judgement:
Criminal Appeal No. 60 of 1963.
Appeal by special leave from the judgment and order dated August 24, 1962 of the Allahabad High Court in Government Appeal No. 1379 of 1962.
B.C. Misra and O.P. Rana, for the appellant.
1. P. Goyal, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the appeal of the State against the judgment of the Sessions Judge allowing the appeal of the respondent and acquitting him.
The respondent obtained permits under the Iron and Steel (Control) Order, 1956 hereinafter referred to as the Control Order for about 28 tons of iron, including 6 tons of rods, 151/2 tons of joints and 2 tons of G.C. Sheets.
He is alleged to have purchased these articles on the basis of the above permits between July 1957 and March 1958.
The permits were obtained on three applications made by the respondent.
Only two applications are in the printed record.
The first application is dated May 23, 1957, and is addressed to the Provincial Iron and Steel Controller, Kanpur, through the District Magistrate, Deoria.
In this application the respondent stated that he was a political sufferer and he was constructing a public temple for which he required five tons of M.S. Round and eight tons of Girder.
He further stated that the requirements were nor available at Deoria and as such the application should be considered and forwarded to the Controller for consideration and orders.
It appears that this application was forwarded, duly recommended, by the District Supply Officer.
Deoria, and ultimately a permit was given to him by the Controller.
He made another application dated September 7, 1957.
In this application he again stated that he was a political sufferer and he was constructing a public temple and dharamshala for which he required certain quantities of iron.
He further stated that the requirements were not available at Deoria and as such the application should be forwarded to the Controller.
This application was also recommended and forwarded and ultimately a permit was given to him.
On January 2, 1958, the accused made another application (exhibit Ka 9 not available in the printed record) and a permit was given to him by the District Supply Officer himself.
We may mention that the original permits are not printed in the record, and, therefore, we have not been able to see for ourselves as to what are the exact conditions contained in the permits.
It is the case of the prosecution that the respondent after obtaining the materials sanctioned to him under the permits did not construct any temple or dharamshala building at Barhaj Bazar or at any other place.
We may mention that Barhaj Bazar is the place where he lives and the applications which are in the record also mention this address.
163 Before the Magistrate who tried the case the respondent was put the following question: "It is alleged that the iron obtained under the permits mentioned in questions 2, 3 and 4 was not utilised for the purpose for which it was taken.
What have you to say in this respect?" The respondent 's reply was: "No. Whatever iron 1 got, I used it in the temple situate in mauza Tinbari, P.S. Madhubam district Azamgarh, which is my place of residence as well.
" Before the Magistrate the accused had admitted to have purchased about 17 tons of iron.
The Magistrate held it proved that the accused had atleast purchased one ton more from one Mishri Lal, P.W. 7.
Thus, he came to the conclusion that the accused had purchased at least 18 tons of iron.
He further held that on the evidence it was clear that only 3/4 ton of rods had been utilised in the building constructed at Tinhari, but as the building had been constructed between 1943 52, no portion of the iron obtained by the accused had been utilised for the purpose for which it was procured.
He further held that the accused had disposed of the iron wrongfully at Kanpur and did not even bring the same to Barhaj Bazar or Tinhar.
Accordingly he held that the respondent had contravened the provisions of cl. 7 of the Control Order.
The respondent filed an appeal before the Sessions Judge.
The Sessions Judge held that barring a very small quantity of iron, the remaining quantity that was received by the respondent had not been utilised in the temple or dharmashala at Tinhari.
Differing from the Magistrate, he held that it was not proved by any evidence that the respondent had actually sold the excess quantity at Kanpur.
He then observed that "in the absence of any such evidence the possibility of the appellant retaining the iron at some other place is not completely excluded.
" Then construing d. 7 of the Control Order, he observed that "in the aforesaid section there is no mention that the iron purchased should be utilised at any particular place or within a particular period.
The condition in the various permits granted to the appellant was simply this that he should utilise the iron in creecting a temple or dharamshala in the town of Barhai.
It may be noted that the main purpose was the construction of a temple and dharamshala; the place where it was to be constructed does not appear to have much significance.
Further no time limit is given during which the entire quantity of iron should be utilised.
" Accordingly he held that there had been no contravention of cl. 7 of the Control Order.
The State appealed to the High Court.
Srivastava, J. dismissed the appeal holding that there had been no contravention of cl. 7 of the Control Order.
According to him, two essentials are necessary before there can be contravention of el. 7. "In the 164 first place the iron and steel should be 'used '; secondly it should be used otherwise than in accordance with the conditions contained or incorporated in the document which was the authority for the acquisition." He held that the first condition had not been fulfilled because it had not been proved that the respondent had used the iron which he had obtained on the basis of the permit.
It appears that the findings of the learned Sessions Judge, as well as the Magistrate, that he had not used or utilised the remaining portions of the iron and steel at all were not questioned before him.
According to him, if the remaining quantity of iron was still unutilised or unused, then the respondent could not be said to have done anything contrary to cl. 7.
He further held that the second condition had also not been fulfilled because the permit itself contained only one condition printed on its back.
This condition was "that the materials required against the permit will be used only for the purpose for which it was asked for and has been given." According to him, it is not permissible to refer to the application made for the permit because the only document that can be looked at is the permit.
He was, however, prepared to concede that "it is also open to the officer to mention in the permit that it is being granted for the purpose mentioned in the application.
That may be a short cut for avoiding the trouble of entering in the permit the details of the purpose.
In that case it may be permissible to refer to the application.
" In spite of this concession, he concluded that "when even that is not done in fact no condition is mentioned in the permit at all about the manner in which the iron or steel is to be utilised it cannot be said that a condition of the permit has been broken because the assurance given in the application has not been carried out." Mr. B.C. Misra, learned counsel for the appellant.
has urged before us that on the facts found by the learned Sessions Judge.
cl. 7 of the Control Order has been contravened.
He says that the word "use" in el. 7 includes "kept for eventual use for another purpose." He says that if one stores iron and steel.
one uses it and the word "use" does not imply consumption only.
Relying on Maxwell on Interpretation of Statutes, Eleventh Edition, p. 266.
he says that we should give a wide construction to the word ' "use" in cl. 7.
Clause 5 and the relevant portion of cl. 7 of the Control Order are as follows: "5. Disposals.
No person, who acquires iron or steel under clause 4.
or no producer shall dispose of or agree to dispose of or export or agree to export from any place to which this Order extends any iron or steel, except in accordance with the conditions contained or incorporated in a special or general written order of the Controller.
165 7.
Use of Iron and Steel to conform to conditions governing acquisition.
A person acquiring iron or steel in accordance with the provisions of el. 4 shall not use the iron or steel otherwise than in accordance with any conditions contained or incorporated in the document which was the authority for the acquisition . " We are unable to accede to the above contentions.
There is no provision in the Control Order requiring that iron or steel acquired under the Control Order should be utilised within a specified time.
If it had been the intention to include keeping or storing within the word 'use ' there would have been some provision regarding the period during which it would be permissible to keep or store the iron, for it is common knowledge that building operations take some considerable time and are sometimes held up for shortage of material or other reasons.
Further the word 'use ' must take its colour from the context in which it is used.
In cl. 7 the expression "use. in accordance with the conditions contained" suggests something done positively, e.g. utilisation or disposal.
Mere 'non use ', in our opinion, is not included in the word 'use '.
The passage relied on by the learned counsel in Maxwell is as follows: "Wide Sense given to words: The rule of strict construction, however, whenever invoked, comes attended with qualifications and other rules no less important, and it is by the light which each contributes that the meaning must be determined.
Among them is the rule that the sense of the words is to be adopted which best harmonises with the context and promotes in the fullest manner the policy and object of the legislature.
