Somayya, J - (1.)The plaintiff whose suit for the recovery of certain empty Standard Oil Company four-gallon drums or their value has been dismissed by the lower appellate Court is the appellant in this second appeal. The defendant, while admitting that he received these drums, pleaded that he had returned the drums. Both the lower Courts disbelieved this plea and held that the defendant had not returned any of the drums. The suit has been dismissed by the lower appellate Court on the ground that it is barred by limitation under Art. 49 of the Limitation Act. That Art. runs thus: In this case the plaint alleged that specific movable property was to be returned and that that was the understanding. The prayer is for the return of these drums. Then it was alleged that the defendant was wrongfully detaining them. Therefore, on the allegations in the plaint limitation would start when the defendant's possession became unlawful. The lower appellate Court held that possession became unlawful when demand was made by the plaintiff six months after the drums were given in 1928. The demand was made in the early part of 1929 and the drums were not given. That the defendant's possession became unlawful in 1929 is the view of the lower appellate Court In this Court in addition to supporting this view of the . lower Court, Mr. V.T. Rangaswami Aiyangar, the learned advocate for the respondent, has put forward another point, namely that the suit was not for the recovery of specific movable property or for compensation for wrongfully detaining the same. He says that it could not have been in the contemplation of the parties that the very same drums should be returned and that the suit is really for the recovery of similar drums or for their value. If this contention is accepted, Art. 49 would not apply. The plaintiff made a distinct allegation in the plaint that the contract was that the defendant who took by way of loan 203 empty Standard Oil Company four-gallon drums did so on the under-standing and undertaking that they would be returned to the plaintiff after use by the defendant. This allegation makes it clear that the very same drams were to be returned. In the written statement as the defendant took up the stand that he had returned all the drums, he contented himself with saying that the allegations in paragraph 3 of the plaint are incorreet. There is no plea that, even if they were not returned, the contract was that identical drums were not to be returned but only drums of similar quality.
(2.)The plaintiff examined himself and deposed that, after the defendant became the agent he wanted some empty drums for his use, that he gave the drums and that the arrangement was that the defendant should return the drums to him whenever they were required. It is clear that the plaintiff's evidence is that the very drums should be returned. There was no cross-examination on this point. Advantage is taken of a statement in the evidence of the plaintiff's clerk that the defendant was to return drums of similar nature. It appears to me that what the witness meant is that if he had done it, probably there would have been no trouble in plaintiff accepting them. Anyway having. regard to the fact that the plaintiff's statement was not challenged in cross-examination, I am not prepared to accept the statement of the clerk in cross-examination. On the pleadings and on the evidence of the plaintiff I hold that the suit is for the recovery of specific movable property.
(3.)I may also mention that this aspect was not suggested in the lower Courts and both the lower Courts proceeded on the footing that specific articles were to be returned and that, when on demand the defendant did not return them forthwith, his possession became unlawful. So, we have to see whether the view of the lower appellate Court that when there was a demand and non-compliance, the defendant's possession became unlawful is correct.