JUDGMENT
E. Padmanabhan, J.
1. The defendant in O.S.No. 79 of 1985 on the file of the District Munsif Court, Nannilam, who had succeeded before the trial court and lost before the first appellate court is the appellant in this second appeal. For convenience, the parties to this appeal will be referred as arrayed before the trial court.
2. Heard. Mr. B. Ramamoorthy, learned Counsel appearing for the appellant and Mr. R. Srinivasan, appearing for the respondent.
3. At the time of admission, the following substantial question of law was framed by this Court:
Whether the provisions of Section 108 of the Transfer of Property Act is applicable to a cultivating tenant?
4. The above question of law could be answered strait by holding that Section 108 of the Transfer of Property Act has no application to the agricultural leases, in terms of Section 117 of the Transfer of Property Act. Section 117 of the Transfer of Property Act provides that none of the provisions of Chapter V apply to leases for agricultural purposes except in so far as the Provincial Government by notification declare all or any of such provisions to be so applicable in the case of or any of such leases, together with or subject to, those of the local law, if any, for the time being in force. The effect of Section 17 is to exclude all agricultural leases from the operation of the said chapter, as also agricultural tenants and cultivating tenants.
5. In the present case, it is admitted that the lease is for agricultural purposes. It is to be further held that as a consequence, provision of Section 108(c) cannot be invoked when the lease relates to agricultural land. However, the controversy in this appeal which deserves to be decided on the facts of the case, and the learned Counsel appearing for either side submitted that appropriate questions of law may be framed for decision. In the circumstances, this Court has considered the entire case on the pleadings and evidence placed on record.
6. It is submitted that the plaintiff is the land owner and the defendant is a cultivating tenant in respect of the suit wet land under the plaintiff. The defendant is a cultivating tenant as defined in Section 2(aa) of the Tamil Nadu Cultivating Tenants Protection Act. There is no dispute as to the title of the suit land. According to the plaintiff without his permission or consent, the defendant highhandedly commenced sinking of a borewell in the suit land on 20.3.1985. On coming to know of the same, the plaintiff caused a legal notice dated 1.4.1985, called upon the defendant not to proceed further with the sinking of the borewell and restore the land to its original position. Despite the said notice, the defendant proceeded further and sunk a borewell. The defendant has no right to sunk a borewell without the consent of the plaintiff.
7. The plaintiff further pleaded that he has got a borewell in his adjacent land which is 100 yards away from the suit land and if the defendant draws water from the borewell, it will result in depletion of water in his borewell. It is further contended that the defendant has no right to sink a borewell or install a motor and to tap under-ground water as the land is receiving mamool supply from the river Cauvery. Hence, the present suit has been filed seeking the relief of mandatory injunction to remove the borewell and to restore the land to the original position.
8. The defendant filed a written statement pleading that with the consent of the plaintiff the borewell has been sunk, that the borewell is for improvement or development of the land, that the borewell has been sunk at a cost of Rs. 10,000, that the suit for mandatory injunction is not maintainable, that there is no bar for the defendant sinking a borewell and that as the defendant had declined to give up a portion of the leasehold land, the present suit has been filed. The defendant further contended that there is no cause of action and that the plaintiff is not entitled to any relief.
9. The plaintiff marked Ex.A-1, notice dated 1.4.1985 whereunder the defendant was called upon to stop the sinking of borewell and to restore the land to its original position. The plaintiff has examined one Krishnamurthy as P.W.1 while the defendant has examined himself as D.W.1. The trial court found that without the consent of the plaintiff the defendant had sunk the borewell and installed motor pumpset and that in terms of Section 108(o) and (p) of the Transfer of Property Act, the defendant is entitled to sink a well and therefore the plaintiff is not entitled to claim the relief of mandatory injunction. The relationship between the parties have been found to be that of the lessor and that a cultivating tenant. In that view, the trial court dismissed the suit.
