JUDGMENT R.P. Gupta, Member - The relevant facts are that the plaintiff Smt. Bhondali widow of Dasai filed a suit under Section 209 of U.P. Z.A. and L.R. Act on September 15, 1971 against the defendant Bhagwati Prasad, Bhitri and State of U.P. alleging that Dasai, was Sirdar of the land in suit who died about 4 years ago. On his death plaintiff succeeded as his widow. In July 1375F defendant No. 1 had taken forcible possession of plots No. 49 and 50/2 without any right or title and refused to remove his possession alleging that the husband of the plaintiff had taken a loan from him. The defendant No. 1 refused to show any loan papers to the plaintiff or to remove his possession. Ultimately the plaintiff filed a suit for ejectment alleging that she was ready to pay loan also if any if it is not already paid by the usufruct of land in suit. The defendant No. 1 Sri Bhagwati Prasad filed written statement on December 22, 1971 alleging that Dasai, husband of the plaintiff had taken a loan of Rs. 500/- at about 16 years ago on interest of Rs. 2/- per month. He did not pay any amount. As such at about 13 or 14 years ago the defendant No. 1 had taken forcible possession of the land in suit and became its Sirdar. The suit was barred by time. The trial court held that t,he plaintiff was Sirdar of the land in suit and was dispossessed by the defendant No. 1 in 1375F. The trial court disbelieved defendant case that he had given loan to the husband of the plaintiff. The defendant No. 1 filed the appeal which was allowed by the Additional Commissioner, Lucknow. On July 7, 1975 holding that the defendant was in adverse possession for more than eight years and perfected his rights under Section 210 of U.P. Z.A. and L.R. Act. The suit was barred by time. The Additional Commissioner did not give a clear cut finding regarding the loan but it appears that he believed the theory of loan. Against this judgment of the Additional Commissioner the present second appeal was filed in the Board of Revenue which was heard by Sri Roshan Lal Member on October 30, 1981 who referred the matter to the Larger Bench for the decision of following three questions: - 1. Against this judgment of the Additional Commissioner the present second appeal was filed in the Board of Revenue which was heard by Sri Roshan Lal Member on October 30, 1981 who referred the matter to the Larger Bench for the decision of following three questions: - 1. Whether the possession of the defendant respondent which had started on the basis of a loan advanced by him to the deceased husband of present appellant would be treated as adverse possession? 2. Whether possession started at the time when the tenure holder was a disabled person and continued to be so till his death would he treated as adverse against him? 3. Whether the finding of fact arrived at by the lower appellate court can be interfered in second appeal or not? This larger Bench was constituted by the Hon'ble Chairman, Board of Revenue to decide those questions. 2. We have heard the arguments of the learned counsel for the parties at length. 3. On the first question the learned counsel for the appellant argued that the possession of defendant No. 1 being in lieu of interest it was permissive possession and not adverse. The learned counsel for the respondent argued that the land in suit being Sirdari property which was not transferable, no licence could have been granted in view of provision of Section 53 of Indian Basements Act. The transferor being illegal, was void and as such from the very beginning the possession of the defendant No. 1 was adverse as held in Bharit v. Board of Revenue, 1972 R.D. 451 : 1972 A.L.J. 29. 4. The question No. 1 as framed by Sri Roshan Lal, Member, presupposes that the possession of the defendant respondent had started on the basis of the loan advanced by him to the husband of the plaintiff. According to the pleadings of the parties the defendant No. 1 had not entered into possession of the land in suit with the consent of the tenure holder. According to the plaintiff he entered into forcible possession in 1375F. According to the defendants he entered into forcible adverse possession after 2 or 3 years of the alleged loan transaction. Both the courts below held that defendant No. 1 was in adverse possession. According to the plaintiff he entered into forcible possession in 1375F. According to the defendants he entered into forcible adverse possession after 2 or 3 years of the alleged loan transaction. Both the courts below held that defendant No. 1 was in adverse possession. Both the courts below did not give finding to the effect that 1,he defendant entered in possession of the land in suit with the consent of the husband of the plaintiff in lieu of the interest of loan. 5. If the defendant No. 1 had taken forcible possession of the land in suit without the consent of the tenure holder, it will be a clear cut case of adverse possession and not of permissive possession. There can be no two opinions on this point. 6. In case the defendant No. 1 entered in possession of the land in suit in lieu of interest of the loan transaction with the implied or express consent of the tenure holder, position would be different and it will be a case of permissive possession. 