The paramount object, in construing penal as well as other statutes, is to ascertain the legislative intent, and the rule of strict construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention.
They are, indeed, frequently taken in the widest sense, sometimes even in a sense more wide than etymological belongs or is popularly attached to them, in order to carry out effectually the legislative intent, or, to use Sir Edward Coke 's words, to suppress the mischief and advance the remedy.
" But this passage does not warrant the giving of a meaning to a word apart from the context in which it is used.
There is no doubt that the legislative intent of the Control Order is that this essential commodity should be utilised in accordance with the conditions contained in the permit, but no clause in this Control Order evinces a legislative intent that a mere non user is also prohibited and made punishable.
166 The learned counsel referred to London County Council vs Wood(1), but we do not derive any assistance from that case.
The head note brings out the point decided in that case as follows: "The Highways and Locomotives Act, 1878, provides by section 32 that "A country authority may. make. by laws for granting annual licences to locomotives used within their country.
" And by a by law made by the London County Council under that section it was provided that "No locomotive shall be used on any highway within the county of London until an annual licence for the use of the same shall have been obtained from the council by the owner thereof": Held, that a steam roller which was not at the time being employed in road making, but was merely passing through the county to a destination outside was being "used within the country" within the meaning of the section and the by law." In the context, the word "used" was, with respect, properly construed.
Collins, J., held that "the object of the Act was evidently to protect the highways, and the effect of a steam roller upon the highways may be just the same whether it be engaged in mending the roads or not".
In conclusion we hold that it has not been established that the respondent had used the iron acquired by him in contravention of cl. 7 of the Control Order.
The learned council further urges that the High Court erred in holding that the application cannot be referred to for the purpose of construing the conditions appearing in the permit, the condition being that "the materials acquired against a permit will be used only for the purpose for which it was asked for and has been given." He says that the expression "the purpose for which it was asked for" refers back to the application, and the expression "has been given" refers back to the Order.
There is some force in what he urges.
We are unable to sustain the finding of the High Court that it is not permissible to refer to the application and the order to find out the purpose for which the iron was obtained.
But even if we look at the applications, which are in the printed record, the purpose mentioned is only construction of a temple, in the application dated May 23, 1957, and temple and dharamshala in the application dated September 7, 1957.
These applications do not disclose that the respondent wanted to construct the temple and dharamshala at any particular place.
It is urged that the sentence which occurs in both the applications, namely that the requirements are not available at Deoria, shows that the purpose for which the iron and steel was required was for construction (1)[1897] 2 QB 482.
167 of a temple and dharamshala in the district of Deoria.
This argument is sought to be reinforced by asserting that a District Magistrate was not empowered to recommend applications for iron required for works to be constructed outside the District, and therefore it must be held that the purpose was construction of a temple and dharamshala in the district of Deoria.
However, no orders showing the jurisdiction of the District Magistrate in respect of this matter has been shown to us, and we are unable to conclude from the applications that the purpose was construction of a temple and dharamshala in the district of Deoria alone.
Accordingly we hold that the respondent has not contravened cl. 7 of the Control Order.
The appeal accordingly fails and is dismissed Appeal dismissed.

summary:
The respondent obtained permits under the Iron and Steel (Control) Order, 1956 on the representation that he wanted to purchase iron goods for the purpose of building a temple and a dharamshala.
The permits were obtained from the authorities of District Deoria in U.P.
At the back of the permit a condition was printed tematerials required against the permit will be used only that "h.q for the purpose for which it was asked for and has been given".
The respondent was tried for the contravention of cl. ? of the aforesaid order on the allegation that he had not used the goods purchased under the permits for the purpose for which ,they were issued.
The trial Magistrate found him guilty.
In appeal, however, the Sessions Judge acquitted him on the ground that the possibility of his retaining the iron at some other place was not entirely excluded.
The High Court in appeal by the State confirmed the acquittal holding that it had not been proved that the respondent had "used" the iron which he had obtained on the basis of the permit.
The High court further held that it was not possible to look into the application in order to see for what purpose the applicant took the permit and no condition actually printed at the back of the permit had been broken.
By special leave the State appealed to the Supreme Court, On behalf of the appellant it was urged: (1) the word "use" in cl. 7 of the order includes "kept for eventual use for another purpose." (2) The High Court erred in holding that the application cannot be referred to for the purpose of construing the conditions appearing in the permit.
HELD: The respondent could not be held guilty of a contravention of cl. 7 of the order.
(i) No doubt the legislative intent of the Iron & Steel (Control) Order is that this essential commodity should be utilised in accordance with the conditions contained in the permit, but no clause in the Control Order in question evinces a legislative intent that a mere non user is also prohibited and made punishable.
[165 H] The word 'use ' must take its colour from the context in which is used.
In cl. ? the expression "use. in accordance with the conditions contained" suggests something done positively e.g. utilisation or disposal.
Mere "non use" is not included in the word "use".
165 D] (ii) The High Court was wrong in holding that it is not permissible to look at the application to determine the purpose for which permit is obtained.
However in the present case the applications did not disclose that the respondent wanted to build a temple or dharamshala at any particular place.
From the mere fact that the applications were made to the authorities in Deoria District, or the fact that in the applications it was mentioned that the goods were not available in Deoria District, it did not necessarily follow that the goods were intended to be used in that District.
[166 H] 162


judgement:
ivil Appeal No. 871 of 1962.
Appeal by special leave from the judgment and decree dated August 13, 1959, of the Madhya Pradesh High Court in Second Appeal No. 294 of 1959.
S.P. Sinha and M. 1.
Khowaja, for the appellant.
S.T. Desai and A. G. Ratnaparkhi, for the respondent.
This appeal arises from a suit filed by the appellants who are the representatives of residents of Nayapara Ward in particular and of the Muslim community of Raipur in general, in which they claimed an injunction restraining the respondent, Municipal Committee of Raipur, from committing acts of encroachment on their rights and the rights of 301 the Muslim community in holding Urs and other ceremonies on the plot in suit.
It appears that at Raipur, there is a piece of land called "Fazle Karim 's Bada" Khasra No. 649 measuring 4.62 acres.
Inside this Bada, there are three or four Municipal Schools.
The office of the Electric Power House is also located in one corner of the land.
Behind the School, there is a Pakka platform known as "Syed Baba 's Mazar".
Near the Electric Power House, there is a raised earth platform on which there is a flag.
This flag is called "Madar Sahib 's Jhanda".
Surrounding this land.
there is a brick wall which was made by the respondent several years past.
According to the plaint, Urs function is held every year in front of Syed Baba 's Mazar for the last several years.
On or about the 22nd October, 1956, the employees of the respondent started digging foundation at the places A, B, C and D shown on the map attached to the plaint.
These digging operations were commenced under the directions of the respondent.
because the respondent intended to construct another school building on the plot.
The appellants then served a notice on the respondent to desist from carrying on the digging operations on the ground that the property on which the said operations were being carried out, was a part of the wakf property.
When the respondent did not comply with the requisition contained in the said notice, the present suit was filed by the appellants on October 29, 1956.
This suit has been flied under O.1 r. 8 of the Code of Civil Procedure.
The case of the appellants is that the plot of land in suit was old Kabrasthan known as "Chuchu 's Takia", and is a permanent inalienable wakf property.
On this plot are tombs of renowned saints like Syed Baba.
and Madar Sahib 's Jhanda.
On a part of the plot.
every year Urs and other religious functions are performed.
In fact, the land has been registered under the Madhya Pradesh Public Trusts Act (No. 30 of 1951) (hereinafter called the Act) as trust property; as such, the respondent can claim no right or title to the said land.
That is the basis on which the appellants claimed injunction against the respondent.
The respondent disputed this claim.
It was urged in the written statement filed by the respondent that the land was never and could never be wakf property.
