CHHANGANI, J. - (1.) THIS is plaintiffs' second appeal and is directed against the appellate judgment and decree of the District Judge, Aimer dated 22 1 1963 accepting the defendant respondents' appeal and dismissing the plaintiffs' suit"
(2.) THE relevant facts are these - On 21. 4. 1952, 160 bags of Laddu Jagree (Gur) weighing 404 mds, and 85 bags of 'khandsari' sugar weighing 216 mds. 30 srs, were tendered by firm Brahmanand Sadhuram of Sambal Hatim Sarai for conveyance to Nasirabad. THE goods were accepted by the staff of the Railway under Invoice No. l/wr/733681. In the Railway Receipt the consignor mentioned the consignee as self. THE Railway Receipt with a hundi for Rs. 7,000 was sent by the consignor to the United Commercial Bank, Ajmer. THE plaintiffs' firm Ghisalal Jatenlal who carry on business as Commission Agent paid Rs. 7,000 to the Bank and obtained an endorsement of the Railway Receipt in their favour. Subsequently, the plaintiffs obtained delivery of the goods but there was shortage of goods. THE plaintiffs, therefore, filed a suit against the Union of India through the General Manager W. R. Bombay and the General Manager, N. R. Delhi, for damages. The suit was resisted by the defendants on various grounds. One of the defences was that the plaintiff was not the consignee and could not file the suit. The trial court, after recording evidence, decreed the plaintiffs' suit. The defendants filed an appeal before the District Judge, Ajmer. The District Judge, Ajmer agreed with the trial court on some of the issues. Dealing with the controversy relating to the competence of the plaintiffs to file the suit, the first appellate court found that the plaintiffs were mere commission agents and that they did not acquire ownership in the goods, that the consignor continued to remain owner of the goods and consequently, it held that the plaintiffs were not competent to file the suit. On this finding, the District Judge accepted the defendants' appeal, reversed the decree of the trial court and dismissed the plaintiffs' suit. The plaintiffs have filed the present second appeal. I have heard the learned counsel for the parties. The plaintiff Jatanlal's statement is quite clear and unambiguous. He stated that the plaintiffs did not purchase the goods at all and the same had come to be sold in their 'adat' and that a statement of account was sent to Brahmanand Sadhuram consignor. From this statement of one of the plaintiffs and the record of the case it is clear that the plaintiffs were neither the consignor nor the consignee nor did they acquire any ownership or title in the goods. They were merely endorsees of the Railway Receipt. The question of law that arises for determination is : whether the plaintiffs can maintain a suit for the recovery of damages. In The Union of India vs. The West Punjab Factories, Ltd. (l) the Supreme Court summed up the legal position as follows - "ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration. Where the property in the goods carried has passed from the consignor to some one else, that other person may be able to sue. . . . . . . . . . . . . . . It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignee are different that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods. The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. " The true test for determining the competence of the plaintiffs to file a suit for damages is whether the plaintiffs have succeeded in establishing that they have acquired ownership of the goods which were tendered to the railway for despatch and suffered damages on account of the loss and shortage of goods in transit. On applying this test I have no doubt that the present plaintiffs neither being the consignors nor the consignees nor the owners of the goods but being merely the endorsees of the railway receipt cannot maintain a suit for damages against the railway. Mr. Lodha, however, contended that as the plaintiffs paid Rs. 7000 to the Bank and obtained endorsement of the Railway Receipt in their favour and, therefore, the plaintiffs have acquired some interest in the goods and should be held competent to file the suit. I am unable to accept this argument. The goods were taken by the plaintiffs as commission agents on behalf of the firm Brahmanand Sadhuram. The payment made by the firm to the Bank cannot but be treated as an advance against goods to the firm Brahmanand Sadhuram. A commission agent making some advances to the owner of the goods cannot become owner of the goods and cannot file a suit against the railway. It was also contended that the defendants did not take up a specific plea that ownership did not pass to the plaintiffs. This argument also cannot be accepted. It was for the plaintiffs, in the first instance, to have specifically averred that the title and ownership of the goods had been transferred to the plaintiffs and that the plaintiffs were, therefore, in a position to file the suit. Be that as it may, it is now clear on the record that the plaintiffs were mere commission agents and were not owners of the goods and, therefore, they were not competent to file the suit. The appeal was rightly accepted by the District Judge and the suit was properly dismissed. No case for interference has been made out. The appeal fails and is hereby dismissed. Considering the circumstances of the case, the parties are left to bear their own costs. The prayer for leave to appeal under sec. 18 of the Rajasthan High Court Ordinance is refused. .;