JUDGMENT : S.C. Mohapatra, J. - Plaintiff is the Appellant against a reversing judgment. 2. While admitting the Second Appeal, ground Nos. 1 and 3 of the memorandum of appeal were formulated to raise substantial questions of law to be decided in the second appeal. They read as follows: 1. Whether in view of the admitted fact that the suit lands belonged to Sriram Ho the late father of the Plaintiff-Appellant and in view of the findings of the learned Trial Court that the defence case that Sriram Ha abandoned the suit holding and Mansingh Ho came into forcible possession of the suit lands in 1943 stands disproved by the rent receipts Ext. A series which show that Mansingh was paying of rent as Marfatdar that is as Zamindar or custodian of the property on behalf of Sriram Ho upto 1953 the learned Lower Appellate Court has committed a serious error of law in overlooking the said finding and in drawing a presumption of adverse possession from long possession of the suit lands by the Defendants and placing the onus of proof of permissive possession on the Plaintiff ? 2. xxx xxx xxx 3. Whether the learned lower Appellate Court has committed a serious error of law in reversing the finding of the learned trial Court that the Defendants have failed to prove acquisition of title by adverse possession ignoring the well settled principles of law that when possession commences in a permissive character it does not become adverse unless there is a denial of the title of the true owner and an animus of exclusive ownership to the knowledge of the true owner and with his acquiescence thereto? 3. Suit is for declaration of title and recovery of possession of 21 acres 27 decimals of land belonging to Sriram Ho father of the Plaintiff recorded as such in the settlement of 1940-41 of the then Mayurbhanj State. 4. Case of the Plaintiff is that Sriram Ho his father died when Plaintiff was a minor for which his mother was looking after the properties. She was residing in village Lota 150 miles away from village Jamposi where the suit land is situated. She entrusted the land to one Budan Ho of village Jamposi on the understanding that Budan would remain incharge of the land cultivate the same, enjoy the usufruct and pay rent to the State. She was residing in village Lota 150 miles away from village Jamposi where the suit land is situated. She entrusted the land to one Budan Ho of village Jamposi on the understanding that Budan would remain incharge of the land cultivate the same, enjoy the usufruct and pay rent to the State. He was to return back the disputed land when required. Sometimes after entrustment, Budan Ho died leaving behind his minor son Muku (d. w. 4). Muku with his properties including the disputed properties incharge of Budan Ho were taken care by Mansingh Ho father of Defendant No. 2 who continued to possess the disputed lands and enjoy the usufructs on payment of rent. Defendant No. 2 who was Pleader's clerk in Karanjia Court managed to get the disputed land recorded in name of Mansingh Ho his father in mutation case No. 436 of 1960-61 of which Plaintiff had no notice. In 1972, Plaintiff and his mother came to village Jamposhi. Coming to know of the death of Budan she claimed back the suit land from Muku. There was panchayati where Mansingh was present. As per the settlement Plaintiff's mother took back possession of the land and started agricultural operation. Thereafter dispute relating to possession of the disputed land arose in August, 1972 for which a proceeding u/s 145, Code of Criminal Procedure was initiated to be finalised in favour of the Defendants. 5. Case of the Defendants is that Sriram Ho was residing in village Lata of Singhbhum district in the Bihar State during the last part of his life where he had lands. In the year 1941, Sriram permanently abandoned the suit land which remained uncultivated for one year. Thereafter, Mansingh Ho entered into possession of the land and began cultivating the same. He got the disputed lands mutated in his name. Since 1943 Mansingh Ho and thereafter Defendant Nos. 1 and 2 are in possession of the suit lands as of right and have perfected title by adverse possession. 6. Appellate Court has not believed the case of entrustment of the land to Budan and on account of long possession and payment of rent from 1943 added to mutation of the land it .came to the conclusion that Mansingh possessed the land adversely to the interest of Plaintiff and as such Plaintiff's suit is barred by limitation. 6. Appellate Court has not believed the case of entrustment of the land to Budan and on account of long possession and payment of rent from 1943 added to mutation of the land it .came to the conclusion that Mansingh possessed the land adversely to the interest of Plaintiff and as such Plaintiff's suit is barred by limitation. The case of Panchayati in the year 1972 has been disbelieved by the appellate Court. 