7. Where Sir and Khudkasht was mortgaged before the date of vesting but mortgagee continued in possession even after the date of vesting, though his rights were extinguished under Section 14(1) of U.P. Z.A. and L.R. Act, his possession was held not per se adverse but permissive in Radhey Shyam v. Rama, 1970 R.D. 11 by the Division Bench of the Hon'ble Allahabad High Court and in Balwant v. Dy. Director of Consolidation, 1975 R.D. 197 by the Full Bench of the Hon'ble Allahabad High Court. 8. Where the occupancy holding was mortgaged and mortgagee continued in possession, his status was held to be that of a licensee only by the Division Bench of ha Hon'ble Allahabad High Court in Girdhar Prasad v. Joint Director of Consolidation, 1977 R.D. 337. 9. In Mahadeo Pandey v. Sooraj Bhan Singh, 1964 R.D. 253 of 258 it was held by the Allahabad High Court that a person who has been put in possession of a land for appropriating its profit towards the interest of loan advanced by him to the owner of the land is really in possession on behalf of the owner because profit securing from the land are utilised not for his own benefit but for the benefit of the owner and they constitute payment of interest made by the owner. In law it is the owner himself who is in possession. 10. In Khacchar Mal v. Board of Revenue, Allahabad, 1969 R.D. 200, the defendant Khacchar Mai entered in possession of the plot in suit in July 1959 when the plaintiff Smt. Kasturi Devi's husband Udha had taken Rs. 2500/- as a loan from him and had given the plot in suit to him in, lieu of interest, till the loan is repaid. It was held by the Hon'ble Allahabad High Court that defendant being in possession with the consent of Udha, the predecessor of the plaintiff, the continuing consent of the successor would be presumed. It was further held that the plaintiff was undoubtedly entitled to the relief of possession but conditionally upon fulfilling her obligation flowing from the original transaction between the parties. The suit of the plaintiff for possession was decreed against the defendant on the condition that plaintiff pays to the defendant petitioner a sum of Rs. 2500/-. Thus the possession of defendant in lieu of interest was held as permissive possession. 11. In Parsu v. Sri Ram Charan, 1970 R.D. 144 the case was decided by Sri Y.N. Varma. Member Board of Revenue, the plaintiff Sirdar had taken a loan of Rs. 600/- from the defendant in consideration of which the defendant had to cultivate the plots as Sajhidar for three years. The defendant did not vacate the land after the said period. Then the suit was filed. It was held that there was no mortgage or transfer within the meaning of Section 190(cc) or Section. 168 of U.P. Z.A. and L.R. Act. The defendant was held as Sajhidar due to an agreement to the effect and he was held as trespasser when on being asked to vacate, he did not do so. 12. In Deonandan v. Amar Deo Singh, 1971 R.D. 270 it was held that the possession was transferred in lieu of interest which amount to a licence and that the transaction did not amount to a sale under Section 164 of the U.P. Z.A. and L.R. Act. 13. In Sukhwasi v. Natha Ram, 1980 R.D. 187 the defendant entered in possession of the land in suit in lieu of loan transaction of Rs. 1,500/- in June, 1955. A further sum of Rs. 500/- were advanced on July 18, 1961. 13. In Sukhwasi v. Natha Ram, 1980 R.D. 187 the defendant entered in possession of the land in suit in lieu of loan transaction of Rs. 1,500/- in June, 1955. A further sum of Rs. 500/- were advanced on July 18, 1961. Sri H.N. Agarwal, Member Board of Revenue held that the defendant appellant was not a trespasser but a licensee and his licence to remain in possession could be terminated only when the loan amount is repaid. 14. In Durani v. Board of Revenue, 1980 R.D. 275 the Hon'ble Mr. Justice K.P. Singh of Allahabad High Court held the possession of the defendants as permissive which possession was in pursuance of an agreement to sell as well as in pursuance of money paid by them. The order of the Board that the ejectment of the defendant would not take place till the plaintiff had paid back the sum of Rs. 2500/- was up held. 15. Thus it is clear that where the possession is transferred by the plaintiff in lieu of the loan and interest, whether the land is Bhumidhari or Sirdari, he possession of the defendant was liable to ejectment only after the payment of loan. In fact this transfer of possession in lieu of loan was never treated as the transfer of the title of the tenure holder. This transfer of possession cannot be termed as the transfer of his interest by a Sirdar to make the transaction void. The ruling Bharit v. Board of Revenue, 1972 R.D. 481 (H.C.) (D.B.) will not be applicable in such a case and the possession of defendant in lieu of loan and interest, even in Sirdari land, will not be adverse. The delivery of possession in lieu of interest and loan, not being the transfer of interest in land, Section 52 and 53 of the Indian Easement Act are not applicable. It makes no difference whether the land in suit is Bhumidhari or Sirdari as the transfer of possession by the plaintiff in lieu of the interest is not a transfer of his interest in the land in suit. The possession of the defendant in such case will be permissive and not adverse. 