Modi, J. - (1.) THIS is a first appeal by the plaintiff Jhabarmal against a judgment and decree of the learned District judge, Ganga-nagar, dated the 8th December, 1950, in a suit for compensation for non-delivery of certain goods.
(2.) THE plaintiff is the proprietor and karta of a joint Hindu family firm styled Sheokaran Das Shriniwas, and carried on business in Kustia in East Bengal (now in Pakistan) and also a Calcutta. THE case set forth in the plaint was that on 3.3.1947 the Bikaner Industrial Corporation Ltd., Ganga-nagar, entrusted 50 drums of Mustard oil weighing 273 maunds to the Bikaner Sate Railway at the Ganganagar railway station for carriage to Kustia, and obtained a Railway Receipt No. 478737 with self as the consignee thereof. One Jugal Kishore, an employee of the Bikaner Industrial Corporation, endorsed the Railway Receipt in favour of the plaintiff's firm, and it was, therefore, alleged that the plaintiff was entitled to receive delivery of the goods represented by the railway receipt. THE plaintiff's case was that he had failed to get delivery of the goods in question at the destination station and consequently he brought the present suit against the State Council, Bikaner, representing the Bikaner State, as it then was, who owned that Railway for recovery of compensation amounting to Rs, 25,505/- which comprised a sum of Rs. 23,205/- as cost of 273 maunds of mustard oil at the rate of Rs. 85/- per maund and a sum of Rs. 800/- as price of the 50 drums which contained the oil and a sum of Rs. 1500/- by way of interest at the rate of 6% per annum. THE plaintiff impleaded the Bikaner Industrial Corporation Ltd. as a pro forma defendant. It may be pointed out that the goods had to travel over three other railway systems viz., the North Western, the East Punjab and the East Bengal Railways in order to reach the destination, but the plaintiff did not implead them as defendants. THE plaintiff pleaded to have given a notice to the Manager, Bikaner State Railway under sec. 77 of the Railways Act as applicable to the Bikaner State and further to have given a notice to the State Council under sec. 72 of the Bikaner Civil Procedure Code (which Corresponds with sec. 80 of the Indian Code of Civil Procedure) THE defendant, State Council Bikaner, admitted the receipt of the consignment at the Ganganagar Railway Station but resisted the suit on a number of grounds. THE main points raised in defence were that the Bikaner State Railway had made over the goods covered by the railway receipt to the East Punjab Railway in a safe and sound condition at Bhatinda and was, therefore, absolved of all responsibility in respect therefore, and it denied having received any notice under sec. 77 of the Railways Act and further it refused to admit that the plaintiff was the endorsee of the railway receipt and had any right to bring the suit It was further contended that the North Western, the East Punjab and the East Bengal Railways were necessary parties to the suit and that the suit was barred by limitation. It is obvious, from what has been stated above, that neither of the parties pleaded that the goods had been lost and this factor is not without significance. The trial court found that the defendant had established that the Bikaner State Railway had safely made over the goods covered by the consignment in question at Bhatinda to the East Punjab Railway but that did not absolve it for responsibility. It was further found that the North Western, East Punjab and East Bengal Railways were not necessary parties according to sec. 80 of the Railways Act. The suit was held to be within time but it was found that a notice under sec. 77 of the Railways Act was nece-ssary even in cases of non delivery, and as the plaintiff had failed to prove having given such a notice, the suit was liable to be dismissed Lastly, the trial court found that the plaintiff had also failed to show that he was the assignee of the railway receipt and, therefore, he had no locus standi to bring the suit. In the result the trial court dismissed the plaintiff's suit by its judgment and decree dated the 8th December, 1950, as already stated above, from which the present appeal has been filed. In the view which the learned District Judge took, he did not go into the question of the amount of damages suffered by the plaintiff. Before proceeding further, we may point out that the plaintiff filed this appeal on 17.3.51 in which he had still impleaded the Manager. Bikaner State Railway, as the contesting respondent. An objection was raised on 16th October, 1951, on behalf of the Manager, Bikaner State Railway, that the appeal could not proceed against him, as the proper person against whom the appeal should have been filed was the Union of India which now owned the Bikaner Railway. The plaintiff accordingly filed an application on the 22nd October, 1951, in which he prayed that the Union of India be allowed to be impleaded as respondent in place of the Manager of the Bikaner State Railway and further prayed that the benefit of