In a suit for compensation for loss of goods under Section 80 of the Railways Act, the onus of proof is on the plaintiffs to prove that the loss occurred while the consignment was in the custody of the railway administration against which the claim is made.

1. In the suit which is the subject-matter of this appeal the plaintiffs alleged that they had purchased cotton piece goods from Messrs, Sagar Mall Subhkaran of Ahmadabad and the bales were booked from Ahmadabad railway Station to Kishangunj railway station on the O.T. Railway. There were 108 bales which were securely and properly packed; but at the time of delivery it was found that out of the total consignment three bales were fund tampered with and the contents thereof partly missing while one of the bales was found completely empty. Notices were served under Section 77 of the Railways Act and also under Section 80 of the Code of Civil Procedure, but the Railway Administration failed to settle their claims.

The plaintiffs, therefore, claimed a sum of Rs. 3,100.00 from the defendants, namely, the O.T. Railway Administration and the B.B. and C.I. Railway Administration. The suit was contested by defendant No. 1, namely, the O.T. Railway Administration, and it was contended that notices were-not properly served and defendant No. 1 was not responsible for the loss.

Both the lower courts have held that the O.T. Railway Administration was not the contracting railway and since the plaintiffs had not proved that the loss took place on the O.T. Railway the suit was not maintainable. With regard to the claim against the B.B. and C.I. Railway, it appears that the suit was not maintainable because it was found that notice under Section 77 of the Railways Act was not served upon the B. B. and C. I. Railway Administration within the statutory period of six months as contemplated by the section. So the suit of the plaintiffs was dismissed as against all the defendants.

2. In support of this appeal learned Counsel on behalf of the appellants did not challenge the finding of the lower courts that the notice served under the Railways Act was not served on the B.B. and C. I. Railway within the statutory period mentioned in Section 77, but the point taken on behalf of the appellants is that the suit should have been decreed as against the O. T. Railway because it had failed to show that the loss did not occur while the goods were in course of transit over that railway.

We are unable to accept this argument as right. Section 80 of the Railways Act gives the plaintiffs the choice of claiming their remedy either against the railway administration to which the goods were consigned or against the railway administration on which the loss occurred. Section 80 is in the following terms: "80. Notwithstanding anything in any agreement purporting to limit the liability of a railway Administration with respect to traffic while on the railway of another administration, a suit for compensation for loss of the life of, or personal injury to, a passenger, or for loss, destruction or deterioration of animals or goods where the passenger was or the animals or goods were booked through over the railways of two or more railway administrations, may be brought either against the railway administration from which the passenger obtained his pass or purchased his ticket, or to which the animals or goods were delivered by the consignor thereof as the case may be, or against the railway administration on whose railway the loss, injury, destruction or deterioration occurred."

It is settled that where the goods are consigned to a railway for delivery at a railway station on another railway and the suit for damages for short delivery is brought against the Governor-General or the Union of India representing the latter railway where, however, the loss does not take place, the latter cannot be made liable for the loss on the theory of agency or partnership; see for instance the decision of this High Court of Sinha and Das JJ., in Governor-General in Council V/s. Sukhdeo Ram, AIR 1949 Pat 329.

In the present case the suit of the plaintiffs against the B.B. and C.I. Railway, which is the contracting railway, is not maintainable since notice under Section 77 of the Rail