The trial court's dismissal of the suit was upheld, emphasizing that the plaintiffs had alternative remedies under the Code of Civil Procedure, making the suit not maintainable.

JUDGMENT :

1. The instant 1^st Appeal arises from the judgment and decree dated 07.06.2012, passed by the court of 1^st Additional District Judge, Jammu (hereinafter for short “the trail court”) in Civil Original Suit No. 11/40 titled as “Peer Rattan Nath and Another v. Wazir Onkar Nath”, whereby the suit filed by the plaintiffs/appellants herein has been dismissed on the ground of it being not maintainable.

2. In the suit supra, the plaintiffs/appellants herein had sought a decree of declaration, declaring that the decree dated 26.04.1979, passed by this Court in civil suit No. 01 of 1961 titled as “Smt. Parvati v. Wazir Beli Ramand others” as null and void to the extent it includes the land measuring 06 Kanals and 04 marlas, falling under Khasra No. 02, Khewat No. 102 and Khata No. 301, (hereinafter for short “the land in question”) owned and possessed by the plaintiffs/appellants herein, besides also having sought a declaration that the sale deed executed by Wazir Mansa Ram-father of defendants/respondents 1 & 2 herein through his attorney in favour of defendant/respondent 3 herein and registered by the Sub-Registrar (North) Jammu, on 02.06.2001, along with mutation No. 2762 dated 02.01.2003, be also declared null and void, inoperative to the extent it affects the rights of the plaintiffs/appellants herein over the land in question. A consequential decree and injunction had also been sought by the plaintiffs/appellants in the suit.

3. Facts emerging from the pleadings of the parties and the material on record are detailed out in brief as under:-

(I) A suit for partition of immoveable properties owned by one Wazir family was instituted by one Smt. Parvati Wd/O Wazir Mehar Singh on 26.08.1961, before this Court against “Wazir Beli Ram and others” which suit came to be registered as Civil Original Suit No. 01/1961. Smit Parvati in the suit claimed entitlement of 1/5^th share in the total property. A preliminary decree was passed in the said suit on 19.03.1964, and a Commission was issued for effecting partition by metes and bounds to the extent of plaintiff- Smt. Parvati’s share in the suit property, reflected in annexure-A thereto, detailed out in the preliminary decree.

(II) The Commissioners proceeded to the site, executed the mandate and submitted their report/plan on 14.03.1972, in which report they noted that a parcel of land measuring 06 Kanals 04 marlas, covered under Khasra No. 02, in estate Nowabad, though forming part of the joint property had not been included in the suit property, as such, made its recommendation for its inclusion in the partition proceedings.’

(III) Upon submission of the report by the Commissioners, the plaintiff-Smt. Parvati filed an application before this Court seeking passing of the final decree and after considering the submissions of counsel for the parties, this Court on 26.04.1974, passed a final decree, directing the separation of plaintiff’s 1/5^th share through partition of the property mentioned in annexure-A of the final decree and the plaintiff-Smt. Parvati was held entitled to 81 Kanals, 04 marlas of land as per partition plan which included the aforesaid 06 Kanals and 04 marlas of land covered under Khasra No. 02 in estate Nowabad.’

(IV) ‘An appeal/LPA was preferred against the said judgment and decree passed by this Court on 26.04.1974, which however, came to be dismissed on 02.05.1975’.

(V) Wazir Mansa Ram who had been substituted as plaintiff upon the demise of original plaintiff-Smt. Parvati vide order dated 20.11.1969, filed an application seeking execution of decree dated 26.04.1974, before this Court which came to be transferred to the court of District Judge, Jammu, followed by further transfer to the court of Additional District Judge, Jammu for disposal under law’. ‘The judgment debtors named therein, in the said decree dated 26.04.1974, were put on notice who after entering appearance filed objections thereto and the Executing court consequently after hearing both the sides and af