The burden of proving that the non-delivery of goods was due to the fact that the railway involuntarily or through inadvertence lost possession of the goods and for the time being was unable to trace them lies on the plaintiff.

( 1 ) THE respondent, Meghraj Agarwalla, brought the present suit for recovery of damages for non-delivery in respect of portions of two separate consignments of bidi tobacco. The first consignment was booked on 28-6-1928, and it is said that while on 20-9-1948, a portion of this consignment was duly delivered, four bags out of the thirteen bags were not delivered. The plaintiff assessed the damages in respect of this non-delivery at Rs. 1202/2/ -. The second consignment was booked on 8-11-1948. The plaintiff's case is that only a portion of this was delivered to him, the remainder 4 maunds, 30 seers of bidi tobacco was not delivered. The plaintiff assessed the damages in respect of this consignment at the sum of Rs. 1138/ -. The suit was brought on the total claim of Rs. 2340/2/ -.

( 2 ) IN the body of the plaint, the plaintiff averred that notice under Section 77 of the Indian Railways Act had been duly served. The defendant, the present appellant before us denied the validity of the notice under Section 77 and also pleaded that both the consignments were duly and correctly made over to the Eastern Bengal Railway Administration under clear receipt. Another plea was that the suit was barred by limitation.

( 3 ) AT the trial, the bar of limitation appears to have been pleaded only as regards the first consignment, it being urged that Article 31 of the Indian Limitation Act applied and the suit had been brought more than one year from the time when delivery ought to have been made. It was urged that the notice under Section 77 of the Indian Railways Act having been served more than six months after the date of booking, the notice that wag served purporting to be under Section 77 was invalid in Jaw and so the provisions of Section 77 stood in the way of the plaintiff getting any relief as regards the first consignment.

( 4 ) AS regards the second consignment, the only plea urged by the defendant at the trial appears to have been that the plaintiff had failed to show that a portion of the second consignment was not delivered to him.

( 5 ) ON all these points, the trial court rejected the defence contention and found in favour of the plaintiff, and decreed the suit in part of a sum of RS. 2108/11/9, this reduction being based on the finding as regards the price and the packing charges. On appeal, the learned Additional District Judge, Alipore, agreed with the conclusions of the trial court and dismissed the appeal. As regards the first consignment, he held that the provisions of Section 77 of the Indian Railways Act did not apply to the claim as regards this consignment inasmuch as this was not a case of loss but a case of short delivery. He held also that the suit was not barred under Article 31 of the Indian Limitation Act as time would run not from the date when a part of it was delivered but from the date of assertion by the Station Master at Hilli, which was the destination station, that the goods might be reaching later and that ultimately he was informed in December 1948 or January 1949 that tile goods would not arrive.

( 6 ) AS regards the second consignment, the learned Additional District Judge held, relying on a document, Ex. 1 and the oral testimony of the plaintiff's witness, that there had been short delivery as alleged and that a part of the consignment had not been delivered.

( 7 ) TAKING up the second consignment for consideration first, I am of opinion that it is not open to us to interfere in second appeal with the conclusion of the court of appeal below that a part Of the consignment was not delivered.

( 8 ) ON behalf of the appellant, Mr. Bose had drawn our attention to the fact that the document, Ex. 1, on which the courts below relied, was not given on a printed form but was written out on a small slip of paper below which one person gave his initial and date without even mentioning what office he held. We have examined this slip and, speaking for myself, I would ordinarily think