Fernando V. Fernando Et Al.,

 

1940     Present : Wijeyewardene and Nihill JJ.

 

FERNANDO v. FERNANDO et al.

126-D. C. Negombo, 10,190.

 

Fishing-Attempt to curtail common law right by custom-Validity of custom.

 

Where the common law right to fish in the foreshore and the high seas adjacent to a certain area of the sea was disputed on the ground of custom, whereby the " paduwas " in the area were allotted to particular villages on the principle that the fishermen in such villages shall only fish in the " paduwas " adjacent to their village,-

 

Held, that there must be proof of certainty and of the unbroken exercise of the right to enable the Court to uphold it as a valid custom.

 

APPEAL from a judgment of the District Judge of Negombo.

 

This was an action brought by the plaintiff who is a fisherman claiming the right to fish in a fishing area known as Croosadipaduwa which is a section of the foreshore and the high sea adjacent thereto. The defend­ants resisted the plaintiff's right to fish on the ground that the fishing in the different " paduwas" between Negombo and Kochchikade was regulated by long established custom and that the plaintiff was attempting to upset this custom by asserting a right to fish in an area other than the one allotted to his family.

 

The learned District Judge dismissed the plaintiff's action.

 

N. Nadarajah (with him M. Balasunderam), for the plaintiff, appellant. -Every person has a right to fish in the waters of the sea-Fernando et al. v. Fernando et al.1 The question for determination is whether any custom has been proved in this case which derogates from the common law. A custom to be valid must have four essential attributes. It must be immemorial; it must be reasonable; it must have continued without interruption since its immemorial origin; and it must be certain and definite-Walter Pereira's Laws of Ceylon (1913), p. 143. See also Valli-puram v.

 

Santhanam 2; Abdul Khan v. Bibi Sana Dero et al.3; M. I. Rowther v. S. I. Rowther4; Tyson v. Smith5. A custom of a vague and indefinite nature cannot be recognized by Court-Selby v. Robinson6.

 

For proof of custom in regard to fishing, see Walter Pereira's Laws of Ceylon (1913), p. 284; Guruvey v. Bastion7; Arumokam v. Tampaiya8 Baba Appu et al. v. Aberan et al9; Fernando et al. v. Fernando et al. (supra).

 

H. V. Perera, K.C. (with him R. L. Pereira, K.C., and K. Aserappa), for the defendants, respondents.-The customs proved in this case is not one which the law will refuse to recognize. It is a reasonable custom, and the evidence is quite definite. The class of beneficiaries is sufficiently

Foot Notes: 
 

1 (1920) 22 N. L. R. 260. 

2 (1915) 1 c. W. R. 96.   

3 (1917) L. s. 45 I. A. 10.

4 (1922) A. 1. R. (P. C.) 59.
5 (1

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