The maintainability of an appeal by the plaintiff for the main relief when alternative reliefs are claimed and one of them is granted depends on the averments in the plaint.

Shambhu Prasad Singh, J.

1. This appeal by the Union of India as owner, the Eastern Railway and Northern Railway administrations, defendant first party to the suit, is directed against a money decree for compensation for nondelivery of 11 bags of yellow mustard seeds weighing 925 kilograms (it is so mentioned in the railway receipt, Ext. 1, and wrongly stated as 9.25 kilograms both in the plaint as well as in the judgments of the Courts below) booked from Bindki Town Out Agency to Patna City by defendant No. 3 and consigned to self. The case of the plaintiff-respondent was the defendant No. 3 consigned the said 11 bags of mustard seeds for sale in, plaintiffs gaddi and endorsed the railway receipt in Favour of the plaintiffs concern. The plaintiff paid Rs. 708.72 paise including miscellaneous expenses to Allahabad Bank, Patna, and got the railway receipt, though the value of the consignment was Rs. 991-64 P. per bijak, the rest being payable after sale of the commodity to defendant No. 3. The said consignment was not delivered to the plaintiff in spite of correspondence and notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure. The appellant failed to disclose the whereabouts of the consignment and Eastern Railway administration merely gave a reply that it was not liable. It was further averred in paragraph 10 of the plaint that to avoid all objections and future trouble the plaintiff as advised was impleading defendant No. 3 also in the suit. The main relief claimed was "that a decree for Rs. 1106-94 NP. be passed in favour of the plaintiff against the defendants or such other defendants who may be held liable".

2. Defendant No. 3 did not contest the suit. Only defendant first party, i.e., the appellant contested it. The main defence was that defendant No. 3 fraudulently obtained the railway receipt from Bindki Town Out Agency in collusion with its staff without actually delivering possession of the alleged goods to the Out Agency at Bindki town for carriage and, therefore, the railway administration was not liable to pay any compensation; the action of the Out Agency staff being illegal and beyond the scope of its duty. Any negligence or misconduct on the part of the railway administration and their staff was also denied. It was further pleaded that the claim was excess, unjust and untenable.

3. The trial Court dismissed the suit against defendant first party on a finding that goods were not delivered to the Out Agency and that the case was covered by illustration (b) of Sec.238 of the Indian Contract Act. It, however, decreed the suit as against defendant No. 3 for Rs. 708.72 P. which the plaintiff had paid to Allahabad Bank. The plaintiff appealed. The lower appellate Court has not recorded any clear finding on the question whether the Bindki Town Out Agency did really receive the goods or not from defendant No. 3. On the basis of Ext. 1 it was inclined to think that Bindki town railway station did not receive the consignment in question from Bindki Town Out Agency, but, as in its opinion, the railway receipt is a mercantile document, it has held that illustrations (b) of Sec.238 of the Indian Contract Act has no application and decreed the suit against defendant first party as well, but only for the amount decreed by the trial Court.

4. Mr. P.K. Bose, learned counsel for the appellant, firstly urged that no appeal in respect of Rs. 708.72 P. for a decree against the appellant was maintainable in the Court below at the instance of the plaintiff inasmuch as the plaintiff claimed a decree against all the defendants or any one of them. According to Mr. Bose, the plaintiff could not be said to be aggrieved by the decree of the trial Court in respect of the amount for which the suit had been decreed. He contended that where a person claims alternative reliefs and one of them is granted to him, he cannot appeal for getting the other relief. In support of his contention he relie