7. Mr. D. S. Nanda, the learned Counsel for the Appellants submitted that the appellate Court committed substantial error of law while reversing the decision of the trial Court is not considering the reasons given by the trial Court specially in respect of the rent receipts Ext. 'A' series which clearly prove the nature of possession of the Defendants to be initially permissible and no evidence has been led as to when such permissive possessing became adverse. He further submitted that due importance has not been given to the fact of rent 0 being paid by the Plaintiff's mother in the year 1972 which supports the case of taking back of the land by Plaintiff's mother. The learned Counsel for the Respondents on the other hand submitted that the nature of possession is a question of fact and howsoever gross the error may be, this Court in second appeal ought not to,interfere with the same. It is submitted that the Plaintiff not being able to prove the case of permissive possession as made out in the plaint, the suit has rightly been dismissed by the appellate Court on the ground of limitation. 8. In a decision reported in Khetrabasi Patra v. Guru Charan Patra 65 (1989) C.L.T. 31 : 1988 (1) O.L.R. 176. I have held that the question of nature of possession would be a question of fact and normally there would be no scope for interference with the same in second appeal. Where, however, the finding of fact would be rendered without consideration of materials on record the same would not be binding in second appeal and a substantial question of law would arise if on consideration of the materials or circumstance the finding cannot be sustained. Besides, where the trial Court has given reasons to interpret document which is the basis of the decision, appellate Court is duty bound to consider the correctness of such interpretation. 9. Besides, where the trial Court has given reasons to interpret document which is the basis of the decision, appellate Court is duty bound to consider the correctness of such interpretation. 9. Both the trial Court as well as the appellate Court have relied upon the rent receipts Ext. 'A' series for given contrary findings. Trial Court interpreted the rent receipts proving payment of rent by Mansingh on behalf of Sriram and concluded that the case of permissive possession has been made out when rent was paid by Mansingh Ho on behalf of Sriram Ho as Marfatdar and the appellate Court relying upon the payment of rent by Sriram Ho from 1941 with long possession by Mansingh has disbelieved the case of entrustment by the Plaintiff. 10. Payment of rent and production of rent receipts is a piece of evidence to prove possession unless such payment is explained otherwise. Mere possession is not in all circumstances adverse to the real owner. Whether the possession is adverse would depend upon facts and circumstances ot each case where evidence has been led by both parties, the question of onus\recedes to the background and the evidence is to be considered on its own merits. 11. Effect of payment of rent on behalf of another is the main dispute in this appeal. This has been the subject matter of consideration in various decisions of this Court. In Rangalal Ram v. Makhan Lal and Ors. 15 (1949) C.L.T. 30 : ILR 1919 Cut 804 Division Bench was considering the effect of payment of,house tax.' In that case, house tax was being paid to the Union Board by one Rupram since 1930-31 on the basis of which it was contended that possession of Rupram was at least from 1930, the year from which he was paying house tax. In this context it was held: Possession must be distinguished from mere occupation or detention. Possession in the eye of the law consists of the fact of physical occupation and the mental act of holding the subject of possession to the exclusion of others. The unity of these two elements, namely, occupation and animus possidendi is recognised as constituting possession in the eye of the law. The physical element is not necessarily connected with any bodily contact with the subject of possession. It implies the physical power of possibility of dealing with the subject immediately. The unity of these two elements, namely, occupation and animus possidendi is recognised as constituting possession in the eye of the law. The physical element is not necessarily connected with any bodily contact with the subject of possession. It implies the physical power of possibility of dealing with the subject immediately. Legal possession includes cases of constructive possession, permissive possession and other kinds of possession where the owner is not in direct physical contact. There is perhaps no legal conception more open to a variety of opinion that possession' See Lyall v. Kennedy (l8 Queen's Bench Division 796). Possession is a flexible term and is not restricted to mere occupation. Legal possession is occupation with the intention of exercising the right of ownership in respect of it. 