sec. 5 of the Limitation Act be given to the appellant for the purpose. By its order dated the 11th May, 1953, a Bench of this Court allowed the plaintiff to bring the Union of India as respondent in place of the Manager. Bikaner State Railway. The principal reason which persuaded the Bench to come to the conclusion to which it did was that the Manager, Bikaner State Railway was substituted as defendant for the State Council, Bikaner against whom the suit had been originally instituted, apparently by mistake of the court without any application in that behalf having been made by the plaintiff and that, to all intents and purpose, the suit had been contested right up to its end by and on behalf of the State Council with the result that when the new State of Rajasthan was formed in April, 1949, the court did not consider it necessary that any amendment of the plaint was required as the interest of the former State of Bikaner had developed on the new State of Rajasthan. The same parties continued even though the railways had been taken over by the Union of India some time in 1950, and in the judgment and decree of the trial court dated 8th December, 1950, the Manager, Bikaner State Railway, was still shown as the respondent. As the interests of the former State of Bikaner developed firstly on the Rajasthan State and thereafter on the Union of India, so far as the subject-matter of the present suit was concerned, the Bench accepted the prayer of the plaintiff to implead the Union of India as respondent in place of the State Council, Bikaner. As regards the question of sec. 5 of! the Limitation Act, the Bench was of opinion that that question be left for decision at the hearing of the appeal. Learned counsel for the Union of India raised a preliminary objection that the suit as well as the appeal, so far as the Union of India was concerned, was barred by time. His contention was that the Union of India had been brought into the litigation for the first time on the 11th May, 1953, and that the suit bad been filed on the 4th May, 1948. The period of limitation under Art. 31 of the Limitation Act, which admittedly applied to this case, was one year from the date when the goods ought to have been delivered, that is, one year from some reasonable time after the 3rd March, 1947, when the goods had been despatched from the Ganganagar railway station. Learned counsel relied on Jagdishwar Prasad vs. Harsaran Rai (l)and Haveli Shah vs. Shaikh Painda(2), in support of his argument. We are of opinion, however, that the present case is distinguishable on facts from the cases cited before us. As has already been stated above, a Bench of this court has held that the suit in the present case continued as it were against the Bikaner State Council (who was originally impleaded as a defendant) right till the end of the suit. It is not a little difficult to understand and to justify how the name of the Bikaner State Council came to be struck off and that of the Manager, Bikaner State Railway, substituted in its place. It has, however, been held that the Bikaner State Council continued to remain a party to, and defend, the suit even after the so-called substitution in the array of the defendants came to be made and, therefore, the point raised by learned counsel for the Union of India, in our judgment, loses much of its force. It appears to us that somehow this mistake had occurred and that while the Bikaner State Council was virtually defending the suit and never ceased to be a party thereto, its interest devolved on the New State of Rajasthan, and later that interest devolved on the Union of India even before the suit came to be decided on the 8th December, 1950. In these circumstances, we are disposed hold that O. XXII Rule 10 C.P.C. applies to this case, and the suit cannot be held to be barred by time qua the Union of India because the interests of the original defendant had devolved on the Union of India during the pendency of the suit and if the Union of India who acquired the interest did not choose to contest the suit and allowed it to be continued by the original party, it is not open to them now to contended that the suit is barred by time against them. We may further state that the mistake of learned counsel for the appellant in filing the appeal against the Manager, Bikaner Railway, and not against the Union of India is on the whole a bonafide one, and that in view of what we have said above, no question of the application of sec. 5 of the Limitation Act really arises and, therefore, we do not see any justification for holding in the circumstances of this case that the suit against the Union of India or the present appeal against them is barred by time. See Neville vs. Freser(3) and Lakhshmi Narain vs. Babu(4). In the alternative, we are further of the opinion that in case the application of sec. 5 is called for, the circumstances of this case are such that we should not refuse to give the benefit of sec. 5 to the appellant. We do not, however, wish to pursue this matter further in view of