidence of P.Ws. 2 and 3. On the other hand, he characterized the same as interested evidence and later on after taking into consideration the oral evidence, he considered the question of possession with reference to the documentary evidence on the basis of the said oral evidence. He definitely took up the question advanced by the learned Counsel for the Plaintiffs before him to the effect. "I purchased the land and am physically possessing it and it does not matter if the vendor goes on paying the rent". The learned Munsif also observed. "This will be so if the purchaser can prove his physical possession beyond doubt, as after the sale payment of rent by the vendor will be unauthorised, though the vendor could claim contribution from the vendee if the holding has not been separated. The learned Munsif also observed. "This will be so if the purchaser can prove his physical possession beyond doubt, as after the sale payment of rent by the vendor will be unauthorised, though the vendor could claim contribution from the vendee if the holding has not been separated. Is it possible and believable that the vendors complacently went on paying the rent from 1924 to 1950, for long 26 years, without claiming a contribution? This shows that the vendors never parted with the lands although they had executed the three sale deeds in favour of the Plaintiffs for consideration. The evidence of P.Ws. 2 and 3 seem to be interested and cannot be relied on. I must hold that the Plaintiffs never got possession of the suit lands and the story of dispossession is false and got up." Thus it is clear from the judgment of the learned Munsif that he came to a definite finding after considering both the oral evidence and the documentary evidence as also taking the effect of both on the truth or otherwise of the Plaintiffs' case. He also definitely stated that the evidence of P.Ws. 2 and 3 is interested and cannot be relied upon. On the face of these observations made by the learned Munsif in his judgment, the learned Additional Subordinate Judge clearly erred in his appreciation of the judgment of the trial court and also did not correctly read the judgment. Therefore the reasons given by the learned Additional Subordinate Judge to set aside the finding of the trial court are not cogent and valid reasons and are not sufficient to set aside the same finding. 9. The learned Additional Subordinate Judge also approached the case. On a wrong basis, his decision seems to have been influenced also by his taking into consideration the presumption that possession follows title. 9. The learned Additional Subordinate Judge also approached the case. On a wrong basis, his decision seems to have been influenced also by his taking into consideration the presumption that possession follows title. Though he observed that in a suit like the present one where the Plaintiffs claimed to have been in possession and subsequently dispossessed the onus would be on the Plaintiffs to prove that they were in possession and were subsequently dispossessed within 12 years of suit and in the absence of any such evidence they could not be allowed to draw upon the aforesaid presumption of law that possession follows title, yet he held that in the present case the Plaintiffs having adduced reliable evidence in support of their possession since their purchases were also entitled to the aforesaid legal presumption in their favour. I have already shown that the Plaintiffs' evidence was not held to be reliable evidence by the learned Munsif though the appellate court thought so. The suit being one for recovery of possession on the allegation of dispossession, it has to be decided only on proof of prior possession within 12 years of suit by the Plaintiffs and dispossession. The presumption of title based upon long possession has no place in consideration of the issue in this suit. 10. Mr. Mukherji, the learned Counsel for the Respondents submitted that there was no suggestion made to P.W. 3 about his interestedness and consequently the earned Additional Subordinate Judge was right in his observation. P.W. 1 clearly stated in his evidence that P.W. 3 is an agnate of his priest. After this evidence of P.W. 1, it is not necessary to suggest the interestedness to P.W. S to himself. 11. Mr. Mukherji next contended that the Plaintiffs are co-sharers with the Defendants who are purchasers from their co-sharers and consequently the Defendants cannot claim any adverse possession as against the Plaintiffs unless they prove ouster. In support of this contention he relied upon a decision of a Division Bench of this Court in the case of Patnala Bhimayya Subudhi v. Kundana Blbi and Ors. 22 C.L.T. 51. In support of this contention he relied upon a decision of a Division Bench of this Court in the case of Patnala Bhimayya Subudhi v. Kundana Blbi and Ors. 22 C.L.T. 51. In that decision it was held: As between co-sharers mere possession by one co-sharer would not constitute ouster unless there is some material to justify the inference that he either expressly or by implication refused to allow the other co-sharer to be in possession or to participate in the joint property. This principle of ouster as amongst the original co-sharers applies with equal force' as against the alienees from the co-sharers. Mere admission of the party cannot make out a case of ouster. In my opinion, this decision does not apply to the facts of the present case. The case in 22 Cuttack Law Times was in connection with a suit for partition. In paragraph S of the said judgment it was observed, The trial court had no difficulty in decreeing the Plaintiff's suit in as much as the title between the parties had been completely adjudicated in the previous litigation. Consequently in that suit the title having been adjudicated in a prior litigation, the only contest was with regard to ouster. Where title is not In dispute, if a co-sharer claims to be in adverse possession, certainly he has to prove ouster in order to succeed. But in this case the Defendants disputed the title as well as possession within 12 years of the suit. Though the findings of both the courts below were that the Plaintiffs had title, yet the suit being one based upon title and possession within 12 years, it is for the Plaintiff,; to prove their possession within the statutory period. In my opinion, in such a case the principle enunciated in the case of 22 Cuttack Law Times is not applicable to the facts of this case. Mr. Mukherji next contended, on the authority of the case of Ranglal Ram v. Makhanlal and Ors. 15 C.L.T. 30, that mere payment of rent is not such an unequivocal act as would be sufficient to attribute hostile intention, or assertion of a hostile title amounting to adverse possession in law. In that case it was held, Mere occupation should be distinguished from possession. 15 C.L.T. 30, that mere payment of rent is not such an unequivocal act as would be sufficient to attribute hostile intention, or assertion of a hostile title amounting to adverse possession in law. In that case it was held, Mere occupation should be distinguished from possession. In the eye of law, possession consists of the facts of physical occupation and the mental act of holding the subject of possession to the exclusion of others. Mere acts of user which do not interfere and are consistent with the owner's title, are not sufficient to constitute dispossession of the owner or start adverse possession in favour of the person merely occupying it. A person holding a lawful title over a land is not adversely dispossessed by another person who only pays house tax for a certain period. The payment of house-tax is not such an unequivocal act as would be sufficient to attribute hostile intention, or assertion of a hostile title amounting to adverse possession in law. In that case the only point on this subject which was considered was payment of house-tax to the Union Board of Khurda. It is quite consistent for a man in occupation of the house to pay house-tax and that by itself will not create adverse possession. Under the Local Board rules an occupier also can be made liable to pay house-tax. But in this Case it is payment of revenue or rent on the land. The rent or revenue is collected on the basis of the collection to be made from the person in possession of the property. The revenue authorities look only to the man in possession for his liability to pay rent. The payment of rent by the Defendants in this case from 1940 to 1950 clearly shows that they are in possession of the lands and that they are not mere occupiers of the lands. 12. I am therefore of opinion that the decision of the learned Additional Subordinate Judge has to be set aside. The appeal is, therefore, allowed the judgment and decree of the lower appellate court are set aside and those of the learned Munsif restored with costs throughout. Appeal allowed. Final Result : Allowed