There was no tomb on the land.
There are only two so called tombs.
but they have no significance.
The Urs is of very recent origin and it is allowed to be held with the licence of the respondent.
The plot originally, belonged to private persons and had been acquired by the Government in land acquisition proceedings in 1910 11.
The respondent got the said land from the Government in 1922.
In 1932 33.
the Deputy Commissioner fixed rent of the land which is being paid by the respondent eversince.
On this land, the respondent has constructed some schools, and a part of the land which is lying vacant is allowed to be used by the people of the neighbourhood for traffic.
The respondent thus has full right to 302 construct on its own plot of land.
The representative character of the appellants was disputed by the respondent and their right to file the present suit was challenged.
On these pleadings, several.
issues were framed by the learned trial Judge.
They covered the title of appellants, the title of the respondent, and the right of the appellants to file the suit.
The issue with which we are concerned in the present appeal related to the registration of the plot in the register kept under the relevant provisions of the Act and its effect.
The appellants ' contention was that the said registration was conclusive against the respondent and in favour of the appellants ' claim.
This contention was rejected by the trial Judge, with the result that the appellants ' suit was dismissed.
With the findings recorded by the learned trial Judge on the other issues we are not concerned in the present appeal.
The matter then went in appeal.
and the appellate Court confirmed the conclusions recorded by the trial Court and dismissed the appeal.
The appellants challenged the correctness of the said appellate decree by preferring a second appeal in the High Court of Madhya Pradesh.
but the second appeal also failed.
and that has brought the appellants to this Court by special leave.
Thus. it would be noticed that the appellants have failed on the merits of their claim in all the courts below.
and the technical point raised by them that the registration of the plot under the relevant provisions of the Act concluded the matter.
has also been rejected.
It is this last point which has been urged before us by Mr. Sinha on behalf of the appellants.
Before we deal with this point.
however, it would be relevant to mention how the property came to be entered in the register kept under the relevant provisions of the Act.
The record shows that the Masjid Nayapara.
Raipur had been entered in the register as a public trust on June 25.
1954 in Case No. 23XXXiii/7 of 1952 53.
certain properties were entered in the said register in respect of this trust.
In 1956.
Abdul Karim.
Mutawali Masjid Naypara Raipur applied to the SubDivisional Officer.
Raipur alleging that the property now in suit also belonged to the public trust and should be included amongst its properties.
On this application, public notice was issued calling upon persons interested in the property to show cause why it should not be added to the properties of the wakf.
No objection was.
however.
received and on October 23.
the Sub Divisional Officer reported that the poperty be shown against the trust.
The said report was sanctioned by the Registrar.
Public Trusts on April 22.
That is how the property came to be registered as belonging to the public trust.
and it is on this entry that the whole argument of the appellants is based.
In considering the validity of the contention raised by Mr. Sinha before us.
it is necessary to examine broadly the scheme 303 of the Act and the material provisions on which Mr. Sinha relies.
The Act was passed in 1951 to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Madhya Pradesh.
Section 2(4) of the Act defines a "public trust", and section 2(8) defines a "wakf". 'Working trustee ' is defined by section 2(9).
Section 3(1) provides that the Deputy Commissioner shall be the Registrar of public trusts in respect of every public trust; and section 3(2) imposes on the Registrar the obligation to maintain a register of public trusts, and such other books and registers and in such form as may be prescribed.
Section 4(1) deals with the registration of public trusts and in requires that within three months from the date on which the said section comes into force in any area or from the date on which a public trust is created, whichever is later, the working trustee of every public trust shall apply to the Registrar having jurisdiction for the registration of the public trust.
Section 4(3) lays down the particulars which have to be stated by the application which is required to be made under section 4(1).
All these particulars are in relation to the nature of the trust, its properties, the mode of succession to the office of the trustees, and other allied matters.
Section 4(4) empowers the Registrar to decide the merits of the application, while section 4(5) provides for an appeal against his decision which is required to be filed within 30 days of the order.
Mr. Sinha relies on a specific provision contained in section 4(5) which says that subject to the decision in such appeal.
the order of the Registrar under sub section (4) shall be final.
Section 4(6) requires the signing and verification of the application in the manner laid down in the code of Civil Procedure for signing and verifying plaints.
That takes us to section 5 which deals with the enquiry to be held by the Registrar on the application made before him under section 4(1).
Eight points are set down under section 5(1) which the Registrar has to consider.
Section 5(2) lays down that the Registrar shall give in the prescribed manner public notice of the inquiry proposed to be made under sub section (1) and invite all persons interested in the public trust under inquiry to prefer objections, if any, in respect of such trust.
Under section 6, the Registrar has to make his findings on the point specified by section 5(1); and under section 7, the Registrar causes entries to be made in the Register in accordance with his findings.
Section 7(2) naturally lays down that the entries made under section 7(1) shall be final and conclusive.
Section 8(1) allows a civil suit to be filed against the findings of the Registrar within six months from the date of the publication of the notice under section 7(2); such a suit can be filed by a working trustee or a person having interest in a public trust or any property found to be trust property.
Section 9 permits applications to be made for change in the entries recorded in the register.
It will be recalled that the application which was made in 1956 by Abdul Karim was under the provisions of section 9(1).
If an application is made for change in 304 the entries as, far instance, for adding to the list of properties belonging to the trust, a proceeding has to be taken for making the said change and this is prescribed by section 9(2).
Section 9(3) makes the provisions of section 8 applicable to any finding under section 9 as they would apply to a finding under section 6.
These provisions are contained in Chapter II of the Act.
Chapter III deals with the management of trust property; Ch.
IV with the problem of audit; Ch.
V with control; and Ch.
VI contains miscellaneous provisions, including section 35 which confers the rule making power on the State Government.
That, broadly stated, is the nature of the scheme of the Act and the material provisions which fall to be considered in the present appeal.
Mr. Sinha relies on the fact that under section 4(5) of the Act, the decision of the Registrar is made final, subject to the appellate decision, if any; and he also refers to the right of instituting a suit reserved by section 8.
His argument is that if any person who claims interest in the property which is alleged to be trust property fails to satisfy the Registrar about his claim, he can file a suit under section 8(1).
Section 8(1) allows a suit to be filed, subject to the conditions prescribed by it, and the right to file such a suit is given to a working trustee, or a person having interest in a public trust or any property found to be trust property.
The respondent is interested in the property in suit which is found to be trust property, and since it did not avail itself of the right to file a suit within the specified time, the order passed by the Registrar must be held to be final and conclusive against its claim.
If finality does not attach to such an order even after six months have expired within the meaning of section 8(1), then the provision contained in section 4(5) will serve no purpose whatever.
That is the manner in which Mr. Sinha has presented his case before us.
We are not impressed by this argument.
In testing the validity of this argument, we must bear in mind the important fact that the Act is concerned with the registration of public, religious and charitable trusts in the State of Madhya Pradesh, and the enquiry which its relevant provisions contemplate is an enquiry into the question as to whether the trust in question is public or private.
The enquiry permitted by the said provisions does not take within its sweep questions as to whether the property belongs to a private individual and is not the subject matter of any trust at all.
It cannot be ignored that the Registrar who, no doubt, is given the powers of a civil court under section 28 of the Act, holds a kind of summary enquiry and the points which can fall within his jurisdiction are indicated by clauses (i) to (x) of section 4(3).
Therefore, prima facie.
it appears unreasonable to suggest that contested questions of title, such as those which have arisen in the present case, can be said to fall within the enquiry which the Registrar is authorised to hold under section 5 of the Act.
Besides, it is significant that the only persons who are required to file their objections in response to a notice issued by the 305 Registrar on receiving an application made under section 4(1), are persons interested in the public trust not persons who dispute the existence of the trust or who challenge the allegation that any property belongs to the said trust.
