Present: Bertram C.J. and Garvin and Jayewardene A. JJ.

SAMED v. SEGUTAMBY.

358-D. C. Puttalam, 3,543.

Use of fire in agricultural operations-Spread of fire to neighbouring land -Action for damages-Has plaintiff to prove negligence on the part of the defendant ?-Contributory negligence.

The defendant cut down the jungle on his land and set fire to it in the course of some agricultural operations. The fire spread to the plaintiff's land and damaged his plantation. The plaintiff alleged negligence on the part of the defendant, and claimed damages. The defendant pleaded contributory negligence on 'the part of the plaintiff in exculpation.

A strip of 30 feet was cleared and reserved on the boundary of the plaintiff's land in the direction in which the fire would naturally be carried by the prevailing wind.

Plaintiff himself cleared a corresponding portion on his own land as an additional precaution. Neither side took the precaution to clear a strip to prevent the fire spreading in the event of a defection of the wind. The fire spread sideways, and got out of control.

The District Judge held that plaintiff had entirely failed to prove negligence on the part of the defendant; that the defendant had taken all necessary precautions; and that the spread of the fire was due to inevitable accident which could not be prevented by reasonable foresight. He also found that there has been contributory negligence on the part of the plaintiff, and dismissed plaintiff's action. The plaintiff appealed.

Held, that in an action for damages resulting from the spread of fire in the course of agricultural operations, the plaintiff must prove negligence on the part of the defendant.

It is not for the defendant to prove due diligence, but for the plaintiff to prove negligence ; but in some cases negligence may be inferred from the fact itself-

Held, that in the circumstances of this case negligence may be inferred from the facts themselves. There was no contributory negligence on the part of the plaintiff.

The Roman-Dutch law on the subject governs the rights of parties. Even if the English Common law is applicable to this case, there must be proof of negligence on the part of the defendant, and such negligence may be inferred from the facts and circumstances in the absence of direct evidence.

The proposition that the Roman-Dutch law, pure and simple, does not exist in this country in its entirety and that it is not the whole body of Roman-Dutch law, but only so much of it as may be shown or presumed to have been introduced into Ceylon that is in force here, does not apply to fundamental principles of the

common law enunciated by authorities recognized as binding wherever the Roman-Dutch law prevails. Such principles may IN course of time become modified in their local application by judicial decisions, but it would be only by a series of unbroken and express decisions that such a development could take place.

Silva v. Silva1 [1 (1914) 17 N. L. R. 266.] overruled.

THE facts are set out in the judgment of the District Judge (N. M. Bharucha, Esq.) :-

In this action the plaintiff sues the defendant for the recovery of Rs. 3,000, being damages caused to the coconut trees on his land called Sengalkattu Bown by a fire, which he alleges to have spread from the newly cleared chena belonging to the defendant. The alleged incident took place on September 15, 1922. Notice of the setting fire was given by the defendant to the plaintiff on or about September 1. The defendant's cleared chena is situated to the south of the plaintiff's land. It is not disputed that the defendant had left a reservation of about 40 feet wide between the cleared chena and plaintiff's estate to the north. The plaintiff had also cleared a similar reservation about 25 to 30 feet wide on his estate. After notice was given the plaintiff visited his land twice-once on September 5 and again on September 10