S. R. K. PRASAD, J. ( 1 ) THIS second appeal is directed against the judgment and decree in AS No. 63 of 1984 on the file of III Additional District Judge, Guntur, confirming the judgment and decree passed in OS No. 1908 of 1980 by the V Additional District Munsif, Guntur. ( 2 ) THE factual matrix that lead to this Second Appeal can be briefly stated as follows:the respondent being the plaintiff instituted a suit for recovery of a sum of Rs. 4,925-70 ps. , towards value of 11 bags of orid dal, purchased by him from the 1st appellant who is the 1st defendant on 19-11-1997. In support of the purchase, the plaintiff relied upon Exs. A3 and A4 cash bills issued to him on the very same day at the shop of the 1st defendant. Having received cash payment of a total sum of Rs. 3,624-50 ps. , the commodity purchased could not be delivered to the plaintiff, as even before the plaintiff s agent or broker could reach the 1st defendant, there was outbreak of cyclone, resulting in destruction of the 1st defendant s mill and damage of all the commodities stocked therein. The appellants have hotly contested the suit and denied their liability. They have also contended that the title of the goods had passed on to the plaintiff and he is responsible for the loss caused, as the property has been destroyed due to the cyclone. ( 3 ) AFTER trial, the trial Court decreed the suit. As against the same, the appellants carried the matter to the Court of III Additional District Judge, Guntur, in AS No. 63 of 1984. The learned III Additional District Judge, Guntur dismissed the appeal while confirming the judgment and decree of the trial Court. ( 4 ) AGGRIEVED by the judgment and decree of the III Additional District Judge, Guntur, in AS No. 63 of 1984 the appellants carried the matter before this Court by way Second Appeal No. 264 of 1986. The matter came up before my learned Brother Mr. Justice Ramanujulu Naidu. ( 4 ) AGGRIEVED by the judgment and decree of the III Additional District Judge, Guntur, in AS No. 63 of 1984 the appellants carried the matter before this Court by way Second Appeal No. 264 of 1986. The matter came up before my learned Brother Mr. Justice Ramanujulu Naidu. His Lordship while allowing the second appeal observed as follows:"i, therefore, without expressing any opinion on the merits of the case, set aside the decree of the appellate Court and remit to the III Additional District Judge, Guntur, for disposal on merits addressing itself only on the question as to whether title to the goods passed in favour of the plaintiff, at the relevant point of time. " ( 5 ) THE III Additional District Judge, Guntur, after hearing both parties, gave a finding that the title of the goods did not pass and decreed the suit by dismissing the appeal. ( 6 ) AGGRIEVED by the same, the defendants carried the matter by way of the present second appeal. At the time of admitting the second appeal, the following Questions of Law have been framed. (1) Whether the findings as regards delivery of goods is contrary to the pleadings and admissions in the plaintiffs evidence? (2) Whether the lower appellate Court erred in not taking into consideration its earlier findings (Para-15 of Judgment dated 15-12-1985) at the pronouncement of the judgment and making D4 liable for the decretal amounts? ( 7 ) IT has to be been seen whether the title of the goods has been passed on to the respondent-plaintiff? ( 8 ) IT is stated in Prem Singh Hyanki and Anr. v. Deb Singh Bishi and Anr. , AIR 1948 PC page 20, that:"when A entered into a contract with B by which sold certain quantity of wool to B. The terms of the contract recited that A was to give the wool in possession of B within 5 days. v. Deb Singh Bishi and Anr. , AIR 1948 PC page 20, that:"when A entered into a contract with B by which sold certain quantity of wool to B. The terms of the contract recited that A was to give the wool in possession of B within 5 days. He had received certain amount from B by way of earnest money and was to receive the remaining amount when the wool was given in possession of B. hi those circumstances, their Lordships have held in view of that it was a contract for the sale of ascertained goods that the parties intended the property in the goods to be transferred to the purchaser B on the signing of the contract and the last condition amounted only to a warranty given by A, the existence whereof did not prevent the property from passing to the buyer. In the case on the hand of their Lordships, the contract specifically provided payment of damages on the question of default like, if the party No. 1 seller does not deliver the goods within the time stipulated, the buyer is entitled to claim compensation as damages. Likewise, the appellant has not paid the amount within the stipulated time. In view of that their Lordships have held that there is a passing of title of the goods to the buyer, the contract is concluded, and the quantity is ascertained and identified, the position is only when the seller is a tentative and as a security for the payment of the balance. "in Dwaraka Das Ajodhya Prasad v. Ram Ratna and Anr. , AIR 1922 All. 458, it is held that:"where the defendants agreed to take certain goods as ascertained but requested the plaintiffs to postpone delivery until some more convenient time and under these circumstances, the provisions of Section 78 of Contract Act come into operation. The property in the goods passed to the defendants as soon as the proposal for sale was accepted and they were liable