( 508 )
Present: Shaw J.
PEBEBA v. PEBEBA et i!.
324-326—P. G. Kalutara, 55,160.
Enclosing fish within a net—Another person casting net within the portionenclosed—Trespass—Mischief.
Complainant cast his net into the sea for the purpose of drawingit to the shore and catching fish that might he enclosed. The accused, whodisputed the right of the complainant to cast his net, at this time cameand threw their net inside the net pf the complainant, preventing the com-plainant from catching and bringing ashore the fish that he had enclosed.
Held, that accused was not guilty of trespass, but was guilty ofmischief.
*^pHE facts appear from the judgment.
Elliott (with him Mendis), for accused, appellants.
E. W. Jayawardene (with him Sundaram), for complainant,respondent.
June 24, 1920. Shaw J.—
In this case the accused have been convicted of trespass, mischief,and intimidation, and have been fined, the first and second accusedBs. 50, and the third accused Bs. 75. The accused and the com.plain ant are all fishermen, and it appears from the facts as found by
* J. Joe. 6 W. 494.* L.B. 8 B. L. 321.
• 11917) 19 N. L. R. 481.
t 509 )
the Magistrate that the complainant had cast his net into the seafor the purpose of drawing it to the shore and catching fish thatmight be enclosed, and that the accused, who disputed the lightof the complainant to oast his net at this time, came and threw theirnet inside the net of the complainant, preventing the complainantfrom catching and bringing ashore the fish that he had enclosed.They also were proved to have used violently intimidating language,and, although the Magistrate does not deal at any length with thematter of intimidation in his reasons for his decision, he must havebelieved the evidence given in respect of this, as he has convictedon that charge, as well as on the other two. The-objection to theconviction on the first two counts is taken on the ground that theyare not borne out by law. With regard to the trespass, the objectionis that it is not trespass to any property to which the complainanthad an exclusive right; and with regard to the mischief, it is objectedthat it is not mischief to any property within the meaning of thePenal Code, because the fish that are alleged to have been disturbedhad not been reduced into possession either by the complainantor any one else. With regard to the .first objection, there wouldappear to me to be a good foundation for it, because, although thecomplainant had a right to fish in this particular part of the sea,and had enclosed it with his net, this did not give him any possessionof that part of the sea as his property, and the accused by comingupon that part of the sea was not, in my opinion, entering uponproperty in the occupation of another within the meaning ofsection 427 of the Code. But I think the conviction on the groundof mischief should be supported. The evidence and the finding ofthe Magistrate is that the fish had been enclosed by the net of thecomplainant, and the Magistrate distinctly finds that the accusedentered within the circle of complainant’s net and captured hisfish and disturbed them. The complainant having enclosed fishwithin his net had a sufficient property in those fish to entitle himto maintain a civil action against any one who is disturbing thatpossession. This has been so decided by this Court in the case ofPackeer Tamby v. Siman.1 If he has sufficient possession of the fishto entitle him to maintain a civil action, it seems to me that he has asufficient possession to entitle him to say that the accused when bydriving away his fish and preventing him from bringing them toshore has committed mischief against his property. The convictionalso can be and should be, in my opinion, supported on the groundthat it is justified under the charge for intimidation. The convic-tion, therefore, in my opinion, is accurate, and I dismiss the appeal.
1 2 Lorensz 150.
PERERA v. PERERA et al