JUDGMENT :

Goutam Bhaduri, J

1. Heard.

2. The present appeal is directed against judgment and decree dated 06.7.2017 passed by the Additional District Judge, Bilaspur in Civil Suit No.197A/2015 whereby civil suit filed by the plaintiffs for declaration was dismissed. Hence, this appeal.

3. Plaintiff No.1 Radha Bai, who claims the share through her mother India Bai @ Indira Bai in respect of the property bearing Khasra No.176/1 and 177/1 total land admeasuring 0.20 decimal that she is co-sharer of the land. The property was sold by one Jeet Ram Kosariya, defendant No.1 in favour of defendants 2 & 3 by sale deed dated 19.11.2007 (Ex-P/1). Total area admeasuring 5810 sq.ft. of Khasra No.176/1 & 177/1 situated at Mouja Talapara Bilaspur Patwari Halka No.22 was sold. Family tree is shown as under:

4. Radha Bai and Kamal Prashad filed a suit that said sale deed dated 19.11.2007 be declared as void. Facts would further show that the property initially belonged to Jamadar Satnami who had two wives. From one wife he had three sons, namely Bhangu, Sonsai and Ramsai. Sonsai had five children namely (i) Sukharu, (ii) Jashoda, (iii) Sahodara, (iv) Haiya Bai and (v) Bhukhan. Sukhru had three children namely (i) Jeetram (defendant No.1), (ii) Champa Bai and (iii) Jeetbai. The other wife of Jamadar is Suva Bai and she had three children namely (i) Neera, (ii) Chironja and (iii) Indiya @ Indira. Indiya @ Indira had one daughter namely Radha Bai, who is plaintiff No.1. herein. Kamal Prashad, H/o. Radha Bai though arrayed as plaintiff No.2, but no proprietary titled was vested on him.

5. The plaintiff No.1 Radha Bai contended that Jeetram, son of Sukhru, illegally sold the property to defendants 2 & 3 namely Pawan Kumar Khedia and Smt. Anita Khedia, therefore, she being the co-sharer, the sale deed be declared as void. The plaintiffs further pleaded that on earlier occasion defendant No.1 Jeetram claimed the entire property on the basis of Will dated 13.10.1995 to say that Ramsai, Bhangu and Jamadar have bequeathed the entire property to him, but the said Will was subject of the dispute in the civil suit wherein eventually on an appeal, the Court of District Judge vide order dated 19.6.2006 held the Will to be non-proved. The said finding of the appeal was the subject of challenge in the second appeal and the second appeal was compromised and thereafter the impugned sale was executed.

6. Per contra, defendant No.1 Jeeram did not file his written statement whereas purchaser/defendants 2 & 3 filed their statement. They raised preliminary pleading that though the sale was executed by Jeetram but other co-sharer including Indiya Bai, mother of Radha Bai, from whom Radha Bai was claiming her share, had accepted an amount of Rs.1.5 lakh and executed a deed of consent to support the sale. It was further stated that the plaintiff Radha Bai was bound by the conduct of the mother, consequently, she cannot maintain the suit for declaration. Further pleading was made that the sale deed having been executed for valuable consideration in favour of the defendants and the plaintiff being not in possession, the suit merely for declaration would not lie and pray for dismissal of the civil Suit.

7. The learned court on the basis of pleading framed five issues and held that Khasra No.176/1 & 177/1, which were the subject suit property, the plaintiff has failed to prove her ownership on that. The Court further held that the defence raised that the mother of the plaintiff, Indiya Bai has relinquished the share by accepting Rs.1.5 lakh was not proved and finding was in favour of sale deed and the suit was dismissed. Hence, this appeal by the plaintiff.

8. Learned counsel for the appellant would submit that certain documents were exhibited on earlier litigation without any pleading, therefore, those evidence could not have been looked into by the court for want of pleading. He would further submit that even the finding on Order 2 Rule 2 of CPC that on earlier occasion, the plai