The provisions of the Transfer of Property Act, including Sec. 108(o) and (p), do not apply to agricultural leases, and the sinking of a borewell by a cultivating tenant is not an act of waste, but rather an act of development.

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 Sec. 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 Sec. 108 of the Transfer of Property Act has no application to the agricultural leases, in terms of Sec. 117 of the Transfer of Property Act. Sec. 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 Sec.117 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 Sec. 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 Sec.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. Oncoming 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 bore well 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 underground 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 dat