the final conclusion to which we have come regarding this appeal. Turning now to the contention raised on behalf of the plaintiff-appellant, it was argued before us that the court below fell into error in holding that the present suit deserved to be dismissed for want of notice under sec. 77 of the Railway Act. The Court below held that although the plaintiff's claim was based on non-delivery, a notice prior to the institution of the suit was necessary, as the goods had passed in transit over the lines of four railway companies. Having given out most careful consideration to this point, we are unable to concur in the opinion held by the trial court. The question whether notice under sec. 77 is necessary in a case based upon non-delivery is not free from difficulty. The answer to the question depends upon the interpretation to be put on the word "loss" occurring in sec. 77. We may state atonce that there has been a considerable divergence of judicial opinion on this point among the High Courts in India. We have a decision of our own Court on this point reported as Dominian of India vs. Matoli Ram(5) but as the point was argued at considerable length before us, we have thought it proper to consider it ourselves and express our own opinion upon it. One view is that the word 'loss' must be interpreted so as to include loss to the owner from whatever cause such loss might proceed and this would include cases of non-delivery without more, as non-delivery certainly causes loss to the owner. On such a view, a notice under sec. 77 must be given in cases of claims against a railway for compensation based on mere non-delivery because failure to make delivery results in loss to the owner. A reference may be made in support of this view to The E. I. Ry. Co. vs. Fazal Elahi(6), Sheo Dayal Niranjanlal vs. G.I.P. Ry Co.(7), B. & N. W. Ry. vs. Court of Wards, Balrampur(8), E. I. Ry. vs. Firm Moea Ram (9), Hill Sawyears & Co. vs. Secretary of State (10), B. N. R. Co. Ltd vs. Hamir Mull(ll), M.S., T. M Ry. Co. vs. Haridass(12) and Srishthidhar Mandal vs. Governor-General(13). The other view is that the word "loss" is employed in sec. 77 in juxtaposition with "destruction" or "deterioration" and that in that context, it really means not loss to the owner but loss of goods by the railway. In this view the word "loss" cannot legitimately be used to cover cases, say, of conversion, wrongful detention or wilful mis-delivery and similar other ones. Cases on this side of the line are these. G. G. in Council vs. Mahabir Ram(F.B.) (14), A B. Ry. Co. vs. Radhika Mohan(15), E.I. Ry. Co vs. Jogpat Singh(16). G. G. in Council vs. Sarbeswar Dast 17), G.I. P. Ry, Co. vs. Gopi Ram(18), Secretary of State vs. Firm Daulat Ram(19), G.G. in Council vs. Krishna Shenoy(20), Haryana Cotton Mills vs. B. B. & C. I. Ry.(2l), M/s. Janeshwar Lal vs. Dominion of India(22). It would appear from the cases cited above that there has been a marked divergence of judicial opinion not only between the various High Courts in India but also between the decisions of the Judges of one and the same High Court. A careful review of the cases cited above unmistakably shows, however, that the recent trend of decision is in favour of the latter view, namely, that mere nondelivery without more cannot be characterized as a "loss" within the meaning of sec. 77 of the Indian Railways Act, and would not attract the application of sec. 77 so far as notice is concerned. Non-delivery as such may be due to number of causes, such as wilful detention of goods or conversion, or fraud or caprice. Would it be right to say in such cases that the goods have been lost by the railway though it would undoubtedly mean loss to the owner? Certainly not, although it cannot be gainsaid that there would be nondelivery in such cases as much as there would be non-delivery where the goods are lost on account of theft or robbery or flood or any similar reason which might take the goods out of the control of the railway. Now sec. 77 finds a place in Chapter VII of the Railways Act, which bears the heading "Responsibilities of Railway Administration as Carriers" and sub-sec. (1) of sec. 72 which is the first section under this Chapter provides that: - "The responsibility of a railway administration for the loss, destruction of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under secs. 151, 152 and 161 of the Indian Contract Act, 1872, (IX of 1872)." Sub-sec. (2) further provides that this liability can be curtailed by obtained i risk notes as provided therein. In our opinion, the words 'loss' in this section clearly imports loss of goods by the railway or destruction for deterioration of goods white they are under the care and charge of the railway, and the context does not naturally suggest that the loss to which the section refers is the pecuniary loss to the owner of the goods. The gravamen of the section is the physical loss of goods or their destruction or deterioration in the course of the transit. In other words "loss" has been used in the sense of some thing that