BIJAYESH MUKHERJI, J.

( 1 ) THIS is a plaintiff's appeal from an appellate judgment and decree of affirmance dismissing a claim against the Union of India awning and representing certain railways for compensation for non-delivery of a consign- ment.

( 2 ) THE sole appellant Mohammad Shafique and his brother Mohammad Rafique carry on business under the name and style of Mohammad Shafique and Brothers, a registered firm at Raniganj within the sub-division of Asansol. They deal in tobacco including what is called 'makha' (mixed) tobacco. With a view to manufacturing 'makha' tobacco of various qualities, they purchase scents from far and near.

( 3 ) ON September 27, 1951 the Foreign Scent Supplying Syndicate (shortened in the railway receipt into F. S. S. S.) of Bombay despatched one case of chemical perfumery christened 'satomala' from Borivli, a station the abbreviation of which in railway terminology is B. V. I. The case contained 112 Ibs. of 'satomala'. The destination of this consignment despatched under a parcel way bill No. B/15751-2 dated September 27, 1951 was Raniganj. It was consignment to self. The railway receipt which is the parcel way bill just stated was endorsed in favour of Mohammad Shafique and Brothers and for consideration too, the appel-lants having paid the price thereof: Rs. 1642/- apart from the railway freight and other charges, to one Shantltal, the proprietor of the consignor firm, Foreign Scent Supplying Syndicate. In terms of measure of weight prevailing here, the case of 'satomala' including its own weight weighed 2 maunds 5 seers.

( 4 ) A consignment as that was not delivered at this end to the appellant and his brother. Hence, after observing the due formalities of law, they -- both of them - Instituted the suit on 25-11-1952 in the Court of Munsiff at Asansol praying for a decree of Rs. 1792/- with costs and interest : Rs. 1792/- as the price of 112 Ibs. of 'sato-mala' at the rate of Rs. 167- a Ib.

( 5 ) THE Union of India representing the four railways -- eastern, western, northern and central -- defended the suit on various grounds two of which need only be noticed: (i) neither being the consignor nor the consignee and there being no privity of contract with any one of the railways, the plaintiffs had no 'locus standi' to maintain the suit In absence of proof of ownership of the goods consigned and (ii) the defendant could not be mulcted in damages as the loss complained of was due to leakage of the container in circumstances beyond the control of the railways.

( 6 ) THE learned munsiff held that the endorsement of the railway receipt passed title to the goods and that the plaintiffs having failed to establish negligence or misconduct on the part of the railway administrations, Section 74-C (3) of the Railways Act, 9 of 1890, made them immune from any liability for the loss. In that view, by a judgment and decree dated March 14, 1955 he dismissed the suit.

( 7 ) THE litigation having been carried on appeal, the learned additional district Judge, Asansol, held that a simple endorsement of the railway receipt could not pass title to she goods ownership of which was not proved by evidence 'allunde' and that the consignment having been carried at the railway risk rate, Section 74-C (3) would not protect the railways in absence of the requisite proof by them of the accrual of the loss for reasons beyond their control. The learned advocate for the railways before the Court of appeal conceded the second point. Be that as it may, in the view that the plaintiffs lacked title, the learned Judge by his judgment and decree dated March 13, 1957 dismissed the appeal.

( 8 ) SHAFIQUE, the first plaintiff, has therefore come up to this Court in second appeal, his brother and partner Rafique figuring as a 'pro forma' respondent.

( 9 ) MR. Mitter appearing for the appellant addresses me mainly on the controversial point whether or not an endorsement 'simpliciter' of the railway receipt, a mercantile docum

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