10. On appeal by the plaintiff, the first appellate court by its judgment and decree dated 19th September, 1986, held that the provisions of the Transfer of Property Act has no application to the lease in question, that the suit land is to be cultivated with the water received from Ayacut, that the defendant has no right to sink a borewell in the suit land without the consent of the land owner, that the defendant and his father had been cultivating the land with the water received from the Ayacut and they have no right to sink a well even holding that the defendant is a statutory tenant and granted the relief of mandatory injunction on the view that without the consent of the land owner, no permanent structure or construction shall be erected or installed by the tenant. In that view, the appellate court decreed the suit and granted the relief of mandatory injunction. According to the first appellate court without the consent of the land owner the plaintiff has no right to sink a bore-well and the plaintiff is entitled to the relief of mandatory injunction.
11. In this second appeal the questions that arise for consideration are:
(1) Whether the defendant, a statutory tenant is entitled to sink a bore-well and install motor pumpset without the consent of the land owner when the land is included in the Ayacut and is being irrigated with the mamool supply of water from the river Cauvery?
(2) Whether the sinking of borewell is an act of waste or for the development of the land?
(3) Whether the borewell could be allowed to continue; and
(4) Whether the plaintiff is entitled to the relief of mandatory injunction?
12. The learned Counsel appearing for either side made their submissions with respect to the above matters while drawing the attention of the court to the findings of the two courts below.
13. Here and now, it has to be pointed out that the defendant had not obtained any permission or consent of the land owner for sinking a well and in fact in terms of the legal notice as seen from Ex.A-1, the plaintiff on coming to know that the defendant is sinking a borewell, called upon the defendant to stop and restore the land to its original position. It is obvious that the plaintiff had objected to the sinking of the well at the earliest opportunity, and the defendant had been called upon to close the well and restore the land to its original position. It is fairly stated by Mr. R. Srinivasan, learned Counsel for the respondent that the plaintiff is not pressing the plea that consequent to the sinking of borewell by the defendant in the suit tenancy land, there has been depletion of water in the plaintiff’s borewell in the adjacent land, which is under the personal occupation of the plaintiff. Mr. R. Srinivasan, addressed further arguments on the question whether the defendant, a statutory tenant is entitled to sink a borewell? and whether it is an act of waste? These are to be considered in this second appeal.
14. As already pointed out Section 108 of the Transfer of Property Act has no application to agricultural leases and Mr. B. Ramamoorthy has no answer to this contention as Section 17 of the Transfer of Property Act is very clear and Chapter V of Transfer of Property Act has no application to agricultural leases.
15. Mr. B. Ramamoorthy, learned Counsel appearing for the defendant/appellant contended that the defendant is entitled to use the land, to sink a borewell to raise crops as the defendant is bound to pay rent and for want of sufficient water supply the defendant should not be harassed with the demand for payment of rent. It was further pointed out by Mr. B. Ramamoorthy that the act of sinking a bore-well is not an act of waste and it is an act of development as with the water drawn from the borewell, the defendant could raise crops and raise at least two crops even if there is a failure in the mamool water supply from the mamool irrigation source.
16. Mr. B. Ramamoorthy relied upon the decision of the Allahabad High Court reported in Dharmaraj Kunwar v. Sumeran Singh and another I.L.R. 21 All. 386 and contended that the act of sinking a well being an improvement it could be sunk without the consent or reference to the land owner. In the said judgment the Allahabad High, Court was concerned with a case arising under Section 44 of the N.W.P. Rent Act, which section recognised the rights of an occupancy tenant to construct wells without the knowledge of the land holders concerned. According to the Allahabad High Court Section 44 of. N.W.P Act, 1882 implicitly: authorised the tenants of all classes to construct wells for the improvement of the land held by them as an occupancy tenant. It is fairly stated that there is no parallel provision in the Tamil Nadu Cultivating Tenants Protection Act, 1955 with Section 44 of N.W.P. Rent Act, 1881 and therefore the reliance placed upon the said pronouncement of the Allahabad High Court as rightly pointed out by Mr. R. Srinivasan will be of little use nor it could be pressed into service to the facts of the present case. There is force in the submission of Mr. R. Srinivasan, learned Counsel appearing for the respondent/plaintiff.
