K.P. Singh, J.
1. This is a plaintiff's second appeal arising out of a suit for recovery of Rs. 1050/- for short delivery of goods.
2. According to the plaintiff, Mangal Prasad, defendant No. 2, had consigned nine bags brass scrap weighing 414 kgs. at Sitamarhi for being carried to Chilh under Railway Receipt No. 437248 on behalf of the plaintiff as well as for the plaintiff. The plaintiff appellant took delivery at Chilh and it was found that 134 kgs. brass scrap was less due to acts of pilferage causing a loss of Rs. 1045.20.
The plaintiff after serving registered notices brought a suit for the relief mentioned above.
3. The defendant Union of India had contested the suit and had alleged that the plaintiff was not owner of the goods hence not entitled to maintain the suit. The plaintiff was only endorsee and nominee for the purpose of taking delivery and as such the plaintiff could not in law maintain the suit. The defendant had also denied that there was any negligence or mistake on the part of the Railway administration. According to the defendant the damages claimed were excessive.
4. Both the courts below have dismissed the plaintiff's suit. Aggrieved by their judgments the plaintiff has approached this Court under Section 100, Civil P. C.
5. The only point of law raised on behalf of the plaintiff appellant before me is that the plaintiff is entitled to maintain the suit and the courts below have acted illegally in dismissing the suit on the ground that the plaintiff was not entitled to maintain the suit.
6. The learned counsel for the defendant respondent has submitted in reply that the second appeal is not maintainable in view of the provisions of Section 102, Civil P. C. He has also submitted that on the facts found by the courts below the plaintiff appellant cannot be held as owner of the goods consigned, hence the courts below were justified in dismissing the plaintiff's suit as not maintainable. Thirdly, he has submitted that on the finding of fact recorded by the appellate court that there is no evidence or circumstance in the case to prove that the short delivery was due to negligence or misconduct on the part of the Railway administration, the plaintiff appellant cannot assail the judgment of the appellate court.
7. I have considered the contentions raised on behalf of the parties. The learned counsel for the plaintiff appellant has drawn my attention to the ruling reported in : AIR1959SC577 Peare Lal Gopi Nath v. Eastern India Railway Co. and has contended that the plaintiff being endorsee of the Railway Receipt was entitled to maintain the suit against the defendant for damages caused to theconsignment. True, in this case it has been held that the Railway Receipt was a mercantile document of title and that the endorsee of such Railway Receipt has sufficient interest in the goods covered by it to maintain an action for damages against the Railway Company. In : 3SCR254 . Morvi Mercantile Bank Ltd. v. Union of India, their Lordships of the Supreme Court have observed in para 25 of the judgment as below fat p. 1965) :--
'............It is manifest that there areno rights created merely by reason of the endorsement of a Railway Receipt between the endorsee and the railway company which has issued the railway receipt to the consignee, the only remedy of the endorsee being against the endorser .....................
The endorsee may bring an action as an assignee of the contract of carriage but then the assignment has to be provec as in every other case. It is true that by reason of Section 137 of the T. P. Act. the provisions relating to the transfer of an actionable claim do not apply to a railway receipt, and the assignment need not. be according to any particular form, but a railway receipt is not like a negotiable instrument (See Mercantile Bank of India Ltd. v. Central Bank of India Ltd. . It is also apparent that subject to the exceptions mentioned in Sees. 30 and 53, Sale of Goods Act, 1930, and Section 178 Contract Act, 1872, its possessor cannot give a better title to the goods than he has. The negotiation of the railway receipt may pass the property in the goods, but it does not transfer the contract contained in the receipt or the statutory contract under Section 74-E Railways Act. Negotiability is a creature of Statute or mercantile usage, not of judicial decisions apart from either. So, in the absence of any usage of trade or any statutory provision to that effect, a railway receipt :Cannot be accorded the benefits which flow from negotiability under the Negotiable Instruments Act, so as to entitle the endorsee as the holder for the time being of the document of title to sue the carrier, the railway authorities in his own name. If the claim of the plaintiff is as an ordinary assignee of the contract of carriage, then the plaintiff has to prove the assignment in his favour ............'
8. In the present case I find that the the court below has, after appraising the evidence on record, come to the conclusion that the title in goods had not passed to the plaintiff and that there was no assignment of the contract of carriage in favour of the plaintiff and that the plaintiff was merely an endorsee having no rights in the goods and was only entitled to take delivery of the goods. In this view of the matter, I think that the appellate court has rightly held that the plaintiff is not entitled to maintain the suit.
9. On the facts found by the lower appellate court the ruling relied upon by the learned counsel for the appellant is inapplicable to the circumstances of the present case. Moreover, I doubt that the view expressed in the aforesaid ruling, can be characterised as good law in view of the observations of their Lordships of the Supreme Court mentioned above.
10. The learned counsel for the appellant has not been able, to satisfy me that the finding of fact recorded by the lower appellate court to the effect that there is no evidence or circumstance in this case to prove that the short delivery was due to negligence or misconduct on the part of the railway administration suffers from any illegality. Since the plaintiff-appellant led no evidence to show the weight and packing condition of the bags when they were loaded at Sitamarhi, he has failed to show the negligence or misconduct on the part of the railway administration.
11. It is not necessary in view of the conclusions arrived at by me above to deal with the question whether the second appeal is maintainable or not in view of the provisions of Section 102 C. P. C.
12. For the foregoing discussion, I think that this second appeal has no legs to stand and the plaintiff's suit was rightly dismissed, parties are directed to bear their own costs.