KISHUN DAS Vs. GANESH RAM

JUDGEMENT

(1.) These two appeals are by the defendants first party. The suit out of which these two appeals have arisen was a tripartite suit, though the contest was between two parties only. The plaintiffs-respondents, first party here, brought the suit for recovery of Rs. 4565 and odd annas on the following allegations. They alleged that they carried on a joint family business of commission agency and goladari at Naugachia in the District of Bhagalpur. The appellants had a joint family business at Jaunpur under the name and style of Mohan Lal Mata Prasad. The defendants second party, respondents second party before us, had also a business at Naugachia under the name and style of Lalchand Bhagat Ambica Ram, On 11th August 1942, the plaintiffs respondents purchased, on behalf of the appellants, 337 bags of maize weighing 627 maunds and odd at the rate of Rs. 5-9-0 per maund from the respondents second party, and paid the price thereof. The maize in question had been loaded already in wagon at Karhagola railway station, and was booked for Jaunpur in the name and in favour of the firm Lalchand Bhagat Ambica Ram under a particular invoice dated 10th August 1942. The maize did not, however, reach Jaunpur having been looted by a violent mob during the disturbances in August 1942. The railway receipt which it is stated, was endorsed in favour of the plaintiffs-respondents was sent to the Bank of Bihar at Jaunpur with a demand draft for Rs. 1200 for realisation of the money from the appellants. The appellants refused to pay. The suit was brought for the realisation of the price etc., including the price of 337 gunny bags and paya charges, of the aforesaid 887 bags of maize. It appears that the plaintiffs-respondents also claimed some money as a result of certain cash transactions alleged to have taken place between the plaintiffs-respondents and the appellants. In all, the claim was laid at Rs. 4565 and odd annas, as already stated above.

(2.) The defence of the appellants was that they had nothing to do with the respondents second party, and they purchased 387 bags of maize on 9th August 1942 (and not 11th August 1942, as alleged by the plaintiffs-respondents) from the plaintiffs-respondents; but the title to, or the property in the goods had not passed to the appellants, because the agreement between the parties was that the property in the goods would pass on delivery of the goods and payment of the price at Jaunpur. In other words, the main defence of the appellants was that the property in the goods was still retained by the plaintiffs-respondents, and the loss in transit must, therefore, fall on the plaintiffs-respondents.

(3.) The learned Subordinate Judge, who dealt with the suit in the first instance came to the following findings : (1) 337 bags of maize were purchased by the plaintiffs-respondents themselves from the respondents second party, and the title thereto had passed to the plaintiffs, respondents as soon as they paid the price and got the railway receipt endorsed in their favour; and (2) title to the said bags of maize never passed to the appellants, and the plaintiffs-respondents still retained their property in the goods. On these two main findings, the learned Subordinate Judge dismissed the claim for the price of the maize. With regard to the claim arising out of certain other transactions, the learned Subordinate Judge held that the appellants owed a sum of Rs. 246 and odd annas to the plaintiffs-respondents, and passed a decree accordingly.