happens to the goods, their disappearance or passing out of control, as distinct from any pecuniary injur or loss sustained by the owner which is of course occasioned by the loss of the goods. The section clearly speaks of the loss of goods as such and the responsibility of the railway for such loss. We are of opinion that the words "loss" "destruction" of "deterioration" which occur in sec. 77 under the same Chapter must also be given the same meaning as in sec. 72. It further appears to us that sec. 77 provides a safeguard for the railway administration and it would be wrong to put an unduly lenient interpretation upon it. It does not at all appears to us to be reasonable that railways should have the benefit of a notice as a compulsory requirement before being sued where the goods have really not been lost by them but have been deliberately withheld or wrongfully sold or otherwise converted. Again, under sec. 77 the liability to prove how the loss, destruction or deterioration of the goods consigned was caused has been placed on the railway administration. If loss is to be interpreted as being synonymous with non-delivery, such a provision would be altogether meaningless, as the plaintiff must allege non-delivery in any case for compensation against the Railway administration. It is also significant that Arts. 30 and 31 of the Limitation Act provide separate periods of limitation against a carrier in the case of (1) suits for compensation for loss of goods and (2) for mere non-delivery. This again suggests that non-delivery and loss cannot be held to be identical. Lastly, a careful consi-deration of the language of sec. 152 of the Contract Act from which the words "loss", "destruction" or "deterioration" appear to have been borrowed in Chapter VII of the Railways Act strongly inclines us to the same conclusion. As has been observed in G.G. in Council is the genus of which loss is only a species. We, therefore, respectfully agree with the view that a notice before filing the suit to the railway is necessary only where nondelivery of goods is due to loss of goods by the railway administration, or due to their deterioration or destruction in the course of transit but where it is a case of mere nondelivery without more, we hold that on such notice is necessary under sec. 77 of the Railways Act. Indeed, if the intention of the legislature was to provide for a notice in all suits for compensation against the railway administration, this cold have been easily provided for in sec.77, and a provision for notice only in cases relating to loss, destruction or deterioration of goods delivered would not have been made in the Railways Act. In the case before us, there is no allegation either on behalf of the plaintiff or on behalf of the defendant that the goods were lost. All that the plaintiff said was that on delivery of the goods consigned at the Ganga-nager railway station had been made to him. The defence also did not raise any case of 'loss' whatsoever. We may point out that if the defence had raised such a case and proved it, then the application of sec. 77 of the Railways Act would certainly have been attracted and the plaintiff's suit in that case would have stood dismissed for want of compliance with the provisions of sec. 77. That, however, is not the case here. The result, in our opinion, is that as this was not a case of non-delivery by loss of goods by the railway administration, sec, 77 does not apply and no notice thereunder can be held to be necessary. We may further point out that the view of the learned District Judge that a notice was necessary for the reason that the goods had to travel Over a number of railway systems has no support whatever and no authority has been cited before us to justify that view. The learned District Judge was wrong when he said so. In this view, the finding of the learned District Judge that the plaintiff had failed to produce evidence to establish the giving of any notice under sec.77 loses all its importance. We hold, therefore, that the plaintiff's spit cannot be dismissed for want of notice under sec. 77 of the Railways Act in the circumstances of the present case. Learned counsel for the appellant next contended that the finding of the court below that the plaintiff had no title to bring the present suit on the ground that he had failed to establish that he was the assignee of the railway receipt was erroneous. The contention was that there was no issue on the point and, therefore, the plaintiff had no opportunity to lead evidence as to his title to bring the suit, and a prayer was made that the suit be remanded for re-trial on this question. We may point out in passing that the learned District Judge had apparently fallen into error when he thought thai there was an issue on this point as the language of his judgment goes to show. No issue had been framed and in our opinion it should have been proper and desirable that such an issue had been raised in the trial court, as the defendant railway had declined to admit the alleged assignment