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 occupant. Another principle which is well settled is that possession is never considered adverse if it can be referred to a lawful title. Whether, in particular circumstances, the acts of the occupant amount to possession and whether such possession is on behalf of the legal owner or in opposition to his title are matters of interence to be drawn from proved facts: So observing, the Division Bench considered the facts and circumstances and did not accept the contention of the learned Counsel for the Respondent and observed: The payment of house tax is not such an unequivocal act is not as would be sufficient to attribute hostile intention to Rupram. Every occupier of a house is bound to pay tax and as Ext. F series show the payment was made by the occupier of owner. I am therefore, unable to accede to the contention of Mr. Purohit that these receipts constitute an assertion of hostile intention so as to amount to adverse possession in law, In a decision reported in Endumura Nagaya Boitharu v. Pataja Raghunath Boitharu and Anr. 20 (1954) C.L.T. 586. Plaintiff claimed to have purchased the suit property in 1921 by virtue of a title deed and was in possession till 1937 when he let out the house to Defendant and Defendant was a tenant till 1942. When the Defendant did not vacate in spite of notice to quit suit was filed. 20 (1954) C.L.T. 586. Plaintiff claimed to have purchased the suit property in 1921 by virtue of a title deed and was in possession till 1937 when he let out the house to Defendant and Defendant was a tenant till 1942. When the Defendant did not vacate in spite of notice to quit suit was filed. Defendant claimed to have purchased the property in name of the Plaintiff benami. The document of title was in custody of the Plaintiff. House tax receipts and demand notices were in custody of the Defendant. Defendant was paying house tax and was obtaining receipts. Each of the receipts stood in the name of the Plaintiff. It was held that payment of house tax by the Defendant and obtaining receipts in the name of the Plaintiff amounted to acknowledgment of title of the Plaintiff and as such the possession could never be adverse but wag permissive in the facts and circumstances of that case. The effect of payment of rent was again considered in a decision reported in Bhagaban Das and Ors. v. Jagabandhu Jena and Ors. .. Distinguishing the decision reported in Rangalal Ram v. Makhan Lal and others', (supra) it was held. ...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. Both the decisions reported in Endumura Nagaya Boitharu v. Pataja Raghunath Boitharu and Anr. (supra) and in Bhagaban Das and Ors. v. Jagabundhu Jena and Ors. ., (supra) were subject matter of consideration in a decision reported- in Arjun Samal v. Kailash Chandra Kanungo and Ors. 40 (1974) C.L.T. 894.. Both the decisions reported in Endumura Nagaya Boitharu v. Pataja Raghunath Boitharu and Anr. (supra) and in Bhagaban Das and Ors. v. Jagabundhu Jena and Ors. ., (supra) were subject matter of consideration in a decision reported- in Arjun Samal v. Kailash Chandra Kanungo and Ors. 40 (1974) C.L.T. 894.. Distinguishing the decision reported in Endumura Nagaya Boitharu v. Pataja Raghunath Boitharu and Anr. it was held: ...with great respect, I am unable to agree with this wide proposition. Merely because a party files receipt in support of his case that he made payment in the name of the person in whose name the record stands, it .does not follow that the title of the other party has been acknow ledged. The decision reported in Bhagaban Das and Ors. v. Jagabandhu Jena and Ors. 40 (1974) C.L.T. 894 (supra) was relied upon and it was observed. What inference is to be drawn in a particular case, would depend upon the facts and circumstances of that case. In Ushamani Dei and Ors. v. Gandharba Barik and Anr. 44 (1917) C.L.T. 552 : I. L.R. 1977 l2 Cut. 151, the first appellate Court judgment was commented upon for not taking into consideration the inference of presumptive possession from payment of house tax in name of another. In Hadibandhu Ho and Ors. v. Luclda Ho and Ors. 53 (982).C.L.T. 214 the effect of the decisions in Naran Behera (died) and Another Vs. Mohan Jethi and Others, and in Arjun Samal v. Kailash Chandra Kanungo and others', were considered and it was held: .... If rent is paid by a trespasser ordinarily the receipt would be granted in the name of the person in whose name the property stands recorded. Until the name of the recorded owner is changed by mutation or otherwise, the receipt, perforce, would be granted in his name. Trespasser to protect his interest, i.e. to avoid sale of the property on account of non-payment of rent, may be obliged to pay the rent and he cannot obtain a receipt in his name so long as his name has not been mutated in place of the owner and such mutation may be possible only after his adverse possession matures into title by lapse of the period prescribed. In such a situation, it would be incorrect to state that the trespasser by paying rent and obtaining receipt in the name of the recorded owner (Revenue authorities can grant receipt only in the name of the recorded owner) acknowledged