1. The question is, whether a mulgeni tenant is entitled to cut down trees in existence at the time of the grant of the lease. There is no evidence worth the name of any local usage. The District Manual (see Volume I, page 130) throws no light on the matter. If the lease is agricultural, Chapter V of the Transfer of Property Act has no application. But we think we are entitled to rely upon the analogy of the Act. See Vasndevau Nambudripad v. Valia Chathu Achan 24 M.k 47. Clause (a) of Section 108 prohibits a lessee from felling timber and Clause (h) authorises the lessee to remove all things which he has attached to the earth, provided he leaves the property in the state in which he received it. Lease is defined by Section 105 of the Act to include one in perpetuity. It follows from the foregoing provisions that the defendants had no authority to cut down the jack trees which are both timber and fruit trees. 'Cutting down, destroying or tapping all trees which, are timber either by the general law or by the particular custom of the country, is waste.' See Woodfall's Law of Landlord and Tenant, 16th Edition, p. 660. The plaintiffs are, therefore, entitled to recover damages.
2. It has, however, been argued on the authority of Sharoda Soondari Debia v. Gonee Shaik 10 W.R. 419 that the above view is erroneous. The decision in that case proceeded on the ground that the lessor referred to had no reversionary interest in the land or in the trees which were growing on it. That decision, in our opinion, has no application. The question has been discussed in several oases, whether an occupancy tenant has or has not any right to the trees on the holding and whether he is entitled to cut them, and different views have been entertained. Bodda Goddappa v. Maharajah of Vizianagaram 30 M.k 155 Goluck Rana and Ors v. Naboo Sundaree Dossee 21 W.R. 344 and Dcoki Nandan v. Dhian Singh 8 A.k 467. But an occupancy tenant is not a lessee, and whatever rule of law may be applied with reference to the rights of an occupancy tenant to the trees on his holding it has no necessary application to the case of a lessee for a term or in perpetuity. There is no question of injury to the reversion in the former case which is one of divided ownership. The second appeal is dismissed with costs.