17. Mr. B. Ramamoorthy while relying upon the Division Bench judgment in Gowrishankar v. Raja Azamshah A.I.R. 1956 Nag. 115, contended that notwithstanding a notification under Section 117 of the Transfer of Property Act, the principles underlying the provisions of Chapter V could be applied to agricultural leases as rules of equity justice and good conscience. In this respect Hidayatullah, J. speaking for the Bench held that it would be inequitable to permit the. appellant to invoke the aid of Section 108(e) of the Transfer of Property Act though the provisions of Chapter V would indicate the useful guidelines in deciding the points of equity.
18. The learned Counsel Mr. B. Ramamoorty also relied upon the pronouncement of the Apex Court Mohd. Amir v. Municipal Board, Sitapur , in support of his contention that the principles embodied in Section 111(g) are equally applicable even to tenancies to which the Transfer of Property Act does not apply as they are in consonance with justice, equity and good conscience. In this respect it has been held thus:
No doubt, the provisions of the Transfer of Property Act were not, it is stated in terms, applicable to the area in question, but it has been laid down that the principles embodied in Section 11(g) are equally applicable to tenancies to which the Act does not apply on the ground of the same being in consonance with justice, equity and good conscience (See: Maharaja of Jeypore v. Rukmini Pattamahadevi 46 I.A. 109 : A.I.R. 1919 P.C. 1. It was also clear law that permanent tenancies are within the rule and are liable to forfeiture if there is a disclaimer of the tenancy or a denial of the landlord’s title. That the disclaimer or the repudiation of the landlord’s title must be clear and unequivocal and made to the knowledge of the landlord is also beyond dispute.
19. Mr. R. Srinivasan the learned Counsel for the respondent drew the attention of the court to the provisions of the Transfer of Property Act and a few of the pronouncements of this Court and contended that the action of sinking of a borewell is an act of waste which is impermissible and no interference is called for with respect to the judgment and decree of the first appellate court. The learned Counsel relied upon the following pronouncements:
1. Krishnamurthy Iyer v. Ramaiah Konar (1983) 1 M.L.J. 246. 2. Rasathal v. Palani Gounder 1980 T.N.L.J. 264. 3. P. Sathayappa Thevar v. V. Sambandam Thevar 1973 T.N.L.J. 14. 4. Subramaniam v. Ammani Ammal .
20. In P. Sathayappa Thevar v. V. Sambandam Thevar 1973 T.N.L.J. 14, Kailasam, J. held that raising of single crop in a double crop land would adversely affect the land and it will be an injury to the land value. This judgment is of no assistance in deciding the points raised in this appeal.
21. In Rasathal v. Palani Gounder 1980 T.N.L.J. 264, Varadarajan, J. had occasion to consider a case where the tenant had dug a pit and removed the earth which has been found to be fertile and held that the act of the tenant in digging a pit T x 6′ 6″ foot and removing 45.50 cu.ft fertile earth is an act destructive of, or injurious to the land and such an injury to even a portion of the land will be sufficient to hold that the tenant is guilty of committing an act of waste and is liable to be evicted under the provisions of Section 3(2)(b) of the Tamil Nadu Cultivating Tenants Protection Act, 1955.
22. In Subramaniam v. Ammani Ammal , Thanikkachalam, J. after referring to Krishnamurthy Iyer v. Ramaiah Konar (1983) 1 M.L.J. 246 : 96 L.W. 26, held that digging a pit in the land in question and the using the earth for manufacturing bricks would constitute an act of waste or injury to the land and the tenant is liable to be evicted under Section 3(2)(a) and (b) and (c) of Tamil Nadu Act XXV of 1955.
23. In Krishnamurthy Iyer v. Ramaiah Konar (1983) 1 M.L.J. 246 : 96 L. W. 26, it was held as follows:
Where fertile cultivable agricultural land has been dug up for the purpose of removing the earth therefrom to form a kalam, such an act is really destructive of or injurious to the land in that the area occupied by the pond cannot be put to either agricultural or horticultural use or purposes. Therefore, the admitted digging up of the pond by the respondent and using the earth therefrom for the purposes of providing a kalam would undoubtedly attract Section 3(2)(b) as well as Section 3(2)(c) of the Act.
All the above pronouncements relate to the acts of waste which a tenant had committed on the tenancy land and for such injurious act, the tenant is liable to be evicted in terms of the Tamil Nadu Cultivating Tenants Protection Act, 1955.