the title of the recorded owner. The receipt would be granted in the name of the recorded owner despite his hostile animus. All those decision were subject matter of consideration of a Division Bench in the recent decision reported in Naran Behera (died) and Another Vs. Mohan Jethi and Others. Division Bench did not delve into the conflicting views to find out the correctness since on analysis of oral evidence on record the finding relating to issue of possession was arrived at. 12. From perusal of all the decisions of this Court as above, the total effect that can be gathered is that the payment of rent by another would be evidence of possession unless otherwise explained. However, abrupt conclusion cannot be drawn that such possession of another is adverse to the real owner. The same is to be considered on the facts and circumstances in each case. 13. In the decision reported in Rangalal Ram v. Makhan Lal and Ors. (supra) mere acts of user which are consistent with owner's title were not sufficient to constitute dispossession of the owner or to start adverse possession in favour of the occupant. Whether in particular circumstances the acts of possession would be adverse possession or possession is on behalf of the legal owner are matters of inference to be drawn from proved facts. In Khetrabasi Patra v. Guru Charan Patra, (supra) I have held: ...When however, the Defendant is admittedly in possession adverse to the Plaintiff's interest, Plaintiff is to prove that such possession was within 12 years of the institution of the suit.... In the present case, Plaintiff claims that the Defendants were in permissive possession. Defendants claim that possession of Mansingh from inception i.e. from 1943 is adverse. No explanation has been offered why Mansingh Ho paid rent in the year 1941 when admittedly he was not in possession or occupation. Payment of rent by Mansingh and custody of the rent receipts in this case would not lead to inference of adverse possession. 14. Defendants claim that possession of Mansingh from inception i.e. from 1943 is adverse. No explanation has been offered why Mansingh Ho paid rent in the year 1941 when admittedly he was not in possession or occupation. Payment of rent by Mansingh and custody of the rent receipts in this case would not lead to inference of adverse possession. 14. Application of Mansingh Ho in the year 1960 for mutation of the disputed land of Sriram Ho in his name is no doubt an act adverse to the interest of Sriram.. While Mansingh was continuing to possesses the disputed land which was not adverse suddenly he acted adversely by filing the application. Trial court for cogent reasons held that notice of the mutation proceeding as not served on the Plaintiff or his mother This plea has been taken in the plaint itself. The notice served on Plaintiff or his mother or even the order-sheet of the mutation proceeding if produced would have been the best evidence of such notice. The same has not been produced and no explanation has been offered why the same has not been produced. In the mutation proceeding Mansingh made out a cast of exchange for change of record. This case of exchange has not been adhered to in the suit where a case of abandonment has been made out. In Mayurbhanj District, abandonment and settlement on another was being regulated by regulations prevailing from the Darbar regime. Trial court rightly, relied upon the same to conclude that the case of abandonment has not been proved. Appellate court has not considered this aspect. The continuance of Mansingh in possession which was not adverse at the inception and surreptitious claim for change of record of the name to his own name on false grounds to be dircarded in the suit i leads to an inference that Mansingh was not claiming possession adverse to Sriram or his successors openly which could have been known by the Plaintiff even remaining 150 miles away in another village. 15. On perusal of evidence, I find that Defendant No. 2 as O. W. 1 in cross-examination has clearly stated: My father was the Marfatdar in respect of the suit lands for Sriram Ho. This admission of Defendant No. 2 without any explanation is the clinching circumstance in the present case to come to the conclusion that possession of Mansingh Ho was never adverse. This admission of Defendant No. 2 without any explanation is the clinching circumstance in the present case to come to the conclusion that possession of Mansingh Ho was never adverse. This statement has not been brought to the notice either of the trial court or of the appellate court. 16. From the discussion as made above, I am satisfied that the judgment of the appellate court, cannot be upheld and on the facts and in the circumstances of the case payment of tent in Ext. 'A' series by Mansingh Ho in the name of Sriram Ho coupled with the admission of D. W. L would lead to the inference that Mansingh Ho was in permissive possession of the disputed lands. In the result the appeal is allowed with costs. Final Result : Allowed