IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.281 of 2009 ============================================= Laxmi Sah .... .... Appellant/s Versus Sitabi Mukhia & Ors .... .... Respondent/s 5 13-07-2011 Heard the learned counsel appearing on behalf of the appellant. The present Second Appeal has been filed against the judgment and decree dated 09.04.2009 passed by learned Additional District Judge, F.T.C. III, Madhepura, in Title Appeal No. 11 of 2003 affirming the judgment and decree dated 31.07.2003 passed by Additional Munsif III, Madhepura, in T.S. No. 88 of 1996 dismissing the suit of the plaintiff/appellant. The plaintiff has filed the suit for declaration of his title over lands of R.S. Plot No. 229 and 233 and has also sought the declaration regarding recent survey entry in respect of above said plots to be wrong and illegal. The plaintiff's case, in short, as made out in the plaint, is that the suit plots i.e. R.S. Plot Nos. 229 & 233 have been carved out of C.S. Plot No. 215 which belonged to the family of the plaintiff and had been recorded in the name of his grandfather. On this basis the plaintiff has asserted that the recording of the names of the defendants with regard to the suit plots i.e. R.S. Plot Nos. 229 & 233 during recent survey 2 proceeding is wrong. Contradicting the case of the plaintiff, the defendants in their written statement have asserted that the suit plots i.e. R.S. Plot No. 229 & R.S. Plot No. 233 have been carved out of C.S. Plot No. 208 and not from C.S. Plot No. 215 as claimed by the plaintiff and as such the plaintiff’s claim over the suit plots is baseless and he is not entitled to any relief. The learned Additional Munsif III, Madhepura, after hearing the parties had come to the conclusion that the plaintiff had not brought any material on record to establish the fact that Plot Nos. 229 and 233 have been carved out from his ancestral plot C.S. Plot No. 215. The learned Court has also recorded the finding that the plaintiff had not filed even a single rent receipt to show that Plot Nos. 229 & 233 had been mutated in his name. Accordingly, the Title Suit No. 88 of 1996 had been dismissed holding that the plaintiff had failed to establish that he had got right, title and possession over the two suit plots. Aggrieved by the said judgment and decree, the plaintiff filed Title Appeal No. 11 of 2003 which was ultimately heard by Additional District Judge, Fast Track Court, III, Madhepura. The Appellate Court after taking notice of the well-settled principle that plaintiff has to prove his case by adducing cogent and consistent evidence and he cannot get benefit of the laches of the defendant, has considered 3 the pleadings of the parties and their evidence and then come to the finding that the plaintiff/appellant has failed to prove that the suit plots R.S. Plot No. 229 and R.S. Plot No. 233 had been carved out from his ancestral C.S. Plot No. 215. The Appellate Court has also recorded the finding that the plaintiff has failed to produce any evidence to establish that the suit land has been mutated in his name or in the name of his father and he has been paying rent. The learned counsel appearing on behalf of the appellant has contended that in view of the provisions of Order 14 Rule 1 C.P.C., it was incumbent upon the trial Court to frame direct and specific issue in the suit as to whether R.S. Plot Nos. 229 & 233 have been carved out of C.S. Plot No. 215 as claimed by the plaintiff. According to the learned counsel for the appellant non- framing of specific issue as above said has resulted in failure of justice. The learned counsel has next contended that even if the plaintiff has failed to lead evidence in order to establish a fact which has substantially and materially been contradicted by the defendant, the learned Court below ought to have invoked the provisions of Order 16 Rule 14 and ought to have issued appropriate orders / directions requiring production of necessary evidence in that regard. After considering the submissions of the learned counsel 4 appearing on behalf of the appellant and going through the judgments of the Courts below it appears that the necessary substantial issues have been framed in the suit which are sufficient to cover the controversies between the parties. It is not at all necessary to frame small and fragmented issues to cover incidental controversies between the parties and if the issues, which have been framed, are appropriate and comprehensive enough to cover all material propositions of law and facts arising in the suit, the trial cannot be vitiated on that score. Moreover, from the evidence led by the plaintiff in the suit and his submission before the Court on the basis of those evidence, it appears that the plaintiff was fully conscious of that issue regarding carving out of the suit plots during recent survey proceeding from his ancestral plots and was alive to that point in controversy and had opportunity to lead evidence in support of his case. After having lost the case, the plaintiff cannot be allowed to complain that the omission to frame an issue has prejudiced him and resulted in an imperfect trial. Reliance in this regard may be placed on the decision reported in A.I.R. 1963 S.C. 884 wherein paragraph-6, the Apex Court has held as follows:- “……The evidence which has been laid in the case clearly showed that the respondent attempted to prove that this was a Dharmila inam and to refute that this was a Karnikam service 5 inam. No doubt, no issue was framed, and the one which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings.” This aspect becomes more emphasized when it is nowhere the case of the plaintiff that his prayer to recast and include such an issue was turned down by the trial court and also when as an appellant he had failed to raise the issue of prejudice caused to him in this regard, before the Appellate Court. As such, there is no force in the first submission made by learned counsel appearing on behalf of the appellant. It has been next submitted that the learned Court below ought to have invoked the provision of Order 16 Rule 14 of the Code of Civil Procedure for production of evidence. A bare reading of the Rules 14 of Order 16 will demonstrate that this provision has never been meant to fill up the gaps and lacunae in the evidence of a party. It is not the case of the plaintiff that no opportunity was given to him to lead evidence and establish his case. The provision of Rule 14 Order 16 C.P.C. cannot be interpreted in the manner as suggested by the learned counsel for the appellant so as to make it incumbent upon the Court to gather evidence for a party. The submission in this regard 6 is completely misconceived in the facts and circumstances of this case. In view of the discussions made above, there does not arise any substantial question of law for consideration in this appeal which is accordingly dismissed. Saif (V. Nath, J.)