It is only persons interested in the public trust, such as beneficiaries or others who claim a right to manage the trust, who can file objections, and it is objections of this character proceeding from persons belonging to this limited class that fall to be considered by the Registrar.
It cannot be said that the respondent falls within this class; and so, it would be idle to contend that it was the duty of the respondent to have filed objections under section 3(2).
It is true, section 8(1) permits a suit to be filed by a person having interest in the public trust or any preperty found to be trust property.
The interest to which this section refers must be read in the light of section 5(2)to be the interest of a beneficiary or the interest of a person who claims the right to maintain the trust or any other interest of a similar character.
It is not the interest which is adverse to the trust set up by a party who does not claim any relation with the trust at all.
That is why we think the finality on which Mr. Sinha 's argument is based cannot avail him against the respondent inasmuch the respondent was not a party to the proceedings and could not have filed any objections in the said proceedings.
Then again, the right to file a suit to which section 8(1) refers is given to persons who are aggrieved by any finding of the Registrar.
Having regard to the fact that the proceedings before the Registrar are in the nature of proceedings before a civil court, it would be illogical to hold that the respondent who was not a party to the proceedings can be said to be aggrieved by the findings of the Registrar.
The normal judicial concept of a person aggrieved by any order necessarily postulates that the said person must be a party to the proceedings in which the order was passed and by which he feels aggrieved.
It is unnecessary to emphasise that it would be plainly unreasonable to assume that though a person is not a party to the proceedings and cannot participate in them by way of filing objections, he would still be bound to file a suit within the period prescribed by section 8(1) if the property in which he claims an exclusive title is held by the Registrar to belong to a public trust.
Similarly, the right to prefer an appeal against the Registrar 's order prescribed by section 4(5) necessarily implies that the person must be a party to the proceedings before the Registrar; otherwise how would he know about the order? Like section 8(1), section 4(5) also seems to be confined in its operation to persons who are before the Registrar, or who could have appeared before the Registrar under section 5(2).
The whole scheme is clear, the Registrar enquires into the question as to whether a trust is private or public, 306 and deals with the points specifically enumerated by section 4(3).
Therefore, we have no hesitation in holding that the courts below were right in coming to the conclusion that the fact that the property now in suit was added to the list of properties belonging to the wakf, cannot affect the respondent 's title to it.
On the merits, all the courts below have rejected the appellants ' case and have upheld the pleas raised by the respondent in defence.
The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The first appellant, who was the Mutawalli of a public trust, filed a representative suit for an injunction restraining the respondent from committing acts of encroachment on the suit property, on the ground that the property was that of the trust and had been so registered by the Registrar of Public Trusts, under the Madhya Pradesh Public Trusts Act, 1951.
The suit was dismissed by the trial court and also on appeal.
In their appeal to the Supreme Court the appellants contended that, since the respondent did not avail itself of the ,right to file a suit within the specified time, the order passed by the Registrar must be held to be final and conclusive against the respondent.
HELD: The fact that the property in suit was added to the list of the properties belonging to the trust, could not affect the respondent 's title to it.
[306 A B] The enquiry which the Act contemplates is an enquiry into the question as to whether a trust is public or private and does not take within its sweep questions as to whether a property belongs to a private individual and is not the subject matter of any trust at all.
The only persons who are required to file their objections in proceedings before the Registrar are persons interested in the public trust not persons who dispute the existence of the trust or who challenge the allegation that any property belongs to the said trust.
Inasmuch as the respondent was not a party to the proceedings and could not have filed any objections in the proceedings the respondent was not bound to file an appeal under section 4(5) of the Act or a suit under section 8(1), challenging order of the Registrar.
Therefore, the finality given to the finding of the Registrar could not be availed of by the appellant as against the respondent.
[304 G; 305 A B, D E]


judgement:
vil Appeal No. 536 of 1962.
Appeal from the judgment and decree dated March 26.
1958, of the High Court at Patna in First Appeal No. 340 of .1951.
147 Niren De, Additional Solicitor General, N.D. Karkhanis and B.R.G.K. Achar, for the appellant.
Bishan Narain, P. D. Himmatsinghka section Murthy and B.P. Maheshwari, for the respondent.
The judgment of the Court was delivered by Wanchoo, J.
This is an appeal on a certificate granted by the Patna High Court.
The respondent sued the Union of India as representing G.I.P. Railway, Bombay and E.I.R. Calcutta for recovery of damages for non delivery of 31 bales of piece goods, out of 60 bales which had been consigned to Baidyanathdham from Wadibundar.
This consignment was loaded in wagon No. 9643 on December 1. 1947.
It is not in dispute that the consignment reached Mughalsarai on the morning of December 9, 1947 by 192 On goods train.
After reaching Mughalsarai, the wagon was kept in the marshaling yard till December 12, 1947.
It wag sent to Baidyanadham by 214 On goods train from Mughalsarai at 6 40 p.m. on December 12, 1947 and eventually reached Baidyanathdham on December 21, 1947.
The respondent who was the consignee presented the railway receipt on the same day for delivery of the consignment.
Thereupon the railway delivered 29 bales only to the respondent and the remaining 31 bales were said to be missing and were never delivered.
Consequently on August 311948, notice was g:yen under section 80 of the Civil Procedure Code and this was followed by the suit out of which the present appeal has arisen on November 20, 1948.
The consignment had been booked under risk note form Z which for all practical purposes is in the same terms as risk note form B.
The respondent claimed damages for non delivery on the ground that the non delivery was due to the misconduct of the servants of the railway, and the claim was for a sum of Rs. 36,461/12/ .
The suit was resisted by the appellant and a number of defences were taken.
In the present appeal we are only concerned with two defences.
It was first contended that the suit was barred by section 77 of the Indian Railways Act, No. IX of 1890, (hereinafter referred to as the Act), inasmuch as notice required therein was not given by the respondent.
Secondly it was contended that the consignment was sent under risk note form Z and under the terms of that risk note the railway was absolved from all responsibility for loss, destruction or deterioration of goods consigned thereunder from any cause whatsoever except upon proof of misconduct of the railway of its servants.
and that the burden of proving such misconduct subject to certain exceptions was on the respondent and that the respondent had failed to discharge that burden.
Further in compliance with the terms of the risk note, the railway made a disclosure in the written statement as to how the consignment was dealt with throughout the period it was in its possession or control.
The case of the railway in this connection was that there was a theft in the running train between Mughalsarai and 148 Buxar on December 12, 1947 and that was how part of the con signment was lost.
As the loss was not due to any misconduct on the part of the railway or its servants and as the respondent had not discharged the burden which lay on him after the railway had given evidence of how the consignment had been dealt with, there was no liability on the railway.
On the first point, the trial court held On the basis of certain decisions of the Patna High Court that no notice under section 77 was necessary in a case of non delivery which was held to be different from loss.
On the second point relating to the responsibility of the railway on the ' basis of risk note form Z, the trial court held that it had not been proved that the loss was due to misconduct of the railway or its servants.
It therefore dismissed the suit.
Then followed an appeal by the respondent to the High Court.
The High Court apparently upheld the finding of the trial court on the question of notice under s.77.
But on the second point the High Court was of opinion that there was a breach of the condition of disclosure provided in risk note Z under which the consignment had been booked, and therefore the appellant could not take advantage of the risk note at all and the liability of the railway must be assessed on the footing of a simple bailee.
It therefore went on to consider the liability of the railway as a simple bailee and held on the ' evidence that the railway did not take proper care of the wagon at Mughalsarai and that in all probability the seals and rivets of the wagon had been allowed to be broken there and all arrangements had been completed as to how the goods would be removed from the wagon when the train would leave that station and this could only be done either by or in collusion with the servants of the railway at Mughalsarai.