24. Section 108 of the Transfer of Property Act prescribes for the rights and liabilities of lessor and lessee. Mr. B. Ramamoorthy heavily relied upon Sub-sections (o) and (p) of Section 108 of the Transfer of Property Act in support of his contention that the principles at- least could be applied and the suit has to be dismissed. Sub-section (o)of Section 108 of the Transfer of Property Act enables a lessee of an non-agricultural property/land to use the land and its products as a person of ordinary prudence would use them as if they were his own and he shall not use the property for a purpose other than that for which it was leased or fell timber, pull down or damage them belonging to the lessor or work or mines or quarries unless it was specifically granted as such an act would be destructive or permanently injurious (hereto. In the present case it is admitted that there is no agreement between the parties. Nor such an agreement has been pleaded, nor been established by the defendant.
25. As a general rule the grant of lease even if a permanent one, it does not carry with it the right to minerals, in the absence of an express contract to the contrary. It is admitted in the present case that the land has been leased for agricultural purpose to raise paddy and other cultivation from time to time. The construction of a tank upon a agricultural holding is not a destructive or a permanently injurious act as has been held in Madho Lal v. Sheo Prasad I.L.R. 11 All. 419.
26. In the present case the terms of the original lease neither has been pleaded nor Gas been p roved and it is admitted that the lease commenced long ago in the present case, being a oral lease. It is not further disputed that the lease of the agricultural land in question commenced during the defendant’s grandfather’s time and it continued continuously during the defendant’s father’s time and as of now. It is admitted that the defendant is a cultivating tenant and dispossession or eviction of cultivating tenant could be made only under the provisions of the Tamil Nadu Cultivating Tenants Protection Act, 1955. Both the parties are unable to spell out as to what are the terms and conditions or stipulations subject to which the agricultural land was given on lease or taken on lease for cultivation. It is admitted that the suit land was included in the Ayacut and it has got the mamool source of irrigation and only for the first time a bore-well is sunk by the defendant and the plaintiff had raised objections at the earliest opportunity. As already pointed out the provisions of the Transfer of Property Act has no application to leases of agricultural lands. The borewell made in the present case is a permanent one and it is contrary to the principles defined in Section l08(p) of the Transfer of Property Act.
27. In Doraikannu Ammal v. T. Ramaswami Mudaliar A.I.R. 1940 Mad. 32, the lessee of an agricultural land for laying out a flower garden erected cattle sheds and his assignee later erected in its place dwelling houses and other masanry structures. The Division Bench consisting of Leach, C.J., and Kunhiraman, J. held that the lessor was entitled to an injunction requiring the demolition of the house as well as the other buildings. However, in the present case, the borewell with which this Court is concerned it was contended by the learned Counsel appearing for the defendant is not injurious to the leasehold land, but it is a development and for better enjoyment of the leasehold land and therefore no injunction could be granted. Though the sinking of borewell is unauthorised, it will not constitute a ground for eviction under the provisions of the Tamil Nadu Cultivating Tenants Protection Act.
28. Attention of the court was drawn to a decision of the Andhra Pradesh High Court reported in Punnam Satyanarayana v. Vegosina Narayana Raju (1964) 1 An. W.R. 337, where a tenant constructed among other things two brick walls in the leasehold land and the landlord brought a suit seeking for the removal. A learned Judge of the Andhra Pradesh High Court refused the injunction holding thus:
As the defendant has been found to be a lessee of the plaintiff, I do not think the mandatory injunction for demolition of the walls should be issued. It is not shown that the erection of these walls constituted an act of waste; nor is it shown that it will not be possible for the defendant when his lease terminates or when he is evicted, to restore the property to the plaintiff in the same condition in which it was taken by him on lease from the plaintiff. The decision does not consider whether the act of the tenant was in violation of any covenant of the lease or whether the structure was a permanent one and it also makes no reference to Section 108(p) or to any of the earlier decisions bearing on the question. If the decision can be constructed as covering the point in the present case I do not find it possible, with great respect, to agree that for breach of the term of a lease prohibiting the construction of a permanent structure either in itself or by virtue of Clause (p) of Section 108, a mandatory injunction should not issue or that it could issue only where the tenant is unable to restore the property to the landlord in the same condition in which it was taken by him at the time of the lease. In my view, there is no reason why the landlord’s right under Section 108(p) should be abridged in this manner or the tenant should be licensed to commit breach of the covenant. The tenant’s duty in this respect, is correlated to the landlord’s right and the breach of that duty clearly gives the landlord an enforceable right. I find no principles to suspend that right till the time he evicts the tenant. With great respect, 1 prefer the decisions cited earlier which have held that the landlord is entitled to an injunction.
