P.N.MOOKERJEE, J. - (1.) THIS is the plaintiff's appeal arising out of a suit for recovery of a sum of Rs. 6073 -11 -9 pies on account of compensation for alleged non -delivery of six bales of cotton yarn out of eight bales, delivered to the Railway respondents, who were defendants in the Court below and who were represented there, as also in this Court, by the Union of India, for carriage to and delivery at the destination station. The suit arose, inter alia under the following circumstances and on the following allegations:
(2.) THAT a consignment of 8 bales of cotton has been booked and made over to the respondent No. 1, Railway, at Udumalpet for carriage to and delivery at Shalimar. The plaintiff claimed to be the endorsed consignee for valuable consideration, of the said consignment by, inter alia, as it turned out in evidence appropriate endorsement of the relative Railway Receipt. Of the 8 bales, however, only two were delivered on 18th April, 1951, to the plaintiff's man at Shalimar and the remaining six could not be delivered and a short certificate was issued by the Railway authorities at Shalimar in respect of the said six undelivered bales of cotton yarn. Thereafter, after service of notice, or, to be exact, a combined notice, under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, the present suit was brought by the plaintiff on 2nd May, 1952. The plaintiff also alleged, inter alia, in his plaint, that, in the circumstances of this case, the nondelivery of the six bales of cotton yarn must have been due to the negligence and misconduct of the Railway Administration. The suit was contested by the Union of India, representing the two defendant Railways, and its material defence was that the plaintiff had no title to the consignment in, question; that, in any event, such title had to be proved before the plaintiff could get a decree; that the notice under Sections 77 and 80 was defective and invalid in law, in particular, so far as Section 80 of the Code of Civil Procedure was concerned; and that there was neither negligence nor misconduct on the part of the Railway Administration but the non -delivery of the six bales of cotton yam was due to the loss thereof on account of theft in course of transmission.
(3.) ON the above pleadings, the suit came to trial on several issues which were considered by the Court below to be necessary for the purpose of deciding the disputes between the parties. For our present purpose, it is necessary to refer, in particular, to three only of the said issues, namely, issue No. 2, relating to the question of the plaintiff's title to the disputed consignment; issue No. 5 which was in these terms, namely, 'Is the suit barred by limitation' and issue No. 6, that is, 'Were the notices under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure duly served and are those valid in law'?;