for the price. In Tarachand Ganshamdas v. Louis Dreyfus and Company, AIR 1916 Sind. 86 (2), it is held that:"the property in goods under a contract of sale does not pass to the purchaser until it is weighed by the vendor unless there are other terms of the agreement or some particular trade or local usage to the contrary. In Tarachand Ganshamdas v. Louis Dreyfus and Company, AIR 1916 Sind. 86 (2), it is held that:"the property in goods under a contract of sale does not pass to the purchaser until it is weighed by the vendor unless there are other terms of the agreement or some particular trade or local usage to the contrary. But, however, their Lordships have said that defaulting purchaser delaying to take delivery of goods purchased by him is bound to compensate the seller for loss occasioned by reason of such delay, owning to deterioration of goods in the ordinary courses of things i. e. , by rainfall even though the property in the goods has not passed to the purchaser. In Commissioner of Income Tax, Madras v. Mysore Chromite Limited, AIR 1955 SC 98 , it is held that:"where there is a contract for the sale of unascertained for future goods by description and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. "in Mukteshwar Singh v. The State of Bihar, AIR 1979 Patna 40, it is held that:"an auction sale of forest coups for exploitation and when the agreement signed by purchaser and Divisional Forest Officer on date of auction and was forwarded for execution to conservator, the purchaser was also permitted to carry on his operation in coups in anticipation of approval of conservator and that the sale was complete on the date of auction and consequently the property passes to the buyer. "in Arm (1953) (Private) Limited v. State of Madras, AIR 1961 Mad. 216 , it is held that:"whether the sale was not for a specified goods, the transaction will fall within the scope of Section 23 (1) when the goods to be sold were unascertained and the buyers will obtain title to the goods only at the point of delivery. "in Arm (1953) (Private) Limited v. State of Madras, AIR 1961 Mad. 216 , it is held that:"whether the sale was not for a specified goods, the transaction will fall within the scope of Section 23 (1) when the goods to be sold were unascertained and the buyers will obtain title to the goods only at the point of delivery. Section 26 of the Sales of Goods Act reads as follows:"unless otherwise agreed, the goods remain at the seller s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer, the goods are at the buyer s risk whether the delivery has been made or not: Provided that, where delivery has been delayed through the fault of either buyer or seller, the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault: Provided also that nothing in this section shall affect the duties or liabilities of either seller or buyer as a bailee of the goods of the other party. ( 9 ) IN this case, the goods are not handed over. The title of goods does not pass into the hands of the plaintiff and the question of claiming goods will not arise. He is entitled for repayment of the amount paid by him. Lastly it is canvassed by the learned Counsel for the appellants is that the burden is on the plaintiff to prove that the defendant is a firm and doing joint family business and they are partners in the business. The learned Counsel for the respondent-plaintiff would contend that it was a case where the 4th defendant did not go to the witness box to prove his own version. The non-examination of the 4th defendant is a fatal to his own version. He relied on a decision reported in Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 . The learned Counsel for the respondent-plaintiff would contend that it was a case where the 4th defendant did not go to the witness box to prove his own version. The non-examination of the 4th defendant is a fatal to his own version. He relied on a decision reported in Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 . The relevant portion of the above decision reads as follows:"where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct" ( 10 ) ADVERTING to the same, it is a case where the plaintiff has gone into the witness box and he spoke about the partnership business. They have also examined PW2 in support of their claim. Whereas the 4th defendant has not gone into the witness box to speak about his own version. It is clear from the principles laid down by the Supreme Court that if a party does not offer himself to be cross-examined by the other side, an adverse inference can be drawn against him. In that view of the matter, both the Courts have given concurrent finding that it was a joint family firm doing business. There is no need to interfere with the concurrent findings of both the Courts due to non-examination of 4th defendant. No other point is canvassed before me. To sum up, I find that the title did not pass. The plaintiff is entitled for refund of the amount. Both the Courts have taken all the above aspects into consideration and rejected the case of the defendants. The judgment and Decree of the lower appellate Court is based on sound material and there is proper appreciation of evidence. There is no need to interfere with the judgment of the lower appellate Court. ( 11 ) IN the result, the judgment and decree in AS No. 63 of 1984 passed by the III Additional District Judge, Guntur, is confirmed. The second appeal is dismissed accordingly. Under the circumstances, the appellants shall pay half costs to the plaintiff.