29. It is useful to refer to the decision of this Court in Ismai Kani Rowthan v. Nazarali Sahib 14 M.L.J. 25 : 27 Mad. 211. It was laid down that the Transfer of Property Act substantially reproduce the law as it stood before, and the lessor has an option either to take the building or to pay compensation for it or if he is unwilling to pay the compensation to allow the tenant to remove the building and in that context it has been held that there is no reason why during the continuance of the lease if the landlord objects to the erection of permanent structures those permanent structures should not be removed. The decision in 27 Mad. 211, was relied upon by a Division Bench of the Patna High Court in Chhedi Manjhi v. Mahipal Bahadur A.I.R. 1951 Pat. 600 and it has been held thus:
It is no more the contention of the defendants that they had acquired any permanent right in the land and as such, they could not construct any permanent structure on the land. Clause (p) Section 108, Transfer of Property Act, lays down that the lessee cannot without the lessor’s consent erect on the property any permanent structure except for agricultural purposes and Clause (h) of Section 108, after amendment is in the following terms: “the lessee may, even after the determination of the lease remove, at any time whilst he is in possession of the property leased out not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it.” As was pointed out by the Madras High Court in Ismai Kani Rowthan v. Nazarali Sahib 14 M.L.J. 25 : 27 Mad. 211, the rules laid down by the Transfer of Property Act substantially reproduce the law as it stood before and the lessor has an option either to take the building or to pay compensation for it, or if he is unwilling to pay the compensation to allow the tenant to remove the building. And there is no reason why, during the continuance of the lease, if the landlord objects to the erection of permanent structures, those permanent structures should not be removed. If there is no waiver or acquiescence and if the equitable doctrine of estoppel by acquiescence cannot be invoked, then Clause (p) of Section 108 must operate and the lessee cannot be allowed to construct permanent structures except for agricultural purposes.
30. In Sheodayal v. Daluram A.I.R. 1965 Pat. 413, it has been held that a lessee is entitled to enjoy the property, which imposes that he is entitled to make such use of the premises let out to him as may be reasonable and the lessee is bound to return the property to the lessor in as good as condition as it was in at the time when it was put in his possession and therefore it follows that the lessee cannot return the property in a worse condition but there is no bar to return the property in as good a condition as it was in or in a better condition. In the said case the tenant had taken electric connection in order to improve his convenience and it was held that such taking of electric connection cannot be said as if the lessee is not entitled to take electric connection merely because the premises is not his own, but was taken on lease by him. The Patna High Court has taken the view that the said improvement made by the tenant to premises does not amount to a breach of the condition of the tenancy and had taken the view that it is an improvement made by a tenant and does not amount to waste. In that context it has been held thus:
Mr. De has himself referred to Section 105 of the Transfer of Property Act which lays down, among other things that, “a lease of immoveable property is a transfer of a right to enjoy such property…. “The lessee is, in view of the definition of ‘lease’ in this section itself, entitled to enjoy the property. This means that he is entitled to make such use of the premises let out to him as may be reasonable. Mr. De has also referred to portions of Clauses (m) and (o) of Section 108 of the Transfer of Property Act. I quote only those portions:
(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable were and tear or irresistible force.
(n) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased.
