JUDGMENT Rule, returnable forthwith. Heard finally. The Appellant-original Plaintiff has challenged order passed by the learned Judge of the City Civil Court dated 2 May 2013 whereby, his Notice of Motion stands dismissed, filed in a Suit by the Plaintiff referring to the property having Survey No.49, 49/1 to 49/6, area admeasuring about 3838.46 sq. fts. Known as Fojdar Compound, situated at L.B.S. Marg, Opposite Kurla Bus Depot, Kurla (West) Mumbai-400 070, with a prayer to grant relief under Order-2 Rule-2 of the Code of Civil Procedure, 1908 (for short, CPC) to file substantive Suit in accordance with law. The Suit is basically filed for protecting the possession with a specific prayer against the Defendants and/or its servants from dispossessing from the Suit property, except the due process of law. The prayer is also made to appoint a Commissioner to visit the Suit property and to submit a report in respect thereof. Both the parties have contested the matter by filing their affidavit, reply, rejoinder and supporting documents. 2. The learned Judge, first of all not considered, as opposed by the Respondents, to appoint the Commissioner and to submit the report with regard to the possession of the property in question. After going through the reasons, as well as, the documents so filed by the parties, it is clear that the learned Judge has decided and adjudicated the issue of ownership instead of the issue of actual possession of the property. In a Suit like this, where the leave is sought to file a substantive Suit, but the main prayers are for injunction to protect the property, in my view, the relevant aspect is that the actual possession of the Suit property and not only the ownership. The person in possession of the property may not be the owner. The owner may not be in actual possession. The concept of “ownership” and the “possession” are two distinct and distinguishable on facts of the matter. 3. The learned Judge may take note of ownership issue but the situation like, where there are number of documents and at this prima facie stage, it is difficult to decide the actual possession, the rejection of Application of injunction or a prayer to protect the possession, in my view, is also undesirable approach to deal with the main Suit for possession of the property. The principle of grant of injunction and/or protection of possession revolved around the actual and physical possession of the property irrespective of ownership and/or title, even if any. The learned Judge however, referring to the documents, decided the issue against the Plaintiff/Appellant by deciding the aspect of ownership first and so also the issue of contradictory and inconsistent plea so raised revolving around only the Plaintiff. I am inclined to observe that those documents itself, as read and referred by the parties, are not sufficient to decide the aspect of actual possession of the property at least of the Defendants-Respondents. The disputed questions based upon these documents required a detail trial or at least a material to show and/or to decide actual physical possession of the property. 4. Though the learned Judge has referred the family settlement of the year 1998, but by raising various doubts about even its execution, overlooked the contents of the same. The consideration so paid even if in dispute, just cannot be overlooked in view of the last document of family settlement between the parties. The issue of possession, therefore, needs to be adjudicated first instead of deciding the ownership title and/or claim of adverse possession, as raised or made by the Appellant in rejoinder. 5. Assume for a moment that there are certain documents in favour of the Defendants as read and referred by filing one compilation in this Court also, as the same were not filed on record but reference was made in the rejoinder, that itself is in my view, not sufficient to decide the aspect of settled possession of the suit property. The ownership/title of the property itself cannot be mean and/or accepted as a foundation to decide the actual and physical possession of the property. In my view, both are two distinct and different aspects which the Court need to consider on the basis of material available on record. The decision of ownership at prima facie stage, that itself in my view, is incorrect approach to decide and/or deny the right to protect the long standing possession of the property, basically when there is no denial that the parties are in relation, and therefore, they entered into a mutual understanding as recorded above. 6. The decision of ownership at prima facie stage, that itself in my view, is incorrect approach to decide and/or deny the right to protect the long standing possession of the property, basically when there is no denial that the parties are in relation, and therefore, they entered into a mutual understanding as recorded above. 6. The position of possession of the property would have been resolved properly, had the learned Judge granted the Motion to appoint the Commissioner and to submit the report in respect thereof. As noted, no reason whatsoever given while rejecting the said Application to appoint the Commissioner. I am inclined to observe in a situation like this, where there are number of rival contentions and the issue about actual possession are uncleared, the appointment of a Commissioner would resolve the basic aspect of actual possession of the property, without deciding the rights and/or title of the property. 7. There are no detailed reasons and/or findings given by the learned Judge with regard to the actual possession of the property in question, in either way. The Court, as recorded above, at no point of time granted any injunction in favour of the Appellant-Plaintiff till this date. The Appellant-Plaintiff's possession, therefore, though in doubtful in view of Defendants' case, the fact of taking possession of Defendants by following due process of law, if they are owners, in no way restricted by any Court and/or by any observations. The Appellant has filed the Suit for protection of the property. The Defendants have not taken any steps till this date to claim protection and/or ownership of the property. There is no contra material to show that they are in actual physical possession of the property based upon the ownership which they are talking about. In absence of clear finding of actual possession, I am inclined to interfere with the order so passed with a direction to the learned Judge to re-examine the issue after getting the report by appointing the Commissioner in accordance with law and lastly pass the appropriate order with regard to the possession of the property in question also. 8. Resultantly, the following order: ORDER a) The Appeal from Order is allowed. b) Impugned order dated 2 May 2013 is quashed and set aside. 8. Resultantly, the following order: ORDER a) The Appeal from Order is allowed. b) Impugned order dated 2 May 2013 is quashed and set aside. c) The learned Judge to pass appropriate order by appointing and directing the Commissioner to submit the report, as early as possible, within a specific period. The Trial Court to reconsider the matter after getting Commissioner's report. d) The Civil Application is also disposed of accordingly. e) Liberty is granted to apply for injunction/interim relief/protection, if there is a case of any such apprehension. f) There shall be no order as to costs.