In this view of the matter the High Court allowed the appeal and decreed the suit with costs As the judgment was one of reversal and the amount involved was over rupees twenty thousand, the High Court granted a certificate.
and that is how the matter has come up before us.
We .shall first deal with the question of the notice.
We are in this case concerned with the Act as it was in 1947 before its amendment by Central Act 56 of 1949 and Central Act No. 39 of 1961 and all references in this judgment must be read as applying to the Act as it was in 1947.
Now section 77 inter alia provides that a person shall not be entitled to compensation for the loss, destruction or deterioration of animals or goods delivered to be carried ' by railway, unless his claim to compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway.
There was a conflict between the High Courts on the question whether non delivery of goods carried by railway amounted to less within the meaning of section 77.
Some High Courts (including the Patna High Court) held that a case of non delivery was distinct from a case of loss and no notice under section 77 was necessary .in the case of non delivery.
Other High Courts however took a contrary view and held that a case of non delivery also was a case of loss.
This conflict has now been resolved by the decision of this Court in Governor General in Council vs Musaddilal (1) and the view taken by the Patna High Court has been overruled.
This Court has held that failure to deliver goods is the consequence of loss or destruction and the cause of action for it is not distinct from the cause of action for loss or destruction, and therefore notice under section 77 is necessary in the case of non delivery which arises from the loss of goods.
Therefore notice under section 77 was necessary in the present case.
It is true that the respondent stated in the plaint in conformity with 'the view of the Patna High Court prevalent in Bihar that no notice under s.77 was necessary as it was a case of non delivery.
But we find in actual fact that a notice was given by the respondent to the railway on April 10, 1948 to the Chief Commercial Manager, E.I.R. in which it was stated that 60 bales of cloth were booked for the respondent but only 29 bales had been delivered and the balance of 31 bales had not been delivered.
Therefore the respondent gave notice that if the bales were not delivered to him within a fortnight, he would file a suit for the recovery of Rs. 36,461/12/ , and the details as to how the amount was arrived at were given in this notice.
It is true that the notice was not specifically stated to be a notice under section 77 of the Act but it gave all the particulars necessary in a notice under that section.
This notice or letter was sent within six months of the booking of the consignment.
A similar case came up before this Court in Jetmull Bhojraj vs The Darjeeling Himalayan Railway Co. Ltd.(2) and this Court held that the letter to the railway in that case was sufficient notice for the .purpose of section 77 of the Act. 'Following that decision we hold that the letter in the present case which is even more explicit is sufficient notice for the purpose of S: 77 of the Act.
We may add that the learned Additional Solicitor General did not challenge this in view of the decision in Jetmull Bhojraj 's case(2).
This brings us to the second question raised in the appeal.
We have already indicated that the High Court held that as the burden of disclosure which was on the railway had not been discharged there vas a breach of one of the terms of the risk note Z and therefore the risk note did not apply at all and the responsibility of the railway had to be assessed under ' section 72 (1) of the Act.
This view of the law has been contested on behalf of the appellant and it is urged that after the risk note is executed either in form Z or in form B, the responsibility of the railway must be judged in accordance with the risk note even if there is some breach of the condition as to disclosure.
It may be mentioned that risk note form Z and risk note form B are exactly similar in their terms insolar as the responsibility of the railway is concerned for risk note 150 form B applies to individual consignment while form Z is executed by a party who has usually to send goods by railway in large numbers.
Risk note form Z is general in its nature and applies to all consignments that a party may send after its execution.
It is proved that the consignment in this case was covered by risk note form Z.
The main advantage that a consignor gets by sending a consignment under from Z or form B is a specially reduced rate as compared t3 the ordinary rate at which goods are carried by the railway and it is because of this specially reduced rate that the burden is thrown on the consignor in a suit for damages to prove misconduct on the part of the railway or its servants in the case of loss etc.of the goods, subject to one exception.
On the other hand the argument on behalf of the respondent is that the view taken by the Patna High Court is right and it is the duty of the railway administration under the risk note, as soon as there is non delivery and a claim is made on the railway for compensation, to disclose how the consignment was dealt with throughout while it was in its possession or control and that its failure to do so results immediately in breach of the contract with the result that the responsibility of the railway has to be judged solely on the basis of section 72 (1) of the Act ignoring the risk note altogether.
Section 72 (1) defines the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway to be the same as that of a bailee under sections 152 and 161 of the , subject to other provisions of the Act.
Sub section (2) of section 72 provides that an agreement purporting to limit the responsibility under section 72 (1) can be made subject to two conditions, namely, (i) that it is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and (ii) that it is in a form approved by the Governor General.
Sub section (3) of section 72 provides that nothing in the common law of England or in the Carriers Act 1865 regarding the responsibility of common carriers with respect to carriage of animals or goods shall affect the responsibility as in this section defined of the railway administration.
So the responsibility of the railway for loss etc. is the same as that of a bailee under the Indian Contract Act.
But this responsibility can be limited as provided in section 72 (2).
For the purpose of limiting this responsibility risk notes form B and form Z have been approved by the Governor General and where goods are booked under these risk notes the liability is limited in the manner provided thereunder.
It is therefore necessary to set out the relevant terms of the risk note, for the decision of this case will turn on the provisions of the risk note itself.
The risk note whether it is in form B or form Z provides that where goods are carried at owner 's risk on specially reduced rates, the owner agrees or undertakes to hold the railway administration 151 "harmless and free from all responsibility for any loss, deterioration or destruction of or damage to all or any of such consignment from any cause whatever, except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants".
"thus risk notes B and Z provide for complete immunity of the railway except upon proof of misconduct.
But to this immunity there is a proviso and it is the construction of the proviso that arises in the present appeal.
The proviso is in these terms: "Provided that in the following cases: (a) Non delivery of the whole of a consignment packed in accordance with the instruction laid .down in the tariff or where there are no instructions, protected otherwise than by paper or other packing readily removable by hand and fully addressed, where such non delivery is not due to accidents to train or to fire; (b) . . . "The railway administration shall be bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control, and if necessary, to give evidence thereof before the consignor is called upon to prove misconduct, but, if misconduct on the part of the railway administration or its servants cannot be fairly inferred from such evidence, the burden of proving such misconduct shall lie upon the consignor".
It is not in dispute that the present case comes under cl(a) of the risk note.
An exactly similar provision in risk note form B came up for consideration before the Privy Council in Surat Cotton Spinning & Weaving Mills vs Secretary Of State for India in Council, ( ') and the law on the subject was laid down thus at pp.181 182: "The first portion of the proviso provides that the Rail way Administration shall be bound to disclose to the consignor 'how the consignment was dealt with through out the time it was in its possession or control, and, if necessary to give evidence thereof, before the consignor is called upon to prove misconduct '.
In their Lordships ' opinion, this obligation arises at once upon the occurrence of either of cases (a) or (b), and is not confined to the stage of litigation.
Clearly one object of the provision is to obviate, if possible, the necessity for litigation.
On the other hand, the closing words of the obligation clearly apply to the litigious stage.
As to the extent of the disclosure, it is confined to the period during which the (1) [1927] L.P LXIV: 152 consignment was within the possession or control of the Railway Administration; it does not relate, for instance, to the period after the goods have been the fatuously removed from the premises.
On the other hand, it does envisage a precise statement of how the consignment was dealt with by the Administration or its servants.
The character of what is requisite may vary according to the circumstances of different cases, but, if the consignor is not satisfied that the disclosure has been adequate, the dispute must be judicially, decided.
As to the accuracy or truth of the information given, if the consignor is doubtful or unsatisfied, and considers that these should be established by evidence, their Lordships are of opinion that evidence before a Court of law is contemplated, and that as was properly done in the present suit, the Railway Administration should submit their evidence first at the trial.
