BHARGAVA, J.—This first appeal is filed on behalf of the defendants in a suit for recovery of Rs. 12, 913/3/-and is directed against the judgment and decree of the District Judge, Bikaner dated 7th December, 1954.

2. The Bikaner Textile Merchants Syndicate Ltd., through its liquidators instituted a suit on 27.5.53 against the Union of India and the Northern, Western and Central Railways for recovery of Rs.12913/3/- as compensation for non-delivery, shortage and damage to their goods which were booked from Bori Bundar Railway Station to Bikaner. It is alleged that out of a consignment of 265 bales of cloth which were booked on 19.1.48,261 bales were delivered to the plaintiff on 15.3.48. Out of the remaining 14 bales, 4 were delivered to the plaintiff on 18.10.49. The remaining 10 bales were not delivered at all. It is alleged that the cloth in 14 bales out of the lot delivered on 15.3.1948 had become wet and damaged and the loss is assessed at Rs. 2911/10/-. In seven bales out of the same lot it is alleged that there was a shortage of cloth worth Rs.1299/14/9. In 4 bales which were delivered on 18.10.49 there was a shortage of cloth in two bales worth Rs. 871/12/6. Rs.7830/7/3 are claimed as compensation representing the price of 10 bales of cloth which were not delivered to the plaintiff. According to the plaintiff the cause of action for filing the suit arose on 30th May, 1952 when the defendants finally refused to give delivery of the goods.

3. Many pleas were taken in the written statement. It was contended that the liquidators had no right to file the suit. Notice under Sec. 80 of the Code of Civil Procedure was not valid. The suit was not filed within limitation and that the non-delivery of the goods was due to a running train theft and not on account of any negligence or carelessness on the part of the Railway Administration and the plaintiff is not entitled to the amount of compensation claimed by it.

4. The learned District Judge decided all the issues in favour of the plaintiff and decreed the plaintiffs full claim.

5. Aggrieved by the said decision the defendants have come in appeal and it has been contended before us:

(i) that the learned District Judge was in error in holding the suit to be within limitation,

(ii) that the non-delivery of 10 bales was due to a theft in the running train and no; due to any default on the part of the Railways.

(iii) that the plaintiff has not proved the price of the goods claimed by it by any satisfactory evidence.

Though the questions regarding the validity of notice under Sec. 80 of the Code of Civil Procedure and the plaintiffs right to institute the suit were raised by the learned counsel at the time of arguments, yet finally they were not pressed before us and it is therefore not necessary to discuss them.

6. Before taking up the question of limitation which has been mainly argued before us we would like to dispose of the other two points urged on behalf of the appellant. It is urged by the learned counsel for the appellant that the plaintiff has in this case failed to prove that there was any negligence or carelessness on the part of the Railway Administration for the loss of 10 bales which were not delivered to it. On the contrary there is sufficient evidence on the record to show that the loss was due to theft in the running train. He has relied upon the evidence of D. W. 2 Devisingh and D. W. 3 Ramchander. D. W. 2 Devi Singh is a district police constable who was on escort duty with the goods train which carried the disputed bales of cloth. He deposed that the train started from Bori Bundar Station on 21st March, 1948 at 1.50 A. M. and that he had checked the label seals and rivets and had found them intact. The train stopped at a place between Thana and Dabra station for about 2 minutes at about 2.30 A. M. and when it had passed Dabra station he witnessed one bale falling down from the wagon near the cabin and then another bale falling down on which he asked the guard to stop the t

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