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Present: De Sampayo, J. and Schneider A.J.
DENISHAMY et al. v. DAVITH APPU et al.
330—D. C. Matara, 7,308.
Pishing with prohibited nets—Causing fish encircled to escape—Liability—Tort—Damages.
Fishermen who had completed the kraaling of fish were held tobe entitled to maintain an action -for damages against those whohad cat their net and cause the fish to escape, though the netthey used might be a prohibited one.
^ HE facts are set out in the judgment.
Batca, K.C., for plaintiffe, appellants.
A. St. V. Jayawardene, for defendants, respondents.
Gut. adv. vult.
March 19, 1919. De Sampayo J.—
The plaintiffs and the defendants are fishermen of Mirissa, in theDistrict of Matara. The plaintiffs brought this action to recoverdamages from the defendants, alleging that they had, on February21, 1916, fished in the sea at Mirissa with a net known as Madela,and had enclosed a large shoal of fish, and that while they weredrawing the net ashore, the defendants came in boats and wrongfullyand maliciously disturbed the shoal of fish, cut the net, and causedthe fish to escape. At the trial the District Judge found the factsdistinctly in favour of the plaintiffs, and gave them judgment forBs. 450, with costs of action. On an appeal taken by the defendants,this Court, while affirming the findings as to the facts, consideredthat the District Judge had wrongly refused to frame an issue,suggested by the defendants, whether the net used by the plaintiffswas a prohibited one, and sent the case back for that issue to beframed and tried. At the further trial that issue was formulatedand evidence heard thereon, and the District Judge decided itagainst the plaintiffs, and dismissed the action, with costs.
It appears that the use of the madela is regulated by the WeligamKorale fishing rules framed under the Village Communities Ordi-nance, No. 24 of 1889, and published in the Government Gazette ofJuly 19, 1912. Buies 5 and 6 provide for registration of madel.Buie 7 makes it unlawful to use any madel that have not been soregistered. Buie 8 provides that every madela so registered shallbe cast by turns in the order of the register. Buie 12 mentions the
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Daniehamy v.Davith Appu
nets other than model which are allowed to be used within the limitsto which the rules apply; and rule 14 declares that “ except theforegoing nets, no other nets whatever shall be used within theabove limits.” Buie 20 imposes a penalty for breach of the rules.The plaintiffs’ madela was in fact registered under the above rules,but it is said that the net has since been altered, and that notwith-standing its registration it must be taken as unregistered, andtherefore a prohibited net. 1 may say that there is no express ruletouching this point, and considering the restrictive effect of theserules on a lawful calling, I am not prepared to give mi extensive .interpretation to the rules. In my opinion the plaintiffs’ madelaought not to be held to be prohibited, or its use unlawful. It appearsthat a madela, which is usually made of coir, consists of three parts,viz., the main net, the madihe or pocket into which the encircled fishfall, and the two mandas or ropes, one of which is attached to the boatand the other to the shore. It is said that when the plaintiffs’madela was registered it was wholly of coir, but that on the day inquestion a pocket made of hana or hemp was substituted for the coirpocket. This is the alteration which is said to make the use of themodel a on that day unlawful. A hemp pocket is more closely woventhan a coir pocket, and is capable of seeming smaller fish. Accordingto the Vidane Arachchi, who is also the registering officer, the differ-ence in material is not of much consequence. He says, “ the madihe(pocket) of a madela can be made of anything,” and he admits that amadela with a hemp pocket cannot be described as prohibited. Headds that he had registered a number of model with hemp pockets,and that the plaintiffs themselves had registered such model both inyears previous to and in 1917. There is good reason to believe theVidane Arachchi was mistaken when he said that the madela inquestion had a coir pocket when he registered it. He spoke frommemory rather than from his register. In the register the plaintiffs’madela is described as of coir, which it was. He finally stated,what appears to me to make the matter very clear, that model with'coir pockets were used in the south-west monsoon, and model withhemp pocket was used in the north-east monsoon. This incidenttook place in the month of February, when the north-east monsoonis still on, and it seems to me .that the plaintiffs had not used themadela unlawfully.
Even if the net was altered in the manner alleged, the questionarises whether the defendants, who unlawfully disturbed the plain-tiffs in their occupation, cut their net, and caused them serious loss,are- free from civil liability. Mr. Jayawardene argues that as theplaintiffs’ act of fishing with the madela in question was unlawful,they cannot sue for damages in a court of law, and he cites Will8 v.Higgins 1 in support of his argument. That is a tundu case, andwhat is held there is that the planter, who issued a tundu for coolies,
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but had in violation of the Labour Ordinance, 1909, failed toregister them on the estate register, could not recover on the con-tract constituted by the tundu, which implies that the coolies werelegally in his service. But the decision has no bearing on the pointnow under consideration. I shall here assume that in consequenceof the Village Committee rules, and the alleged alteration of the netafter registration, the use of the net was prohibited. What is theresult? The plaintiffs may be liable to be prosecuted for breach ofthe rules, but are they prevented from claiming damages againstthe defendants for their wrongful act?
The principle applicable to the case, I think, is that which declaresthat a person who is in possession of property, though he may nothave come by it legally, can maintain trespass against all personsexcept the true owner. Here the plaintiffs were the lawful ownersof the net, and they had reduced into possession a shoal of fish. Thedefendants were entitled neither to the net nor to the fish and areprimd facie liable to the plaintiffs for what they did by forceand without justification. Our law on the subject of the rights arisingfrom the successful enclosure of fish in a kraal or net is fully discussedin D. C., Tangalla, No. 2,961.1 It was there held that the plaintiffs,who had completed the kraaling of fish, though their method wasunlawful, were entitled to maintain an action for damages. Thatis a direct authority, for this Court concluded the judgment asfollows: “ In the present case the plaintiff’s mode of fishing wasunlawful, but they had obtained such complete possession of fish,which were ferae naturae, as to give them a property by first occu-pancy. The defendants were mere wrong-doers, and the case comescompletely within, the principle already quoted from the Digest:adversus extraneos vitiosa possessio prodesse solet.” .
I think the judgment appealed against is erroneous in respectof law. The District Judge’s assessment of damages in his firstjudgment is quite reasonable. I would allow the appeal, and givethe plaintiffs judgment for Bs. 450, with costs in both Courts.
Denishamy v.Davith Appu
Schneider A.J.—I agree.
Vand. Rep. 247.
DENISHAMY et al. v. DAVITH APPU et al