"At the close of the evidence for the Administration two questions may be said.to arise, which it is important to keep distinct.
The first question is not a mere question of.procedure, but iS whether they have discharged their obligation of disclosure, ' and, in regard to this, their Lordships are of opinion that the terms of the Risk Note require a step in procedure, which may be said to :be Unfamiliar in the practice of the Court; if the consignor is not satisfied with the ' disclosure made their Lordships are clearly of opinion that is for him tO say so, and to call on the Administration to fulfill their obligation .Under the contract, and that the Administration should then have the opportunity to meet the demands of the consignor before their case is closed; any question as to whether the consignor 's demands go beyond the obligation should be then determined by the Court.
If the Administration fails to take the opportunity to satisfy the demands of the consignor so far as endorsed by the Court, they will be in breach of their contractual obligation of disclosure.
"The other question which may be said to arise at this stage is whether misconduct may be fairly inferred from the evidence of the Administration; if so, the consignor is absolved from his original burden of proof.
But, in this case, the decision of the Court may be given when the evidence of both sides has been completed.
It is clearly for the Administration to decide for themselves whether they have adduced all the evidence which they consider desirable in avoidance of such fair "inference of misconduct".
They will doubtless keep in mind the provisions of s.114 of the Indian Evidence Act".
With respect we are of opinion that this exposition of the law relating to risk note B applies also to risk note Z and we accept it 153 as correct.
Thus the responsibility of the railway.
administration to disclose to the consignor how the consignment was dealt with thrOughOut the time it Was in its possession or control arises at once under the agreement in either of the cases (a) or (b) and is not confined to the stage of litigation.
But we are not prepared to accept the contention on behalf of the respondent that this responsibility to make full disclosure arises immediately the claim is made by the consignor and if the railway immediately on such claim being made does not disclose all the facts to the consignor, there is immediately a breach of this term of the contract contained in the risk note.
It is true that the railway is bound to disclose to the consignor how the Consignment was dealt with throughout the time it was in its possession even before any litigation starts; but we are of opinion that such disclosure is necessary only where the consignor specifically asks the railway to make :the disclosure.
If no such disclosure is asked for, the administration need not make it before the ' litigation.
In the present case there is ' no proof that any disclosure was asked for in this behalf by the consignor at any time before the, suit was filed.
Therefore if the railway did not disclose how the consignment was dealt with throughout before the suit was filed, it cannot be said to have committed breach of this term of the contract.
The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its servants.
if the disclosure is asked for before the litigation commences and is not given or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the court then to say if a suit is brought whether there has been Ia breach of this term ' of the contract.
After this, comes the stage where the consignor or the consignee ' being dissatisfied brings a suit for compensation.
At that stage evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation to the Consignor or which might have been made in the written statement in reply to the suit.
When the railway administration has given its evidence in proof of the disclosure and the plaintiff is not satisfied with the disclosure made in the evidence, the plaintiff is entitled to ask the court to call upon the railway to fulfil its obligation under the contract and the railway should then .have the opportunity of meeting the demands of the plaintiff before its case is closed.
Thus in addition to the evidence that the railway may adduce on its own and in doing so the railway has necessarily to keep in mind the provisions of section 114 of the Indian Evidence Act, the plaintiff can and should draw the attention of the court if he feels that full disclosure has not been made.
, In .that case he can ask the court to require the railway to make further disclosure and should tell the court what further disclosure he wants.
It is then for the court to decide whether the further disclosure .desired by the plaintiff should be made by the railway, and if the court decides that such further disclosure 154 should be made the railway has to make such further disclosure as the court orders it to make on the request of the plaintiff.
If the railway fails to take the opportunity so given to satisfy the demands of the plaintiff, endorsed by the court, the railway would be in breach of its contractual obligation of disclosure.
It is at this stage therefore that the railway can be truly said to be in breach of its contractual obligation of disclosure, and that breach arises because the railway failed to disclose matters which the court on the request of the plaintiff asks it to disclose.
The question then is what is the effect of this breach.
It is remarkable that the Privy Council did not lay down that as soon as the breach is made as above the risk note comes to an end and the responsibility of the railway is that of a bailee under section 72 (l) of the Act.
In the observations already quoted, the Privy Council has gone on to say that after this stage is over, the question may arise whether misconduct may be fairly inferred from the evidence of the railway.
It seems to us therefore that even if there is a breach of the term as to full disclosure it does not bring the contract to an end and throw the responsibility on the railway as if the case was a simple case of responsibility under section 72(1) of the Act; the case is thus not assimilated to a case where the goods are carried at the ordinary rates at railway risk.
The reason for this seems to be that the goods have already been carried at the reduced rates and the consignor has taken advantage of that term in the contract.
Therefore, even though there may be a breach of the term as to complete disclosure by the railway the consignor cannot fall back on the ordinary responsibility of the railway under section 72 (1) of the Act as if the goods had been carried at railway 's risk at ordinary rates, for he has derived the advantage of the goods having been carried at a specially reduced rates.
The risk note would in our opinion continue to apply and the court would still have to decide whether misconduct can be fairly inferred from the evidence of the railway, with this difference that where the railway has been in breach of its obligation to make full disclosure misconduct may be more readily inferred and section 114 of the Indian Evidence Act more readily applied.
But we do not think that the conditions in the risk note can be completely ignored simply because there has been a breach of the condition of complete disclosure.
The view of the Patna High Court that as soon as there is breach of the condition relating to complete disclosure the risk note can be completely ignored and the responsibility of the railway judged purely on the basis of section 72 (1) as if the goods were carried at the ordinary rates on railway 's risk cannot therefore be accepted as correct.
We may point out that in Surat Cotton Spinning and Weaving Mills Limited 's case, (I) the plaintiffs wanted the guard of the train to be examined and he was undoubtedly a material witness.
Even so the witness was not examined by the railway.
Finally therefore the Privy council allowed the appeal with these observations at p. 189: "While their Lordships would be inclined to hold that the respondent, by his failure to submit the evidence of Rohead, was in breach of his contractual obligation to give the evidence necessary for disclosure of how the consignment was dealt with, they are clearly of opinion that the failure to submit the evidence of Rohead, in the circumstances of this case, entitles the court to presume, in terms of section 114 (g) of the Evidence Act, that "Rohead 's evidence, if produced, would be unfavorable to the respondent, and that, in consequence, misconduct by complicity in the theft of some servant, or servants of the respondent may be fairly inferred from the respondent 's evidence".
These observations show that even though there may be a breach of the obligation to give full disclosure that does not mean that the risk note form Z or form B can be ignored and the responsibility of the railway fixed on the basis of section 72 (1) as a simple bailee.
If that was the effect of the breach, the Privy Council would not have come to the conclusion after applying section 114 (g) of the Evidence Act in the case of Rohead that misconduct by complicity in the theft of some servant or servants of the railway may be fairly inferred from the railway 's evidence.
The appeal was allowed by the Privy Council after coming to the conclusion that misconduct by the servant or servants of the railway might be fairly inferred from the evidence including the presumption under section 114(g) of the Evidence Act.
It seems to us clear therefore that even if there is a breach of the obligation to make full disclosure in the sense that the railway does not produce the evidence desired by the plaintiff in the suit even though the request of the plaintiff is endorsed by the court, the effect of such breach is not that the risk note is completely out of the way, the 'reason for this as we have already indicated being that the consignor has already taken advantage of the reduced rates and therefore cannot be allowed to ignore the risk note altogether.
But where there is a breach by the railway of the obligation to make full disclosure the court may more readily infer misconduct on the part of the railway or its servants or more readily presume under section 114 (g) of the Evidence Act against the railway.
This in our opinion is the effect of the decision of the Privy Council in Surat Cotton Spinning and Weaving 'Mills Limited 's case(1).
