Possession rather than title was determinative in resolving the dispute concerning property ownership.

1. The suit for prohibitory injunction against trespass, though dismissed by the trial court was decreed in appeal. Hence this second appeal by the defendants.

2. Plaint schedule property is described as having an extent of 1.8211 hectares (4.50 acres). The plaintiff claims to be in possession and enjoyment of the plaint schedule property since the year 1965. He claims to have obtained title over the property as per Ext.A1 'patta' issued by the Land Tribunal pursuant to Ext.A2 order in SM proceedings. The defendants' property is on the southern and western sides of the plaintiff's property. The suit is filed alleging attempt on the part of the defendants to trespass into the plaint schedule property.

3. The defendants disputed the claim of the plaintiff. It was contended that Ext.Al purchase certificate is bad in law since, the plaintiff does not claim to have come into possession as a lessee and further, the claim for possession is after 01.04.1964. The defendants claimed possession of an extent of 4.21 acres of property on the strength of Ext.B1 Settlement Deed of the year 2007 and Ext.B9 agreement. It was also contended that, the 4.21 acres in the possession of the defendants is situated enclosed with a fencing. It was contended that the attempt of the plaintiff is to grab a portion of the defendants' property.

4. After filing of the written statement, the suit was amended by the plaintiff incorporating challenge against Ext.B1 Settlement Deed.

5. The trial court held that, the plaintiff not being a party to Ext.B1 document, the challenge against the same is unwarranted. On the issue of possession, it was found that, the plaintiff could not establish his exclusive possession over the property.

6. Ext.C3 is the Commissioner's Report and Ext.C3(a) is the survey plan produced therewith. The commissioner identified the plaint schedule property, though described as 4.50 acres, to be having an extent of only 4.15 acres. The court noticed that the real dispute is with regard to 81 cents out of the 4.15 acres and that the remaining extent is admittedly with the possession of the plaintiff.

7. The first appellate court found that the materials on record proves that the plaintiff is in possession of the disputed property and accordingly granted a decree in favour of the plaintiff.

8. Heard learned counsel Sri.P.B.Krishnan on behalf of the appellants - defendants and learned Senior Counsel Sri.S.Sreekumar on behalf of the respondent - plaintiff on the following substantial questions of law : -
(i) Was the first appellate court right in having relied on Ext.Al purchase certificate after having held that the suit being one for injunction simplicitor, the challenge against Ext.A1 purchase certificate on the grounds as urged is not liable to be considered ?
(ii) On the materials on record, was the first appellate court justified in having found possession of the plaint schedule property with the plaintiff?

9. Referring to paragraph 3 of the plaint, the learned counsel Sri.P.B.Krishnan would argue that, the plea is that the plaintiff came into possession of the property in the year 1965 that is, after the coming into force of the Kerala Land Reforms Act . The plaintiff does not have a case that he was a cultivating tenant of the property or that he came into possession as a lessee. Therefore, Ext.A1 is bad in law. Though the first appellate court observed that the suit being one for injunction simplicitor the question of title need not be considered, still the Court went on to rely on Ext.Al to find possession with plaintiff. Therefore, the appellate decree is liable to be