JUDGMENT :

R. Subramanian, J.

1. The defendants in O.S. No. 186 of 2002 are the appellants. The said suit was filed by the respondents seeking declaration of title and consequential injunction.

2. According to the plaintiffs, the suit properties belonged to the plaintiffs' family and they have been in possession of the same for more than 20 years prior to the partition and about 20 years ago, they divided the suit property amongst themselves and are residing therein by constructing houses. Recognizing their possession, the Government also issued patta in the year 1995 in favour of the plaintiffs. While things stood thus, the 1st defendant had filed a suit in O.S. No. 322 of 1988 against the father of the plaintiffs, Palani, seeking declaration of his title and permanent injunction. The Commissioner appointed in the said suit noted the physical features of the property and found that the plaintiffs in the present suit are in possession of the property.

3. Subsequently, the 1st appellant herein who was the plaintiff in O.S. No. 322 of 1988 withdrew the suit with liberty to file a fresh suit on the same cause of action. It is the further case of the plaintiffs that the defendants does not have any right over the suit property. The Patta issued in favour of the defendants in the year 1961 does not relate to the suit property. It is their further claim that the land that was assigned to the 1st defendant in the year 1961 by the Government was acquired in 1975 and road was formed therein and in lieu of the said land, the defendants were granted Patta in Survey No. 417/36 and the defendants have constructed a house in the land assigned to them and are residing there. The defendants again filed another suit in O.S. No. 289 of 1996 pursuant to the leave granted in O.S. No. 322 of 1988 against the father of the plaintiff and the said suit came to be decreed ex-parte. The defendants are now attempting to interfere with the possession of the plaintiffs in execution of the decree obtained by them in O.S. No. 289 of 2006. Therefore, the plaintiffs had filed the present suit in O.S. No. 186 of 2002 seeking declaration of their title and consequential injunction restraining the defendants from interfering with their possession of the property.

4. The suit was resisted by the defendants contending that the plaintiffs are not the owners of the suit property. The suit property is the separate property of the 1st defendant having been assigned by the Government as early as in the year 1961. The plaintiffs' father encroached upon the house put up by the defendants and hence the defendants were forced to file the suit against the father of the plaintiffs which ended in a decree. The plaintiffs in the present suit were aware of the proceedings in the earlier suit.

5. It was also claimed that the remedy of the plaintiffs who want to prevent the execution of the decree is to claim a right before executing under Order XXI Rules 97 to 99 of the Code of Civil Procedure and they cannot not maintain a separate suit. It was also claimed that Natham Survey Patta granted in the year 1995 will not confer any right on the plaintiff. The trial Court upon consideration of the evidence on record concluded that the plaintiffs have established their claim of title over the suit property. The trial Court chose to rely upon the Natham Patta granted in the year 1995 marked as Exs. A1 and A2 in preference to claim of the defendants that the suit property was assigned to even in the year 1961. Though the decree in O.S. No. 289 of 1996 was filed as Ex. B1 and the petition under Order XXI Rule 97 to 99 of C.P.C., filed by the present plaintiffs in E.P. No. 43 of 2001 filed as Ex. B2, the trial Court did not consider the effect of these documents. Based on the evidence adduced by the plaintiffs, the trial Court found that the plaintiffs are the owners of the property and decreed the suit as prayed for.

6. Aggrieved, the defendants preferred an appeal in A.S. No. 13 of 2015. The lo