As we have already said we are in respectful agreement with the law as laid down there.
So far as the present appeal is concerned, there was no de by the consignor for disclosure before the suit.
Even after the suit was filed there was no statement by the respondent at any (1) [1937] L.R. 64 I.A. 176.
156 stage that the disclosure made by the appellant in the evidence was in any way inadequate.
The respondent never told the court after the evidence of the railway was over that he was not satisfied with the disclosure and that the railway be asked to make further disclosure by producing such further evidence as the respondent wanted.
In these circumstances it cannot be said in the present case that there was any breach by the railway of its responsibility to make full disclosure.
In the circumstances we are of opinion that the risk note would still apply and the court would have to decide whether misconduct on the part of the railway can be fairly inferred from the evidence produced by it.
If the court cannot fairly infer misconduct from the evidence adduced by the railway, the burden will be on the respondent to prove misconduct.
that burden, if it arises, has clearly not been discharged for the respondent led no evidence on his behalf to discharge the burden.
We therefore turn to the evidence to see whether from the evidence produced by the railway a fair inference of misconduct of the railway or its servants can be drawn on the facts of this case.
It is not in dispute in this case that the wagon containing the consignment arrived intact at Mughalsarai on December 9, 1947.
Besides there is evidence of Damodar Prasad Sharma, Assistant Trains Clerk, Mughalsarai, P.W. 14, who had the duty to receive trains at the relevant time that 192 Dn. goods train was received by him on line No. 4 and that there were two watchmen on duty on that line for examining the goods train and they kept notes of the same.
He also produced the entry relating to the arrival of the train and there is nothing in the entry to show anything untoward with.this wagon when the train arrived at Mughalsarai.
His evidence also shows that the train was sent to the marshaling yard on December 11, 1947.
Finally there is the evidence of Chatterji (P.W. 8) who is also an Assistant Trains Clerk.
It was his duty to make notes with respect to goods trains which left Mughalsarai.
He stated that this wagon was sent by train No. 214 on December 12, 1947 in the evening.
He also stated that the wagon was in good condition and produced the entry relating to this wagon.
It appears however from his evidence that rivets and seals are examined by the watch and ward staff and they keep record of it.
Apparently therefore he did not actually inspect the wagon before it left though he says that it was in good condition.
The relevance of his evidence however is only this that in his register showing the dispatch of trains there is no entry to the effect that there was any thing wrong with this wagon when it was dispatched.
The most important evidence however is of the guard of the train, Ram Prasad Ram (P.W. 2).
He stated that before the train started from Mughalsarai he patrolled both sides of it and the place from where the train started was well lighted and watch and ward staff also patrolled the area.
He also stated that the rivets and seals of all the wagons in the train were checked at Mughal sarai and there was apparently nothing wrong with them.
Now if 157 the evidence of the guard is believed it would show that the wagon containing the consignment was intact at Mughalsarai upto the time 214 goods train including this wagon left Mughalsarai.
If so there would be no reason to hold that anything was done to the wagon before the train left Mughalsarai.
It may be mentioned that the trial court accepted the evidence of the guard while the High Court was not prepared to believe it.
On a careful consideration of the evidence of the guard we see no reason why his evidence should not be believed.
It is obviously the duty of the guard to see that the train was all right, when he took charge of it.
It appears that in discharge of his duty the guard patrolled the train on both sides and looked at rivets and seals to see that they were intact.
It is, however, urged that the guard 's evidence does not show that the seals which he found intact were the original seals of Wadibundar and the possibility is not ruled out that the original seals might have been tampered with and new seals put in while the train was in the marshaling yard at Mughalsarai for two days, as the evidence of the watch and ward staff had not been produced.
It would perhaps have been better if the evidence of the watch and ward staff had been produced by the railway; but if the evidence of the guard is believed that the seals and rivets were intact when the train left Mughalsarai, the evidence of the watch and ward staff is ' not necessary.
It is true that the guard does not say that the seals were the original seals of Wadibundar but it appears from the evidence of Jagannath Prasad (P.W. 9) who was the Assistant Station Master at Dildarnagar that he found when the train arrived there that the northern flapdoors of the wagon were open while southern flapdoors were intact with the original seals.
This evidence suggests that the original seals could not have been tampered with when the train left Mughalsarai and that the guard 's evidence that seals and rivets were intact shows that nothing had happened to the wagon while it was at Mughalsarai.
Further it is also in evidence that there is ample light in the marshalling yard at Mughalsarai and that watch and ward staff is posted there as well.
So the chances of tampering with the seals and rivets in the marshalling yard in the circumstances are remote.
As such the evidence of the guard that the seals and rivets were intact when he left with the train on the evening of December 12, would apparently exclude the possibility that there was any tampering with the wagon before it left Mughalsarai.
It is true that on the last day when the evidence for the railway was recorded and the guard had been recalled for further cross examination it was suggested to him that the railway servants at Mughalsarai had removed the bales and were responsible for the theft.
He however denied that.
But it is remarkable that if the respondent was dissatisfied with the evidence of the guard which was to the effect that the wagon was all right when he left Mughalsarai with the train on December 12, it did not ask the court to order the railway to produce the evidence of the watch and ward staff with respect to this wagon while it was in the marshalling yard at Mughalsarai.
The respondent could ask for such disclosure.
If the court L/B(D)2SCI 12 158 had accepted the request and the railway had failed to produce the evidence of the watch and ward staff it may have been possible to use section 114 of the Evidence Act and hold that the watch and ward staff having not been produced their evidence, if produced, would have gone against the railway.
But in the absence of any demand by the respondent for the production of the watch and ward staff which he could ask for, we see no reason why the statement of the guard to the effect that seals and rivets of the wagon were intact when he left Mughalsarai with the train should not be accepted.
In the absence of any demand by the respondent for the production of watch and ward staff his mere suggestion that the railway servants at Mughalsarai might have committed the theft cannot be accepted.
There is the further evidence of the guard as to what happened between Mughalsarai and Buxar.
It appears between these two stations the train stops only at Dildarnagar.
The evidence of the guard however is that the train suddenly stopped between the warner and home signals before it reached Dildarnagar.
He therefore got down to find out what the trouble was.
He found that the hosepipe between two wagons had got disconnected and this resulted in the stoppage of the train.
The evidence further is that the hosepipe was intact when the train started from Mughalsarai.
He made a note of this in his rough memo book which was produced.
It is noted by him that the northern flap door of this wagon was open.
He reconnected the hosepipe and went up to Dildarnagar.
There he reported the matter to the station staff.
His further evidence is that there were three escorts with the train and that they were guarding the train when the train was standing between the warner and the home signals before it reached Dildarnagar.
Nothing untoward was reported to him by these escorts.
It was at this stop between the two signals that the guard noticed that the rivets and seals of this wagon on one side had been broken.
The case of the railway is that there was theft in the running train between Mughalsarai and Buxar and that is how part of the consignment was lost.
The evidence of the guard does suggest that something happened between Mughalsarai and Dildarnagar and then between Dildarnagar and Buxar.
In addition to this the evidence of the station staff at Dildarnagar is that the flapdoors of this wagon were found open when the train arrived at Dildarnagar.
The contents were not checked at Dildarnagar as there was no arrangement for checking at that station.
The wagon was resealed at Dildarnagar, and the fact was noted in the station master 's diary.
It may be mentioned that the evidence of the station staff was that the wagon was resealed though the guard says that it was riveted also at Dildarnagar.
The entry in the guard 's rough memo however is only that the wagon was resealed.
The guard certainly says that it was rivetted also at Dildarnagar but that is not supported by the station staff and the entry in the guard 's rough memo.
It seems that the statement of the guard may be due to some error on his 159 part.