in favour of the plaintiff and thereby put him to proof. It has been contended on behalf of the defendant, however, that even though there was no issue on the point, the parties very-well knew each other's position regarding it and were fully alive to the contest thereon and that the plaintiff had led evidence on the point and produced P. W. 3. Narainlal, who was his mukhtar-i-khas to prove the assignment. It was contended that under these circumstances, it was futile on the part of the plaintiff to raise any grievance on this score and ask for a re-trial. A perusal of the evidence of P.W. 3 Narainlal clearly shows, in our opinion, that he was produced mainly to prove that the plaintiff was the assignee of the railway receipt and thereby to prove his title to bring the suit. It is another matter that his evidence falls far short of the requisite proof regarding this point. All that Narainlal stated was that the plaintiffs' firm had purchased a railway receipt covering 273 maunds of mustard oil in 50 drums f.o.r. Kushtia from one Jugalkishore who was an employee of the Bikaner Industrial Corporation, and that the goods covered by the railway receipt had not been delivered at Kushtia. He also stated that Jugalkishore had left the service of the Corporation and was untraceable. This is the gist of Narainlal's testimony in his examination-in-chief. In his cross-examination, the witness stated that he had personal knowledge of the goods having not reached Kushtia but he admitted that he never went to the Kushtia railway station along with the railway receipt. He also stated that the railway receipt was with him and that he was prepared to produce it and it is further stated that he showed railway receipt No. 478737 dated 3.3.1947 in court. But the railway receipt was not produced and brought on record even at that stage. In these circumstances, we are decidedly of the opinion that the plaintiff had ample opportunity to prove the assignment in his favour and to produce the railway receipt in support of his case ; but he did not do so and consequently, he cannot complain now that he was misled in any way. What indeed strikes us is that although the plaintiff obviously wanted to prove the assignment in his favour by producing Narainlal, the latter went completely wrong in the matter and made no mention of the railway receipt and the endorsement, if any, on the back of it in his examination-in-chief. He failed to make a prayer even at that late stage that the railway receipt be taken on record and instead he put the railway receipt back in his pocket after having said and shown that it was with him. It is clear that the plaintiff could not be allowed to prove the assignment in his favour without producing the railway receipt which obviously had come into his possession although his case, as disclosed in the plaint, what that the railway receipt was not in his possession, and it is not at all clear when he had come into possession thereof and if so why he failed to produce it at the proper time. We should like to point out further that it appears to us that this point was taken up in the course of the argument in the trial court on the 25th Nov. 1950, and the case was taken up for further arguments on the 30th November, 1950, and the judgment was reserved and the case was directed to be put up on the 4th December, 1950, which was actually announced on the 8th December, 1950. This particular point upon which the learned trial Judge placed his reliance must have certainly been argued before him on the 30th November, 1950, and yet no application whatsoever was made before the learned trial Judge that the plaintiff had been taken by surprise or misled on account of the defendant having taken his stand on the point in question We are clearly of opinion in such circumstances that although it is to be regretted that no issue was framed on the plaintiff's title to bring his suit, the parties were award of this contention as indeed it lay at the very foundation of the plaintiff's suit, and that the finding of the court on this point non-suiting the plaintiff cannot really be said to have caused any substantial prejudice to him. Reference may be made in support of this view to Mohiuddin vs. Pirthichand Lal Choudhury(23), Satya dhyantirtha vs. Raghunath(24) and Radhelal Babulal vs. Subhadra Bai(25). In this view of the matter we see no justification for acceding to the prayer of the plaintiff that we should allow a re-trial in this case. Now, as the record stands, there is no proof whatsoever that the plaintiff was the endorsee of the railway receipt in question. The railway receipt itself was not produced and so it was impossible to prove that it had been endorsed in the plaintiff's favour. The consignor as well as the consignee was the Bikaner Industrial Corporation and, therefore, we are unable to hold that the plaintiff Jhabarmal had any right to bring the present suit, as his connection with the undelivered goods has not been established on tin's record in any manner whatsoever. The contract