1. This rule has been obtained by defendant 1. The claim is for the value of a consignment booked at Ohapra to the plaintiff at Bankura. It has been found as a fact by the learned Judge that it was transferred to the petitioner's railway at Mokamaghat Station on 13th August 1942. The defence is that it was placed in shed No. 3 where it was looted by a mob in course of the disturbances which broke out in the province of Bihar in that month. In opposing the rule Mr. Mukherjee naturally raised the point that the question is determined by the findings of fact reached by the learned Munsif. The learned Munsif has found that there was a riot at the Station on that day. Indeed any other finding would have been perverse. He, however, held that the petitioner has failed to prove that this particular consignment was looted. He says that he is not prepared to believe the petitioner's witnesses fully and thinks that they had exaggerated matters. He gives no details and does not say what part of the evidence he regards as exaggeration. The record of the evidence of these witnesses has been put before me. It appears to be a plain and unvarnished account of what took place. I find it quite impossible to infer in what particulars the learned Munsif thought that it was exaggerated.
2. Indeed he treated the matter as though it were one for direct evidence. He ignored the existence of circumstantial evidence and the definition of 'proof' in the Evidence Act. Of course it is perfectly true that the railway servants were unable to identify this particular consignment as having been seen in the hands of one of the looters as it was being looted by the mob; nor could they remember the individual contents of the wagon which was discharged in Shed No. 3. The Munsif should have directed himself first to the question whether the petitioner has proved that the consignment was in shed No. 3. If it was, the only reasonable inference would be that it was looted by the mob which attacked that shed.
3. The Munsif has accepted the petitioner's case that delivery was taken that morning from the Oudh and Tirhut Railway. The evidence is that the wagon in which it was carried was discharged in Shed No. 3 in the ordinary course of business. If it was not, it must obviously have been somewhere else. No such suggestion was even made. If the learn, ed Munsif had not made the mistake of thinking that it was necessary for the railway servants to prove by real evidence the actual contents of the wagon, I cannot persuade myself to think that he would have failed to find that the consignment was in Shed No. 3. Mr. Mukherjee also supported the finding that the railway servants were guilty of negligence. His difficulty here is that the plaintiff never suggested any such, thing. He blandly denied that there was any mob, any riot or any looting. As the Munsif himself did not accept the petitioner's case, there must inevitably be an air of unreality about this finding of negligence.
4. In reaching it the Munsif relied on two matters: (1) the closed shed was not looted and (2) the statement by the Station Master that he knew that the premises would be looted. From this he has inferred that the Station Master ought to have placed the consignment in the closed shed. Obviously, the actual conduct of the mob during the riot is irrelevant to any charge of negligence against the Station Master. His conduct must be judged with reference to the conditions prevailing at that time. His statement that he knew that the premises would be looted should not have been treated as though it was literally true. It is impossible for anybody to know the future. The most he could mean was that he had reason to believe that such an event might occur. The Munsif should, therefore, have taken steps to ascertain: (1) whether the information was such as to make it advisable for the Station Master to depart from the normal procedure and (2) whether there was sufficient space in the closed shed to accommodate all the goods lying in the Station and, if not, whether there was any reason why the plaintiff's consignment, consisting as it did of old scrap, should be given any special protection. The judgment of the learned Munsif cannot be supported. The rule is accordingly made absolute. The decree is set aside and I direct that the suit be dismissed. I make no order as to costs.