Vashistha Bhargav, Actg. C.J. - (1.) THIS second appeal has been referred to a Division Bench by a learned Single Judge as in his opinion the question whether on the facts found by the first appellate court Art. 31 or Art. 48 of the Limitation Act would apply to the suit out of which this second appeal arose needs consideration by a Division Bench because it may be necessary to reconsider a decision of a learned Single Judge of this Court in Firm boot House v. Secretary of State : AIR 1935 All. 156. However after hearing the learned counsel, we have found that in the present case it does not appear to be necessary to go into the question of the correctness of that decision. The referring order of the learned single Judge and the appellate order passed by the Civil Judge in his capacity as the first appellate court show that the only finding of fact available for deciding whether Art. 31 or Art. 48 of the Limitation Act applies, which has been arrived at by the Civil Judge is that certain betel -nuts were entrusted to the appellate railway as a carrier and during transit a part of the betelnuts consigned were converted to their own use by the servants of the appellant railway. Under Art. 48 of the Limitation Act, provision is made for two kinds of suits: first, there may be suits for specific moveable property lost or acquired by theft or dishonest misappropriation or conversion, and secondly, there may be suits for compensation for wrongfully taking or detaining specific movable property. In the present case the relief as claimed in the plaint did not make it a suit for specific moveable property at all. The suit was straightaway for the price of the goods and the damages suffered on account of non delivery of the goods. There was no suit for specific moveable property which in this case would have been the betel -nuts. The first part of Art. 48 cannot, therefore, apply to the suit due to the nature of the relief sought by the respondent.
(2.) SO far as the second part of Art. 48 is concerned, that part will not apply to the suit because it was not a suit for compensation for wrongfully taking or detaining specific moveable property. The allegations in the plaint were that goods had been given in to the custody of the railway company, who is the appellant, in the capacity of a carrier so that when the railway came into possession of the goods it came into possession rightfully. Subsequently, the goods were converted to their own use by the servants of the appellant company. At that stage, it cannot be said that the railway company which was the party sued, had wrongfully taken that specific moveable property belonging to the plaintiff from him. In fact, the allegations in the plaint made it clear that no question of wrongfully taking of the property by the defendant could arise as the goods were already in the possession of the railway and the claim could on the facts be only for the goods which though rightfully taken by the railway, had been wrongfully converted by the railway servants to their own use. The suit for compensation in the present case, therefore, was not covered by either of the two parts of Art. 48. To be covered by the first part, it was necessary for the respondent to sue for the betel -nuts which were the specific moveable property converted by the railway to their own use and while the suit was not for the goods then selves this part of the article could not be applicable. In these circumstances the only article that could apply was Art. 31 and the suit was time barred. The appeal, therefore, is allowed and the suit of the plaintiff is dismissed with costs in all the courts.;