16. It makes no difference whether the land in suit is Bhumidhari or Sirdari as the transfer of possession by the plaintiff in lieu of the interest is not a transfer of his interest in the land in suit. The possession of the defendant in such case will be permissive and not adverse. 16. Thus where the possession of defendant respondent started in lieu of interest on the basis of a lean advanced by him to the deceased husband of the present appellant with his implied or express consent, his possession will be permissive and he will be ejected after the payment of loan but where the defendant had entered into forcible possession of the land in suit without the implied or express consent of the tenure holder, his possession will be adverse. 17. As regards the second question, it will make no difference whether the tenure-holder was a disabled person or not when the possession started. The only benefit the disabled person can get, it under Section 6 of the Indian Limitation Act which is also applicable in cases under U.P. Z.A. and L.R. Act as held by Full Bench of the Hon'ble Allahabad High Court in Shitla Prasad v. Bansh Bahadur, 1974 A.L.J. 181. If the case of a disabled person is covered by Section 6 of Indian Limitation Act he can get the benefit of it. It makes no difference whether the tenure holder was a disabled person when the adverse possession of the defendant started and whether the tenure holder continued to be a disabled person till his death or not or whether his successor-in-interest was also a disabled person or not. 18. As regards the third question whether the finding of fact arrived at by the lower appellate court can be interfered in second appeal or not, guidance may be taken from different decision of the Hon'ble Supreme Court and High Court. 19. Section 101 C.P.C. provides that no second appeal shall lie except on the grounds mentioned in Section 100 C.P.C. Old Section 100 C.F.C. has been substituted by Section. 37 of the Code of Civil Procedure (Amendment) Act 1976 (104 of 1976) and now the second appeal can be heard only on substantial question of law. 19. Section 101 C.P.C. provides that no second appeal shall lie except on the grounds mentioned in Section 100 C.P.C. Old Section 100 C.F.C. has been substituted by Section. 37 of the Code of Civil Procedure (Amendment) Act 1976 (104 of 1976) and now the second appeal can be heard only on substantial question of law. Section 103 C.P.C. provides that in second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) Which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court or (b) Which has been wrongly determined by such court or courts by reason of a decision on such question of law as referred to in Section 100. 20. In Ram Prasad v. Board of Revenue, 1974 R.J. 237 Mr. Justice N.D. Ojha of the Hon'ble Allahabad High Court observed that in view of Section 331(4) of the U.P. Z.A. and L.R. Act a second appeal lies on the grounds contained in Section 100 of the Code of Civil Procedure Section 341 of the U.P. Z.A. and L.R. Act makes the Code of Civil Procedure applicable to the proceedings under U.P. Z.A. and L.R. Act. Accordingly Section 103 of the Code of Civil Procedure was applicable The said section empowered the second appellate court to determine any issue of fact necessary for the disposal of the appeal which has not been determined by tho lower appellate court, if the evidence on record was sufficient. It was, therefore, open to the Board of Revenue to have recorded a finding on merit. 21. In Bhagwati Devi v. Board of Revenue, 1982 R.D. (Summary) of Cases 14 writ petition No. 5975 of 1980 decided on August 31, 1981 Mr. Justice B.M. Sahai of Hon'ble Allahabad High Court observed that the powers of second appellate court are contained in Section 103 of the Code of Civil Procedure. Before 1976 a second appellate court could on the evidence on record determine any issue of fact necessary for the disposal of appeal. Justice B.M. Sahai of Hon'ble Allahabad High Court observed that the powers of second appellate court are contained in Section 103 of the Code of Civil Procedure. Before 1976 a second appellate court could on the evidence on record determine any issue of fact necessary for the disposal of appeal. After 1976 the second appellate court may, if the evidence on record is sufficient to determine any issue necessary for the disposal of the appeal which has not been determined the lower appellate court or both by court of first instance or lower appellate court or which has been wrongly determined. This section falls in the chapter relating to appeals from appellate decree but the same procedure and power is confirmed on a court hearing appeal from final order passed by the court below by virtue of Section 108 of Civil Procedure Code. To say, therefore, that the Board had no power to decide the question of fact in second appeal is not correct. 22. In Balai Chandra v. Chawdhari Jadav, A.I.R. 1978 S.C. 1062 in para 9 the Hon'ble Supreme Court observed that the provisions contained in Section 103 C.P.C. defines the power of the High Court to determine a question of fact while hearing second appeal. But this power of the court is limited to evidence on record which again is sufficient to determine on issue of fact necessary for disposal of the appeal and which has not been determined by the lower appellate court or which has been wrongly determined by such court. 