of carriage was obviously made between the consignor which was the Bikaner Industrial Corporation and the Bikaner State Railway and, therefore, the consignor would be the person entitled to sue the railway company for compensation for loss, destruction or deterioration for the goods represented by the railway receipt. We may point out that the rule that a person who is not a party to a contract is not entitled to maintain an action upon that contract is subject to certain well recognized exceptions such as where a person claims through a party to a contract or is a principle suing through his agent and so an and so forth. But the plaintiff's case does not fall within any of the categories adverted to above and, therefore, we are constrained to come to the conclusion that he has no title to maintain the suit. In these circumstances we see no reason to disagree with the conclusion of the trial court on this point. We are further on opinion that the present suit must also fail on the contention raised on behalf of learned counsel for the Union of India that the Bikaner Railway had passed on the goods in question at Bhatinda to the next connecting railway without any damage and was, therefore, relieved of all responsibility in this connection and neither of the other three railway who may have failed to discharge their responsibilities as bailee had been impleaded by the plaintiff as parties to this suit. The net effect of the finding of the court below on this point was in favour of the plaintiff; it having held that although it was established that the goods were duly handed over undamaged to the East Punjab Railway at Bhatinda, the Bikaner Railway was thereby not absolved from responsibility for non-delivery at the destination because the responsibility of the contracting railway continued untill the goods were delivered at the destination. We may state in this connection that the defendant cannot take advantage of risk note B under which the goods were booked as it did not plead that the goods were lost or destroyed or damaged in transit. The important sections which bear on this question are secs. 72 and 80 so far as the Railways Act is concerned. Sec. 80 undoubtedly provides that a suit for compensation for loss, destruction or deterioration of goods may be brought against the railway administration to which the goods were delivered by the consignor, thereof, or against the railway administration on whose railway the loss, destruction or deterioration occurred. This is an enabling section and gives a choice to the owner of the goods to sue either the contracting railway or the other railway where the loss or damage might have actually taken place. We are of opinion, however, that the plaintiff's right to get a decree against any particular railway which he may elect to sue would depend upon this being able to establish the facts constituting negligence or misconduct against it. This brings us to a consideration of sec. 72. We may re-produce sec. 72(1) for facility of reference. "72(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under secs. 151, 152 and 161 of the Indian Contract Act, 1872, (IX of 1872)." Then secs. 151, 152 and 161 of the Contract Act are in these terms. "151. In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed." "152. The bailee, in the absence of any special contract, is not responsible for the loss, destruction, or deterioration of the thing bailed if he has taken the amount of care of it described in sec. 151." "161. If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time." A careful analysis of these provisions seems,in our opinion, to lead to the conclusion that the proposition that the contracting railway is liable to pay compensation to the consignor or consignee in any event cannot be in such broad form supported. If for example, where the contracting railway has taken all the care required of it as a bailee under sub-sec.(l) of sec. 72 of the Railway Act, we do not see any justification that that railway should be held to pay compensation to the consignor or consignee for the loss of or damage to the goods because other railways on which the goods had to pass had not been impleaded or there may be no legal evidence upon which to hold any of the other railway liable. The ratio decidendi for this conclusion in our opinion is that Indian railways are mere bailees and not insurers Sec. 72 puts the position beyond any doubt in this respect and the law is well settled that under the Indian Law, a railway company has not the liability of an insurer but only that of a bailee. The leading judgment on the subject is The Irrawaddy Flotilla Company vs. Bugwandas(26). We are of opinion, therefore, that if the plaintiff is unable to prove any default against the so-called contracting railway and if the latter is able to prove that it has properly discharged its statutory duty as a bailee, it must be absolved from all responsibility to the consignor for the loss or damage to the goods. It may be said that this would create some hardship to the consignor