KAN SINGH, J.—This second appeal before us raised a question about the liability of a common carrier in respect of the loss of goods in transit delivered to him for the transport.

2. The appellant before us is the legal representative of one Mangilal Chopra of Mangrol who had commenced the action for the recovery of an amount of Rs. 1134/6/6 from Kota Transport Company Limited for non-delivery of 24 maunds and 11 seers of cotton which was consigned from Kota to Mangrol by a truck run under the management and control of the defendant company. It is common ground between the parties that the defendant company had a monopoly to ply transport vehicles within the ex Kota State in the year 1949, and was acting as common carrier of goods. It was averred that on 5-12-1949, Messrs Madhav bass Hiralal of Kota, who were plaintiffs agents, delivered 27 maunds, 11 seers and 4 chhataks of Cotton valued at Rs. 1266/6/6 to the defendant company for being carried to Mangrol. This cotton was carried in a gas plant truck No. 564. Unfortunately, when the loaded truck had come near river Barod on the way it was found to have caught fire and the load was gutted. However, only 3 maunds of the cargo could be salvaged and delivered to the plaintiff. Accordingly the plaintiff demanded the value of the undelivered cotton from the defendant company, but as it did not care for the demand, the plaintiff filed the suit in the court of the Munsiff, Kota. The defendant admitted the fact regarding the carriage of cotton from Kota to Mangrol by truck No. 564. It was also admitted that only 3 maunds of cotton could be delivered, but it | was pleaded that the loss was caused on account of the goods catching fire and it was asserted that the defendant company was not at all liable for the same. A Special plea was raised to the effect that one Dhannalal, who had approached the defendant company for transporting these goods, was warned by the employees of the defendant company that it was risky to take cotton in a gas plant truck, but as Dhannalal agreed that the goods be taken on his own risk and responsibility, the defendant company agreed to carry the goods. The learned Munsif framed the following six issues:—

(1) Did plaintiffs agent Messrs Madhav Dass Heeralal entrust 27 maunds, 11 seers, 4 chhataks of cotton on 5-12-1949 to the defendant on behalf of plaintiff.

(2) Was said cotton valued at Rs. 1266/6/6?

(3) Was defendant liable to transport and deliver cotton to the plaintiff at Mangrol and defendant was responsible for the risk in the way?

(4) Did plaintiff receive only 3 maunds of cotton and did not receive the rest of the said cotton and plaintiff can get Rs. 1134/6/6 as price of the same from the defendant?

(5) Was cotton really burnt in the way and what is its effect on the suit?

(6) To what relief parties are entitled?

3. The suit was decreed by the learned Munsiff but an appeal was taken against that decision to the District Judge, Kota, who remanded the case after framing two additional issues and directed the Munsiff to decide the case afresh. The additional issues were as follows: —

(1) Whether Dhannalal had absolved defendant from all liability during the transport. I

(2) Whether plaintiff is bound by the contract of Dhannalal entered into with the defendant?

4. The learned Munsiff again decided all the issues in favour of the plaintiff. As regards the additional issues, the learned Munsif came to the conclusion that Dhannalal had done nothing towards absolving the defendant company from liability. He also came to the conclusion that it had not been established that Dhannalal had acted as an agent of the plaintiff and consequently the learned Munsif held that Dhannalal had no authority to bind the plaintiff in this behalf. In the result the learned Munsif passed a decree for a sum of Rs. 1134/6/6 against the defendant company. The defendant then went up in appeal to the District Judge, Kota. Before the learned District Judge the following 3 points were raised

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