23. In D. Pattabhiran Swami v. S. Hanymayya, A.I.R. 1959 S.C. 57 the Hon'ble Supreme Court observed that the provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be, nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less to finding of fact. A Judge of the High Cold has, therefore no jurisdiction to interfere in second appeal with the finding of fact given by the 1st appellate court based upon an appreciation of the relevant evidence. 24. A Judge of the High Cold has, therefore no jurisdiction to interfere in second appeal with the finding of fact given by the 1st appellate court based upon an appreciation of the relevant evidence. 24. In Ram Chandra v. Ram Lingam, A.I.R. 1963 S.C. 302 the Hon'ble Supreme Court observed that High Court was not justified in interfering with the finding of facts recorded by the Lower appellate court, merely because the judgment of the lower appellate court was not as elaborate as that of the trial judge or because some of the reasons given by the trial judge had not been expressly reversed by the lower appellate court. It was also observed by the Hon'ble Supreme Court that if a finding of fact has been recorded by the first appellate court without any evidence, that finding can be successfully challenged in second appeal because a finding of fact which is not supported by any evidence can be questioned under Section 100 and in that connection it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate court no reasonable person could have accepted and that really amounts to saying that there is 10 evidence at all. 25. In E. Mahboob v. N. Sabbarayan, A.I.R. 1982 S.C. 679 the Hon'ble Supreme Court observed that 'it was not open to the High Court to re-appreciate the said evidence and substitute its own conclusion in place of those entered by the lower court while exercising the jurisdiction conferred by Section 100 C.P.C. It was further observed that 'the finding entered by the Additional District' Judge can not be said to be unreasonable or perverse. No question of law whatever was agitated before the High Court. In the circumstances there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge. 26. In Babu v. Dy. Dir. No question of law whatever was agitated before the High Court. In the circumstances there was no justification at all for the High Court to interfere with the finding of fact entered by the Additional District Judge. 26. In Babu v. Dy. Dir. of Consolidation, A.I.R. 1982 S.C. 756 the Hon'ble Supreme Court observed that the finding above mentioned being one of fact, is not open to challenge before us unless it can be shown that it is perverse or based on no evidence at all. 27. In Kartey Singh v. Iftikbar Ahmad, 1981 A.W.C. 654 (H.C.) Mr. Justice Amitav Banerji of the Hon'ble Alld. High Court observed that their Lordships of the Supreme Court have repeatedly held that a second appellate court has no jurisdiction to interfere with the finding of fact howsoever grossly erroneous it may seem to be. Unless there be an error of law vitiating the finding, this court has no jurisdiction to interfere with the finding on a question of fact. The question whether the money was advanced as a loan or not is a pure question of fact. Whether a particular witness is to be believed or not is in the jurisdiction of the final court on fact. What inference should be drawn from a particular place of evidence is also a question of fact to be determined by such court. The second appellate court has no jurisdiction to reappraise the evidence or find out what is the weight of evidence on a particular point. These are duties of final court on facts. 28. Thus it is clear that finding of fact arrived at by the lower appellate court can not be interfered generally in second appeal unless it is perverse or based on no evidence. Second appellate court's power to determine a question of fact, while hearing the second appeal, is confined to the limitations contained in Section 103 of the Code of Civil Procedure. 29. All the three questions referred to this bench are accordingly answered as follows: - 1. Where the possession of defendant respondent stated in lieu of interest on the basis of loan advanced by him to the deceased husband of the present appellant with his implied or express consent, his possession will be permissive. 29. All the three questions referred to this bench are accordingly answered as follows: - 1. Where the possession of defendant respondent stated in lieu of interest on the basis of loan advanced by him to the deceased husband of the present appellant with his implied or express consent, his possession will be permissive. But where the defendant had entered into forcible possession of the land in suit without the implied or express consent of the tenure holder his possession will be adverse. 2. It makes no difference whether the tenure holder was a disabled person when the adverse possession of the defendant started. It is also immaterial whether the tenure holder continued to be a disabled person till his death or not, or whether his successor in interest was also a disabled person or not. 30. The finding of fact arrived at by the lower appellate court can not be interfered generally in second appeal unless it is perverse or based on no evidence. Second appellate court's power to determine a question of fact, while hearing the second appeal, is confined to the limitation contained in Section 103 of the Code of Civil Procedure.