or the consignee but it is always open to any of them to institute suit against all railways concerned under sec. 80, and if he does not do so, as in the present case, the fault is his own. where the railways concerned have been so impleaded, they can always be called upon to disclose relevant facts relating to the transit of the goods and such of them should be held liable as are found blame-worthy owing to negligence or misconduct. But it does not appear to be a correct position in law that the contracting railway must be held responsible in any event not withstanding the fact that it might have duly discharged its responsibilities and obligations as a bailee, for the simple reason that if this view is upheld, then the position of the contracting railway would become that of an insurer and not of a bailee and that would nullify the provisions of sec. 72. It follows, therefore, that while sec. 80 gives an option to the plaintiff to sue one or another of a number of railway administrations where the goods are "booked through", it does not imply, much less require, that where the plaintiff has brought his suit against all the railway administrations concerned, he is entitled to a decree against all or even such of them which have satisfied the court that the less occurring to the plaintiff was not due to their negligence. We may refer in this connection to Agent, G.I.P. Railway vs. Karaylal (27). Applying the principle propounded above to the facts of the present case, we find that the contracting railway which was the defendant in the present case has successfully proved that it had made over the goods in question to the East Punjab Railway at Bhatinda in a safe and sound condition. The finding of the learned Judge below is clearly in favour of the defendant on this aspect of the case and is based on the evidence of D. Ws Bachhraj, Jaichand, Dharamsingh and Anandswaroop. D. W. Bachhraj was a Goods Clerk at Ganganagar Railway Station and has deposed that he forwarded the goods in suit duly sealed and issued a railway receipt in i respect thereof on 3.3.1947, and that the goods were put in wagon No. 3500 of the Bengal Assam Railway and wagon No. 2447 of the Bikaner State Railway, and. had been despatched by 10 Down train on the same evening. D. W. Jaichand was the guard incharge of the 10 Down train on 3.3.1947. His testimony is that he handed over the goods in question in the wagons referred to above in tact to the train clerk at Hanuman-garh. The next witness in this connection is D. W. Dharamsingh who was incharge of the 2 Down train on the 4th March, 1947, which carried the said wagons to Bhatinda. He has deposed that he received the wagons in his charge in a perfectly sound condition and that he entrusted them to the train clerk at Bhatinda on the 5th March, 1947. This is proved to the hilt by Ex. D 4 which contains the signature of the receiving clerk in token of safe receipt, and this witness has further stated that the signature was made in his presence by the train clerk concerned. The last witness in the chain is D. W. Anandswaroop who was an employee of the Claims Department of the Bikaner State Railway, and has proved Exs. D-l and D-2 which go to show that the Station Master, Bhatinda, East Punjab Railway, had received the goods in question in a sound condition. We may point out that there is no cross-examination worth the name of these witnesses and we are satisfied that in any case nothing has been elicited from them which should go to shake the veracity of these witnesses. It follows, therefore, that the Bikaner State Railway had completely discharged its responsibility as bailee in the present case, and if the goods were not delivered to the consignee at Kushtia, it cannot be said that railway was at fault in any way. We concur in the finding of fact arrived at by the court below in this connection; but we are unable to concur in its view on the question of law that that did not absolve the Bikaner State Railway from its responsibility as bailee of the goods entrusted to that railway for the reasons which we have already stated above at some length. The plaintiff would have been well advised to empaled the other railways also and to have got a disclosure from them as to how they dealt with the goods while they were under their control and then tried to prove the negligence or misconduct of any one or more of them. But if he has failed to do so and sued the Bikaner State Council as owner of the Bikaner State Railway only without impleading the on-carrying railways, we see no justification for holding the successor-in-interest of that railway viz., the Union of India for any responsibility for the carriage of the goods in question because the said railway had in our opinion, duly discharged its duty as bailee. In this view of the matter the plaintiff's suit must fail also. The result is that this appeal fails although our grounds are different from those which found favour with the court below. The appellant shall pay the costs of this appeal to the respondent. ;