That may also explain why, when the train arrived at Buxar, the flapdoor again was found open, for it had not been rivitted at Dildarnagar.
Then the evidence of the Buxar station staff is that the northern flapdoors of this wagon were open when the train arrived at Buxar.
It was then resealed and rivetted and was detached for checking.
The checking took place on December 14th at Buxar.
It was then found that one side had the original seals of Wadibun dar while the other side had the seals of Buxar.
On checking the wagon, 27 bales were found intact, covering of one bale was torn and one bale was found loose and slack.
This evidence asto what happened between Mughalsarai and Buxar thus makes it probable that there was theft in the running train between Mughalsarai and Buxar and that may account for the loss of part of the consignment.
It is however contended on behalf of the respondent that no evidence was produced from Mughalsarai asto what happened while the wagon was in the marshalling yard and that the seal book which is kept at every railway station containing entries of resealing when a wagon is resealed was not produced from Mughalsarai and an adverse inference should be drawn from this non production.
We are however of opinion that the evidence of the guard to the effect that the seals were intact when he left Mughalsarai with the train is sufficient to show that the wagon was in tact with the original seals when it left Mughalsarai and there fore it is not possible to draw any adverse inference from the non production of the watch and ward staff or the seal book of Mughalsarai in the circumstances of this case.
It would have been a different matter if the respondent had asked for the production of the seal book as well as the evidence of the watch and ward staff.
But the respondent contented itself merely with the suggestion that a theft might have taken place at Mughalsarai which was denied by the guard and did not ask the court to order the railway to produce this evidence.
In these circumstances in the face of the evidence of the guard and the fact that one seal on the southernside of the door was of the original station.
we do not think that it is possible to draw an adverse inference against the railway on the ground that the evidence of the watch and ward staff and the seal book at Mughalsarai were not produced.
The seal book would have been of value only if the wagon had been resealed at Mughalsarai but there is in our opinion no reason to think that the wagon had been resealed at Mughalsarai after the evidence of the guard that he found the seals and rivets intact when he left Mughalsarai with the train.
On a careful consideration of the evidence therefore we are of opinion that a fair inference cannot be drawn from the evidence of the railway that there was misconduct by the railway or its servants at Mughalsarai during the time when the wagon was there.
If the evidence of the guard is accepted, and we do accept it, there can be no doubt that the loss of the goods took place be case of theft in the running train between Mughalsarai and 160 Buxar.
There is no evidence on behalf of the respondent to prove misconduct and as misconduct cannot fairly be inferred from the evidence produced on behalf of the railway, the suit must fail.
We therefore allow the appeal, set aside the judgment and decree of the High Court and restore that of the Additional Subordinate Judge.
In the circumstances of this case we order parties to bear their own costs throughout.
Appeal allowed.

summary:
Out of a consignment of 60 bales of piece goods despatched by the Railway, under risk note Form Z, only 29 bales were delivered to the respondent who was the consignee.
By sending the consignment thus, the consignor got a specially reduced rate but the burden was thrown on him, of proving misconduct on the part of the railway or its servants, if there was a loss of goods.
The risknote also imposed an obligation on the Railway, to disclose how the consignment was dealt with by it, during the time the consignment was in its possession or control.
The respondent wrote a letter to the Chief Commercial Manager of the Railway stating that 60 bales were booked but only 29 bales had been delivered, and that a suit for damages would be filed.
The letter was sent within 6 months of the booking of the consignment ,and contained the details as to how the amount of damage was arrived at.
Later on, a notice was given under section 80 of the Civil Procedure Code, 1908, and a suit was filed for damages.
But, before the filing of the suit, there was no demand by the consignor for a disclosure as to how the consignment was dealt with by the Railway throughout the period it was in its possession or control.
The Railway however, made a disclosure in its written statement as.
to how the consignment was, dealt with throughout that period.
Its defence was that, there was a theft in the running train and that was how part of the consignment was lost and not due to any misconduct on the part of the Railway or its servants.
Even after the suit was filed and evidence let in at the trial, by the railway there was no statement by the respondent at any stage that the disclosure made by the Railway in the written statement or in the evidence, was in any way inadequate.
The resplendent never told the court after the evidence of the Railway w.as over, that he was net satisfied with the disclosure and that the Railway should be asked to make a further disclosure.
The suit was dismissed by the trial court but decreed on appeal, by the High Court.
In the appeal to the Supreme Court it was contended that, (i) the, suit was barred by section 77 of the Indian Railways Act, 1890, inasmuch as notice required therein was not given by the respondent, and (ii) under the terms of the risk note the Railway was absolved from all responsibility for the less of the goods consigned thereunder, from any cause whatsoever.
except upon proof of misconduct of the Railway or its servants, that the burden of proving such misconduct was on the respondent and that the respondent had failed to discharge the burden.
HELD: (i) A notice under section 77 of the Act is necessary in the case of non delivery which arises from the loss of goods.
Though the letter, written by the respondent to the Chief Commercial Manager, was not specifically stated to be a notice under the section it gave all 'the 'particulars necessary for such a notice and it was also given within time prescribed.
Therefore, the letter was sufficient notice for the purpose of the Act, [149 D F] 146 Governor General in Council vs Musaddilal [1961]3 S.C.R. 647 and Jatmull Bhojraj vs The Darjeeling Himalayan Railway Co.Ltd. ; , followed.
(ii) The view of the High Court, that there was a breach of the condition relating to complete disclosure, and that on such breach the risk note could be completely ignored and the responsibility of the Railway judged purely on the basis of section 72(1) of the Act, as if the goods were consigned at the ordinary rates on the Railway 'srisk, was not correct.
[154 H] The responsibility of the railway administration to disclose to the consignor as to how the consignment was dealt with throughout the time it was in its possession or control arises at once, under the risk note, in either of the cases referred to therein, and is not confined to the stage of litigation.
But such disclosure is necessary only where a consignor specifically asks the railway to make the disclosure.
If no such disclosure is asked for, the administration need not make it before the litigation.
Therefore, if the Railway did not make the disclosure, before the suit was filed, it could not be said to have committed a breach of the term of the contract [153 A D] The disclosure envisages a precise statement of how the consignment was dealt with by the railway or its servants.
If the disclosure is asked for before litigation commences and is not given, or the disclosure is given but it is not considered to be sufficient by the consignor, the dispute has to be judicially decided and it is for the court to say, if a suit is filed, whether there .has been a breach ,of the term.
At that stage, evidence has to be led by the railway in the first instance to substantiate the disclosure which might have been made before the litigation, to, the consignor, or which might have been made in the written statement.
When the administration has given its evidence in proof of the disclosure, if the plaintiff is not satisfied with the disclosure made in evidence, he is entitled to ask the court to call upon the railway to fulfill its obligation under the contract, and the railway should then have the opportunity of meeting the demands of the plaintiff.
It is then for the court to decide whether the further disclosure desired by.
the plaintiff should be made by the railway, and if the court decides that it should be made, the railway has to make such further disclosure as the court orders.
If the railway fails to take that opportunity to satisfy the demands of the plaintiff endorsed by the court, the railway, at that stage, would be in breach of its contractual obligation of disclosure.
[153 E 154 B] The effect of the breach however is not to bring the contract to an end and throw the responsibility on the railway, as if the case was a simple case of responsibility under s.72(1).
The risk note would continue to apply and the court would have to decide whether the misconduct can be fairly inferred from the evidence of the railway, with the difference that, where the railway has been in breach of its obligation to make full disclosure, misconduct may be more readily inferred and section 114 of the Evidence Act more readily applied.
But the conditions of the risk note cannot be completely ignored, simply because there has been a breach of the condition of complete disclosure.[154 D G] Surat Cotton Spinning & Weaving Mills vs Secretary of State for India in Council [1937] 64 I.A. 176, applied.