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