JUDGMENT : G.B. Patnaik, J. - Plaintiffs are the Appellants against the reversing judgment and decree of the Additional District Judge, Puri. Plaintiffs filed the suit for eviction of the Defendants from the suit land and for recovery of possession. 2. It is alleged in the plaint that the suit land measures Ac.0.03 decimals appertaining to Current Settlement Khata No. 113 in mauza Nimapara and 011 the suit land a house stands. The holding originally belonged to one Banchha Behera who was recorded as the Chandanadar in the Record-of-Rights of the year 1928. On the death of Banchha, his two sons Lokanath and Sana became the owners of the property. Lokanath executed a sale deed for self and on behalf of his minor brother dated 9-6-1944 (Ext. 4) in favour of one Gobinda. Muduli and delivered possession to him. Said Gobinda Muduli executed two sale deeds (Exts. 2 and 3) on 1-8-1948 in favour of Plaintiffs 2 and 3 and late Mana Muduli and also delivered possession in their favour. The vendees under the aforesaid two sale deeds continued to be in possession of the suit land and Mana Muduli died issueless leaving Plaintiff No. 1 as the sole heir. Thus Plaintiffs 1, 2 and 3 are in possession of the suit land as Chandanadars having right of occupancy therein. Defendant No. 1 who is a co-villager came to the Plaintiffs and wanted their permission to occupy the house standing on the suit land on 1-6-1967 and the Plaintiffs so permitted him, but later on he claimed title over the land on the basis of a fake purchase and put forth the claim before the Settlement authorities while settlement proceeding was going on. The Plaintiffs objected to the same and therefore, the Settlement authorities recorded the names of the Plaintiffs with a note of forcible possession of Defendant No. 1. The Plaintiffs wanted to file a suit for ejectment against said Defendant No. 1 when he approached them and promised to leave the suit house after he would complete his own building at a place called Sauria near Jatni. After Defendant No. 1 constructed such a house when the Plaintiffs asked him to vacate, he still did not vacate the suit house and, therefore, the Plaintiffs were compelled to file the suit. 3. After Defendant No. 1 constructed such a house when the Plaintiffs asked him to vacate, he still did not vacate the suit house and, therefore, the Plaintiffs were compelled to file the suit. 3. Defendants in their written statement have taken the stand that the suit land was taken by them from the original owner Banchha Behera and they have been staying there by constructing a house with their own money and they are in possession of the same for thirty years without any interruption and openly to the knowledge of all concerned. It is also alleged that the Chandana right is not transferable and heritable. They have denied the allegations that Defendant No. 1 or his ancestor over came into possession with permission of the Plaintiffs and a further plea has been taken that the suit is hit by Section 67 of the Orissa Land Reforms Act. 4. On the pleadings of the parties the trial court framed 7 issues of which Issues Nos. 3, 5 and 6 are important ones. On consideration of the evidence on record, the trial court held that in view of the usage in the locality, Chandana right was heritable and transferable and Gobinda Muduli acquired title and possession on the basis of sale deed (Ext. 4) and passed on the same in favour of the Plaintiffs under Exts.-2 and 3. Therefore, the Plaintiffs had established their title over the suit land. The trial court further found that Defendant No. 1 was permitted by the Plaintiffs to occupy the suit house on condition that he would vacate it whenever required by the Plaintiffs and he so occupied in the year 1967. It was also held that Defendant No. 1 failed to prove his case that his ancestors took permission from original owner Banchha to occupy the suit holding and the Plaintiffs were in possession of the suit house from 3-8-1948 till 1-6-1967. On the question of adverse possession of the Defendants, the trial court negatived the same and held that the Defendants were trespassers in respect of the suit land and the house in question and, therefore, were liable to be ejected. On the question of adverse possession of the Defendants, the trial court negatived the same and held that the Defendants were trespassers in respect of the suit land and the house in question and, therefore, were liable to be ejected. So far as the applicability of Section 67 of the Orissa Land Reforms Act is concerned, the trial court came to the conclusion that the said Act was not at all applicable since the suit land and the house standing on it stood on an urban property under Nimapara Notified Area Council. On these findings, the suit was decreed and the Defendants were directed to deliver vacant possession of the suit property to the Plaintiffs within a month from the date of the judgment. 5. On appeal, the lower appellate court confirmed the finding of the trial court that the Chandana holding in the locality was transferable and heritable. It also affirmed the finding that the Plaintiffs vendor had title by virtue of the sale deed (Ext. 4) and consequently the Plaintiffs derived good title under Exts. 2 and 3. But on the question of adverse possession disagreeing with the trial Court, the lower appellate court came to hold that the Defendants had been able to establish their case of perfection of title by adverse possession and accordingly allowed the appeal and dismissed the Plaintiffs' suit. It is this judgment and decree of the lower appellate court that are being assailed in this second appeal. 6. The learned Counsel for the Plaintiffs Appellants contends that the lower appellate court committed serious error of law in coming to its finding with regard to adverse possession and also committed several errors of record and further did not consider the admission of the Defendants in several documents and therefore, the entire judgment is vitiated. I find sufficient force in the aforesaid contention. The lower appellate court started discussing the question of adverse possession with an erroneous view of law by holding that possession was prima facie adverse and was evidence of title. This is not the law with regard to the adverse possession. A person who claims to have perfected his title by adverse possession must establish that not only he was in possession of the property, but also such possession was open, uninterrupted and with a hostile animus to the knowledge of the true owner. This is not the law with regard to the adverse possession. A person who claims to have perfected his title by adverse possession must establish that not only he was in possession of the property, but also such possession was open, uninterrupted and with a hostile animus to the knowledge of the true owner. Therefore, the basic approach of the lower appellate court was wholly erroneous and such erroneous approach has vitiated the ultimate conclusion. While