On the basis of the passages quoted above, Mr. De has argued that the tenant must return to the landlord, on the expiry of the tenancy, the leased property in as good a condition as he took it and that he is not entitled to make any additions or alterations in the premises even if that would amount to improvement. In my judgment, there is no substance in this argument. The very fact that it has been mentioned in Clause (m) that the lessee is bound to return the property to the lessor in as good a condition as it was in at the time when it was put in his possession shows that he cannot return the property in a worse condition; but there is no bar to his returning the property in as good a condition as it was in or in a better condition. The portion of Clause (o) which I have quoted shows without any doubt that the tenant can use the property as his own in the sense that he cannot allow it to be damaged or in any way harmed. If he would have taken electric connection in order to improve his convenience in case the premises were his own property, there is nothing in this Clause to show that he is not entitled to take electric connection simply because the premises were not his own but were let out to him.
31. Attention of this Court was drawn to to one of the earliest decision of this Court reported in RMCT Ramanathan Chetty v. Raja Baskara Sethupathy Jamindar of Ramnad 3 M.L.J. 185, wherein a Division Bench of this Court held that an occupancy tenant of an agricultural land is not entitled to erect buildings upon it for other than agricultural purposes except with the permission of the Jamindar and the landlord is entitled to permanent injunction though the tenant was prepared to pay the usual rent. The Division Bench consisting of Muthuswamy Aiyar and Handley, JJ. held that a person who has permanent right of occupancy in agricultural land has got a right to put up building for agricultural purposes and the Division Bench held thus:
On the other hand Meux v. Cobley (1892) L.R. 2 Ch. 253, is the case in point as illustrating the principles which regulates the rights of tenants having agricultural holdings. It is therefore distinctly laid down that the question on which the decision should rest in such a case as this, is whether the act done by the tenant is consistent with the purpose for which the land was demised. The pleader for the appellant also relies on the decisions in Nyamuthooliah Ostayur v. Gobind Churn Dutt 6 W.R. 40 (Rulings under Act X of 1859) an Hedayutoonissa Begum v. Shib Dyal Singh 8. W.R. (C.R.) 512. These decisions, however, have not been followed in later cases nor do we see our way to reconcile them with the principle that where a right of property is infringed it is a sufficient injury to entitled a person to sue without alleging or proving special damage. Another contention is that no specific relief or injunction ought to have been granted in this case and that the injury, if any, caused by tenants’ act may be adequately compensated for by an award of damages. The right in question is an interest in immovable property and Zamindar is therefore entitled to such specific relief as may be necessary to vindicate his right. As pointed out by the District Judge there is also no definite standard by which the compensation that ought to be awarded for prospective injury can be measured, the rent payable to the Zamindar depending on a number of circumstances which it is not possible to foresee. We may also observe that by the appellant altering cultivation lands into a pleasure house, the Zamindar is placed in a position worse than that which he would otherwise occupy as regards the several rights created in his favour by Act VIII of 1865. We are not therefore prepared to accede to this contention.
As regards the particular land in dispute the admission that appellant is a tenant with occupancy right is now made without any reservation, although the District Munsif refers to a reservation in paragraph 15 of his judgment.
The decision of the courts below is correct and we dismiss this second appeal with costs.
32. In the present case the lease of agricultural land is admittedly for raising crops and it is not as if a structure has been put up by the tenant which would result in diminution of the area of cultivation on the other hand a bore well has been sunk by the tenant, of course without the permission of the landlord, and the portion utilised for the purpose of the borewell is only negligible. But the user of the borewell is for the purpose of the agricultural land it cannot be said it is for purposes other than for which the land was let out. The object of sinking of a borewell is in furtherance of the object of raising a crop as the bore-well could supplant the water supply during scarcity when mamool irrigation source fails and the lessee could draw water from the borewell and raise crop in the suit land. On a consideration of the entire facts, it cannot be said that the lessee’s act in sinking a well, even though it is without the consent of the landlord, is an act of waste which would dimunish the value of the land or diminish the extent of area of cultivation notably and the purpose for which the bore well has been sunk is only for effective cultivation of the suit land and it is permissible.
