The consignor is entitled to sue the carrier either on the basis of title or on the basis of privity of contract between himself and the carrier for the carriage of goods.

1. The question which arises in this civil revision petition is whether a consignor of goods can recover the value of the goods from the carrier who has failed to deliver the goods to the consignee or to return them to the consignor.

2. The plaintiff entrusted a consignment of tiles with the 1st defendant who is the driver of a lorry owned by the 2nd defendant. The goods were to be carried by the 1st defendant to a named consignee at Karaigudi in Tamil Nadu. The goods were not taken to Tamil Nadu, but were taken to the premises of the 2nd defendant where they were sold. The plaintiff sued the defendants for damages arising from the breach of contract. The 1st defendant was declared ex parte. The 2nd defendant filed a written statement in which he contended that the suit was not maintainable for the reason that the plaintiff was not entitled to realise any amount from the 2nd defendant; that there was no agreement between the 1st defendant and the plaintiff to carry the goods to Tamil Nadu; even if there was an agreement it was not valid as the lorry did not have a route permit to go to Tamil Nadu; the only agreement between the 1st defendant and the plaintiff was to carry the goods upto Walayar on the border of Kerala and there to await another lorry for onward despatch to Tamil Nadu; since that lorry did not arrive, the 1st defendant returned with the goods to the 2nd defendant's premises and unloaded them there; and as the freight had not been paid, the 2nd defendant sold the goods and appropriated the amount towards freight and other charges.

3. The value claimed by the plaintiff for the consignment was Rs. 563/e The 2nd defendant raised a counter-claim for a sum of Rs. 239.50 and paid the court-fee thereon. This amount, according to him, was the balance hire and warehouse charges due to him after giving the plaintiff credit for Rs. 362.50 which was realised on sale of the goods.

4. The trial court held that the property in the goods had passed from the plaintiff to the consignee and therefore the plaintiff who had no title was not competent to sue. It was further held that since the lorry had no route permit to carry goods to Tamil Nadu, the 2nd defendant was not liable in respect of the alleged contract between the plaintiff and the 1st defendant. The suit was accordingly dismissed. The court also rejected the 2nd defendant's counterclaim. On appeal by the plaintiff, the learned Subordinate judge held that the property in the goods remained with the consignor and that he was entitled to sue. However, the appeal was dismissed as against the 2nd defendant on the ground that the 1st defendant bad exceeded his authority as an agent or servant of the 2nd defendant in entering into a contract for the carriage of goods to Karaikudi in Tamil Nadu without a valid permit, and that the 2nd defendant could not be saddled with liability under such contract. A decree was thus passed against the Ist defendant alone for the value of the goods together with costs. Aggrieved by the dismissal of the appeal as against the 2nd defendant, the plaintiff has approached this Court under S 115 of the Code of Civil Procedure

5. The only averment relating to the maintainability of the suit appearing in the written statement of the 2nd defendant is in the following words:

There is no specific plea as regards want of title. There is no suggestion that the property in the goods had passed from the consignor to the consignee. It is true that the court is entitled to draw a presumption as to the passing of the property, but it is equally true that delivery of the goods to a carrier does not necessarily vest the property in the goods in the consignee. (Benjamin's Sale of Goods, (1974 ed). Para.376-382; Halsbury's Laws of England, 4th edn., Vol. 5, Para.453). Toe question of title has to be determined with reference to the terms of the contract of sale, the intention of the parties and on the basis of the relevant plea as well as the evidence on rec