considering the plea of adverse possession of the Defendants, the lower appellate court relied upon two documents, namely Exts. C/3 and C/4 is dated 17-2-1955 and it purports to have been a receipt showing payment of rent to the original Chandana holder Banchha Behera. The said document does not indicate that it relates to the suit land. There is no signature of Banchha Behera on the said document. Further the estate itself having vested in the year 1953 and there was no Badapanda Zamindar Sri Dwarikanath Guru on that date, it is not understood how the rent was being collected from the Defendant. There is no indication in the said Ext. C/4 to the effect that the payment of rent had been made to Banchha Behera. Further, the evidence on record discloses that Banchha Behera died prior to 9-6-1944 and it was also averred-in paragraph-2 of the plaint. If that be so, it does not sound to any reason how on 17-2-1955, Defendant No. 1 could be said to have paid rent to Banchha Behera. The lower appellate court, therefore, committed serious error in relying upon Ext. C/4 for its finding that Defendant No. 1 was in possession of the land on the date Ext. C/4 was given. The lower appellate court next relied upon Ext. C/3 which is of the year 1958. That document purports to be a rent receipt in favour of Haramani Devi. In that receipt Banchha Behera has been named as the tenant. The document has been stamped "without prejudice". I fail to understand how that document proves the possession of Defendant No. 1 in the year 1958. Haramani never claimed title or possession in respect of the suit land. Therefore, the aforesaid document (Ext. C/3) which was considered by the lower appellate court in arriving at its conclusion that the Defendants have perfected their title by adverse possession does not, in fact, establish the same. Haramani never claimed title or possession in respect of the suit land. Therefore, the aforesaid document (Ext. C/3) which was considered by the lower appellate court in arriving at its conclusion that the Defendants have perfected their title by adverse possession does not, in fact, establish the same. The lower appellate court also took into consideration the fact that the Grama. Panchayat tax has been paid by Defendant No. 1 in 1966, 1969, 1976-and rent has been paid to Government in 1972 and 1976. In view of the Plaintiffs case that Defendants were permitted to remain in possession of the house since 1967, payment of Grama Panchayat tax in the year 1969 or 1976 will obviously not be a proof of exercise of any hostile animus. So far as payment of rent to the Government is concerned, the rent receipt (Ext. C/1) relied upon by the lower appellate court is dated 11-11-1976 and is subsequent to the filing of the suit and, therefore, could not have been considered to be an evidence of exercise of hostile animus by the Defendants. Therefore, apart from the fact that the lower appellate court approached the problem from an erronecus view, it also relied upon the documents, discussed earlier, which do not establish the case of possession of Defendants in exercise of hostile animus and consequently, the ultimate conclusion that Defendants perfected title by adverse possession cannot be sustained being vitiated by gross error of law. It is also to be noted that the lower appellate court did not consider the effect of the admission of Defendant No. 1 in Ext. G which is an application dated 24-8-1976 which had been filed by Defendant No. 1 in the Court of the Revenue Officer, Nimapara, for being declared as a raiyat under the Plaintiffs. In Column 4 of the said form, Defendant No. 1 clearly mentioned Plaintiffs as the landlords and they permitted Defendant No. 1 to be in possession of the house in question. This admission of Defendant No. 1 in Ext. G has not at all been considered by the lower appellate court though the same was fully disclosed in the judgment of the trial court. Such non consideration also vitiates the conclusion of the lower appellate court. This admission of Defendant No. 1 in Ext. G has not at all been considered by the lower appellate court though the same was fully disclosed in the judgment of the trial court. Such non consideration also vitiates the conclusion of the lower appellate court. It also further transpires that Defendant No. 1 who was examined as D. W. 1 himself stated in his evidence that his father stayed in the suit house by taking permission from Banchha Behera, the original recorded tenant. If the original entry to the house was by permission, then Defendant No. 1 must establish the date from which such permissive possession became adverse if at all at any point of time the character of possession was changed. There has been no discussion much less any finding on the aforesaid score. In this view of the matter, the conclusion of the lower appellate court that Defendants have perfected their title by adverse possession cannot be sustained and the same must be set aside. The question as to whether Defendants have perfected their title by adverse possession or not is a mixed question of fact and law, inference on law being derived from findings of fact. The lower appellate court not only has committed gross error in approaching this problem, but also committed gross error of record and relied upon the documentary evidence which do not prove the hostile possession of the Defendants and, therefore, such a conclusion must be interfered with. I would, therefore, disagreeing with the lower appellate court hold that the Defendants have failed to establish their title by adverse possession. Normally I would have remitted the matter to the lower appellate court for re-consideration on the question of adverse possession had the learned Counsel for the Defendants-Respondents placed some materials in support of the plea of adverse possession, but Mr. Das, the learned Counsel for the Respondents, apart from placing reliance on the self same documents which have been erroneously relied upon by the lower appellate court was not able to place any other materials on record. In that view of the matter, the question of remitting the matter to the lower appellate court does not arise. Das, the learned Counsel for the Respondents, apart from placing reliance on the self same documents which have been erroneously relied upon by the lower appellate court was not able to place any other materials on record. In that view of the matter, the question of remitting the matter to the lower appellate court does not arise. Since both the courts below have concurrently held title in favour of the Plaintiffs and in view of my conclusion that the Defendants have failed to establish their title by adverse possession, the Plaintiffs' suit must be decreed. Accordingly, the judgment and decree of the lower appellate court are set aside and those of the trial court are affirmed. The Second Appeal is allowed, but in the circumstances, without any order as to costs. Appeal allowed. Final Result : Allowed