33. It is to be pointed out that the lessee has no right to dig a tank on the property demised for agricultural purpose and if the digs a tank the lessor is entitled to compel the lessee to fill it up or obtain in the alternative the cost of filling up the tank himself. It has been held in Kusum Kamini Debya v. Raja Jagdish Chandra Deo Dhabal Deb A.I.R. 1941 Pat. 13, as follows:
The rights and obligations of the lessor and lessee created by Section 108, Transfer of Property Act, are in many ways similar to those of a lessor and lessee under the usual form of English lease, and it is for that reason and that reason only that I have referred to these English cases. They can in no way be regarded as authorities but they are of some assistance in arriving at a conclusion as to the rights of a tenant in India in the soil of land leased to him.
In my judgment having regard to the decisions of their Lordships of the Privy Council and the provisions of Section 108, Transfer of Property Act, I am bound to hold that the lessee under a lease such as the one existing in this case, has only a reasonable right of user in the soil and has no proprietary interest therein or in anything which forms part of the soil. These surface stones did, in my view, form part of the soil, and that being so, they could not be sold to third parties.
34. It is to be pointed out that voluntary waste may result in and deserve preventive injunction, but ameliorating waste, though voluntary, being an improvement of the demised property is not per se actionable unless it is established that the lessor has suffered substantial damage as a consequence thereof. If ameliorating waste as in the present case being not prejudicial to the lessor on the facts of the present case, the act of the lessee in sinking a bore well does not constitute waste which may be restrained by an injunction. Whether in a given case voluntary waste is an ameliorating waste has to be decided on the facts of each case and the criteria being whether the user of the land has been diverted to purposes other than those for which it was let. At the same time, it must be made clear that the lessee of an agricultural land has no right to put up permanent building upon the demised property and such a limited construction or structure is permissible only for agricultural purposes.
35. On the facts of the present case, it cannot be said that by sinking a borewell, the act of the lessee has resulted in reduction of market value or utility of the land demised and therefore it could be safely held that the act of the lessee, though a voluntary waste, it is an ameliorating waste which would increase the utility and value of the land. Therefore, it follows that the plaintiff-lessor is not entitled to a decree for injunction as prayed for as the lessee has got a right to continue in possession till he is evicted by due process of law.
36. The lessee herein being a protected tenant, could be evicted only in terms of the provisions of the Tamil Nadu Cultivating Tenant’s Protection Act, 1955 which also provides act of waste, as a ground for eviction.
37. This Court has already taken the view that sinking of a borewell to supplant water supply for irrigation being an ameliorative waste will not constitute a ground for eviction and therefore the plaintiff is not entitled to injunction. However, it is made clear that in a given case where the lessee digs a large well which result in reduction of area of cultivation or exploits the mineral or the utility of the land is changed or the land is allowed to lie fallow, the lessee is always at liberty to proceed either for eviction or for damages or for an injunction. This is not the case here.
38. In the present case, the appellate court had proceeded on the surmises that the lessee being a statutory tenant, the provisions of the Transfer of Property Act, in particular Clauses (o) and (p) of Section 108 of the Act, is not applicable and it had taken the view that without the consent of the lessor the lessee has no authority to sink a borewell. The appellate court had further proceeded on the sole ground that the lessee had sunk a borewell without the consent of the lessor and therefore the lessor is entitled to an injunction. This view of the appellate court cannot be sustained as the appellate court had not taken into consideration as to whether the sinking of a borewell is an ameliorative waste? and whether it is for development or betterment of the tenancy land though the tenant is a statutory tenant who is protected by the provisions of the Tamil Nadu Cultivating Tenants Protection Act. In the circumstances, this Court has to necessarily interfere with the judgment and decree of the first appellate court. At the same time, it is made clear that the defendant-lessee will not be entitled to sink an additional borewell or a new well even if the suit borewell fails or if it does not get copious water supply as it may result in reduction of area of cultivation and it will result over-exploitation of the underground water source. It is also made clear that the defendant will not be entitled to ask for any payment or compensation for the borewell in the event of the defendant being evicted on any ground that is open to the landlord under the Tamil Nadu Cultivating Tenants Protection Act.
39. This Court records the valuable assistance rendered by Mr. R. Srinivasan, learned Counsel appearing for the respondent and Mr. B. Ramamoorty, learned Counsel appearing for the appellant.
40. In the foregoing circumstances, the judgment and decree of the first appellate court is set aside and that of the trial court is restored for different reasons. The second appeal is allowed, but without costs.