- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.351/1991 Shri Vithal Anaji Tambe, aged 58 yrs., occu.agril. r/o Dadh Bk. Tq.Shrirampur Dist.Ahmednagar. ...Appellant.. (Org.defendant) Versus 1. Anaji Ahilaji Tambe, aged 37 yrs., 2. Sarjerao Ahilaji Tambe, aged 47 yrs., 3. Ahilaji Anaji Tambe, aged 61 yrs., All agriculturists of village Dadh Bk. Tq.Shrirampur Dist.Ahmednagar. ...Respondents... (Org.plaintiffs) ..... Shri C.K. Shinde, Advocate for appellant. Shri P.B.Vikhe, Advocate for respondent nos.1 to 3. ..... - 2 - CORAM: K.U. CHANDIWAL, J. DATE: 19.06.2009 ORAL JUDGMENT: 1] Heard both the counsel extensively. 2] The concurrent findings are subject of challenge in the second appeal at the behest of defendant. For the purpose of convenience, the parties are referred to as plaintiffs and defendant. 3] On 4.10.1991, the appeal was admitted without formulating any substantial question of law. However, while now dealing with the matter, following substantial question of law could be the controversy: Whether in the light of Section 108 (d) of the Transfer of Property Act, during continuance of the lease, an accession is made to the property, and whether it will be a joint accession to the lessors inter se ? 4] There is no dispute between the parties about their respective shares in the land to the extent of plaintiffs to be 3 Acres 34 Gunthas, defendant to the extent of 3 Acres 9 Gunthas and Narayan to the extent of 3 Acres 8 Gunthas since the revenue record supports the said position and it has been implemented from 1961. The three brothers had entered into a lease agreement with Gadekars in the year 1966 for 7 Acres 20 Gunthas indicating therein that the land to the extent of 2 Acres 20 Gunthas of each of the three brothers was subject of said lease, which provided compensation of Rs.3,000/- to the lessors. - 3 - 5] During the continuance of the lease, Gadekars had dug a well in the leasehold property, which indeed was in the portion of defendant Vithal. After termination of the lease, it was canvassed by plaintiff Ahilaji that the well, though dug in Vithal’s share of the property, the joint rights in lifting the water from the said well, will prevail as such digging of the well was during continuance of the lease. 6] Both the Courts took a view in the light of provisions of Section 108 (d) of the Transfer of Property Act, which as under, “If during the continuance of the lease an accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;”, that the nature of enjoyment of the well water should have been equal between plaintiffs, defendant and Narayan. The crucial point between the parties and in the light of Section 108(d) of the Transfer of Property Act is, whether such rights, having effect of accession, are available between the lessors inter se. Needless to add, there is no controversy about the existence of the well water between the lessees at one part and the lessors jointly at other part, the controversy is about sharing the well water amongst the lessors. Reading the Section 108(d), it can be said that it speaks for providing such rights to the lessors in the property. Benefits, thus, accrued by virtue of development carried by the lessee will naturally go to the lessor. However, since the very commencement of the lease agreement in the year 1966, specific land admeasuring 2 Acres 20 Gunthas of each of the brothers was the subject of lease, consequently it could not be said that the property was again reunited or merged between the lessors – the brothers and the lessees. The lessors, as the owners of the property, did never mean to have such reunion as is crystallised in the revenue record and further entries after termination of - 4 - such lease. In between the lessors naturally, it will be the person in the instant case – the defendant Vithal, who will be the beneficiary of the existence of well as it was dug in his share of the property. It is fortunate that the well had fetched sufficient water. If there could not be any water to the well, the sufferer would have been Vithal, and the land to that extent would have been put to waste for cultivation. This scenario also can not be obliterated. The findings of both the Courts below that there were expenses incurred by plaintiffs for installation of electric motor may be correct, but that by itself will not provide right to revert back to the lease between Gadekars and the plaintiff – Ahilaji, Vithal and Narayan. It will be flowing independently between the plaintiff – Ahilaji and defendant Vithal. The observation of both the Courts below in this situation does not depict the correct legal position and consequently the substantial question of law formulated hereinbefore is answered as under. The accession carved out u/s 108 (d) of the Transfer of Property Act flows between the lessors and the lessee. It will not have its adverse impact on the rights of the lessors and particularly when they have different shares in the property. Second appeal is allowed. The judgments under challenge are set aside. There shall be no order as to costs. (K.U. Chandiwal, J.) ndk/c19609